Ingram v. Commissioner of Social Security
MEMORANDUM AND OPINION ORDER. The Commissioner's decision is reversed and remanded solely for the calculation of benefits from the date of Plaintiff's claimed onset of disability, February 10, 2007. See text of Order. Signed by Senior Judge Donald E OBrien on 9/26/12. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
DENISE E. INGRAM,
Memorandum and Opinion Order
MICHAEL J. ASTRUE,
Commissioner of Social
INTRODUCTION AND BACKGROUND
This matter is before the Court pursuant to Denise E.
benefits under Title II of the Social Security Act (the
“Act”), 42 U.S.C. §§ 401 et seq.
Docket No. 2.
has jurisdiction pursuant to 42 U.S.C. § 405(g).
Plaintiff meets the insured status requirements through
June 30, 2012, and filed for disability on March 29, 2007,
Plaintiff claims disability due to Septic Shock,1 Type 2
“Septic shock is a serious condition that occurs when an
overwhelming infection leads to life-threatening low blood
Septic shock, PubMed Health, available at
visited September 25, 2012.
Diabetes,2 and Hypoventilation Syndrome.3
Tr. 16 and 84.
Commissioner of Social Security ("Commissioner") initially
Plaintiff’s request for reconsideration was denied on November
On August 4, 2009, Plaintiff appeared
before a Social Security Administrative Law Judge ("ALJ").
In a decision dated October 30, 2009, the ALJ
denied Plaintiff disability.
On March 29, 2011,
the Appeals Council denied Plaintiff’s request for review.
On May 24, 2011, Plaintiff timely filed her Complaint
with this Court.
Docket No. 2.
Plaintiff was born on July 5, 1954.
At the time
of the administrative law hearing, Plaintiff was 55 years old
“Type 2 diabetes is a lifelong (chronic) disease in
which there are high levels of sugar (glucose) in the blood.
Type 2 diabetes is the most common form of diabetes.” Type 2
diabetes, PubMed Health, available at http://www.ncbi.nlm.
nih.gov/pubmedhealth/PMH0001356/, last visited September 25,
Hypoventilation Syndrome “is believed to result from
both a defect in the brain’s control over breathing, and
excessive weight (due to obesity) against the chest wall.
This makes it hard for a person to take a deep breath. As a
result, the blood has too much carbon dioxide and not enough
oxygen. People with OHS [Obesity Hypoventilation Syndrome]
are often tired due to sleep loss, poor sleep quality, and
chronic low blood oxygen levels (hypoxia).”
hypoventilation syndrome (OHS), MedlinePlus, available at
last visited September 25, 2012.
and weighed 331 pounds while standing only 5 foot and 1/4
Index (BMI) of 64.6.
This places Plaintiff at a Body Mass
A BMI of 30 or greater is
considered obese, and a BMI of 40 or greater is considered
substantial gainful activity (SGA)4 level from 1984 to 2007.
Starting in 2003, Plaintiff began working as a
She last worked at the SGA level in
precipitating her current disability claim on February 13,
In May of 2008, more than a year after the
onset of her initial illness, Plaintiff returned to her job as
a telemarketer, working part time below the SGA level.
School records indicate Plaintiff had a recorded IQ of 69
in 3rd grade, 80 in the 6th grade, and attended special
In order to qualify for disability, a Plaintiff may not
be working at or above the SGA level.
20 C.F.R. §
The question of whether a person is
working at the SGA level is generally determined by the amount
of money they earn at work, which varies according to
inflation. 20 C.F.R. § 404.1574(a)(1). For instance, for
2011, the SGA level was $1,000.00 per month, for 2012, the SGA
level is $1,010 per month.
Fact Sheet, Social Security,
/colafacts.htm, last visited September 25, 2012.
education classes throughout junior high school.5 Tr. 255-57.
Plaintiff had difficulty learning new programs.
On February 17, 2007, Plaintiff’s husband took her to the
Mercy Medical Center in Mason City, Iowa. Tr. 196. Plaintiff
was suffering from kidney stones and related septic shock.
Due to the severity of her condition, Plaintiff was
placed in the intensive care unit and remained there until
March 4, 2007.
On February 19, 2007, Dr. Levinson
hydronephrosis6 as well as a right renal cyst.
evening, Dr. Levinson performed a cystoscopy7 and implanted a
On February 19, 2007, Plaintiff, because she was
incapable of getting enough oxygen due to hypoventilation
An average score for an I.Q. test is 100.
estimated that between 1 and 3 percent of the population has
an [I.Q.] between 70 and 75 or lower. . . .”
Virginia, 122 S. Ct. 2242, 2245 (2002) (citing A. Kaufman & E.
Lichtenberger, Essentials of WAISIII Assessment 60 (1999)).
Hydronephrosis refers to the “swelling” of a “kidney due
to a backup of urine.”
Unilateral hydronephrosis, PubMed
Health, available at http://www.ncbi.nlm.nih.gov/pubmedhealth
/PMH0001535/, last visited September 25, 2012.
“Cystoscopy is a test that allows your doctor to look at
the inside of the bladder and the urethra using a thin,
lighted instrument called a cystoscope.” Cystoscopy, WebMD,
available at http://www.webmd.com/a-to-z-guides/cystoscopy16692, last visited September 25, 2012.
syndrome, was put on a respirator.
On February 26,
2007, Dr. Dettmer performed a tracheotomy,8 due to Plaintiff’s
hypoventilation syndrome and related respiratory failure. Tr.
On March 13, 2007, Plaintiff was then transferred from
the hospital to the Mercy Rehabilitation Unit where she stayed
until March 21, 2007.
Once released, Plaintiff
continued to be treated by an at home nurse.
“tracheostomy should be considered permanent but could be
evaluated again if substantial weight loss (at least 100
pounds) could be accomplished.”
Mr. Harris specifically noted that
Plaintiff breathed heavily at times during the interview. Tr.
Though Plaintiff was no longer required to be in the
hospital or a rehabilitation facility, she still received
“A tracheotomy is a surgical procedure that opens up the
windpipe (trachea) . . . The term tracheostomy is sometimes
used interchangeably with tracheotomy.
however, tracheostomy usually refers to the opening itself
while a tracheotomy is the actual operation.” Tracheotomy,
Encyclopedia of Surgery, available at http://www.surgery
September 25, 2012.
weekly home health care visits and was limited to going
outside her home once a week.
In a function report dated April 20, 2007, Plaintiff
indicated her daily activities were limited to fixing meals
for herself (generally, cereal and sandwiches), driving a car,
talking on the phone, attempting to do light housework, and
Tr. 200 and 202.
She required help bathing and
had difficulty sleeping due to coughing spells and a need to
use the restroom.
her ability to talk.
Her condition primarily affected
She specifically noted that
she does not talk for long periods of time because she will
She thought she could walk maybe 60 feet
without needing a rest, reported difficulty climbing stairs,
could concentrate for up to an hour at a time, needed to read
something multiple times before understanding it, and had
difficulty understanding the spoken word.
Tr. 205 and 207.
On May 30, 2007, Plaintiff saw Dr. Riesen in relation to
pain in her foot.
Dr. Riesen concluded Plaintiff suffered
from degenerative joint disease in two of the joints in her
He also determined she suffered from
Neuritis is “inflammation of one or more nerves.
characteristic symptoms of neuritis include pain
tenderness, impaired sensation, abnormal circulation
employee, J. Franke, noted that Plaintiff reported being on a
sensitivity to smells, odors, and sprays and had difficulty
breathing due to coughing episodes.
to require help showering and bathing.
On July 30, 2007, Dr. Hunter, a Disability Determination
functional capacity assessment.
determined Plaintiff could lift 10 pounds occasionally and
less than 10 pounds frequently, could stand and/or walk 2
hours in an 8 hour workday, could sit for a total of 6 hours
in an 8 hour workday, and could push and/or pull 10 pounds
occasionally and less than 10 pounds frequently.
Dr. Hunter also determined Plaintiff could climb stairs,
balance, stoop, kneel, crouch, and crawl occasionally.
Despite Plaintiff’s tracheostomy, Dr. Hunter determined
Plaintiff had no communicative limitations, but she should
avoid even moderate exposure to fumes, odors, dusts, gases,
decreased ability to sweat in the distribution of the inflamed
nerve or nerves. Neuritis frequently results from injury of
a nerve just underneath the skin.”
Academic Edition, available at http://www.britannica.com/EB
checked/topic/410590/neuritis, last visited September 25,
poor ventilation, and hazards, such as machinery and heights.
On November 14, 2011, Dr. Wilson, also a DDS
employee, concurred with Dr. Hunter’s findings.
In an adult function report, dated October 8, 2007,
Plaintiff indicated her condition still prevented her from
working outside her home. Tr. 232. Though she was performing
a minimum amount of household maintenance, she was only able
to do so in a piecemeal fashion.
She indicated her
conditions affected her ability to lift, squat, bend, stand,
reach, walk, sit, kneel, talk, climb stairs, speak, and
As previously noted, Plaintiff returned to work at a
below SGA level in May of 2008.
Plaintiff’s employer, Nick
Foley, signed a Declaration, dated June 2, 2009, relating to
Plaintiff’s work performance.
The Declaration reads:
Denise is very motivated and does her
best but she has several difficulties doing
She . . . has difficulty
acquiring the training for a short term
More problematic, since her
problems with involuntary noises from her
tracheostomy and coughing attacks. These
noises and coughing attacks are disturbing
to her co-workers and to customers.
Despite the complaints I have received
regarding Denise’s coughing and involuntary
tracheostomy noises, I continue to provide
her with some part-time hours out of
I think it is important to
provide some opportunities for work for the
disabled in our community.
I try to separate Denise from her coworkers as much as possible although this
attempt at seating her apart from coworkers
Although Denise has been spoken to
about her coughing and involuntary noises
it is our understanding that there is
little that she is able to do to control
She also reported difficulty reading a
newspaper and the need to re-read passages to understand them.
While on the phone at work, she was experiencing
coughing spells and difficulty controlling her voice.
and 52. Though noting the coughing spells were unpredictable,
when pressed by the ALJ, she guessed that she experienced 15
coughing spells a week in a 20 hour work week, and these
coughing spells would last up to 2 minutes at a time.
She also testified that she could walk 5 minutes at a time
before needing to rest and could carry, at most, 10 pounds.
On November 20, 2009, post the ALJ hearing and the ALJ’s
decision but prior to the decision of the Appeals Council,
Susan Faber, an Iowa Vocational Rehabilitation Counselor,
wrote a letter to Plaintiff’s counsel expressing her opinions
related to Plaintiff’s vocational outlook.
Faber determined Plaintiff was “most severely disabled . . .
having limitations in mobility, self care, work tolerance and
Statistics from the Iowa Workforce Center
indicate that Iowa’s unemployment rate is
6.7 for October 2009 and 4.3 for October
Denise participated in the GATB
[General Aptitude Test Battery] . . . and
her scores . . . revealed 93 in general
intelligence, 92 in verbal ability, 102 in
perception, 110 in form perception, 104 in
clerical ability, 83 in motor coordination,
88 in fine finger dexterity and 82 in
manual dexterity. These aptitudes are then
grouped to correspond to an occupational
aptitude analysis and when this was
performed on her scores she had no scores
corresponding to any occupational area.
statistics and her very limited ability to
compete with other job seekers it is felt
that her ability to obtain any other
employment is unlikely locally or on a
national level. From her own history it
situation is tenuous given her need to
frequently cut customers off so they cannot
hear her choking and also the carry over
noise to other telemarketers and their
customers is also annoying.
This counselor knows of no other
interruptions in a work environment.
Clearly[,] she is not functioning at
substantial gainful activity at gross wages
of $720 a month.
THE ALJ’S DECISION
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
individual is disabled and entitled to benefits.
The five successive steps are:
20 C.F.R. §
of whether a plaintiff is engaged in “substantial gainful
activity,” (2) determination of whether a plaintiff has a
“severe medically determinable physical or medical impairment”
that lasts for at least 12 months, (3) determination of
whether a plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
requirements of his past relevant work, and (5) determination
of whether, given a Plaintiff’s RFC, age, education and work
experience,” a plaintiff can “make an adjustment to other
20 C.F.R. § 404.1520(4)(i-v).
At step one, if a plaintiff is engaged in “substantial
gainful activity” within the claimed period of disability,
The ALJ determined Plaintiff had not
engaged in substantial gainful activity since her alleged
At step 2, if a plaintiff does not have a “severe
medically determinable physical or mental impairment” that
lasts at least 12 months, there is no disability.
The ALJ determined Plaintiff had the
following severe impairments:
obesity, diabetes mellitus,
tracheotomy status post septic shock, chronic respiratory
degenerative joint disease of the left foot with neuritis.
At step 3, if a plaintiff’s impairments meet or medically
equals the criteria of an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1, and last at least 12 months, a
plaintiff is deemed disabled.
20 C.F.R. § 404.1520(e).
combination of impairments that met or medically equaled a
Before proceeding to step 4 and 5, the ALJ must determine
a plaintiff’s RFC.
RFC is the “most” a person “can still do”
despite their limitations.
20 C.F.R. § 404.1545(a)(1).
ALJ determined Plaintiff had the following RFC:
to perform sedentary work as defined in 20
C.F.R. § 404.1567(a) except she can never
climb ladders, ropes, or scaffolds; she can
only occasionally balance, stoop, kneel,
crouch, and crawl; she can only rarely to
occasionally climb ramps or stairs; she
should avoid concentrated exposure to
extremes of cold and heat, and to humidity,
e.g., she cannot perform outdoor work.
Additionally, the claimant should avoid
even moderate exposure to fumes, odors,
dusts, gases, poor ventilation, etc. and to
hazards, such as unprotected heights and
moving machinery. Due to the effects of
her tracheotomy such as fatigue, she cannot
work fast-paced assembly line work but
rather can perform goal-oriented work; and
unscheduled breaks per eight-hour workday
of one to two minutes each (for a total of
up to twelve minutes a day).
At step 4, if, given a plaintiff’s RFC, a plaintiff can
determined that, based on the testimony of a vocational expert
("VE"), Plaintiff could do her job as a telemarketer at an SGA
level, and, therefore, the ALJ did not proceed to step 5,
i.e., whether, given Plaintiff’s age, education, and work
Plaintiff contends the ALJ erred in three respects:
the VE's testimony did not constitute substantial evidence on
the record as a whole; (2) the ALJ improperly discredited
Plaintiff's subjective allegations of pain; and (3) the RFC
the ALJ assigned Plaintiff failed to account for all of
LAW AND ANALYSIS
benefits, they must demonstrate they have a disability as
defined in the Social Security Act (the “Act”).
defines a disability as an:
inability to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment
which can be expected to result in death or
which has lasted or can be expected to last
for a continuous period of not less than 12
months . . . .
42 U.S.C. § 423(d)(1)(A).
Standard of Review
This Court’s role in review of the ALJ’s decision
requires a determination of whether the decision of the ALJ is
supported by substantial evidence on the record as a whole.
42 U.S.C. § 405(g); Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008). Substantial evidence is less than a preponderance
but enough that a reasonable mind might find it adequate to
Juszczyk v. Astrue, 542
support the conclusion in question.
F.3d 626, 631 (8th Cir. 2008) (citation omitted).
must consider both evidence that supports and detracts from
Karlix v. Barnhart, 457 F.3d 742, 746
the ALJ’s decision.
standard, this Court will not reverse the ALJ, even if it
would have reached a contrary decision, as long as substantial
Barnhart, 390 F.3d 584, 589 (8th Cir. 2004).
Hacker v. Barnhart, 459 F.3d
reasonable “zone of choice.”
934, 936 (8th Cir. 2006) (citation omitted).
This Court may also ascertain whether the ALJ’s decision
is based in legal error.
(8th Cir. 2001).
Lauer v. Apfel, 245 F.3d 700, 702
If the ALJ applies an improper legal
standard, it is within this Court’s discretion to reverse
Neal v. Barnhart, 405 F.3d 685, 688 (8th
Cir. 2005) and 42 U.S.C. § 405(g).
Plaintiff Could Perform Her Past Relevant Work
The ALJ’s determination that Plaintiff could perform her
past relevant work as a telemarketer at an SGA level was
explicitly based on the testimony of a VE.
regulations endorse VEs “as sources of occupational evidence
. . . .”
SSR 00-4p, 2 (citing 20 C.F.R. § 404.1566(e)).
Typically, as in this case, VE evidence comes in the form of
testimony given in response to a hypothetical about a person
with the same RFC as the plaintiff in question.
After thoroughly reviewing the transcript of Plaintiff’s
Administrative Hearing, this Court is persuaded the VE’s
response to the ALJ’s hypothetical was, at best, contradictory
and, more than likely, indicated Plaintiff was unable to
perform her past relevant work at an SGA level.
As such, the
ALJ’s decision that Plaintiff could perform her past relevant
work at an SGA level was not supported by substantial evidence
on the record as a whole.
In the ALJ’s initial hypothetical to the VE, the ALJ
failed to incorporate Plaintiff's need for unscheduled breaks
due to coughing fits, which was included in the ALJ's final
telemarketer on a full time basis.
After this initial hypothetical, Plaintiff’s Attorney
raised the issue of Plaintiff’s coughing fits and difficulty
speaking due to her tracheostomy.
Attorney then asked the VE to consider an individual with the
same limitations as in the first hypothetical but also with a
need to take 12 minutes per work day of unscheduled time to
The VE responded, “[w]ell I suppose, with that amount of
time, at some point, productivity would be an issue, and the
individual may not keep the job.”
The ALJ then
rephrased the same substantive question, and the VE altered
his response to the following:
I’m still going to say yes [they would be
able to perform the job of telemarketer],
because the 12 minutes out of the day could
be considered part of the normal break time
of 15 minutes in the afternoon, 15 minutes
in the morning . . . If you were talking
about, you know, the individual was taking
their 15 minutes break, then . . . there
may come a time . . . when productivity
would be an issue.
The Plaintiff’s Attorney then correctly pointed out that
the question did not hinge on how much time a person would
need to break during the day, but rather, on how often and for
how long a telemarketer could, on an unscheduled basis,
interrupt his or her work to have coughing fits.
Plaintiff’s Attorney then stated,
So I would like you to add to the
hypothetical question the consideration
that it be . . . up to 12 minutes a day of
interruption . . . not just a separation
from the work time, but an intrusion into
the conversation with a customer. Would it
qualifications of a telemarketer?
The VE then responded,
Well . . . I would not recommend that job
for someone that has difficulty talking.
However, it depends on the employer.
Occupational Titles requires that talking
is frequent. If that is consistent with
the employer and the individual has
difficulty talking frequently, then they
would not be qualified for that job.
Clearly, the VE’s testimony was, at best, contradictory,
and, more than likely, the VE indicated Plaintiff would not be
able to perform her past relevant employment at an SGA level
given the limitations explicitly found by the ALJ.
In addition, while an ALJ may rely on testimony from a
VE, the regulations also provide that an ALJ shall “take
administrative notice of ‘reliable job information’ available”
in authoritative publications, including the Dictionary of
Occupational Titles (“DOT”), compiled by the Department of
SSR 00-4p, 2 (citing 20 C.F.R. §§ 404.1566(d) and
“When there is an apparent unresolved conflict
between a VE . . . and the DOT,” an ALJ must elicit a
reasonable explanation for the conflict before relying on the
VE . . . to support a determination . . . about whether a
claimant is disabled.”
SSR 00-4p, 2.
The DOT provides that a telephone solicitor is generally
able to “speak before an audience with poise, voice control,
voice.” DOT, Appendix C, available at http://www.occupational
info.org/appendxc_1.html, last visited September 25, 2012, and
DOT 299.357-014. These skills obviously conflict with someone
with a tracheostomy who must pause to cough up to six times a
workday for 1 to 2 minutes each time.
While the ALJ did ask
the VE whether there was a conflict between his testimony and
the DOT, and the VE perfunctorily responded no, the VE more
determined telemarketing was “the wrong job” for someone with
Even if this Court is
mistaken in characterizing the VE’s ultimate response as
response and the DOT.
Whether the ALJ Decision to Discredit Plaintiff’s
Subjective Allegations was Based on Substantial Evidence on
the Record as a Whole
An ALJ must consider lay observations of a Plaintiff’s
Plaintiff’s subjective accounts of pain or other symptoms. 20
C.F.R. § 404.1545(a)(3).
Based on the general substantial
evidence on the record as a whole standard of review, a
District Court should defer to an ALJ’s determination that a
plaintiff’s allegations lack credibility “as long as the ALJ
explicitly discredits a [plaintiff’s] testimony and gives a
good reason for doing so.”
Wildman v. Astrue, 596 F.3d 959,
968 (8th Cir. 2010) (quotation omitted).
In Polaski v. Heckler, the Eighth Circuit ruled that, in
considering a Plaintiff’s allegations, the ALJ must consider
the Plaintiff’s “prior work record” and “observations by third
parties and treating and examining physicians relating to such
(1) the claimant’s daily activities;
(2) the duration, frequency and intensity
of the pain;
(3) percipitating and aggravating factors;
(4) dosage effectiveness and side effects
of medication; [and]
(5) functional restrictions
751 F.2d 943, 948 (8th Cir. 1984).
The ALJ discounted Plaintiff’s subjective allegation of
disabling limitations on the following bases: (1) Plaintiff’s
daily activities were inconsistent with Plaintiff’s subjective
allegations; (2) the surgery Plaintiff underwent was generally
successful in relieving Plaintiff’s symptoms; (3) treating
Plaintiff; (4) during the hearing, Plaintiff did not exhibit
any difficulty speaking or discomfort; (5) statements from
claimant’s work supervisor that Plaintiff was able to do her
job, despite her limitations, undermined her credibility; and
(6) opinions of the state agency medical consultants did not
support Plaintiff’s subjective allegations.
activities were limited to fixing meals for herself (generally
cereal and sandwiches), driving a car, talking on the phone,
attempting to do light housework, and watching TV.
Plaintiff also indicated she required help bathing.
Apparently, the ALJ felt these activities were
indicative of a person able to perform full-time work on a
A plaintiff’s account of simple, routine daily
activities is not incompatible with a plaintiff’s “contention
that she is unable to hold a full time job.”
518 F.3d 979, 983 (8th Cir. 2008).
Ford v. Astrue,
“[T]he ability to do
activities such as light housework and visiting with friends
provides little or no support for the finding that a claimant
can perform full-time competitive work.”
F.3d 276, 278 (8th Cir. 1995).
Hogg v. Shalala, 45
“[I]t is well settled law that
a ‘claimant need not prove she is bedridden or completely
helpless to be found disabled.’”
Reed v. Barnhart, 399 F.3d
917, 923 (8th Cir. 2005) (quoting Thomas v. Sullivan, 876 F.2d
666, 669 (8th Cir. 1989)).
As previously noted, on February 17, 2007, Plaintiff’s
husband took her to the Mercy Medical Center in Mason City,
The ALJ correctly notes that the surgical
procedures and Plaintiff's extended stay in the hospital and
rehabilitation center resulted in the resolution of her kidney
stones and related septic shock, and her tracheostomy allowed
her to get off a respirator, but it is not apparent how this
undermines Plaintiff’s credibility; these conditions simply
are not at issue.
Plaintiff has never maintained that she is
still suffering from kidney stones and septic shock.
clear Plaintiff's limitations result from her obesity, joint
Plaintiff to be hospitalized.
The ALJ's contention that Plaintiff lacks credibility
limitations is also unpersuasive.
The Plaintiff's treating
physicians were concerned with saving Plaintiff's life, not
her future ability to return to work.
Hypoventilation Syndrome became severe enough for Plaintiff to
require a ventilator in order to breathe while simply lying in
It is neither surprising, nor uncommon, for doctors not
to comment on a plaintiff's functional capabilities in such
situations; Plaintiff was, after all, bed-ridden, and so her
functional capabilities were apparent.
Even after released,
she was visited by a home health care provider weekly.
obvious that an extremely, morbidly obese 55 year old person
with a tracheostomy related to hypoventilation syndrome and
mobility, strength, fatigue, and communication.
treating physicians were interested in treating Plaintiff, not
elaborating upon obvious limitations.
The ALJ's contention that Plaintiff did not exhibit any
difficulty speaking or discomfort during the Administrative
Hearing does not undermine Plaintiff's credibility.
required Plaintiff to push a button before she could be heard,
and the ALJ indicated Plaintiff reported coughing when the
observation during a mere one hour and twenty minute hearing,
it would have been far more reasonable for the ALJ to consider
the Declaration from Plaintiff's supervisor.
noises from her tracheostomy and coughing attacks," which "are
disturbing to her co-workers and to customers."
Clearly, Plaintiff's supervisor, who observed Plaintiff 20
hours a week, was in a much better position to corroborate or
negate Plaintiff's testimony related to her involuntary noises
constitute substantial evidence on the record as a whole. See
SSR 96-8p, 6 ("In instances in which the adjudicator has
observed the individual, he or she is not free to accept or
reject that individual's complaints solely on the basis of
such personal observations.")
statements undermine her credibility is a case of selective
editing. Upon reviewing Plaintiff's supervisor's Declaration,
this Court is persuaded that it corroborates, rather than
detracts, from Plaintiff's credibility.
In pertinent part,
the Declaration states, "I continue to provide her with some
part-time hours out of compassion. I think it is important to
provide some opportunities for work for the disabled in our
It is clear from the supervisor's
statements that Plaintiff was not doing the work expected of
other employees and would not be able to compete with others
environment "is not substantial evidence supporting a denial
of disability benefits"
1999 (8th Cir. 1983).
Van Horn v. Heckler, 717 F.2d 1196,
While Plaintiff's current part-time
employment indicates Plaintiff can do, and actually is doing,
her past relevant work in a sheltered environment, this does
not somehow undermine her credibility in relation to her
allegations that she is incapable of working on a full-time
Finally, the Plaintiff has never contended that she
cannot perform her job on a part-time basis, and so it is
unclear how this undermines her credibility.
As to the ALJ's contention that the opinions of the state
agency medical consultants undermine Plaintiff's credibility,
consultants’ opinions in a handful of respects.
she has communicative limitations and issues with fatigue, and
the state agency medical consultants failed to mention or
consider these limitations.
Since there is no information on
Plaintiff's subjective allegations, outside of the opinions of
the state agency medical consultants, and there is plenty of
evidence supporting Plaintiff’s allegations, it is unclear how
the state agency medical consultant opinions can serve to
undermine Plaintiff’s credibility; after all, these state
agency medical consultants were non-examining physicians who
were literally incapable of making additional substantive
observations of the Plaintiff’s abilities or limitations.
synthesizing medical evidence for vocational purposes, and,
because they never meet or observe the plaintiff in question,
are not in a position to undermine a plaintiff's credibility
in relation to his/her subjective allegations so long as those
allegations could reasonably be expected to arise from the
plaintiff’s documented impairments; only when a plaintiff's
impairments or relevant observations of record is a nonexamining
credibility of a Plaintiff's subjective allegations.
Syndrome, morbid obesity, and has a tracheostomy, and these
subjective allegations of fatigue and communication problems.
In addition, the record contains notes from a DDS employee
interview, and Plaintiff's Supervisor's Declaration indicates
Plaintiff makes disturbing noises and has coughing fits due to
her tracheostomy on a regular basis.
In conclusion, Plaintiff has consistently reported her
limitations, and those limitations are entirely consistent
supporting or detracting from those allegations.
the ALJ's determination that Plaintiff was only partially
credible is not supported by substantial evidence on the
determination constitutes clear error.
Whether the RFC the ALJ Assigned Plaintiff Failed to
Account for All of Plaintiff's Limitations
whether a plaintiff is disabled.
It has been referred to as
the “most important issue in a disability case . . . .”
Malloy v. Astrue, 604 F. Supp. 2d 1247, 1250 (S.D. Iowa 2009)
(citing McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.
A plaintiff’s RFC is a function-by-function
assessment of the most a plaintiff can still do despite his or
S.S.R. 96-8P, 1.
When determining RFC, the
ALJ must consider all of a plaintiff’s impairments, even those
which are not deemed severe, as well as limitations which
result from symptoms, such as pain. § 404.1545(a)(2) and (3).
RFC is “not the ability merely to lift weights occasionally in
a doctor’s office . . . it is the ability to perform the
requisite physical acts . . . in the real world.”
Supp. 2d at 1250 (quoting 683 F.2d at 1147).
In this case, the ALJ overlooked some of Plaintiff's
important functional limitations.
For instance, though the
unscheduled breaks per day for 1 to 2 minutes at a time due to
coughing fits, the ALJ failed to assign limitations related to
Plaintiff's problems controlling her voice and her propensity
to make inadvertent noises her Supervisor characterized as
In the real world, where many jobs
limitations, clearly affecting an individual's employability.
In addition, though the ALJ recognized Plaintiff became
fatigued because of her tracheostomy, he only indicated this
prevented her from "fast-paced assembly line work."
Plaintiff indicated that she could only walk for five minutes
before needing to rest and had difficulty climbing the small
amount of stairs leading from her sidewalk to her front door.
Plaintiff also testified that her then part-time work schedule
was exhausting, and she had difficulty sustaining efforts to
complete common, simple household chores.
understanding of fatigue views it as something which causes
discrete exertional limitations, such as an inability to do
understanding recognizes that fatigue builds throughout a day,
exacerbating all of an individual's pre-existing functional
understand how Plaintiff, an extremely, morbidly obese women
with a medical condition that prevents her from getting enough
oxygen would be incapable of sustaining any work-related
activity for 8 hours a day, 5 days a week.
limited intellectual abilities.
As previously noted, in 3rd
grade, Plaintiff scored 69 on an IQ test, and, in the 8th
grade, she scored an 80.
The record also indicates Plaintiff
attended special education classes in junior high school.
concentrate for up to an hour at a time, needed to read
something multiple times before understanding it, and had
difficulty following the spoken word.
Plaintiff had "difficulty acquiring training for short term
established and undisputed mental limitations is significant.
A telephone solicitor's (telemarketer’s) abilities, along with
the ability to “[s]peak before an audience with poise, voice
control, and confidence, using correct English and wellmodulated voice,” includes the ability to “[r]ead a variety of
novels, magazines, atlases, and encyclopedias;” and an ability
Appendix C: Components of the Definition Trailer,
visited September 25, 2012.
While this Court recognizes the
DOT outlines the maximum requirements for each position, the
Plaintiff’s educational background and testimony related to
her learning abilities places her well below the levels
outlined in the DOT.
Overall, the RFC the ALJ assigned to Plaintiff failed to
account for a number of Plaintiff's limitations.
It is clear the ALJ erred in several respects.
particular, at step four of the sequential evaluation process,
the ALJ erroneously relied on the testimony of a VE though
that testimony was, at best, contradictory and, more than
likely, indicated Plaintiff was incapable of performing her
past relevant work at an SGA level.
The VE's testimony also
clearly conflicted with the DOT, and the ALJ failed to elicit
a reasonable explanation for the contradiction.
the ALJ's decision to give Plaintiff's subjective allegations
limited weight was not supported by substantial evidence on
the record as a whole.
As previously noted, Plaintiff has
consistently reported the manner in which her impairments
affect her functional capacity, and the record simply does not
reasonably undermine her allegations.
Finally, the RFC the
ALJ assigned Plaintiff failed to incorporate a number of the
Plaintiff's limitations, including her difficulty controlling
her voice, her propensity to make involuntary noises, her
fatigue, and her well established mental limitations.
The question thus becomes whether this Court should
remand for further consideration or solely for the purpose of
This Court has the authority to reverse
a decision of the Commissioner, “with or without remanding the
cause for rehearing," but the Eighth Circuit has held that a
remand for award of benefits is appropriate only where “the
record ‘overwhelmingly supports’” a finding of disability. 42
U.S.C. 405(g); Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir.
2000) (citing Thompson v. Sullivan, 957 F.2d 611, 614 (8th
A remand for further findings, rather than an
award of benefits, is typically appropriate when the ALJ makes
his or her decision to deny disability at step four of the
sequential evaluation process and does not reach step five.
However, as previously noted, after the ALJ issued his
decision, Susan Faber, a Vocational Rehabilitation Counselor,
In pertinent part, Ms. Faber indicated Plaintiff
was "most severely disabled . . . having limitations in
mobility, self care, work tolerance and interpersonal skills.”
Ms. Faber concluded that, "[g]iven the increasing
unemployment statistics and [Plaintiff's] very limited ability
to compete with other job seekers[,] it is felt that her
ability to obtain any other employment is unlikely locally or
on a national level."
Considering Ms. Faber's opinion, as well as well as
Plaintiff's credible subjective allegations and established
functional limitations, this Court is persuaded the record
overwhelmingly supports a finding that Plaintiff is incapable
of performing any work in the national economy at an SGA
level. Therefore, the Commissioner’s decision is reversed and
remanded solely for the calculation of benefits from the date
of Plaintiff’s claimed onset of disability, February 10, 2007.
Application for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (EAJA), must be filed
within thirty (30) days of the entry of final judgment in this
Thus, unless this decision is appealed, if Ingram’s
attorney wishes to apply for EAJA fees, it must be done within
thirty (30) days of the entry of the final judgment in this
IT IS SO ORDERED this 26th day of September, 2012.
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
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