Ingram v. Commissioner of Social Security

Filing 22

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
CENTRAL DIVISION
DENISE E. INGRAM,
Plaintiff,

No. 11-CV-3026-DEO

v.
Memorandum and Opinion Order

MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

____________________
I.

INTRODUCTION AND BACKGROUND
This matter is before the Court pursuant to Denise E.

Ingram’s

(Plaintiff’s)

Complaint,

requesting

disability

benefits under Title II of the Social Security Act (the
“Act”), 42 U.S.C. §§ 401 et seq.

Docket No. 2.

This Court

has jurisdiction pursuant to 42 U.S.C. § 405(g).
II.

FACTS
Plaintiff meets the insured status requirements through

June 30, 2012, and filed for disability on March 29, 2007,
claiming

an

initial

onset

date

of

February

10,

2007.

Plaintiff claims disability due to Septic Shock,1 Type 2

1

“Septic shock is a serious condition that occurs when an
overwhelming infection leads to life-threatening low blood
pressure.
Septic shock, PubMed Health, available at
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001689/,
last
visited September 25, 2012.

Diabetes,2 and Hypoventilation Syndrome.3

Tr. 16 and 84.

The

Commissioner of Social Security ("Commissioner") initially
denied

Plaintiff's

claim

on

July

30,

2007.

Tr.

84.

Plaintiff’s request for reconsideration was denied on November
15, 2007.

Tr. 85.

On August 4, 2009, Plaintiff appeared

before a Social Security Administrative Law Judge ("ALJ").
Tr. 29-82.

In a decision dated October 30, 2009, the ALJ

denied Plaintiff disability.

Tr. 9-25.

On March 29, 2011,

the Appeals Council denied Plaintiff’s request for review.
Tr. 1.

On May 24, 2011, Plaintiff timely filed her Complaint

with this Court.

Docket No. 2.

Plaintiff was born on July 5, 1954.

Tr. 84.

At the time

of the administrative law hearing, Plaintiff was 55 years old

2

“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,
2012.
3

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).”
Obesity
hypoventilation syndrome (OHS), MedlinePlus, available at
http://www.nlm.nih.gov/medlineplus/ency/article/000085.htm,
last visited September 25, 2012.
2

and weighed 331 pounds while standing only 5 foot and 1/4
inches tall.

Tr. 18.

Index (BMI) of 64.6.

This places Plaintiff at a Body Mass
A BMI of 30 or greater is

Id.

considered obese, and a BMI of 40 or greater is considered
extremely obese.
Plaintiff

Id.

was

steadily

employed

at

or

around

the

substantial gainful activity (SGA)4 level from 1984 to 2007.
Tr. 156-60.

Starting in 2003, Plaintiff began working as a

telemarketer.
2004.

Tr.

Tr. 160.
160

and

She last worked at the SGA level in
210.

She

suffered

the

illness

precipitating her current disability claim on February 13,
2007.

Tr. 40.

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.

Id.

School records indicate Plaintiff had a recorded IQ of 69
in 3rd grade, 80 in the 6th grade, and attended special

4

In order to qualify for disability, a Plaintiff may not
be working at or above the SGA level.
20 C.F.R. §
404.1520(a)(4)(I).
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,
available
at
http://www.socialsecurity.gov/pressoffice
/colafacts.htm, last visited September 25, 2012.
3

education classes throughout junior high school.5 Tr. 255-57.
Plaintiff's

employer

at

the

telemarketing

firm

Plaintiff had difficulty learning new programs.

indicated

Tr. 285.

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.
Tr. 196.

Due to the severity of her condition, Plaintiff was

placed in the intensive care unit and remained there until
March 4, 2007.
observed

that

Id.

On February 19, 2007, Dr. Levinson

Plaintiff

had

a

right

uteral

hydronephrosis6 as well as a right renal cyst.

stone

with

Tr. 306.

That

evening, Dr. Levinson performed a cystoscopy7 and implanted a
stint.

Id.

On February 19, 2007, Plaintiff, because she was

incapable of getting enough oxygen due to hypoventilation

5

An average score for an I.Q. test is 100.
“It is
estimated that between 1 and 3 percent of the population has
an [I.Q.] between 70 and 75 or lower. . . .”
Atkins v.
Virginia, 122 S. Ct. 2242, 2245 (2002) (citing A. Kaufman & E.
Lichtenberger, Essentials of WAISIII Assessment 60 (1999)).
6

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.
7

“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.
4

syndrome, was put on a respirator.

Tr. 327.

On February 26,

2007, Dr. Dettmer performed a tracheotomy,8 due to Plaintiff’s
hypoventilation syndrome and related respiratory failure. Tr.
305.

On March 13, 2007, Plaintiff was then transferred from

the hospital to the Mercy Rehabilitation Unit where she stayed
until March 21, 2007.

Tr. 196.

Once released, Plaintiff

continued to be treated by an at home nurse.
after

she

was

released,

Dr.

Pennington

Id.

noted

The day
that

the

“tracheostomy should be considered permanent but could be
evaluated again if substantial weight loss (at least 100
pounds) could be accomplished.”
On

April

employee,
Plaintiff.

P.

6,

2007,

Harris,

Tr. 186-88.

Tr. 310.

Disability
conducted

a

Determination
phone

Services

interview

with

Mr. Harris specifically noted that

Plaintiff breathed heavily at times during the interview. Tr.
188.

Though Plaintiff was no longer required to be in the

hospital or a rehabilitation facility, she still received

8

“A tracheotomy is a surgical procedure that opens up the
windpipe (trachea) . . . The term tracheostomy is sometimes
used interchangeably with tracheotomy.
Strictly speaking,
however, tracheostomy usually refers to the opening itself
while a tracheotomy is the actual operation.” Tracheotomy,
Encyclopedia of Surgery, available at http://www.surgery
encyclopedia.com/St-Wr/Tracheotomy.html,
last
visited
September 25, 2012.
5

weekly home health care visits and was limited to going
outside her home once a week.

Tr. 196.

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
watching TV.

Tr. 200 and 202.

She required help bathing and

had difficulty sleeping due to coughing spells and a need to
use the restroom.

Tr. 201.

her ability to talk.

Her condition primarily affected

Tr. 205.

She specifically noted that

she does not talk for long periods of time because she will
start coughing.

She thought she could walk maybe 60 feet

Id.

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
left foot.
Neuritis.9
9

Tr. 303.

He also determined she suffered from

Id.

Neuritis is “inflammation of one or more nerves.
characteristic symptoms of neuritis include pain
tenderness, impaired sensation, abnormal circulation
6

The
and
and

In

a

disability

report

dated

October

1,

2007,

DDS

employee, J. Franke, noted that Plaintiff reported being on a
breathing

machine

at

night.

Tr.

223.

She

experienced

sensitivity to smells, odors, and sprays and had difficulty
breathing due to coughing episodes.

Id.

to require help showering and bathing.

Plaintiff continued
Tr. 226.

On July 30, 2007, Dr. Hunter, a Disability Determination
Services

(DDS)

employee,

completed

functional capacity assessment.

a

physical

Tr. 409-16.

residual

Dr. Hunter

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.

Tr. 410.

Dr. Hunter also determined Plaintiff could climb stairs,
balance, stoop, kneel, crouch, and crawl occasionally.
411.

Tr.

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.”
neuritis, Britannica
Academic Edition, available at http://www.britannica.com/EB
checked/topic/410590/neuritis, last visited September 25,
2012.
7

poor ventilation, and hazards, such as machinery and heights.
Tr. 413.

On November 14, 2011, Dr. Wilson, also a DDS

employee, concurred with Dr. Hunter’s findings.

Tr. 441.

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.

Id.

She indicated her

conditions affected her ability to lift, squat, bend, stand,
reach, walk, sit, kneel, talk, climb stairs, speak, and
complete tasks.

Tr. 236.

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
her job.
She . . . has difficulty
acquiring the training for a short term
program.
More problematic, since her
return
to
work
following
her
hospitalization,
Denise
suffers
from
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
8

compassion.
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
does
not
completely
limit
complaints.
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
these problems.
Tr. 285-86.
At

the

Plaintiff

Administrative

referred

exhausting.

Tr. 41.

to

her

hearing
part

of
time

August,
work

2009,

schedule

the
as

She also reported difficulty reading a

newspaper and the need to re-read passages to understand them.
Tr. 39.

While on the phone at work, she was experiencing

coughing spells and difficulty controlling her voice.

Tr. 44

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.

Tr. 45.

She also testified that she could walk 5 minutes at a time
before needing to rest and could carry, at most, 10 pounds.
Tr. 48.

9

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.

Tr. 298-99.

Ms.

Faber determined Plaintiff was “most severely disabled . . .
having limitations in mobility, self care, work tolerance and
interpersonal skills.”

Tr. 298.

She explained,

Statistics from the Iowa Workforce Center
indicate that Iowa’s unemployment rate is
6.7 for October 2009 and 4.3 for October
2008.
Denise participated in the GATB
[General Aptitude Test Battery] . . . and
her scores . . . revealed 93 in general
intelligence, 92 in verbal ability, 102 in
numerical
ability,
83
in
spatial
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.
Given
the
increasing
unemployment
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
appears
that
her
current
employment
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.
10

This counselor knows of no other
employer
who
would
tolerate
these
interruptions in a work environment.
Clearly[,] she is not functioning at
substantial gainful activity at gross wages
of $720 a month.
Tr. 299.
III.

THE ALJ’S DECISION
Under the authority of the Social Security Act, the

Social Security Administration has established a five-step
sequential

evaluation

process

for

determining

individual is disabled and entitled to benefits.
404.1520.

The five successive steps are:

whether

an

20 C.F.R. §

(1) determination

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
Capacity

(RFC)

indicates

an

incapacity

to

perform

the

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
work.”

20 C.F.R. § 404.1520(4)(i-v).
11

At step one, if a plaintiff is engaged in “substantial
gainful activity” within the claimed period of disability,
there

is

no

disability

404.1520(a)(4)(i).

during

that

time.

20

C.F.R.

§

The ALJ determined Plaintiff had not

engaged in substantial gainful activity since her alleged
onset date.

Tr. 16.

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.
§ 404.1520(a)(4)(ii).

20 C.F.R.

The ALJ determined Plaintiff had the

following severe impairments:

obesity, diabetes mellitus,

tracheotomy status post septic shock, chronic respiratory
failure

due

to

obesity

hypoventilation

syndrome,

and

degenerative joint disease of the left foot with neuritis.
Tr. 16.
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.
ALJ

determined

Plaintiff

20 C.F.R. § 404.1520(e).

did

not

have

an

impairment

The
or

combination of impairments that met or medically equaled a
listed impairment.

Tr. 17.

12

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).

The

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
she
would
have
an
average
of
six
unscheduled breaks per eight-hour workday
of one to two minutes each (for a total of
up to twelve minutes a day).
Tr. 17.
At step 4, if, given a plaintiff’s RFC, a plaintiff can
still

perform

disability.

their
20

past

C.F.R.

§

relevant

work,

there

404.1520(a)(4)(iv).

is
The

no
ALJ

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
13

experience,

she

could

find

another

job

in

the

national

economy.
Plaintiff contends the ALJ erred in three respects:

(1)

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
Plaintiff’s limitations.
IV.

LAW AND ANALYSIS
In

order

for

a

plaintiff

to

qualify

for

disability

benefits, they must demonstrate they have a disability as
defined in the Social Security Act (the “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).
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
14

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).

This Court

must consider both evidence that supports and detracts from
Karlix v. Barnhart, 457 F.3d 742, 746

the ALJ’s decision.
(8th

Cir.

2006)

(citation

omitted).

In

applying

this

standard, this Court will not reverse the ALJ, even if it
would have reached a contrary decision, as long as substantial
evidence

supports

the

ALJ’s

decision.

Eichelberger

Barnhart, 390 F.3d 584, 589 (8th Cir. 2004).
decision

shall

be

reversed

only

if

it

is

v.

The ALJ’s
outside

the

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
his/her decision.

Neal v. Barnhart, 405 F.3d 685, 688 (8th

Cir. 2005) and 42 U.S.C. § 405(g).
B.
Substantial

The

Vocational

Evidence

Experts

Supported

the

Testimony:
ALJ’s

Plaintiff Could Perform Her Past Relevant Work
15

Whether

Decision

that

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.

Tr. 22.

The

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
RFC

determination.

hypothetical

Tr.

plaintiff

70.

would

The
be

telemarketer on a full time basis.

16

VE

able

indicated
to

such

function

Tr. 70-71.

as

a
a

After this initial hypothetical, Plaintiff’s Attorney
raised the issue of Plaintiff’s coughing fits and difficulty
speaking due to her tracheostomy.

Tr. 72-73.

Plaintiff’s

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
cough.

Tr. 74.

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.”

Tr. 75.

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.
Tr. 75-76.
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,
17

interrupt his or her work to have coughing fits.

Tr. 76.

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
then
be
inconsistent
with
the
job
qualifications of a telemarketer?
Tr. 76.
The VE then responded,
Well . . . I would not recommend that job
for someone that has difficulty talking.
However, it depends on the employer.
I
can’t
say
what
each
employer’s
qualifications
are
for
the
job
of
telemarketing.
The
Dictionary
of
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.
Tr. 77.
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”
18

in authoritative publications, including the Dictionary of
Occupational Titles (“DOT”), compiled by the Department of
Labor.

SSR 00-4p, 2 (citing 20 C.F.R. §§ 404.1566(d) and

404.1566(e)).

“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,
and

confidence,

using

correct

English

and

well-modulated

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
than

likely

responded

this

way

because

he

ultimately

determined telemarketing was “the wrong job” for someone with
Plaintiff’s limitations.

Tr. 80.

Even if this Court is

mistaken in characterizing the VE’s ultimate response as
negative,

at

no

time

did

the
19

VE

provide

a

reasonable

explanation

for

the

obvious

conflict

between

a

positive

response and the DOT.
C.

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
limitations,

including

limitations

attributable

to

a

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
matters as:”
(1) the claimant’s daily activities;
(2) the duration, frequency and intensity
of the pain;
(3) percipitating and aggravating factors;
20

(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
doctors

did

not

assign

functional

limitations

to

the

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.
As

previously

noted,

Plaintiff

Tr. 21-22.

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 watching TV.
and 202.

Tr. 200

Plaintiff also indicated she required help bathing.

Tr. 201.

Apparently, the ALJ felt these activities were

indicative of a person able to perform full-time work on a
competitive

basis

in

the

national
21

economy;

this

Court

disagrees.

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,
Iowa.

Tr. 196.

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.

It is

clear Plaintiff's limitations result from her obesity, joint
22

problems,

and

tracheostomy,

Hypoventilation
not

the

medical

Syndrome,
emergencies

including
that

her

required

Plaintiff to be hospitalized.
The ALJ's contention that Plaintiff lacks credibility
because

her

treating

doctors

never

limitations is also unpersuasive.

assigned

functional

The Plaintiff's treating

physicians were concerned with saving Plaintiff's life, not
her future ability to return to work.
stones

resulted

swelling

and

in

septic

potentially
shock.

life
In

Plaintiff's kidney
threatening

addition,

kidney

Plaintiff's

Hypoventilation Syndrome became severe enough for Plaintiff to
require a ventilator in order to breathe while simply lying in
bed.

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.

It is

obvious that an extremely, morbidly obese 55 year old person
with a tracheostomy related to hypoventilation syndrome and
joint

problems

will

have

serious

limitations

mobility, strength, fatigue, and communication.

related

to

Plaintiff’s

treating physicians were interested in treating Plaintiff, not
elaborating upon obvious limitations.
23

The ALJ's contention that Plaintiff did not exhibit any
difficulty speaking or discomfort during the Administrative
Hearing does not undermine Plaintiff's credibility.
videoconferencing

technology

utilized

during

the

The

hearing

required Plaintiff to push a button before she could be heard,
and the ALJ indicated Plaintiff reported coughing when the
button

was

not

depressed.

Rather

than

relying

on

his

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.
states

Plaintiff

"suffers

from

problems

The Declaration

with

involuntary

noises from her tracheostomy and coughing attacks," which "are
disturbing to her co-workers and to customers."

Tr. 285.

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
and

coughing

fits,

and

the

ALJ's

observations

do

not

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.")

24

The

ALJ’s

contention

that

Plaintiff's

supervisor's

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
community."

Tr. 285.

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
seeking

full-time

employment.

"Work

in

[a]

sheltered"

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
basis.

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.

25

As to the ALJ's contention that the opinions of the state
agency medical consultants undermine Plaintiff's credibility,
it

should

first

allegations

only

be

noted

vary

that

from

the

Plaintiff's
state

subjective

agency

consultants’ opinions in a handful of respects.

medical

She contends

she has communicative limitations and issues with fatigue, and
the state agency medical consultants failed to mention or
consider these limitations.
record

directly

Since there is no information on

contradicting,

or

even

undermining,

the

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.
Non-examining

medical

consultants

are

specialists

in

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
26

plaintiff’s documented impairments; only when a plaintiff's
subjective

allegations

are

inconsistent

with

the

medical

impairments or relevant observations of record is a nonexamining

consultant

undermine

the

credibility of a Plaintiff's subjective allegations.

As

previously

noted,

in

a

position

Plaintiff

suffers

to

from

Hypoventilation

Syndrome, morbid obesity, and has a tracheostomy, and these
conditions

are

obviously

consistent

with

Plaintiff's

subjective allegations of fatigue and communication problems.
In addition, the record contains notes from a DDS employee
stating

Plaintiff

breathed

heavily

throughout

a

phone

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
with

the

remainder

of

the

record

reasonably

supporting or detracting from those allegations.

capable

of

Therefore,

the ALJ's determination that Plaintiff was only partially
credible is not supported by substantial evidence on the
record

as

a

whole,

and,

as

such,

the

determination constitutes clear error.

27

ALJ's

credibility

D.

Whether the RFC the ALJ Assigned Plaintiff Failed to

Account for All of Plaintiff's Limitations
An

ALJ’s

RFC

assessment

is

whether a plaintiff is disabled.

crucial

for

determining

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.
1982)(en banc)).

A plaintiff’s RFC is a function-by-function

assessment of the most a plaintiff can still do despite his or
her impairments.

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.”

604 F.

Supp. 2d at 1250 (quoting 683 F.2d at 1147).
In this case, the ALJ overlooked some of Plaintiff's
important functional limitations.
ALJ

recognized

Plaintiff

would

For instance, though the
have

to

take

up

to

6

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
28

to make inadvertent noises her Supervisor characterized as
"disturbing."
require

Tr. 285.

social

In the real world, where many jobs

interaction,

involuntary

noises

are

real

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."

Tr. 17.

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.

A two-dimensional

understanding of fatigue views it as something which causes
discrete exertional limitations, such as an inability to do
fast

paced

assembly

line

work;

a

three-dimensional

understanding recognizes that fatigue builds throughout a day,
exacerbating all of an individual's pre-existing functional
limitations

as

the

day

wanes.

It

is

not

difficult

to

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.
29

Finally,

the

ALJ

failed

limited intellectual abilities.

to

account

for

Plaintiff's

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.
More

recently,

Plaintiff

reported

that

she

could

only

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.
corroborated

Plaintiff's

Plaintiff's supervisor

allegations

by

indicating

that

Plaintiff had "difficulty acquiring training for short term
program[s]."
The

Tr. 285.

ALJ's

failure

to

account

for

Plaintiff's

well

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
to

“[w]rite

punctuation,
speech.”
DOT

reports

and

essays

with

spelling,

and

grammar,

using

proper
all

format,
parts

of

Appendix C: Components of the Definition Trailer,

Dictionary

of

Occupational
30

Titles,

available

at

http://www.occupationalinfo.org/appendxc_1.html#GOE,
visited September 25, 2012.

last

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.
V.

CONCLUSION
It is clear the ALJ erred in several respects.

In

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.

In addition,

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.
31

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
awarding benefits.

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
Cir. 1992)).

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,
met

with

Plaintiff.

and

conducted

a

battery

of

aptitude

tests

on

In pertinent part, Ms. Faber indicated Plaintiff

was "most severely disabled . . . having limitations in
mobility, self care, work tolerance and interpersonal skills.”
32

Tr. 298.

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."

Tr. 299.

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
action.

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
case.
IT IS SO ORDERED this 26th day of September, 2012.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

33