Ditsworth v. Commissioner of Social Security
Filing
16
MEMORANDUM OPINION AND ORDER re 2 Complaint filed by Kelly J Ditsworth. The decision of the ALJ is affirmed. Judgment shall be entered in favor of the Commissioner and against Ditsworth. Signed by Magistrate Judge Leonard T Strand on 11/12/13. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
KELLY J. DITSWORTH,
Plaintiff,
No. C12-3100-LTS
vs.
MEMORANDUM OPINION
AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
____________________
Plaintiff Kelly J. Ditsworth seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying her applications for Social
Security Disability Insurance benefits (DIB) and Supplemental Security Income benefits
(SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act).
Ditsworth contends that the administrative record (AR) does not contain substantial
evidence to support the Commissioner’s decision that she is not disabled. For the
reasons that follow, I find that the decision must be affirmed.
Background
Ditsworth was born in 1970. AR 161. She completed high school and has past
relevant work as a certified nurse’s aide. AR 32, 57, 308. She protectively filed
applications for SSI and DIB on November 13, 2009, and alleged a disability onset date
of February 11, 2008.
AR 8.
Both applications were denied initially and on
reconsideration. Id. She then requested a hearing, which was conducted September
14, 2011, by Administrative Law Judge (ALJ) Jeffrey Marvel. Id. Ditsworth testified
during the hearing, as did a vocational expert (VE). AR 29-62.
The ALJ issued a decision denying Ditsworth’s applications on October 6, 2011.
AR 8-20. On October 24, 2012, the Appeals Council denied Ditsworth’s request for
review.
AR 1-3.
As such, the ALJ’s decision is the final decision of the
Commissioner. AR 1; see also 20 C.F.R. §§ 404.981, 416.1481.
On December 21, 2012, Ditsworth commenced an action in this court seeking
review of the ALJ’s decision. On February 12, 2013, with the parties’ consent, United
States District Judge Mark W. Bennett transferred the case to me. The parties have
briefed the issues and the matter is now fully submitted.
Disability Determinations and the Burden of Proof
A disability is defined as the 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 that has lasted or can be expected to last for a continuous
period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is “not
only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists . . . in
significant numbers either in the region where such individual lives or in several regions
of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process
outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500
F.3d 705, 707 (8th Cir. 2007). First, the Commissioner will consider a claimant’s
2
work activity.
If the claimant is engaged in substantial gainful activity, then the
claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.”
Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment
is not severe if it amounts only to a slight abnormality that would not significantly limit
the claimant’s physical or mental ability to do basic work activities.”
Kirby, 500 F.3d
at 707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities
and aptitudes include (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and
speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use
of judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work setting.
Id.
§§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107
S. Ct. 2287, 2291 (1987). “The sequential evaluation process may be terminated at
step two only when the claimant’s impairment or combination of impairments would
have no more than a minimal impact on her ability to work.”
Page v. Astrue, 484 F.3d
1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled, regardless of age, education, and work experience. 20 C.F.R.
3
§§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v.
Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of
the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) to determine the claimant’s “ability to meet
the physical, mental, sensory, and other requirements” of the claimant’s past relevant
work.
20
C.F.R.
§§ 404.1520(a)(4)(iv),
404.1545(a)(4),
416.920(a)(4)(iv),
416.945(a)(4). “RFC is a medical question defined wholly in terms of the claimant’s
physical ability to perform exertional tasks or, in other words, what the claimant can still
do despite his or her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642,
646
(8th
Cir.
2003)
(internal
quotation
marks
omitted);
see
20
C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). The claimant is responsible for providing evidence
the Commissioner will use to make a finding as to the claimant’s RFC, but the
Commissioner is responsible for developing the claimant’s “complete medical history,
including arranging for a consultative examination(s) if necessary, and making every
reasonable effort to help [the claimant] get medical reports from [the claimant’s] own
medical sources.” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner
also will consider certain non-medical evidence and other evidence listed in the
regulations. See id. If a claimant retains the RFC to perform past relevant work, then
the claimant is not disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to prove that
there is other work that the claimant can do, given the claimant’s RFC as determined at
Step Four, and his or her age, education, and work experience. See Bladow v. Apfel,
205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must prove not only that
the claimant’s RFC will allow the claimant to make an adjustment to other work, but also
4
that the other work exists in significant numbers in the national economy.
Eichelberger
v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in
significant numbers in the national economy, then the Commissioner will find the
claimant is not disabled. If the claimant cannot make an adjustment to other work, then
the
Commissioner
will
find
that
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
the
claimant
is
disabled.
20
C.F.R.
At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
Summary of ALJ’s Decision
The ALJ made the following findings:
(1)
The claimant meets the insured status requirements of
the Social Security Act through June 30, 2014.
(2)
The claimant has not engaged in substantial gainful
activity since February 11, 2008, the alleged onset
date (20 CFR 404.1571 et seq., and 416.971 et seq.).
(3)
The claimant has the following severe impairments:
osteoarthritis of the right ankle status-post fracture and
fusion; history of vulvar cancer status-post
chemotherapy and radiation; major depression,
recurrent; and obesity (20 CFR 404.1520(c) and
416.920(c)).
(4)
The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
(5)
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
5
functional capacity to perform sedentary work, as
defined in 20 CFR 404.1567(b) and 416.967(b)
except: the claimant can lift twenty pounds
occasionally and ten pounds frequently; stand and
walk two hours out of an eight-hour workday; and sit
for six hours in an eight-hour workday. The claimant
is only able to walk for fifteen minutes at a time and
then must rest for two to three minutes. The claimant
is only able to occasionally balance, stoop, kneel,
crouch, crawl, and climb, and is never able to climb
ladders, ropes or scaffolding. The claimant is limited
to working at no more than a regular pace.
(6)
The claimant is unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).
(7)
The claimant was born on August 24, 1970 and was 37
years old, which is defined as a younger individual
18-49, on the alleged disability onset date (20 CFR
404.1563 and 416.963).
(8)
The claimant has at least a high school education and
is able to communicate in English (20 CFR 404.1564
and 416.964).
(9)
Transferability of job skills is not material to the
determination of disability because using the
Medical-Vocational Rules as a framework supports a
finding that the claimant is "not disabled," whether or
not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(10)
Considering the claimant's age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11)
The claimant has not been under a disability, as
defined in the Social Security Act, from February 11,
2008, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
6
AR 10-20.
At Step Two, the ALJ found that all of Ditsworth’s impairments (osteoarthritis of
the right ankle status-post fracture and fusion; history of vulvar cancer status-post
chemotherapy and radiation; major depression, recurrent; and obesity) were “severe”
within the meaning of the Commissioner’s regulations, as they are established by medical
evidence and impose significant limitations on her ability to perform basic work
activities.
AR 10.
At Step Three, the ALJ found that none of Ditsworth’s
impairments, either alone or in combination with any other impairments, met or
medically equaled any listed impairment.
AR 11-13.
He conducted a thorough
analysis of Listings 1.02 (major dysfunction of a joint), 12.04 (mental impairments) and
13.23 (cancer of the vulva).
Id. Ditsworth does not challenge the ALJ’s finding that
her impairments do not meet or medically equal a listed impairment.
At Step Four, the ALJ undertook an RFC assessment. He found that Ditsworth
can perform sedentary work1 except that she can (a) lift twenty pounds occasionally and
ten pounds frequently, (b) stand and walk two hours out of an eight-hour workday, (c) sit
for six hours in an eight-hour workday, (d) walk for fifteen minutes at a time and then must
rest for two to three minutes, (e) occasionally balance, stoop, kneel, crouch, crawl and
climb and (f) never climb ladders, ropes or scaffolding. AR 13. He also found that she
is limited to working at no more than a regular pace. Id. In making this finding, the ALJ
first described Ditsworth’s own allegations as to the nature and effects of her symptoms.
1
The Commissioner’s regulations state:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are
met.
See 20 CFR §§ 404.1567(b) and 416.967(b)
7
AR 14.
He noted that Ditsworth claimed to be unable to work due to her ankle
impairment, complex regional pain syndrome, depression and anxiety, along with the
residual effects of chemotherapy and radiation treatment. Id. After describing her
specific claims concerning her symptoms, the ALJ found that her statements were not
credible to the extent that they were inconsistent with his RFC determination. Id.
The ALJ provided several reasons for his credibility assessment.
First, he
summarized the evidence of treatment she received after suffering an ankle injury in
February 2008, noting that she was originally diagnosed with a sprain but was later found
to have fractured the posterior aspect of her tibia, causing degenerative changes in her
ankle. Id. He further noted that she eventually underwent fusion surgery and that after
a healing period she was able to ambulate without the use of assistive devices. AR 14-15.
The ALJ next stated that Ditsworth made seemingly-inconsistent reports of pain to
her health care providers. AR 15. For example, she was evaluated at the Mayo Clinic
in August 2008 – six months after her injury – and was found to have no pain or swelling
in her ankle. AR 317. She reported that she wanted “to get back to work.” Id. The
examining physician, Dr. N.S. Turner, noted that her ankle pain had “completely
resolved” but recommended physical therapy to help her regain range of motion. AR
317-18. Three days later, however, Ditsworth told her regular physician, Dr. Harry
Miller, that she was suffering from “continued pain.” AR 326, 404.
The ALJ also found that Ditsworth’s use of pain medication has not been consistent
with constant, disabling pain. AR 15. He summarized medical records indicating that
she sometimes turned down prescription medication and expressed an intention to use only
over-the-counter medications. Id. He also referenced Ditsworth’s testimony during the
hearing that she was not taking medication for ankle pain. Id.
Next, the ALJ found that Ditsworth’s work history, and her testimony about that
history, did not support her allegation of disability. Id. While claiming an onset date of
8
February 11, 2008, she returned to work as a nurse’s aide for about six weeks in March
and April of 2008. Id. She then worked at another full-time job, as a corn sorter, in
2009. Id. When answering the ALJ’s questions during the hearing, she stated that she
had not worked since that time. AR 32-33. However, in answering her attorney’s
questions, Ditsworth acknowledged that she had been working at her father’s used car lot
for the previous six months, eight hours a day for three days a week. AR 51-54. She
stated that she was not paid for her work and that it involved answering the phone and
greeting customers. AR 53-54. The ALJ found that even if Ditsworth did not intend to
mislead him with her initial testimony, her inconsistencies cast doubt on the reliability of
the information she provided. AR 15.
Moreover, the ALJ noted that Ditsworth applied for numerous jobs after her
alleged onset date that would have required a great deal of standing and walking. AR 16.
Finally, he noted that her activities of daily living, which included caring for her young
daughter along with cleaning, laundry and vacuuming, were inconsistent with Ditsworth’s
claim of disabling impairments. Id. Based on these findings, the ALJ discredited
Ditsworth’s subjective allegations to the extent they were inconsistent with his RFC
determination. Id.
The ALJ next discussed the medical opinion evidence.
He noted that three
different state agency medical consultants reviewed Ditsworth’s records and reached
similar conclusions that she could perform a reduced range of light work. Id. He
indicated that he was giving “some weight” to those opinions, but that he found the
opinions of Ditsworth’s own physician, Dr. J. Chris Coetzee, to be more convincing. Id.
In August 2010, Dr. Coetzee completed a questionnaire indicting that Ditsworth could
perform sedentary work for 30-40 hours per week so long as she could limit her walking
to 15 minutes at a time. AR 589. The ALJ found that this opinion was entitled to
9
controlling weight, as it represented the medical opinion of a treating physician and was
consistent with the substantial evidence of record. AR 16.
The ALJ noted that another treating physician, Dr. Stephen Bertheleson, stated in
March 2010 that Ditsworth could perform a “sitting job” but for “her level of education
and training.” Id. He found that this opinion was not entitled to weight because it was
not a medical opinion but, instead, an opinion about disability that is reserved for the
Social Security Administration. Id.
The ALJ next discussed evidence concerning Ditsworth’s treatment for vulvar
cancer. AR 17. He noted that she was diagnosed in September 2010 and underwent
chemotherapy and radiation from November 2010 through January 2011.
Id.
He
further indicated that the records show the treatment was successful and Ditsworth has not
had a recurrence. Id. However, he stated that the records reflect some ongoing effects
of radiation-induced menopause, such as fatigue and hot flashes. Id. As such, the ALJ
included some limitations in the RFC to accommodate those restrictions, as well as
restrictions imposed by Ditsworth’s obesity. Id.
With regard to Ditsworth’s mental impairment of depression, the ALJ pointed out
that she has never required extensive mental health treatment and had never been treated
by a psychiatrist, psychologist or therapist. Id. Indeed, a nurse practitioner associated
with Ditsworth’s primary care physician noted that she did not want psychiatric care. AR
686. The ALJ determined that Ditsworth’s failure to seek psychiatric care indicated that
her depression was not as severe as alleged. AR 17.
The ALJ did note that Ditsworth was examined and evaluated by both a consultative
examiner, Dr. William Morton, and (at her attorney’s request) a nurse practitioner. Id.
Dr. Morton examined Ditsworth on January 12, 2010, and diagnosed adjustment disorder
with depressed mood. AR 440. He found that Ditsworth had mild limitations regarding
her ability to remember and understand instructions, procedures and locations, along with
10
mild limitations in her ability to carry out instructions. Id. He also found minimal
limitations in regard to maintaining attention, concentration and pace, and in regard to
interacting with supervisors, co-workers and the public. Id. Finally, he found moderate
limitations in regard to the use of good judgment and responses to changes in the
workplace. Id. He assessed a GAF score of 55.2
Id.
The nurse practitioner, Dawn Howley, saw Ditsworth on September 9, 2011, and
found that she met the diagnostic criteria for major depression. AR 695-98. Nurse
Howley assessed a GAF score of 493, suggesting serious symptoms or impairments, and
recommended psychotherapy. AR 698. The ALJ determined that the opinions of both
Dr. Morton and Nurse Howley were entitled to only little weight. AR 18. He noted that
both were consultative examiners who did not have established relationships with
Ditsworth. Id. He then found that their opinions were not consistent with the medical
evidence, pointing out (a) that Ditsworth had never required ongoing counseling or
therapy and (b) that her primary care physician indicted that her symptoms improved with
medication. Id. Further, the ALJ expressed reservations about the fact that Ditsworth
saw Nurse Howley through an attorney referral in an “effort to generate evidence,” not in
an attempt to seek treatment. Id.
Because he gave little weight to these opinions, the ALJ included no mental
limitations in Ditsworth’s RFC except to state that Ditsworth “is limited to working at no
2
A GAF score represents a clinician’s judgment of an individual’s overall ability to function in
social, school, or occupational settings, not including impairments due to physical or
environmental limitations. See American Psychiatric Ass’n, Diagnostic & Statistical Manual of
Mental Disorders 34 (4th ed.) (DSM-IV). A GAF score of 51-60 indicates moderate symptoms
(e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
Id.
A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job, cannot work). See DSM-IV at 34.
3
11
more than a regular pace.” Id. Having determined Ditsworth’s RFC, the ALJ then
found that she is unable to perform her past relevant work. AR 18-19. At Step Five,
however, the ALJ found that Ditsworth is able to perform jobs that exist in significant
numbers in the national economy. AR 19. Relying on the VE’s response to hypothetical
questions, the ALJ found that Ditsworth could perform such sedentary jobs as addressor,
final assembler and charge account clerk. Id. As such, he found that she is not disabled
within the meaning of the Act. AR 20.
The Substantial Evidence Standard
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
“Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The
Eighth Circuit explains the standard as “something less than the weight of the evidence
and [that] allows for the possibility of drawing two inconsistent conclusions, thus it
embodies a zone of choice within which the [Commissioner] may decide to grant or deny
benefits without being subject to reversal on appeal.”
Culbertson v. Shalala, 30 F.3d
934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the
court considers “all of the evidence that was before the ALJ, but it [does] not re-weigh
the evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court
considers both evidence which supports the Commissioner’s decision and evidence that
detracts from it.
Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court
must “search the record for evidence contradicting the [Commissioner’s] decision and
12
give that evidence appropriate weight when determining whether the overall evidence in
support is substantial.”
Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing
Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must
apply a balancing test to assess any contradictory evidence.
Sobania v. Sec’y of Health
& Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.”
Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186,
188 (8th Cir. 1994)).
Instead, if, after reviewing the evidence, the court finds it
“possible to draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, [the court] must affirm the [Commissioner’s]
denial of benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933,
935 (8th Cir. 2008)). This is true even in cases where the court “might have weighed
the evidence differently.”
Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan,
958 F.2d 817, 822 (8th Cir. 1992)). The court may not reverse the Commissioner’s
decision “merely because substantial evidence would have supported an opposite
decision.”
Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative decision is not
subject to reversal simply because some evidence may support the opposite
conclusion.”).
Discussion
In contending that the ALJ’s decision is not supported by substantial evidence in
the record as a whole, Ditsworth raises two arguments: (1) the medical evidence shows
that she meets the Act’s definition of “disability” and (2) the hypothetical questions
13
presented to the VE were improper because Ditsworth’s impairments would cause more
than two absences per month. Doc. No. 12 at 9-11. Ditsworth does not specifically
challenge the ALJ’s assessment of her credibility or his weighing of medical opinions.
However, because the issues she has raised imply disagreement with those findings, I
will discuss them before considering her arguments.
I.
Did The ALJ Properly Analyze Ditsworth’s Credibility?
The standard for evaluating the credibility of a claimant’s subjective complaints is
set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ must
consider the claimant’s daily activities; duration, frequency and intensity of pain; dosage
and effectiveness of medication; precipitating and aggravating factors; and functional
restrictions. Polaski, 739 F.2d at 1322. The claimant’s work history and the absence
of objective medical evidence to support the claimant’s complaints are also relevant.
Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir. 2000). The ALJ does not need to
explicitly discuss each factor as long as he or she acknowledges and considers the factors
before discrediting the claimant’s subjective complaints.
Goff, 421 F.3d at 791. “An
ALJ who rejects [subjective] complaints must make an express credibility determination
explaining the reasons for discrediting the complaints.”
Singh v. Apfel, 222 F.3d 448,
452 (8th Cir. 2000). The court must “defer to the ALJ’s determinations regarding the
credibility of testimony, so long as they are supported by good reasons and substantial
evidence.” Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005).
The ALJ acknowledged the Polaski factors by citing the relevant regulations and
Social Security Ruling 96-7p. AR 13. He found Ditsworth was not a credible witness
to the extent that she alleged disability and the inability to perform all work activity.
AR 14. He provided several reasons for this determination. First, he found that the
medical evidence of record does not support Ditsworth’s claims concerning the severity
14
and effect of her symptoms. AR 14-15. Second, he concluded that her statements to
doctors concerning her pain were inconsistent at times. AR 15. Third, he noted that
Ditsworth’s treatment history and her use of medications were not consistent with her
allegation of disability.
Id. For example, the records indicate she did not want to take
prescription medication and, at the time of the hearing, was taking no medication for
pain. Id.
Fourth, the ALJ found that Ditsworth’s work record did not support her
allegations.
Id. While claiming to have been disabled starting February 11, 2008, she
had reported earnings until the second quarter of 2009.
Id. She then took a full-time
job for several weeks beginning in September 2009 and, later, began working three days
per week at her father’s used car lot. Id. Moreover, she applied for numerous jobs
after her alleged onset date that would have required significant standing and walking.
AR 16.
Fifth, the ALJ found that Ditsworth’s own report of her daily activities was
inconsistent with her claim of disability. She indicated that she cares for herself and her
young daughter, vacuums and cleans the house weekly, drives, shops and handles her
own finances. Id. She also spends time with others and talks to friends and family on
the phone. Id.
Based on my review of the entire record, I find that the ALJ applied the proper
legal standard to assess Ditsworth’s credibility and that his stated reasons are supported
by substantial evidence. As such, I must defer to the ALJ’s determination. The ALJ
did not err in finding that Ditsworth’s statements as to the severity and effects of her
symptoms are not entirely credible.
15
II.
Did The ALJ Properly Weigh The Medical Opinion Evidence?
A.
Treating Physicians
The ALJ gave controlling weight to the opinion of one of Ditsworth’s treating
physicians, Dr. Coetzee, who found in August 2010 that Ditsworth was capable of
performing sedentary work for 30-40 hours per week so long as she could limit her
walking to 15 minutes at a time. AR 16, 588-89. By contrast, the ALJ gave little or
no weight to the opinion of another treating physician, Dr. Bertheleson, primarily
because Dr. Bertheleson’s opinion was not a “medical” opinion.
Instead, Dr.
Bertheleson opined that Ditsworth could perform a “sitting” job but for her lack of
education and training. AR 467.
A treating physician’s opinion is given “controlling weight” as long as it is “well–
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] record.” 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2). A treating physician’s opinion is generally entitled to
“substantial weight,” but such an opinion does not “automatically control” because the
ALJ must evaluate the record as a whole. Wilson v. Apfel, 172 F.3d 539, 542 (8th Cir.
1999).
“It is well established that an ALJ may grant less weight to a treating
physician’s opinion when that opinion conflicts with other substantial medical evidence
contained within the record.”
2000).
Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th Cir.
“Moreover, an ALJ may credit other medical evaluations over that of the
treating physician when such other assessments are supported by better or more thorough
medical evidence.” Id. at 1014 (internal quotations and citations omitted). “Whether
the ALJ grants a treating physician’s opinion substantial or little weight, the regulations
provide that the ALJ must ‘always give good reasons’ for the particular weight given to a
treating physician’s evaluation.”
Id. at 1013 (quoting 20 C.F.R. § 404.1527(c)(2)).
16
When a treating physician’s opinion is entitled to controlling weight, the ALJ
must defer to the physician's medical opinions about the nature and severity of an
applicant's impairments, including symptoms, diagnosis and prognosis, what an
applicant is capable of doing despite the impairment, and the resulting restrictions. 20
C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir.
2005). However, a treating physician’s conclusion that an applicant is “disabled” or
“unable to work” addresses an issue that is reserved for the Commissioner and therefore
is not a “medical opinion” that must be given controlling weight. Ellis, 392 F.3d at
994.
With these standards in mind, I conclude that the ALJ did not err in his evaluation
of opinions provided by treating physicians. With regard to Dr. Coetzee, the ALJ
found that his opinion concerning Ditsworth’s capabilities was supported by the evidence
of record and by Dr. Coetzee’s familiarity with Ditsworth as a treating physician. AR
16. This finding is supported by substantial evidence in the record as a whole.
As for Dr. Bertheleson, his opinion that Ditsworth lacked the education and
training to perform a “sitting” job is not a medical opinion, as it did not address the
nature and severity of Ditsworth’s impairments, including symptoms, diagnosis and
prognosis, what she is capable of doing despite the impairment, and the resulting
restrictions. See 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); see also Ellis, 392 F.3d
at 995. Instead, it was an opinion concerning her employability.
In other words, Dr.
Bertheleson opined that Ditsworth, while capable of performing sedentary work, was
unlikely to be hired for such work because of her vocational profile. I agree with the
ALJ that this was not a “medical” opinion within the meaning of the Commissioner’s
regulations and, therefore, was not entitled to controlling weight.
The ALJ’s assessment of the treating physicians’ opinions is consistent with the
applicable legal principles and is supported by substantial evidence in the record. The
17
ALJ did not err in giving controlling weight to Dr. Coetzee’s opinion while rejecting Dr.
Bertheleson’s opinion on grounds that it was not a medical opinion.
B.
Other Sources
The ALJ also considered medical opinions from other sources as to Ditsworth’s
physical and mental impairments. With regard to physical impairments, he noted that
three different state agency consulting physicians had reviewed Ditsworth’s records and
concluded that she could perform a reduced range of light work. AR 16. He elected
to give those opinions some weight, but ultimately found that the opinion of Dr. Coetzee,
a treating source, was controlling. Id.
As for mental impairments, opinions were provided by a consultative examining
psychologist (Dr. Morton) and a consultative examining nurse practitioner (Dawn
Howley). The ALJ gave only little weight to these opinions and provided reasons for
this determination.
AR 18.
First, he noted that both examiners were one-time
consultative examiners who had no established relationship with Ditsworth.
Id. This
is a valid reason for failing to fully credit an opinion concerning mental impairments.
See, e.g., Loving v. Dept. of Health and Human Servs., 16 F.3d 967, 971 (8th Cir.
1994) (“a one-time evaluation by a nontreating psychologist is of little significance by
itself”) (citing Browning v. Sullivan, 958 F.2d 817, 823 (8th Cir. 1992)).
Next, the ALJ found that the opinions of these consultative examiners were not
consistent with the medical evidence.
AR 18.
For example, he contrasted their
opinions with evidence that Ditsworth’s mental impairments were never so serious as to
require ongoing counseling or therapy. Id. Finally, with regard to Nurse Howley, the
ALJ found it relevant that Ditsworth was referred by her attorney for the examination in
“an effort to generate evidence for the current appeal.” Id.
18
The ALJ is not bound by the findings of state agency or other program physicians
and psychologists, but he or she “may not ignore these opinions and must explain the
weight given to the opinions in their decisions.” SSR 96-6P, 1996 WL 374180 (July 2,
1996). The ALJ complied with this requirement by providing reasons for the weight he
chose to assign to various opinions provided by nontreating sources. I find that these
reasons are supported by substantial evidence in the record. The ALJ did not err in
weighing the medical opinions.
III.
Did The ALJ Properly Apply The Act’s Definition Of “Disability”?
In her brief, Ditsworth relies primarily on the Act’s definition of “disability”:
(1) The term “disability” means—
(A) 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). She notes that she injured her ankle in February 2008 and
was restricted by her physicians from returning to work from the date of her injury
through December 2009. She also notes that she was then diagnosed with cancer in
2010 and underwent approximately six months of intensive treatment. As such, she
argues that she was under a “disability” because she was unable to engage in substantial
gainful work activity for more than twelve continuous months prior to her hearing.
Doc. No. 12 at 10.
In response, the Commissioner makes the seemingly-obvious point that there is a
significant difference between being unable to perform a particular job and being unable
to perform any job. The fact that Ditsworth’s physicians told her not to return to work
19
as a nurse’s aide (a position precluded by her RFC4) does not necessarily mean she was
unable “to engage in any substantial gainful activity” for a continuous period of twelve
months or more. Instead, a claimant has a disability when he or she is “not only unable
to do his previous work but cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists . . . in significant
numbers either in the region where such individual lives or in several regions of the
country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Ditsworth ignores this basic distinction in arguing that a series of doctors’ notes
restricting her from returning to work as a nurse’s aide automatically established a
“disability” under the Act.
I find that the ALJ properly interpreted the word
“disability” in considering Ditsworth’s claims for DIB and SSI and that he properly
conducted the five-step disability analysis to determine whether her impairments met that
definition. The ALJ did not err in finding that Ditsworth was not under a disability
within the meaning of the Act.
IV.
Were The ALJ’s Hypothetical Questions Improper?
Finally, Ditsworth argues that the ALJ understated the severity of her
impairments in formulating hypothetical questions to the VE.
In particular, she
contends that the evidence shows she would have missed far more than two days per
month of work if she had attempted to work at a sedentary job between February 11,
2008, and the date of the hearing. Doc. No. 12 at 10.
When a hypothetical question fails to include all relevant impairments, the VE's
answer to that question does not constitute substantial evidence.
F.3d 294, 296 (8th Cir. 1996).
Pickney v. Chater, 96
By contrast, “[a] vocational expert’s testimony
4
The VE testified that a hypothetical person with the limitations included in Ditsworth’s RFC
could not perform the position of nurse’s aide. AR 58-59.
20
constitutes substantial evidence when it is based on a hypothetical that accounts for all of
the claimant’s proven impairments.”
Buckner v. Astrue, 646 F.3d 549, 560-61 (8th
Cir. 2011) (quoting Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010)). “[A]n ALJ
may omit alleged impairments from a hypothetical question posed to a vocational expert
when [t]here is no medical evidence that these conditions impose any restrictions on [the
claimant’s] functional capabilities or when the record does not support the claimant’s
contention that his impairments significantly restricted his ability to perform gainful
employment.” Buckner, 646 F.3d at 561 (quoting Owen v. Astrue, 551 F.3d 792,
801-02 (8th Cir. 2008) (internal quotations omitted)).
Here, the ALJ asked the VE hypothetical questions that incorporated the same
limitations the ALJ included in his RFC finding. AR 13, 58-60. As noted above, the
ALJ made the RFC finding based on his assessment of Ditsworth’s credibility and the
weight he assigned to the various medical opinions. I have already found that the ALJ’s
findings are supported by substantial evidence in the record. Moreover, I note that
Ditsworth’s argument again confuses her ability to perform the job of nurse’s aide with
her ability to perform work of any kind. While it is clear that her impairments made it
impossible for her to continue to work as a nurse’s aide, there is no evidence that she
would have regularly required more than two absences per month if employed in a
sedentary job.
As such, I reject Ditsworth’s argument that the ALJ’s hypothetical
questions to the VE failed to account for all of her proven impairments.
CONCLUSION
After a thorough review of the entire record and in accordance with the standard
of review I must follow, I conclude that the ALJ’s determination that Ditsworth was not
21
disabled within the meaning of the Act is supported by substantial evidence in the record.
Accordingly, the decision of the ALJ is affirmed. Judgment shall be entered in favor
of the Commissioner and against Ditsworth.
IT IS SO ORDERED.
DATED this 12th day of November, 2013.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
22
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?