Agan v. Commissioner of Social Security
Filing
12
MEMORANDUM OPINION AND ORDER Accepting 10 Report and Recommendations recommending that the ALJ's decision be affirmed and that judgment be entered in favor of the Commissioner and against Agan. The Commissioner's decision is affirmed. The clerk is directed to enter judgment in favor of the Commissioner and against Agan. Signed by Judge Mark W Bennett on 2/7/13. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
GARY A. AGAN,
No. C 11-3061-MWB
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER REGARDING REPORT AND
RECOMMENDATION
Defendant.
___________________________
TABLE OF CONTENTS
I.
INTRODUCTION........................................................................... 2
A.
Procedural Background ........................................................... 2
B.
Factual Background ............................................................... 4
1.
Summary of medical evidence ........................................... 4
2.
Hearing testimony ........................................................ 16
3.
Summary of the ALJ’s decision ....................................... 19
II.
ANALYSIS ................................................................................. 22
A.
Standard Of Review .............................................................. 22
B.
Agan’s Objections ................................................................ 28
1.
The ALJ’s credibility determination .................................. 29
a.
Lack of functional restrictions ................................ 30
b.
Objective medical evidence and daily activities ............. 31
c.
Subjective nature of back pain ................................ 34
d.
Loss of health insurance ....................................... 35
e.
Work history ...................................................... 36
f.
Age category ...................................................... 38
2.
The ALJ’s development of the record ................................ 39
a.
Work-related limitations ........................................ 39
b.
Agan’s diabetic peripheral neuropathy ...................... 41
c.
Evidence of mental impairments .............................. 42
III.
CONCLUSION ............................................................................ 44
I.
A.
INTRODUCTION
Procedural Background
This case is before me on a Report And Recommendation (docket no. 10) from
United States Magistrate Judge Leonard Strand, regarding plaintiff Gary A. Agan’s
claims for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”), pursuant to Titles II and XVI of the Social Security Act.
I quote from Judge Strand’s Report And Recommendation to introduce the
procedural background of this case:
Agan was born in 1960, has a high school education, and
previously worked as a welder, assembler, mechanic and
sheet metal installer. AR 32–34, 161, 215–24, 262. On
April 22, 2009, Agan applied for DIB and SSI, alleging
disability beginning on July 22, 2008 due to a back injury,
diabetes, a foot injury and gout. AR 161, 191, 195. The
Commissioner denied Agan’s applications initially and again
on reconsideration. AR 58–61. Agan requested a hearing
before an Administrative Law Judge (“ALJ”). AR 74. On
April 25, 2011, ALJ Jeffrey Marvel held a hearing at which
Agan and a vocational expert (“VE”) testified. AR 28–57.
On May 25, 2011, the ALJ issued a decision finding Agan
not disabled since the alleged onset date of disability of July
22, 2008. AR 10–27. Agan sought review of this decision
by the Appeals Council, which denied review on September
7, 2011. AR 1–6. The ALJ’s decision thus became the
final decision of the Commissioner. 20 C.F.R. §§ 404.981,
416.1481.
Report And Recommendation at 1–2 (docket no. 10).
On November 10, 2011, Agan filed a complaint with this court, seeking review
of the ALJ’s decision. The case was referred to Judge Strand, pursuant to 28 U.S.C.
§ 636(b)(1)(B), for the filing of a report and recommended disposition of the case. On
2
March 14, 2012, Agan filed his brief in support of benefits (docket no. 7). First, Agan
argued that the ALJ failed to properly evaluate his allegations under Polaski v. Heckler,
contending that the objective evidence provides more than sufficient support to Agan’s
testimony. Second, Agan contended that the ALJ failed to fully and fairly develop the
record. Specifically, Agan argued that the ALJ failed to obtain work-related limitations
from an examining source. Also, Agan contended that the ALJ failed to obtain Agan’s
mental health records or to order a consultative evaluation. Third, Agan argued that
the ALJ’s errors are not harmless.
On May 14, 2012, the Commissioner responded with his brief in resistance
(docket no. 8). The Commissioner contends that the ALJ was not required to develop
the record any further because substantial evidence supports his finding that Agan’s
mental impairments and diabetes were not severe. The Commissioner argues that the
ALJ articulated valid reasons for discounting Agan’s credibility. The Commissioner
contends that the ALJ’s RFC determination was supported by substantial evidence on
the record as a whole. Also, the Commissioner maintains that the ALJ’s hypothetical
question was proper and the vocational expert’s testimony provided substantial evidence
that Agan was not disabled.
Judge Strand issued a Report And Recommendation on October 15, 2012 (docket
no. 10). Judge Strand determined that the ALJ’s decision was supported by substantial
evidence in the record as a whole, and, therefore, recommended that the ALJ’s decision
denying benefits be affirmed.
Specifically, Judge Strand found that the ALJ’s
credibility determination based on Agan’s daily activities, the lack of objective medical
evidence, the limited treatment or complaints after his onset date, and the
inconsistencies in the record is supported by substantial evidence.
Responding to
Agan’s argument that the evidence could be viewed to support a finding of disability,
Judge Strand concluded that the argument reflects the wrong standard of review and the
3
ALJ’s decision must be given deference.
Judge Strand determined that the ALJ
adequately developed the record regarding the evidence supporting the RFC
assessment, medical evaluations indicating Agan’s diabetes mellitus and diabetic
peripheral neuropathy, and Agan’s mental impairments. On October 29, 2012, Agan
filed a timely objection (docket no. 11) to Judge Strand’s Report And Recommendation.
B.
Factual Background
In his Report And Recommendation, Judge Strand made the following findings
of fact:
1.
Summary of medical evidence
A. Dr. Mark Palit
Beginning in February 2005, Agan went to see Dr.
Palit for low back and right leg pain that had lasted for three
months. AR 496. Agan explained that the pain extended all
the way down to his foot and was aggravated by increased
activity. Id. He described the pain as sharp and shooting and
chiropractic care provided minimal relief. Id. Dr. Palit
ordered x-rays of Agan’s spine which showed decreased disc
height, mildly, at L5-S1. Id. Upon physical examination, the
doctor noted that Agan walked slowly but steadily, favoring
the right leg. Id. He found that Agan’s range of motion of
the lumbar spine was reduced on flexion and extension and
the straight leg raise was positive on the right. Id. Palpation
of the lower lumbar spine produced mild discomfort. Id.
Agan was diagnosed with lumbar radiculopathy and
prescribed a pain reliever. Id. An MRI scan was also
scheduled.
At a follow-up two days later, Dr. Palit found that the
MRI revealed lateral recess stenosis at L4-L5. AR 494. He
recommended an epidural steroid injection and referred Agan
to the Pain Center. Id. Agan was released to light duty work.
Id.
4
In March 2005, Agan reported that he was doing
about “30–40% better” after his injection. AR 494. After a
second injection, he claimed that he experienced no relief
and he continued to have ongoing pain described as sharp
and shooting, which was aggravated by increased activity.
AR 493. Dr. Palit recommended L4-5 decompression
surgery, which was performed on April 22, 2005. AR 492–
93.
After the lumbar decompression, Agan reported on
May 5 that his right leg pain had been resolved, but now he
experienced left leg pain down to his foot with a burning
sensation. AR 492. Dr. Palit instructed Agan to continue
walking, progressing from a walker to a cane. Id. He
prescribed Amitriptyline and Ibuprofen. Id.
Agan returned for a follow-up in June 2005. Because
he still complained of left leg pain, the doctor ordered
another MRI with a contrast agent. AR 491. This MRI
revealed mild residual stenosis at L4-5 with a very mild disc
bulge. Id. Dr. Palit referred Agan to another doctor for a
left L4 selective nerve root block. Id. After that injection,
Agan reported minimal pain. AR 489. His work duties
were advanced to 5.5 hours per day. Id. In July 2005,
Agan reported he was doing well and returned to regular
work duty. AR 489.
B. Dr. Mohamed K. Youssef
On January 3, 2007, Agan began seeing Dr.
Mohamed Youssef, at Trinity Regional Medical Center in
Fort Dodge, Iowa for back pain that radiated down both
legs. AR 353. He was given an epidural steroid injection at
L5-S1. AR 352. The treatment notes indicate Agan had a
previous epidural steroid injection in October 2006 and
experienced good pain relief. Id. Agan returned for another
injection on April 20, 2007. AR 349–51. During this visit
the nurse prepared a report asking Agan to identify how
much his chronic pain limited his ability to perform certain
activities. AR 351. Agan listed the following activities as
5
limited a lot: climbing stairs, kneeling or bending, getting
out of the house, and pursuing hobbies or other recreational
activities. He also claimed to get 50 percent less sleep than
usual due to his pain. Id. AR 489.
On April 29, 2007, Agan reported to the emergency
room at Pocahontas Community Hospital with symptoms of
increased thirst, increased urination during the night, and
dizziness. AR 427–29. The nurse noted that he was a
newly diagnosed diabetic and his glucose was elevated. Id.
Agan was admitted to acute care. He was given diabetic
education and started on insulin. Id. He returned to halfdays at work on May 8 and full-time on May 22. AR 451.
Agan received additional lumbar epidural steroid
injections from Dr. Youssef. On July 25, 2007, he still
complained of continued low back pain radiating down both
legs. AR 347. He reported that climbing stairs, getting in
or out of bed or a chair, and pursuing hobbies or other
recreational activities were limited a lot by his pain and he
was getting 50 percent less sleep than usual. AR 348. He
was given epidural steroid injections on that date and again
on October 5, 2007. AR 342–45. Dr. Youssef noted Agan
had experienced excellent pain relief from this procedure in
the past. AR 342.
On November 28, 2007, Agan agreed to a spinal cord
stimulator trial. AR 337–38. At this visit, he told the nurse
that activities such as working with his hands, performing
tasks at work, and visiting with family and friends were also
now limited a lot by his pain in addition to the activities
previously identified. AR 341. After the spinal cord
stimulation lead was inserted, Agan reported a numbing,
tingling sensation covering the area of pain and was very
satisfied with the current stimulation. AR 337.
At a follow-up on December 3, 2007, Agan reported
excellent pain relief from the spinal cord stimulator trial,
with about an 80 percent decrease in pain. AR 330. Agan
explained that he was more active throughout the trial and
6
able to sleep through the night without waking up. Id. Dr.
Youssef’s impression was that Agan’s pain had been
secondary to lumbar degenerative disc disease, a herniated
lumbar disc, and lumbar radiculopathy. Id.
C. Dr. Cassim Igram
Dr. Youssef recommended that Agan see Dr. Igram
at the Iowa Ortho Center regarding his chronic lumbar
radiculopathy. AR 264–65. Agan reported that nothing had
adequately addressed his pain except the recent spinal cord
stimulator trial and he was interested in pursuing a
permanent implant. AR 264. He stated that daily activity
made his pain worse. Id. Upon physical examination, Dr.
Igram noted that flexion and extension were limited and
Agan had some stiffness with these maneuvers. Id. Agan
also had breakaway weakness to motor testing in both lower
extremities with sensory deficit in a non-dermatomal pattern
in the right lower extremity. Id.
On December 24, 2007, Dr. Igram performed a
thoracic laminectomy for placement of a permanent spinal
stimulator. AR 266. Agan was instructed to have the
stimulator programmed by doctors in Fort Dodge and he
was released to return to work on January 4, 2008. AR
269.
On January 11, 2008, Agan returned to Trinity
Regional Medical Center in Fort Dodge reporting pain in his
low back and right leg. AR 327. He claimed he was not
getting adequate coverage in his lower back from the spinal
cord stimulator. Id. Agan was referred back to Dr.
Youssef in the Pain Clinic to reprogram the stimulator. Id.
After attempting several different programs that did not
provide coverage to the painful area in Agan’s back, Dr.
Youssef concluded that Agan needed to see Dr. Igram again
to discuss repositioning the stimulator. AR 323–24.
7
D. Dr. Russell Buchanan
On March 27, 2008, Dr. Buchanan began evaluating
Agan at the Iowa Spine and Brian Institute. AR 291–92.
Agan reported constant pain in his low back that was
improved with lying down. He claimed the pain was worse
when sitting for a prolonged period. Id. Dr. Buchanan
noted that Agan had some difficulty walking on heels and
toes due to bilateral lower extremity pain. He also had
difficulty squatting to regain standing and flexing forward to
touch his knees to regain standing. Id. Agan was working
as a welder at this time. Id. Dr. Buchanan ordered a CT
scan. Id.
Dr. Buchanan reviewed the CT scan results with
Agan in mid-April. He found that the scan demonstrated
facet degeneration at L4-L5 that was “quite severe” and that
could be the possible generator of pain. AR 287. He
ordered discography to determine whether Agan’s dorsal
column stimulator leads needed to be re-positioned. Id.
Dr. Robert Federhofer performed the discography
and stated it was his impression that Agan had “definite
diskogenic pain at the L5-S1 level and probable diskogenic
pain at the 4-5 lumbar level.” AR 312.
Dr. Buchanan saw Agan again on June 26, 2008. AR
283–84. He noted that Agan had difficulty achieving a
standing posture and when he did, he had a flex posture at
the waist. He noted that Agan could not straighten up
without significant low back pain. Although Agan was able
to walk on his heels and toes, he had difficulty squatting to
regain standing and flexing forward to touch his knees. Id.
Based on the findings of the discography study and the
morphology of disks, Dr. Buchanan suggested surgery. Id.
On July 22, 2008, Dr. Buchanan performed a lumbar
interbody fusion at L4-L5 and L5-S1 with interbody cage
placement and anterior plating. AR 306–09. The spinal
cord stimulator was also removed. AR 307. During the
surgery Dr. Buchanan found severe disc degeneration at L58
S1 with significant disc collapse and loss of integrity of the
structure of the disc as well as the cartilaginous endplate.
AR 306. He noted the L4-5 disc appeared hardier and
somewhat healthier with the exception of a central area of
the disc that demonstrated severe deterioration. AR 306.
Agan reported to Trimark Pocahontas Family Practice
on August 6, 2008, to have suture removal from his back
surgery. He also saw a physician for gout in his left foot and
arthritis in his right ankle. At that time, he also indicated
that he stopped taking Avandia for his diabetes because of
the cost. AR 443.
On September 8, 2008, Agan reported for a follow-up
exam at the Iowa Spine and Brain Institute. He stated he
was doing very well in terms of pain control and was not
experiencing any of the leg pain he had before the surgery.
AR 279. He indicated that he still wore a bone stimulator
on a daily basis and the physician assistant encouraged him
to continue this. AR 280. Agan inquired about when he
could return to work.
Id.
The physician assistant
recommended physical therapy three times per week for two
weeks followed by work hardening for two weeks at which
time they could evaluate whether he was ready to return to
work. Id.
A month later, Agan stated that physical therapy had
helped and that he was doing better apart from some
occasional stiffness. AR 275. He stated he did not have any
pain in his legs. Id. His gait was coordinated and smooth
and he was able to walk on his heels and toes. He could
squat and regain a standing position without difficulty and
could touch his knees while flexing forward. Id. Agan was
released to work 4.5-hour days with no lifting over 30
pounds and limited bending and twisting. Id.
Agan reported to the emergency room at Pocahontas
Community Hospital on October 19, 2008, stating he had
tripped and fell, exacerbating his chronic low back pain.
AR 400. Agan stated the pain was so severe he had
9
difficulty getting back to his chair. Id. Agan was out of
pain medication at this time. After a physical examination,
the physician noted Agan’s motor skills and reflexes of the
lower extremities were normal. The physician also noticed
some mild sensory deficits consistent with diabetic
peripheral neuropathy. Id. Agan was given a pain reliever
and a note off work the next day. Id.
Agan was back to working full-time in November
2008. At a follow-up exam, he stated he was still
experiencing constant back pain of 7 out of 10, but no pain
in his legs. AR 271. He said he was doing exercises at
home, walking, and was continuing to wear the bone
stimulator. Id. The physician assistant suggested another
injection in an effort to relieve some of the pain near Agan’s
right SI joint. AR 272.
Dr. Youssef administered the bilateral sacroiliac
injection on November 14, 2008. AR 315. The nurse’s
notes indicate that Agan had been laid off for missing work.
AR 317. Agan described his pain level as 6 out of 10 and
said his pain kept him from doing activities such as climbing
stairs, performing housework, and pursuing hobbies or other
recreational activities. AR 318. Other activities that were
limited due to his pain included walking, kneeling or
bending, bathing or dressing himself, getting in or out of
bed or a chair, preparing meals, visiting with family or
friends, and getting out of the house. AR 318.
E. United Community Health Center
On February 10, 2009, Agan sought treatment at
United Community Health Center (“UCHC”) in Storm
Lake, Iowa for back pain and other health issues. AR 390.
On March 12, 2009, Agan went to UCHC and complained
of back pain. He was prescribed Tramadol.1 AR 389. He
1
Tramadol is prescribed for the “management of moderate to moderately severe
chronic pain in adults who require around-the-clock treatment of their pain for an
extended period of time.” Physician’s Desk Reference 2694 (64th ed. 2010).
10
was seen again on April 21, 2009, and prescribed
AR 388.
On June 25, Agan returned
Diazepam.2
complaining of chronic back pain and diarrhea. AR 386.
He had run out of Tramadol a week earlier and was taking
an extra dose of Diazepam each day. Id. Both prescriptions
were re-filled at this appointment.
Id.
The nurse
practitioner noted that he ambulated slowly and had
difficulty getting up and down from the examination table.
Id.
On July 14, Agan reported that he continued to have
diarrhea and abdominal pain.
AR 385.
The nurse
practitioner noted that Agan was under stress as his
unemployment was about to run out. She also noted he was
depressed and that he had applied for disability benefits. Id.
She prescribed an anti-depressant. Agan missed a scheduled
appointment at the beginning of August, but on August 28
he reported to the clinic with chest discomfort. AR 383.
He explained that he had been doing yard work the week
before and developed pain in his left lower chest wall. Id.
The nurse practitioner assessed it as muscle strain and
prescribed an anti-inflammatory. Id. On September 9,
Agan saw the nurse practitioner for refills of his pain
medications. She examined Agan finding tenderness around
his spine and refilled his medications. She also noted
Agan’s depression was stable. AR 381.
On September 28, Agan visited Trimark Pocahontas
Family Practice and reported a sudden onset of low back
pain radiating down his right leg after lifting a chair. AR
433–34. The doctor assessed Agan with lumbar strain and
prescribed a muscle relaxant. Days later, Agan reported to
UCHC with the same complaint from the same incident.
AR 380. He was prescribed a narcotic pain reliever. Id.
2
Diazepam is used to treat mild to moderate anxiety, some types of seizures,
muscle spasms, nervous tension, and symptoms related to alcohol withdrawal. It is in
the class of drugs known as benzodiazepines and is commonly sold under the brand
name Valium. MARK MITCHELL ET AL., THE GALE ENCYCLOPEDIA OF MENTAL
HEALTH 489 (Kristin Key, ed., 3rd ed. 2012).
11
On October 6, Agan was taken to the emergency
room after attempting suicide. He had taken 10 to 15
Tramadol pills and left a note for his wife. AR 374, 379,
402–03. The doctor noted Agan said it was due to “some
bad news he received,” but he then “blamed it on his wife
and arguments about cooking and various other items.” AR
402. He was discharged the next morning with the
recommendation to seek counseling. AR 402. His provider
at UCHC suggested he immediately begin counseling at
Plains Area Mental Health Center.3 AR 379.
Agan returned to UCHC on November 24 requesting
refills of his back pain medication, which were ordered. AR
461. He had a follow-up appointment in December with no
new complaints. AR 460. On January 13, 2010, Agan
requested refills of his back pain medication again, and they
were ordered. AR 459. On February 18, he had a followup appointment and stated he felt good. AR 457.
In March, he sought a consultation at UCHC for
alcohol abuse. AR 470. Agan told the nurse practitioner he
drank alcohol every day for the entire day, estimating he
drank at least a 12-pack of beer per day. Id. He claimed
that he did not have any alcohol that day, although the nurse
noted that he spoke loudly and slurred his speech. Id. Agan
stated that he had tried to get into an inpatient detoxification
center at Fort Dodge, but had to wait two weeks. Id.
On April 6,
congestion, but also
back pain. He was
reliever for his back.
Agan returned to UCHC for sinus
mentioned that he was experiencing
prescribed Darvocet, a narcotic pain
AR 469.
On April 21, 2010, Agan reported to UCHC stating
that he had tried inpatient alcohol treatment in Fort Dodge,
but it had not gone well. AR 468. He also stated he had
been seeing a counselor at Compass Pointe in Spencer,
3
It is unclear whether Agan attended counseling at Plains [Area] Mental Health
Center. No treatment notes appear in the record.
12
Iowa. Agan told the nurse practitioner he had lost the
medications for his back pain and requested more Darvocet.
Id. The nurse practitioner offered to call the treatment
center, but Agan said he had already contacted the facility.
Id. They agreed that Agan should not take any more
narcotics and the nurse practitioner prescribed an antiinflammatory instead. Id. Agan was educated on the
consequences of drug seeking. Id.
On May 18, Agan reported to UCHC for a follow-up
on his diabetes and a lipid panel. AR 467. The nurse
practitioner noted that she educated Agan on his diet and
suggested exercise of 30 minutes maximum, five days per
week.
On June 8, Agan requested detoxification from
alcohol and valium. AR 465. At the time of the visit, the
doctor thought Agan had overdosed on benzodiazepines. Id.
The police were contacted to take Agan to the hospital after
he insisted on driving by himself. Id.
In August 2010, Agan was referred to the Iowa Heart
Center for chest discomfort which had lasted for two weeks.
AR 472. Outside of reflux disease, there were no abnormal
findings. AR 475.
F. Orthopaedic & Sports Medicine Specialists, LLC
In December 2010, Agan began seeing Kristina
Johnson, PA-C, for a right hand injury. AR 488. He
injured his hand after hitting a wall with a closed fist. Id.
He had visited the ER immediately after the injury, where
he was x-rayed and his hand placed in a splint. Id. He told
Ms. Johnson that it was causing him pain and he was
experiencing numbness and tingling. Id. Upon physical
examination, she found bruising, swelling, and tenderness.
Id. She also noted that Agan was able to flex and extend his
wrist very minimally due to the swelling and pain. Id. She
instructed him to start utilizing his hand and doing hand
pumps to bring down the swelling. Id.
13
Upon follow-up for his hand, no changes were noted
but Agan still complained of pain. AR 487. He was
prescribed hydrocodone. Id. The physician assistant noted
that he had significant decreased range of motion with his
fingers and wrist and started him on occupational therapy to
improve this. AR 486. Agan stated that he was still
experiencing pain. Id.
Agan met with a surgeon on January 18, 2011 for
evaluation of his right hand. AR 485. Upon physical
examination, the doctor noted there was some bruising and
he had tenderness in the mid shaft of the middle finger. Id.
Flexing and extending certain areas of the hand were also
limited. Id. The doctor ordered tests and prescribed a pain
reliever with the instruction that this was the last time his
office would be giving him any pain medication. Id.
In February, the doctor noted that Agan’s hand was
unchanged since his last visit. AR 502.
Agan still
complained of discomfort, but the doctor noted, “I am at a
loss to find an appropriate diagnosis for his pain and
discomfort.” Id. Agan was referred to another hand
surgeon for further evaluation and given a final prescription
of a pain reliever. Id.
G. State Agency Medical Consultants
On June 12, 2009, Laura Griffith, D.O., performed a
physical RFC assessment. AR 35–62. After reviewing
Agan’s medical records, she concluded he could
occasionally lift and/or carry 20 pounds and frequently lift
and/or carry 10 pounds. AR 356. She also thought Agan
could sit, stand and/or walk six hours out of an eight-hour
workday. Id. She estimated that Agan could occasionally
climb a ramp or stairs and occasionally perform tasks that
required balancing, stooping, kneeling, crouching, or
crawling. AR 357. She indicated that he could never be
expected to climb a ladder, rope, or scaffolds. Id.
In explaining her findings, Dr. Griffith noted that
Agan’s treating sources indicated he had normal muscle tone
14
and strength. AR 360. While Agan reported that he had
constant back pain, she found his credibility somewhat
eroded by his failure to seek further care since November
2008. Id. She noted that two months after his fusion
surgery, he reported that he was doing very well in terms of
pain control and the pain he had in his legs was normal. AR
362. She also noted that a physical exam at that time
showed Agan had full range of motion in his extremities
with normal muscle strength and tone, with physical therapy
and work hardening suggested.
Id. In addition, in
November 2008, a month after Agan had been released back
to work part-time with a 30-pound lifting restriction, he
reported that he had been working full-time but still
experienced ongoing back pain. Id.
Dr. Griffith also commented on Agan’s daily
activities. She noted that he takes one-mile walks and lays
on the couch. He has no difficulty with personal care, does
laundry, and mows the yard. He reported that he could lift
20 pounds. Id.
This physical RFC assessment was submitted to Gary
Cromer, M.D., on October 1, 2009 for reconsideration.
AR 368.
Additional allegations of worsening pain,
depression, and chronic diarrhea were considered. Id. Dr.
Cromer noted that new medical evidence included an
abdominal ultrasound obtained for hepatomegaly and
abdominal pain.
Id.
This test showed only mild
hepatomegaly with probable fatty infiltration, and a small
right renal cyst. Id. An updated report on Agan’s activities
of daily living and a pain questionnaire were requested, but
were never returned.
Id.
Dr. Cromer concluded,
“Evidence fails to document substantial worsening in
physical condition warranting alteration in the initial
assessment. No opinion evidence is noted. The initial
assessment, supplemented by this update, remains
appropriate and is therefore affirmed.” Id.
15
2.
Hearing testimony
A. Plaintiff’s Testimony
At the administrative hearing, Agan testified he was 50
years old, graduated from high school and had vocational
training in auto mechanics from Lincoln Technical Institute.
AR 32. He stated he last worked part-time for Wal-Mart in
2009. He worked in the store’s tire and lube center four or
five hours a day and four or five days per week. AR 33. He
held this job for a month, but quit because he could not
handle the pain in his back. Id. Agan also testified that he
previously worked as a welder for seven or eight years and as
a sheet metal installer. AR 33–34. He testified that as a sheet
metal installer he carried a tool belt weighing 25 to 30 pounds
and would frequently lift objects weighing from 10 to 30
pounds. AR 34.
Agan testified that he was no longer working because
of chronic low back pain. Id. He explained that the pain
radiates mainly down his right leg, is constantly present, and
increases with movement. AR 36. He estimated that the
baseline level of pain is about a seven on a scale of ten. He
was seeing a family practitioner for pain management and
was treated through medication, but not physical therapy. AR
44. Agan testified that he had three surgeries on his back. AR
36. The first one was a laminectomy in 2005, after which he
was able to return to work. Id. The second surgery was in
2007, when a neurostimulator was placed in his back. AR
36–37. Agan was also able to return to work after this
surgery. AR 37. The third surgery was in 2008 when the
stimulator was removed. AR 37. Agan returned to work after
this surgery, but stated his employer sent him home after
determining he was not performing his job. Id. Agan
testified that when he tried to return about two weeks later,
he was told not to come back. Id.
Agan also discussed his other medical problems and
the medications he was taking for them. He was taking
hydrocodone and Tramadol for his back pain but testified
that neither helped much with his pain. AR 38–39. Agan
also stated that he treated his diabetes with insulin and that
16
his blood sugar had been high recently with some of the
medication he was taking. AR 40. Doctors had told him
blood sugar goes up with pain. Id. For gout, Agan said he
took Allopurinol. Id. He informed the ALJ that the
problem with his hand was now being attributed to gout in
his fingers. Id.
Agan’s alcoholism and suicide attempts were also
discussed. Agan testified that he had stopped drinking
alcohol six months earlier and had completed a treatment
program. AR 40–41. He admitted that he had overdosed on
Valium in June 2010, which had been prescribed for
anxiety. AR 41–42. Agan stated that he was still suffering
from anxiety and had begun treatment at the Berryhill
Center for Mental Health (“Berryhill”) for both anxiety and
depression five months earlier. AR 42. He stated that he
was being treated with Paxil, an anti-depressant. Id. Agan
estimated that he suffered from anxiety and depression since
he lost his job in 2008, and although his medication helped,
he still experienced symptoms. AR 43.
During the hearing, Agan rotated between sitting
down and standing up. AR 44. When the ALJ asked why
he kept changing positions, Agan stated that because of the
chronic pain in his back, he was only able to sit in a chair
for about 15 to 20 minutes. Id. He could then stand or
walk around for 15 to 20 minutes before he needed to sit
down again. Id. Agan testified that he thought he could
walk about one block without experiencing pain or
discomfort. AR 44-45. He also thought he could stand in
one place for about 15 minutes before experiencing pain or
discomfort. AR 45. Agan’s other limitations included
grasping or gripping things due to the gout in his right hand.
Id.
Agan’s activities of daily living were also discussed at
the hearing. AR 46. He stated that he tries to maintain the
house he lives in with his wife and two daughters as best as
he can by loading the dishwasher and doing laundry. Id.
He stated he is able to take care of his personal needs and
17
can drive, but only for short trips. AR 47. He testified that
he goes to the grocery store about once a week with his wife
but stays in the car most of the time. Id. Agan later
clarified that he was only able to get out of the house and do
activities on good days and that he experiences
approximately 10 to 12 bad days per month. AR 49. He
said he uses a walker to get out of bed or off the couch, but
he is able to walk without it. AR 48.
B. VE’s Testimony
Marian Jacobs also testified at the hearing. The ALJ
asked her to consider four hypotheticals to determine what
type of work Agan could perform and if these jobs were
available in the regional and national economy. First, the
ALJ asked her to consider whether a person could perform
any of Agan’s past work given the following qualifications
and limitations: the same age, education, and past work
experience as the claimant, who could occasionally lift 20
pounds and frequently lift 10 pounds, could stand and walk
six hours out of an eight-hour day, could sit for six hours
out of an eight-hour day, and could occasionally balance,
stoop, crouch, kneel, crawl, and climb, but could not climb
ladders, ropes, or scaffolding. AR 52. The VE testified
that a person with these qualifications and limitations would
not be able to perform any of Agan’s past work. Id.
However, she believed a person with the skills the claimant
had acquired in his past work could perform the job of order
filler in a wholesale company or a parts clerk in a retail
store within the limitations of the first hypothetical. AR 52–
53. Light unskilled jobs such as an assembler, bottle
inspector, or router could also be performed and were
available in substantial numbers in Iowa and the United
States. AR 53.
For the second hypothetical, the ALJ asked if a
person could perform any of Agan’s past work if that person
could stand and walk only two hours out of an eight-hour
workday. The VE answered “no” and stated that no
sedentary jobs were available which required the skills the
18
claimant had acquired in his past work. AR 54. As for
unskilled sedentary jobs, the VE indicated that dresser and
sorter of envelopes and packages, assembler of buttons and
notions, and final assembler of optical frames would be
appropriate and existed in substantial numbers in the
regional and national economy. AR 54–55.
For the third hypothetical, the ALJ asked the VE to
consider the sedentary hypothetical with the addition that the
person would need to alternate sitting and standing every 15
to 20 minutes. AR 55. The VE stated that such an individual
could not perform work in a competitive economy.
Finally, the ALJ had the VE consider the sedentary
hypothetical with the additions that the person would need to
take more than two unscheduled breaks per day and work at
a slow pace for up to one-third of the day. Id. The VE
testified that such a person could not perform work in a
competitive economy. Id. She clarified that her answer
remained the same regardless of the exertional level or if
each of those three limitations were taken singly. AR 56.
3.
Summary of the ALJ’s decision
The ALJ made the following findings:
(1) The claimant meets the insured status
requirements of the Social Security Act through
December 31, 2013.
(2) The claimant has not engaged in substantial
gainful activity since July 22, 2008, the alleged onset
date.
(3) The claimant has the following severe
impairments: degenerative disc disease of the lumbar
spine, status post lumbar fusion and status post
implantation and removal of spinal neurotransmitter.
(4) The claimant does not have an impairment or
combination of impairments that meets or medically
19
equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.
(5) After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) such that he could lift
twenty pound[s] occasionally and ten pounds
frequently, and could stand/walk for six hours out of
an eight-hour workday. He could sit for six hours out
of an eight-hour workday. He can only occasionally
balance, stoop, crouch, kneel or climb. He cannot
climb ladders, ropes, or scaffolds.
(6) The claimant is unable to perform any past
relevant work.
(7) The claimant was born on December 13, 1960 and
was 47 years old, which is defined as a younger
individual age 18–49, on the alleged disability onset
date.
The claimant subsequently changed age
category to closely approaching advanced age.
(8) The claimant has at least a high school education
and is able to communicate in English.
(9) The claimant has acquired work skills from past
relevant work.
(10) Considering the claimant’s age, education, work
experience, and residual functional capacity, the
claimant has acquired work skills from past relevant
work that are transferable to other occupations with
jobs existing in significant numbers in the national
economy.
(11) The claimant has not been under a disability, as
defined in the Social Security Act, from July 22,
2008, through the date of this decision.
AR 15–21.
20
In evaluating Agan’s impairments, the ALJ
considered both mental and physical impairments. The ALJ
recognized that Agan’s medically determinable mental
impairments included alcohol abuse, anxiety, and
depression. AR 16. However, he concluded that considered
singly and in combination, these did not cause more than
minimal limitations in the claimant’s ability to perform basic
mental work activities and were therefore non-severe. Id.
The ALJ used the “paragraph B” criteria set out in 20 CFR,
Part 404 Subpart P, Appendix 1, which consists of four
broad functional areas. Id. He found that in the areas of
activities of daily living, social functioning, and
concentration, persistence, and pace, Agan had mild
limitations from his mental impairments. AR 16. He also
found that Agan had no episodes of decompensation of
extended duration. Id. In making these findings, the ALJ
noted Agan’s statement to a physician that he drank a 12pack of beer per day. He also acknowledged that Agan had
intentionally overdosed on his medications in October 2009
and in June 2010, but that he was stabilized and released
home shortly thereafter. Id. In concluding that Agan’s
mental impairments were nonsevere, the ALJ explained:
The record reflects minimal treatment for mental
health conditions and the brief hospitalizations appear
to be isolated events.
The claimant’s physical
conditions appeared to be the focus of treatment
notes, with only sporadic mention that the claimant
received medication for depression. There are no
treatment notes that indicate a mental health specialist
has placed any type of limitations on the claimant due
to mental health conditions.
Id.
The ALJ also addressed Agan’s physical
impairments, including diabetes mellitus and hyperlipidemia.
He concluded that because both of these impairments could
be effectively controlled through medication and did not
21
have more than a minimal effect on his ability to perform
basic work activities, they were non-severe. AR 16–17.
The ALJ also found that the pain and discomfort in
Agan’s hand was a nonmedically-determinable impairment.
AR 17. The ALJ noted that there was no objective
medically-acceptable testing that could establish an
impairment, and he also relied on Dr. Guatam Kakade’s
evaluation where he concluded after extensive testing, “I am
at a loss to find an appropriate diagnosis for his pain and
discomfort.” Id.
In determining Agan’s RFC, the ALJ evaluated the
credibility of Agan’s subjective allegations. AR 17–19. He
found that the record did not fully support the severity of
Agan’s allegations and that treatment seemed to have
resolved or greatly reduced the majority of his complaints,
as the medical evidence failed to document a continued
pattern of complaints of recurrent symptoms. AR 19. He
also found that Agan required little ongoing medical
treatment for his back pain, as evidenced by the record. Id.
The ALJ gave great weight to the opinions of the
State Agency medical consultants’ opinions finding that they
were internally consistent and consistent with the evidence
as a whole. Id.
Report And Recommendation 2–19 (docket no. 10). I adopt Judge Strand’s findings of
fact, as the parties have not objected to them.
II.
A.
ANALYSIS
Standard Of Review
I review Judge Strand’s Report And Recommendation pursuant to the statutory
standards found in 28 U.S.C. § 636(b)(1):
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of
22
the court may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or
recommit the matter to the magistrate judge with
instructions.
28. U.S.C. § 636(b)(1) (2006); see Fed. R. Civ. P. 72(b) (stating identical
requirements); N.D. Ia. L.R. 72, 72.1 (allowing the referral of dispositive matters to a
magistrate judge but not articulating any standards to review the magistrate judge’s
report and recommendation). While examining these statutory standards, the United
States Supreme Court explained:
Any party that desires plenary consideration by the Article
III judge of any issue need only ask. Moreover, while the
statute does not require the judge to review an issue de novo
if no objections are filed, it does not preclude further review
by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, a district court may review de novo
any issue in a magistrate judge’s report and recommendation at any time. Id. If a
party files an objection to the magistrate judge’s report and recommendation, however,
the district court must “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”
28
U.S.C. § 636(b)(1). In the absence of an objection, the district court is not required
“to give any more consideration to the magistrate’s report than the court considers
appropriate.” Thomas, 474 U.S. at 150.
De novo review, of course, is nondeferential and generally allows a reviewing
court to make an “independent review” of the entire matter. Salve Regina College v.
Russell, 499 U.S. 225, 238 (1991) (noting also that “[w]hen de novo review is
compelled, no form of appellate deference is acceptable”); see Doe v. Chao, 540 U.S.
614, 620-19 (2004) (noting de novo review is “distinct from any form of deferential
23
review”). The de novo review of a magistrate judge’s report and recommendation,
however, only means a district court “‘give[s] fresh consideration to those issues to
which specific objection has been made.’” United States v. Raddatz, 447 U.S. 667,
675 (1980) (quoting H.R. Rep. No. 94-1609, at 3, reprinted in 1976 U.S.C.C.A.N.
6162, 6163 (discussing how certain amendments affect 28 U.S.C. § 636(b))). Thus,
while de novo review generally entails review of an entire matter, in the context of
§ 636 a district court’s required de novo review is limited to “de novo
determination[s]” of only “those portions” or “specified proposed findings” to which
objections have been made. 28 U.S.C. § 636(b)(1); see Thomas, 474 U.S. at 154
(“Any party that desires plenary consideration by the Article III judge of any issue need
only ask.”). Consequently, the Eighth Circuit Court of Appeals has indicated de novo
review would only be required if objections were “specific enough to trigger de novo
review.”
Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989).
Despite this
“specificity” requirement to trigger de novo review, the Eighth Circuit Court of Appeals
has “emphasized the necessity . . . of retention by the district court of substantial control
over the ultimate disposition of matters referred to a magistrate.” Belk v. Purkett, 15 F.3d
803, 815 (8th Cir. 1994). As a result, the Eighth Circuit has been willing to “liberally
construe[]” otherwise general pro se objections to require a de novo review of all “alleged
errors,” see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and to conclude that
general objections require “full de novo review” if the record is concise. Belk, 15 F.3d at
815 (“Therefore, even had petitioner’s objections lacked specificity, a de novo review
would still have been appropriate given such a concise record.”). Even if the reviewing
court must construe objections liberally to require de novo review, it is clear to this court
that there is a distinction between making an objection and making no objection at all.
See Coop. Fin. Assoc., Inc. v. Garst, 917 F. Supp. 1356, 1373 (N.D. Iowa 1996) (“The
court finds that the distinction between a flawed effort to bring objections to the district
court’s attention and no effort to make such objections is appropriate.”). Therefore, I will
24
strive to provide de novo review of all issues that might be addressed by any objection,
whether general or specific, but will not feel compelled to give de novo review to matters
to which no objection at all has been made.
In the absence of any objection, the Eighth Circuit Court of Appeals has
indicated a district court should review a magistrate judge’s report and recommendation
under a clearly erroneous standard of review. See Grinder v. Gammon, 73 F.3d 793,
795 (8th Cir. 1996) (noting when no objections are filed and the time for filing
objections has expired, “[the district court judge] would only have to review the
findings of the magistrate judge for clear error”); Taylor v. Farrier, 910 F.2d 518, 520
(8th Cir. 1990) (noting the advisory committee’s note to Fed. R. Civ. P. 72(b) indicates
“when no timely objection is filed the court need only satisfy itself that there is no clear
error on the face of the record”); Branch, 886 F.2d at 1046 (contrasting de novo review
with “clearly erroneous standard” of review, and recognizing de novo review was
required because objections were filed). The United States Supreme Court has stated
that the “foremost” principle under the “clearly erroneous” standard of review “is that
‘[a] finding is “clearly erroneous” when[,] although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’” Anderson v. City of Bessemer City, 470 U.S. 564, 57374 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Thus, the clearly erroneous standard of review is deferential, see Dixon v. Crete
Medical Clinic, P.C., 498 F.3D 837, 847 (8th Cir. 2007) (noting a finding is not clearly
erroneous even if another view is supported by the evidence), but a district court may
still reject the magistrate judge’s report and recommendation when the district court is
“left with a definite and firm conviction that a mistake has been committed.” U.S.
Gypsum Co., 333 U.S. at 395.
25
Even though some “lesser review” than de novo is not “positively require[d]” by
statute, Thomas, 474 U.S. at 150, Eighth Circuit precedent leads me to believe that a
clearly erroneous standard of review should generally be used as the baseline standard
to review all findings in a magistrate judge’s report and recommendation that are not
objected to or when the parties fail to file any timely objections, see Grinder, 73 F.3d
at 795; Taylor, 910 F.2d at 520; Branch, 886 F.2d at 1046; see also FED. R. CIV. P.
72(b) advisory committee’s note (“When no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.”). In the context of the review of a magistrate judge’s report and
recommendation, I believe one further caveat is necessary: a district court always
remains free to render its own decision under de novo review, regardless of whether it
feels a mistake has been committed. See Thomas, 474 U.S. at 153-54. Thus, while a
clearly erroneous standard of review is deferential and the minimum standard
appropriate in this context, it is not mandatory, and I may choose to apply a less
deferential standard.4
4
The Eighth Circuit Court of Appeals, in the context of a dispositive matter
originally referred to a magistrate judge, does not review a district court’s decision in
similar fashion. The Eighth Circuit Court of Appeals will either apply a clearly
erroneous or plain error standard to review factual findings, depending on whether the
appellant originally objected to the magistrate judge’s report and recommendation. See
United States v. Brooks, 285 F.3d 1102, 1105 (8th Cir. 2002) (“Ordinarily, we review
a district court’s factual findings for clear error . . . . Here, however, the record
reflects that [the appellant] did not object to the magistrate’s report and
recommendation, and therefore we review the court’s factual determinations for plain
error.” (citations omitted)); United States v. Looking, 156 F.3d 803, 809 (8th Cir.
1998) (“[W]here the defendant fails to file timely objections to the magistrate judge’s
report and recommendation, the factual conclusions underlying that defendant’s appeal
are reviewed for plain error.”). The plain error standard of review is different than a
clearly erroneous standard of review, see United States v. Barth, 424 F.3d 752, 764
(8th Cir. 2005) (explaining the four elements of plain error review), and ultimately the
26
Here, Agan has objected to several of Judge Strand’s findings. Although I will
review these findings de novo, and Judge Strand’s other findings for clear error, I
review the Commissioner’s decision to determine whether the correct legal standards
were applied and “whether the Commissioner’s findings are supported by substantial
evidence in the record as a whole.” Page v. Astrue, 484 F.3d 1040, 1042 (8th Cir.
2007) (citing Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999)).
Under this
deferential standard, “[s]ubstantial evidence is less than a preponderance but is enough
that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002); see also
Page, 484 F.3d at 1042 (“Substantial evidence is relevant evidence which a reasonable
mind would accept as adequate to support the Commissioner’s conclusion.” (quoting
Haggard, 175 F.3d at 594)). “If, after review, [the court] find[s] it possible to draw
two inconsistent positions from the evidence and one of those positions represents the
plain error standard appears to be discretionary, as the failure to file objections
technically waives the appellant’s right to appeal factual findings. See Griffini v.
Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (stating an appellant who did not object to
the magistrate judge’s report and recommendation waives his or her right to appeal
factual findings, but then choosing to “review[] the magistrate judge’s findings of fact
for plain error”). An appellant does not waive his or her right to appeal questions of
law or mixed questions of law and fact by failing to object to the magistrate judge’s
report and recommendation. United States v. Benshop, 138 F.3d 1229, 1234 (8th Cir.
1998) (“The rule in this circuit is that a failure to object to a magistrate judge’s report
and recommendation will not result in a waiver of the right to appeal ‘“when the
questions involved are questions of law or mixed questions of law and fact.’” (quoting
Francis v. Bowen, 804 F.2d 103, 104 (8th Cir. 1986), in turn quoting Nash v. Black,
781 F.2d 665, 667 (8th Cir. 1986))). In addition, legal conclusions will be reviewed de
novo, regardless of whether an appellant objected to a magistrate judge’s report and
recommendation. See, e.g., United States v. Maxwell, 498 F.3d 799, 801 n.2 (8th Cir.
2007) (“In cases like this one, ‘where the defendant fails to file timely objections to the
magistrate judge’s report and recommendation, the factual conclusions underlying that
defendant’s appeal are reviewed for plain error.’ We review the district court’s legal
conclusions de novo.” (citation omitted)).
27
Commissioner’s findings, [the court] must affirm the denial of benefits.” Finch v.
Astrue, 547 F.3d 933, 935 (8th Cir. 2008) (quoting Mapes v. Chater, 82 F.3d 259, 262
(8th Cir. 1996)). Even if the court would have “‘weighed the evidence differently,’”
the Commissioner’s decision will not be disturbed unless “it falls outside the available
‘zone of choice.’”
Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007) (quoting
Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006)).
B.
Agan’s Objections
In his objections, Agan challenges Judge Strand’s finding, and subsequent
recommendation, that there is substantial evidence in the record to support the ALJ’s
determination that Agan is not disabled. Specifically, the ALJ found that Agan has the
RFC to perform light work as defined in 20 C.F.R. 404.1567(b) such that he could lift
twenty pounds occasionally and ten pounds frequently, he could stand/walk for six
hours out of an eight-hour workday, he could sit for six hours out of an eight-hour
workday, and he could only occasionally balance, stoop, crouch, kneel or climb; and he
cannot climb ladders, ropes, or scaffolds. Agan objects to Judge Strand’s Report And
Recommendation, arguing (1) the ALJ failed to properly evaluate Agan’s subjective
allegations utilizing the Polaski standard and (2) the ALJ failed to fully and fairly
develop the record by not obtaining work-related limitations from a treating or
examining source and Agan’s mental health records or a consultative evaluation. In
support of his objections, Agan argues that “[t]he evidence is not so strongly against the
claimant’s position that the Court can assume the ALJ’s errors are harmless.”
Plaintiff’s Objections at 20 (citing Pope v. Bowen, 886 F.2d 1038, 1040 (8th Cir.
1989)).
28
1.
The ALJ’s credibility determination
Agan maintains that the ALJ, in making his credibility determination, failed to
properly evaluate Agan’s subjective allegations under the Polaski v. Heckler standard.
Specifically, Agan brings up the following issues in his objections: the reliance on the
silence of the treating physicians, the failure to recognize objective medical evidence,
the subjective nature of back pain, Agan’s loss of health insurance, work history, and
Agan’s age category.
“The credibility of a claimant’s subjective testimony is primarily for the ALJ to
decide, not the courts.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).
When evaluating a claimant’s subjective complaints, an ALJ must employ the multifactor standard articulated by the Eighth Circuit Court of Appeals in Polaski v. Heckler,
739 F.2d 1320 (8th Cir. 1984), which examines “the claimant’s prior work history;
daily activities; duration, frequency, and intensity of pain; dosage, effectiveness and
side effects of medication; precipitating and aggravating factors; and functional
restrictions.”
Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010) (quoting
Medhaug v. Astrue, 578 F.3d 805, 816 (8th Cir. 2009), in turn citing Polaski, 739 F.2d
at 1322). Nonetheless, “[t]he ALJ is not required to discuss each Polaski factor as long
as ‘he acknowledges and considers the factors before discounting a claimant’s
subjective complaints.’” Id. at 932 (quoting Moore v. Astrue, 572 F.3d 520, 524 (8th
Cir. 2009)). Rather, “[t]he ALJ need only acknowledge and consider those factors
before discounting a claimant’s subjective complaints.” Eichelberger v. Barnhart, 390
F.3d 584, 590 (8th Cir. 2004). The ALJ may also consider “the absence of objective
medical evidence to support the complaints, although the ALJ may not discount a
claimant’s subjective complaints solely because they are unsupported by objective
medical evidence.” Halverson, 600 F.3d at 931–32 (citing Mouser v. Astrue, 545 F.3d
634, 638 (8th Cir. 2008)). Additionally, “acts which are inconsistent with a claimant’s
29
assertion of disability reflect negatively upon that claimant’s credibility,” id. at 932
(citing Heino v. Astrue, 578 F.3d 873, 881 (8th Cir. 2009)), and the ALJ may discredit
“a claimant’s subjective complaints if there are inconsistencies in the record as
whole,’” id. (quoting Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008)). The
failure to seek medical treatment may reflect adversely on the credibility of a claimant’s
subjective complaints. See Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir. 2008)).
Courts generally defer to an ALJ’s credibility finding when the ALJ “‘explicitly
discredits the claimant’s testimony and gives good reason for doing so.’” Halverson,
600 F.3d at 932 (quoting Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008)). The
Eighth Circuit Court of Appeals has cautioned judges against “substitut[ing] [their]
opinion for that of the ALJ, who is in a better position to assess credibility.”
Eichelberger, 390 F.3d at 590 (citing Brown v. Chater, 87 F.3d 963, 965 (8th Cir.
1996)).
a.
Lack of functional restrictions
Agan contends that Judge Strand erroneously “asserted that the silence of the
treating physicians supported the ALJ’s determination.” Plaintiff’s Objections at 2; see
Johnson v. Astrue, 628 F.3d 991, 995 (8th Cir. 2011) (“[A] treating doctor’s silence on
the claimant’s work capacity does not constitute substantial evidence supporting [an]
ALJ’s functional capacity determination when the doctor was not asked to express an
opinion on the matter and did not do so, particularly when the doctor did not discharge
the claimant from treatment.”). Agan suggests that the lack of restrictions cannot be
used to discount his claim because the treating physicians were not asked to render an
opinion on his work capacity.
The ALJ considered the Polaski factors, particularly Agan’s own description of
his activities and limitations. See Howard v. Astrue, No. 4:10 CV 1389 JCH, 2011
WL 4007936, at *7 (E.D. Mo. Sept. 8, 2011) (holding that the ALJ may not base his
30
functional determination solely on the silence of the claimant’s physicians). The ALJ
properly observed that Agan’s self-reported daily activity limitations were inconsistent
with the lack of significant restrictions imposed by a treating physician. See Smith v.
Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993) (finding that the lack of significant
medical restrictions is inconsistent with complaints of disabling pain). As Judge Strand
observed, “[s]elf-imposed limitations without medical support in the record can be a
basis for discrediting the claimant’s allegations.” Report and Recommendation at 25
(citing Blakeman v. Astrue, 509 F.3d 878, 882 (8th Cir. 2007)). I find it significant
that none of Agan’s treating physicians ever indicated he could not or should not work.
See Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000) (“We find it significant that
no physician who examined [the claimant] submitted a medical conclusion that [he] is
disabled and unable to perform any type of work.”). The only relevant work restriction
in the record is from Agan’s October 2008 post-surgery exam with Dr. Galloway in
which she restricted him to “no lifting greater than 30 pounds with limited bending and
twisting.” AR 275. There are no subsequent restrictions from Agan’s doctors in the
record.
Therefore, the ALJ did not err in adversely considering the lack of any
significant restrictions imposed by a treating physician, as part of the overall credibility
assessment.
b.
Objective medical evidence and daily activities
Agan argues that Judge Strand and the ALJ failed to recognize that the objective
medical evidence and Agan’s daily activities are consistent with a finding of disability.
Judge Strand properly determined that this argument reflects the wrong standard of
review. If it is possible to draw two inconsistent positions from the evidence and one
of those positions represents the Commissioner’s findings, I must affirm the denial of
benefits.
Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008) (quoting Mapes v.
Chater, 82 F.3d 259, 262 (8th Cir. 1996)). Since the Commissioner’s decision does
31
not fall “outside the available ‘zone of choice,’” I will not disturb the finding of no
disability. Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007) (citing Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir. 2006)).
First, the ALJ considered Agan’s active daily living activities as a factor in the
credibility analysis, not the sole consideration. See Medhaug v. Astrue, 578 F.3d 805,
817 (8th Cir. 2009) (“[a]cts such as cooking, vacuuming, washing dishes, doing
laundry, shopping, driving, and walking, are inconsistent with subjective complaints of
disabling pain.”). In May 2009, Agan reported that he went on daily, one-mile walks.
AR 18, 206. He also went grocery shopping, did laundry, and mowed the lawn. AR
208-09. Agan reported that he did yard work in August 2009 (AR 18, 383) and mowed
the lawn in August 2010 (AR 478, 480), where he was limited by muscle strain and
acid reflux, not back pain. AR 383, 475, 478. At the hearing, he testified that he tries
to maintain the house by loading the dishwasher and doing laundry. AR 46. He also
testified that he is able to take care of his personal needs and can drive for short trips.
AR 47. After assessing Agan’s daily activities, the ALJ determined that his activity
level was inconsistent with his allegations of disabling pain.
Second, Agan argues that the ALJ failed to recognize objective evidence,
including the uncertainty of further treatment alternatives, Agan’s fall in October 2008,
and the 2008 CT scan revealing severe facet degenerations at L4/L5.
The ALJ
concluded, after considering the Polaski standard, that “the objective findings in this
case failed to provide strong support for the claimant’s allegations of disabling
symptoms and limitations.”
AR 18.
The ALJ considered the objective medical
evidence in the record, concluding that Agan’s back surgeries in April 2005, December
2008, and July 2008 appear “to have resolved or greatly reduced the majority of the
claimant’s complaints. Although the claimant initially complained of some recurrent
symptoms, the medical evidence failed to document a continued pattern of complaints.
32
Significantly, the claimant appears to have required limited ongoing medical treatment
for back pain.” AR 19; see 20 C.F.R. § 404.1529(c)(3)(v). The ALJ found that Agan
“experiences some symptoms and limitations; however, the record does not fully
support the severity of the claimant’s allegations.” AR 19; see Ramirez v. Barnhart,
292 F.3d 576, 581 (8th Cir. 2002) (“An ALJ is entitled to make a factual determination
that a Claimant’s subjective pain complaints are not credible in light of objective
medical evidence to the contrary.”). Agan’s assertion about the uncertainty of further
treatment alternatives is irrelevant because the evidence shows that, despite some
lingering pain, the surgeries mostly resolved Agan’s complaints. Although Agan fell in
October 2008, the record shows that, at that time, he only reported “occasional [back]
stiffness, but overall he [was] doing better,” physical therapy “really helped,” and he
was “ready to go back to work.” AR 275. At subsequent appointments in December
2009, January 2010, February 2010, and March 2010, he did not report back pain.
Report and Recommendation at 27. Also, the facet degenerations, may have been a
source of pain, but the ALJ considered it in the totality of the record, and it appears to
have been controlled by medication. AR 287, 302–303.
In assessing the objective medical evidence, Judge Strand provided a detailed
summary of Agan’s treatment history, illustrating a pattern of back pain complaints
only when he needed refills on his medications. Report And Recommendation at 26–
28; AR 390. Judge Strand also discussed Agan’s intentional overdose on Tramadol in
October 2009 and the drug-seeking education he received from the nurse practitioner.
AR 379, 461, 468. As Judge Strand observed, “This pattern seems to indicate that
Agan’s back problems were substantially controlled by medication or that he was
seeking medication for reasons other than his back pain.”
Recommendation at 28.
Report And
It appears from the record that Agan’s back pain was
controlled by treatment, which does not support a finding of disability. See Hutton v.
33
Apfel, 175 F.3d 651, 655 (8th Cir. 1999). I agree with Judge Strand’s analysis of
Agan’s drug-seeking behavior, in which he observed that it “cast[s] a cloud of doubt”
over the legitimacy of Agan’s doctor visits and allegations of disabling pain. Anderson
v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995).
The ALJ’s findings of inconsistencies in Agan’s daily activities and the lack of
objective medical evidence to support Agan’s alleged disabling impairments is
supported by substantial evidence in the record. Therefore, the ALJ did not err in his
analysis of the objective medical evidence and daily activities.
c.
Subjective nature of back pain
Agan contends that Judge Strand and the ALJ “fail[ed] to recognize the
inherently subjective nature of much back pain.” Plaintiff’s Objections at 4. Agan
cites to medical journals, but he does not provide any support to show how Judge
Strand or the ALJ allegedly failed to understand the inherently subjective nature of back
pain. While pain in general may be difficult to describe or quantify, the ALJ properly
considered Agan’s back pain from Agan’s own reports, as well as the objective medical
evidence in the record. See Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008)
(“An ALJ may discount a claimant's subjective complaints if there are inconsistencies
in the record as a whole.”).
Agan quotes Landness v. Weinberger to assert that
“disability claimants are not to be evaluated as having several hypothetical and isolated
illnesses. These claimants are real people and entitled to have their disabilities
measured in terms of their total physiological well-being. Different people react in
markedly different ways to similar injuries. A back condition may affect one individual
in an inconsequential way, whereas the same condition may severely disable another
person who has greater sensitivity to pain or whose physical condition, due to age,
obesity, deformity, or general physical well-being is generally deteriorated.” 490 F.2d
1187, 1190 (8th Cir. 1973). I absolutely agree with these considerations. As the court
34
in Flaherty v. Halter explained, “[g]iven this variability, an ALJ may discredit
subjective complaints of pain only if those complaints are inconsistent with the Record
as whole.” 182 F. Supp. 2d 824, 847 (D. Minn. 2001). Here, the ALJ analyzed the
record as a whole and determined that “the record does not fully support the severity of
the claimant allegations.”
AR 19. Thus, the ALJ did not fail to recognize the
subjective nature of back pain.
d.
Loss of health insurance
Agan also objects to the ALJ’s failure to address his loss of health insurance
around February 2009 as a basis for his limited treatment. Agan cites to the treatment
notes from Agan’s post-surgery appointment in August 2008, where the provider noted
that Agan was not taking Avadia for his diabetes because of the cost, but he was taking
insulin. AR 244–45. This reference, in 2008, does not support Agan’s objection on
the loss of insurance, because it occurred before he lost his insurance. Agan also cites
to the disability report where Agan noted that, when he sought treatment in July 2009
for diarrhea, his provider at United Community Health Center wanted to do a CT scan,
but Agan could not afford the procedure. AR 230.
Loss of health insurance is a significant burden, especially for an individual like
Agan who is afflicted with a variety of ailments. In Tome v. Schweiker, the Eighth
Circuit Court of Appeals reversed the district court’s finding of no disability because
the claimant “did not consciously decide not to follow ‘doctor’s orders,’ but rather
lacked the financial resources and the discipline and education needed to understand and
follow her [medical regime].” 724 F.2d 711, 713–14 (8th Cir. 1984). In Benskin v.
Bowen, the Eighth Circuit Court of Appeals was less willing to find the lack of
financial resources an appropriate excuse when the claimant “did not testify that
financial concerns deterred her from seeking less costly medical attention.” 830 F.2d
878, 884 (8th Cir. 1987). Here, the ALJ and Judge Strand did not use Agan’s inability
35
to
afford
medical
services
as
a
basis
for
his
denial
of
benefits.
See Tang v. Apfel, 205 F.3d 1084, 1086 (8th Cir. 2000). This objection does not apply
to the facts at hand because Agan did not fail to seek medical attention, Benskin, 830
F.2d at 884, or follow prescribed treatment, Tome, 724 F.2d at 713. After losing his
insurance, Agan continued to seek medical treatment for his impairments at several
different medical centers, including the sliding fee schedule community clinic in Storm
Lake. AR 373–99, 457–70. I find it significant that Agan did not testify that there
were medical services for his back pain that he needed but stopped seeking because of
his loss of insurance. As part of the credibility analysis, the ALJ considered Agan’s
infrequent and conservative treatment, not his failure to seek treatment. Therefore, the
ALJ and Judge Strand did not err in failing to address Agan’s loss of health insurance
as a basis for his limited treatment.
e.
Work history
Agan objects to Judge Strand’s evaluation of Agan’s work history in which Judge
Strand observed that continuing to work with an alleged disability and applying for
unemployment benefits undermines Agan’s credibility. Report And Recommendation
at 29.
Agan contends that the ALJ did not consider this matter in his credibility
analysis, and I should not rely on this evidence since the ALJ did not rely on this basis.
Agan relies on the rule upheld in HealthEast Bethesda Lutheran Hospital and
Rehabilitation Center v. Shalala, 164 F.3d 415 (8th Cir. 1998) that a reviewing court
may not uphold an agency’s decision based upon reasons the agency failed to articulate
when “the agency [has] fail[ed] to make a necessary determination of fact or policy”
upon which the court's alternative basis is premised. HealthEast, 164 F.3d at 418
(discussing the limitations on the rule dictated in S.E.C. v. Chenery Corp., 318 U.S.
80, 63 S. Ct. 454 (1943)); Banks v. Massanari, 258 F.3d 820, 824 (8th Cir.2001).
36
Here, the ALJ did not fail to make a necessary finding of fact or policy.
Although the evidence of Agan’s application for unemployment benefits was not
“expressly cited by the ALJ” in the section of the decision discussing Agan’s work
history, they are part of the administrative record and were considered by the ALJ.
Bondurant v. Astrue, 2010 WL 889932. *2 (D. Minn 2010) (holding that claimant’s
argument that magistrate judge engaged in post hoc rationalizations to affirm the ALJ’s
decision is without merit because the evidence was part of the administrative record).
“To the extent [the magistrate judge], upon thoroughly considering the record as a
whole, articulated additional reasons to support the ALJ’s conclusion, the additional
reasons do not result in a substitution of his view for the ALJ’s view of the evidence.”
Telin v. Astrue, 2012 WL 6194353, *2 (D. Minn. 2012). The ALJ’s decision states
that he “carefully considered all the testimony at the hearing, the arguments made, and
the documents identified in the record” and “[t]he testimony at the hearing and the
exhibits of record are incorporated” in his decision by reference. AR 13. Although the
ALJ did not specifically discuss this evidence of unemployment benefits in his decision,
the ALJ considered this evidence as part of the hearing and the record. AR 33, 183-84,
186-87, 188-90, 257, 271. In his Report And Recommendation, Judge Strand properly
considered the record as a whole.
Agan’s argument is without merit. However, even if his objection were valid, it
would have no effect on the result, since Judge Strand’s discussion merely bolsters the
ALJ’s credibility assessment and there are many other significant factors supporting the
credibility determination. Thus, Judge Strand did not err in discussing the claim for
unemployment compensation as part of the credibility discussion in the Report And
Recommendation.
37
f.
Age category
Agan argues that Judge Strand failed to consider that Agan jumped up an age
category shortly after he became disabled. If a claimant is “within a few days to a few
months of reaching an older age category, and using the older age category would
result in a determination or decision that [the claimant is] disabled, [the agency] will
consider whether to use the older age category after evaluating the overall impact of all
the factors of [the claimant’s] case.” 20 C.F.R. § 404.1563(b).
However, this argument is unfounded because the ALJ clearly considered the
change in age category, since he specifically made note of the age change. AR 20.
The ALJ acknowledged that Agan “was born on December 13, 1960, and was 47 years
old, which is defined as a younger individual age 18–49, on the alleged disability onset
date. The claimant subsequently changed age category to closely approaching advanced
age (20 C.F.R. 404.1563).”
AR 20.
Agan misleadingly cites Vocational Rules
201.09, .10, .12, and .14, which do not reflect Agan’s vocational situation. AR 15–21.
The ALJ applied the framework of Vocational Rule 202.22 for the younger individual
category and Vocational Rule 202.15 for the closely approaching advanced age
category, which both result in a finding of “not disabled” according to Agan’s
vocational limitations. 20 C.F.R. Pt. 404, Subpt. P, App. 2. (“Table No. 1—Residual
Functional Capacity: Maximum Sustained Work Capability Limited to Sedentary Work
as a Result of Severe Medically Determinable Impairment(s)). Thus, the age category
does not change the decision on Agan’s disability, and the ALJ properly considered
Agan’s age category change in his analysis.
Therefore, because substantial evidence in the record as a whole supports the
ALJ’s decision to discount Agan’s subjective complaints of limitations arising from his
back pain, I find that the ALJ’s credibility determination was proper. See Page, 484
38
F.3d at 1042. I will not “substitute [my] opinion for that of the ALJ, who is in a better
position to assess credibility.” Eichelberger, 390 F.3d at 590.
2.
The ALJ’s development of the record
Agan argues that the ALJ and Judge Strand failed to fully and fairly develop the
record with respect to the work-related limitations from a treating or examining source,
Agan’s diabetic peripheral neuropathy, and the evidence of mental impairments. An
ALJ has a duty to develop the record fully and fairly, independent of the claimant’s
burden to press her case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010). A
social security hearing is a non-adversarial proceeding, and the ALJ must develop the
record so that “deserving claimants who apply for benefits receive justice.” Battles v.
Shalala, 36 F.3d 43, 44 (8th Cir. 1994). “[A]n ALJ is permitted to issue a decision
without obtaining additional medical evidence so long as other evidence in the record
provides a sufficient basis for the ALJ’s decision.” Naber v. Shalala, 22 F.3d 186, 189
(8th Cir. 1994).
a.
Work-related limitations
Agan alleges the ALJ failed to obtain work-related limitations from a treating or
examining source.
The ALJ must determine a claimant’s RFC based on all the
evidence including “medical records, observations of treating physicians and others,
and an individual’s own description of his [or her] limitations.” Strongson v. Barnhart,
361 F.3d 1066, 1070 (8th Cir. 2004). “RFC is a medical question, and an ALJ’s
finding must be supported by some medical evidence.” Guillams, 393 F.3d at 803. An
ALJ may need to order medical examinations and tests when the medical evidence in
the record is insufficient to determine whether the claimant is disabled. Barrett v.
Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994).
Agan relies on Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) to support
his argument that the ALJ erred by failing to obtain work-related limitations from a
39
treating or examining source. In Nevland, the court reversed and remanded the case
because “there is no medical evidence about how [the claimant’s] impairments affect his
ability to function now. The ALJ relied on the opinions of non-treating, non-examining
physicians who reviewed the reports of the treating physicians to form an opinion.”
Nevland, 204 F.3d at 858. Here, the ALJ’s RFC assessment is supported by substantial
evidence in the record. The ALJ did not rely solely on non-treating doctors to form an
opinion on Agan’s RFC. See Dixon v. Barnhart, 324 F.3d 997, 1002 (8th Cir. 2003).
The ALJ’s determination is based on all the evidence in the record, including “the
medical records, observations of treating physicians and others, and an individual’s
own description of his limitations.” McKinney v. Apfel, 228 F.3d 760, 863 (8th Cir.
2000).
In particular, the ALJ considered medical evidence following Agan’s last back
surgery in 2008, which indicated that he was “doing very well post-operatively.” AR
279–80. Physical examinations following his surgery indicated normal functioning of
his extremities. AR 271, 275, 279. Agan completed two weeks of physical therapy for
three times a week followed by work hardening for two weeks.
AR 279–80.
In
October 2008, Agan returned to work part-time and the physician assistant suggested a
limitation of “no lifting over 30 pounds and limited bending and twisting.” AR 275–
76. By November 2008, Agan was working full-time with no limitations noted at his
follow-up exam.
AR 71–72.
Aside from the post-surgery limitations on lifting,
bending, and twisting, there are no functional limitations in the record and no indication
of worsening condition. The post-surgery medical records only noted tenderness of the
spine.
AR 380-81, 389, 459.
Agan’s complaints of back pain were related to
medication refills or new injuries that provoked his back pain. AR 380, 386, 389, 433.
The ALJ relied on medical evidence from the post-operative evaluations to ascertain
additional work-related limitations. See Cox v. Astrue, 495 F.3d 614, 620 n.6 (8th Cir.
40
2007) (explaining that an explicit reference to “work” is unnecessary when the
“evaluations describe [the claimant’s] functional limitations with sufficient generalized
clarity to allow for an understanding of how those limitations function in a work
environment”). The medical evidence, including physical examination treatment notes
from the treating physicians, provide sufficient support for a finding that Agan was able
to function in the workplace.
The ALJ’s RFC determination includes significantly
more limitations than Agan’s single, post-operative limitation, reflecting a thorough
consideration of Agan’s subjective allegations and the medical evidence of his
degenerative disc disease. I agree with Judge Strand that no further development of the
record was necessary for the ALJ’s RFC determination.
b.
Agan’s diabetic peripheral neuropathy
Agan also contends the ALJ should have developed the record more concerning
the limitations of Agan’s diabetic peripheral neuropathy. In particular, Agan refers to a
treatment note before his surgery in which the doctor opined that it was unclear how
much the numbness and tingling could be attributed to Agan’s peripheral neuropathy.
However, the ALJ determined that Agan’s diabetes mellitus is a non-severe
impairment. AR 16. The ALJ concluded, “After receiving medication and diabetic
counseling, his symptoms appeared to be stable and do not have more than a minimal
effect on his ability to perform basic work activities.”
AR 16–17.
A “severe
impairment” is defined as one which “significantly limits [the claimant’s] physical or
mental ability to do basic work activities.”
20 C.F.R. § 404.1520(c).
The ALJ
analyzed the medical record concerning Agan’s diabetes mellitus and diabetic peripheral
neuropathy, which indicated that Agan “has some mild sensory deficits consistent with
diabetic peripheral neuropathy,” but it was never the focus of his treatment. AR 400. I
agree with Judge Strand that the record contains substantial evidence supporting the
41
ALJ’s finding that Agan’s diabetic peripheral neuropathy was a non-severe impairment
that did not require further development by the ALJ.
c.
Evidence of mental impairments
Agan also argues that the ALJ failed to fully develop the record regarding the
evidence of mental impairments. First, Agan contends the ALJ should have requested
the treatment records from Berryhill, where he received treatment for anxiety and
depression for the five months prior to the administrative hearing.
Second, Agan
argues the ALJ should have ordered a consultative evaluation to help determine whether
Agan’s mental impairments were severe.
“Some of the factors an ALJ may consider when determining a claimant’s mental
impairments are (1) the claimant’s failure to allege mental impairments in his
complaint, (2) failure to seek mental treatment, (3) the claimant’s own statements, and
(4) lack of medical evidence indicating mental impairment.” Partee v. AStrue, 638
F.3d 860, 864 (8th Cir. 2011). The ALJ must consider four broad functional areas to
determine whether the claimant’s mental impairments are severe, including “[a]ctivities
of daily living; social functioning; concentration, persistence, or pace; and episodes of
decompensation.”
20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3).
“[A]n ALJ is
permitted to issue a decision without obtaining additional medical evidence so long as
other evidence in the record provides a sufficient basis for the ALJ’s decision.”
Anderson, 51 F.3d at 779 (quoting Naber, 22 F.3d at 189). An ALJ “is not obliged ‘to
investigate a claim not presented at the time of the application for benefits and not
offered at the hearing as a basis for disability.’” Gregg v. Barnhart, 354 F.3d 710, 713
(8th Cir. 2003) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)).
Here, the ALJ considered the four functional areas in assessing Agan’s mental
impairments, pursuant to 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). AR 16. The
ALJ acknowledged that Agan suffered from chronic alcoholism, depression, and
42
anxiety; however, none of these issues were alleged in Agan’s disability application.
AR 16, 195. The ALJ also observed that Agan intentionally overdosed on Tramadol in
October 2009 and benzodiazepines in June 2010, but was stabilized and released home
on both occasions. AR 16. The ALJ concluded:
The record reflects minimal treatment for mental health
conditions and the brief hospitalizations appear to be isolated
events. The claimant’s physical conditions appeared to be
the focus of treatment notes, with only sporadic mention that
the claimant received medication for depression. There are
not treatment notes that indicate a mental health specialist
has placed any type of limitations on the claimant due to
mental health conditions.
AR 16.
During the hearing, the ALJ inquired about the treatment Agan received at
Berryhill, which Agan said helped with his anxiety and depression, but he still had
symptoms. AR 42-43. In Agan’s brief, he suggests that his attorney was not aware the
Berryhill records were missing. Agan’s Brief at 20. However, the claimant has the
initial burden of producing evidence.
See 20 C.F.R. § 404.1512(c) (“You must
provide medical evidence showing that you have an impairment(s) and how severe it is
during the time you say that you are disabled.”).
The ALJ “will make every
reasonable effort to help [the claimant] get medical reports” when the claimant gives
the ALJ permission to request the reports. 20 C.F.R. § 404.1512(d). The ALJ is
required to obtain additional evidence “only if the medical records presented to him do
not give sufficient medical evidence to determine whether the claimant is disabled.”
Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010).
There was sufficient medical evidence in the record for the ALJ to determine
that Agan’s mental impairments were non-severe without requesting additional evidence
or a consultative examination. I agree with Judge Strand’s reasoning in the Report and
43
Recommendation. First, Agan failed to allege mental impairments in his application for
benefits. AR 195. Although he added a new mental limitation in his appeals report in
July 2009, he indicated there were no changes in daily activities as the result of the new
limitation. AR 229. Second, depression was not the focus of any treatment in the
record, but mentioned only with regard to medication. AR 385 (sought treatment for
diarrhea in July 2009, not depression). Third, after Agan’s two suicide attempts, his
medication and treatment remained relatively the same.
AR 402, 432.
Agan’s
depression and anxiety appear to be controlled primarily through medication. At the
hearing, Agan said the new anti-depressant from Berryhill helped, although he still
experienced symptoms. AR 42. Also, his mental impairments are not identified as the
cause of Agan’s limitations. Agan explained that he was not able to work because of
his back pain. AR 35. Thus, there is substantial evidence in the record to support the
ALJ’s conclusion that Agan’s mental impairments were non-severe and did not require
further development.
III.
CONCLUSION
THEREFORE, I find that the ALJ’s determination that Agan is not disabled is
supported by substantial evidence in the record as a whole. Judge Strand recommended
that the ALJ’s decision be affirmed and that judgment be entered in favor of the
Commissioner and against Agan. I agree and thus accept Judge Strand’s Report And
Recommendation (docket no. 10). The Commissioner’s decision is affirmed. The
clerk is directed to enter judgment in favor of the Commissioner and against Agan.
44
IT IS SO ORDERED.
DATED this 7th day of February, 2013.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
45
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