Robinson v. Commissioner of Social Security

Filing 19

ORDER re 3 Complaint filed by Gail Marie Robinson. The decision of the ALJ is reversed and remanded solely for the calculation of benefits from Plaintiff's claimed onset of disability. See text of Order. Signed by Senior Judge Donald E OBrien on 3/26/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
GAIL MARIE ROBINSON,
Plaintiff,

No. 13-CV-3007-DEO

v.
ORDER

CAROLYN W. COLVIN,
Commissioner of Social
Security,1
Defendant.
____________________
This
Robinson’s

matter

is

before

[hereinafter

the

Ms.

Court

Robinson]

pursuant

to

application

Gail
for

disability insurance benefits under Title II of the Social
Security Act (“Act”), 42 U.S.C. §§ 401 et seq.
appeared for a hearing on August 1, 2013.

The parties

After considering

the parties’ arguments, the Court took the matter under
advisement and now enters the following.
I.

FACTUAL BACKGROUND
Ms. Robinson was born on 12/28/1962.

old at the time of the hearing.

1

She was 49 years

She is single and lives with

Ms. Robinson originally filed this case against Michael
J. Astrue, Comm. of Social Security. On February 14, 2013
Carolyn W. Colvin became the Commissioner of SSA. The Court,
therefore, substitutes Commissioner Colvin as the defendant in
this action. Fed. R. Civ. P. 25(d)(1).

her sister and sister’s boyfriend in Gowrie, Iowa.
GED but no other significant education.

She has a

She is the mother of

an adult daughter and has two grandchildren.
Ms. Robinson has a short work history.

For a short time,

she worked part time as a paid ‘dock worker.’
significant

employment

was

as

a

production

Electrolux, a company in Webster City, Iowa.

Her last
worker

at

She left that

job shortly before she was scheduled to be laid off.

Ms.

Robinson claims disability based on a number of issues that
will be discussed below.
II.

PROCEDURAL HISTORY
Ms.

Robinson

Commissioner’s

brings

decision

this

regarding

suit

challenging

the

application

for

her

disability insurance benefits under Title II of the Social
Security

Act

protectively

(“Act”),
filed

her

42

U.S.C.

application

§§
on

401

et

October

seq.

She

13,

2009.

Plaintiff’s claim was denied initially on June 16, 2010, and
on reconsideration on October 29, 2010.

On January 12, 2012,

Ms. Robinson appeared for a telephone hearing in Fort Dodge,
Iowa.

On February 17, 2012, following the hearing, the

administrative law judge (“ALJ”) found that Ms. Robinson was
2

not under a disability.

Ms. Robinson appealed her claim to

the Appeals Council, who denied her claim on December 26,
2012. Ms. Robinson filed the present Complaint on February 7,
2013.
The ALJ set out the issue presently before the Court:
[t]he issue is whether claimant is disabled
under sections 216(i) and 223(d) of the
Social
Security
Act,
as
amended.
Disability is defined as the inability to
engage in any substantial gainful activity
by reason of any medically determinable
physical
or
mental
impairment
or
combination of impairments that 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 12
months.
There is an additional issue
whether the insured status requirements of
sections 216(i) and 223 of the Social
Security Act, as amended, are met.
Docket No. 8, Tr. 9-10.
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential

evaluation

process

for

determining

individual is disabled and entitled to benefits.
404.1520.

The five successive steps are:

whether

an

20 C.F.R. §

(1) determination

of whether a plaintiff is engaged in “substantial gainful
activity,” (2) determination of whether a plaintiff has a
3

“severe medically determinable physical or medical impairment”
that lasts for at least 12 months, (3) determination of
whether a plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
Capacity

(RFC)

requirements

an

incapacity

their

past

relevant

of

determination

indicates

of

whether,

given

to

perform

the

and

(5)

Plaintiff’s

a

work,

RFC,

age,

education and work experience, a plaintiff can “make an
adjustment to other work.”

20 C.F.R. § 404.1520(4)(i-v).

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

is

no

disability

404.1520(a)(4)(i).

during

that

time.

20

C.F.R.

§

At step 2, if a plaintiff does not have a

“severe medically determinable physical or mental impairment”
that lasts at least 12 months, there is no disability.
C.F.R. § 404.1520(a)(4)(ii).
impairments

meet

or

20

At step 3, if a plaintiff’s

medically

equal

the

criteria

of

an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1,

and

last

at

least

12

months,

a

plaintiff

is

deemed

disabled. 20 C.F.R. § 404.1520(e). Before proceeding to step
4

4

and

5,

the

ALJ

must

determine

Functional Capacity [RFC].
still

do”

despite

404.1545(a)(1).

their

a

plaintiff’s

Residual

RFC is the “most” a person “can
limitations.

20

C.F.R.

§

The RFC an ALJ assigns a plaintiff has been

referred to as the “most important issue in a disability case
Malloy v. Astrue, 604 F. Supp. 2d 1247, 1250 (S.D.

. . . .”

Iowa 2009) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982)(en banc) abrogated on other grounds by Higgins
v.

Apfel,

222

F.3d

504,

505

(8th

Cir.

2000)).

When

determining the RFC, the ALJ must consider all of the relevant
evidence and all of the Plaintiff’s impairments, even those
which are not deemed severe, as well as limitations which
result

from

symptoms,

404.1545(a)(2) and (3).

such

as

pain.

20

C.F.R.

§

An ALJ “may not simply draw his own

inferences about a plaintiff’s functional ability from medical
reports.”

Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th

Cir. 2004).
At step 4, if, given a plaintiff’s RFC, a plaintiff can
still

perform

disability.

their

past

relevant

work,

20 C.F.R. § 404.1520(a)(4)(iv).

there

is

no

At step 5, if,

given a plaintiff’s RFC, age, education, and work experience,
5

a plaintiff can make an adjustment to other work, there is no
disability.

20

416.920(a)(4)(v).

C.F.R.

§§

404.1520(a)(4)(v)

and

This step requires the ALJ to provide

“evidence” that a plaintiff could perform “other work [that]
exists in significant numbers in the national economy.”
C.F.R. § 404.1560(c)(2).

20

In other words, at step 5, the

burden of proof shifts from a plaintiff to the Commissioner of
the S.S.A..

Basinger v. Heckler, 725 F.2d 1166, 1168 (8th

Cir. 1984).

The ALJ generally calls a Vocational Expert (VE)

to aid in determining whether this burden can be met.
In this case, the ALJ applied the appropriate methodology
and found that Ms. Robinson had not previously engaged in
substantial gainful employment.

The ALJ stated that Ms.

Robinson suffers from the following combination of impairments
that together are severe:
disease,

status

post

fibromyalgia, degenerative disc

cervical

disorder.

However, the ALJ found that Ms. Robinson did not
a

Security Code.

disability

as

a

possible

affective

anxiety

from

and

obesity,

disorder,

suffer

disorder,

fusion,

contemplated

Specifically, the ALJ stated:

6

by

personality

the

Social

[c]laimant 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 and 404.1526). Neither claimant
nor her attorney has contended her combined
impairments meet the specific severity
requirements of any impairment set forth in
the Listing of Impairments. Claimant bears
the burden of proof at this step of the
sequential evaluation process and does not
meet it.
Docket No. 8, Tr. 14.

The ALJ largely based his decision on

the statements of the state agency medical consultants.
ALJ stated:
Laura Griffith, D.O., and John May, M.D.,
each a state agency medical consultant,
mutually opined that claimant's combined
physical
impairments,
including
consideration of those that are "severe"
and not "severe" within the meaning of the
regulations, do not meet or medically equal
the specific severity requirements of any
physical impairment set forth in the
Listing of Impairments. The Administrative
Law Judge accords great weight to the
mutually supportive opinions provided by
Drs. Griffith and May at this step of the
sequential evaluation process.
They are
each not only a board-certified physician,
a
well-qualified
physical
healthcare
specialist and an "acceptable medical
source" as defined in 20 CFR 404.1513 and
SSR 06-3p, but also each retains specific
expertise regarding evaluations of physical
impairments set forth in the Listing of
Impairments and the disability programs
7

The

administered
by
the
Social
Security
Administration.
Further, their opinions
are consistent with objective and clinical
findings set forth in contemporaneous
treatment notes and the report from a
consultative medical examiner that do not
establish that her combined physical
impairments result in the requisite degrees
of anatomical deformity, bony abnormality,
joint dysfunction, gross and fine motor
deficits or other neurological deficits,
ambulatory
deficits,
sleep-related
breathing
deficits,
gastrointestinal
deficits, or endocrinal deficits sufficient
to meet the specific severity requirements
set forth in Sections 1.00, 3.00, 5.00,
9.00,
or
11.00
of
the
Listing
of
Impairments,
or
any
other
physical
impairment set forth therein.
Docket No. 8, Tr. 14.

The ALJ also determined that Ms.

Robinson did not have a mental impairment as defined by
Appendix 1, Subpart P, Regulation No. 4.
The ALJ went on to consider residual functional capacity
and concluded:
[a]fter careful consideration of the entire
evidentiary record, the Administrative Law
Judge finds that, from June 12, 2009,
through the date of this Decision, claimant
has retained the residual functional
capacity to lift, carry, push, or pull 20
pounds
occasionally
and
10
pounds
frequently. She can sit, stand, or walk
each for 6 hours total throughout the
course of a normal 8-hour workday with
normal breaks. She retains the capacity to
occasionally
perform
basic
postural
8

work-related activities including climbing,
balancing, stooping, kneeling, crouching,
or crawling. She retains the capacity to
perform basic manipulative work-related
activities including reaching, handling,
fingering,
and
feeling
within
the
above-cited weight limits. She retains no
significant
communicative
or
sensory
work-related
limitation
regarding
her
ability to see with corrective lenses,
hear, speak, taste, or smell, and no
significant environmental limitation. She
is restricted to no more than simple,
routine, repetitive work, but otherwise
retains
the
capacity
to
understand,
remember, and carry out simple instructions
or tasks; use simple judgment; respond
appropriately to supervisors, coworkers,
and usual work situations; and deal with
changes in a typical work setting.
Docket No. 8, Tr. 15. The ALJ then considered the plaintiff’s
credibility under the Polaski standard and stated:
[a]fter careful consideration of the entire
evidentiary record, the Administrative Law
Judge finds evidence, the undersigned finds
that claimant's medically determinable
impairments could reasonably be expected to
cause some pain and some of the other
physical and mental symptoms alleged;
however, claimant's allegations, as well as
those of her sister reflected in a third
party questionnaire (Exhibit 5E), regarding
the intensity, persistence, and overall
limiting effects of these symptoms are not
credible as they are inconsistent with
objective and clinical findings reflected
in
contemporaneous
medical
treatment
records, the clinical findings reported by
a consultative medical examiner, the
9

medical opinions provided by state agency
medical and psychological consultants, and
a preponderance of the evidence as a whole
as discussed more fully below. Moreover,
there are other factors discussed more
fully below that detract from claimant's
general credibility regarding the degrees
of pain and other physical and mental
limitations and restrictions she and her
sister allege in this appeal.
Docket

No.

8,

Tr.

15-16.

The

ALJ

also

considered

Ms.

Robinson’s testimony that she did little housework because of
her pain.

The ALJ did not find Ms. Robinson’s testimony

persuasive, stating:
[i]n a disability questionnaire filed in
conjunction with her application, claimant
alleged disability since June 12, 2009, due
to a combination of physical and mental
impairments.
However,
in
other
questionnaires, claimant and her sister
each acknowledged that she performs a
variety of activities of daily living that
inherently require performances of a wide
range
of
basic
physical
and
mental
work-related
activities
that
are
inconsistent with disability, such as
providing for her own personal care and
hygiene, caring for a pet cat and changing
its litter box, preparing simple meals,
doing some housecleaning, doing some
laundry, driving or riding in a car, going
outside alone, going shopping for up to 2
hours at a time, performing financial
transactions, using a personal computer
daily, watching television, engaging in
some social interactions and mostly by
telephone, and spending some days running
10

errands or attending appointments.
She
also admitted she can walk l/2-mile at a
time and needs to rest only 5-10 minutes
thereafter before resuming walking, retains
considerable capacity to follow written or
spoken instructions, and does not need to
use a brace on her right hand often.
(Exhibits 2E, 3E, and 9E).
Docket No. 8, Tr. 16.

The ALJ similarly emphasized only the

portion of the questionnaire filed about by Ms. Robinson’s
sister that stated Ms. Robinson does some (small) amount of
housework.

Id.

The ALJ found significant Ms. Robinson’s medical history
while she worked at Electrolux, stating:
[t]he medical evidence reveals claimant has
a history of degenerative disc disease of
the cervical spine and that she underwent
a cervical fusion procedure at C5-C6 with
bone grafting at that level for nerve
roots, but also that she apparently
tolerated that procedure well and without
complications.
Her work history and
earnings record establishes that she
returned to full-time work as a production
worker
at
Electrolux
following
convalescence from that procedure and
achieved wages surpassing the prescribed
levels presumptive of substantial gainful
activity for multiple successive years. In
disability and work history questionnaires,
claimant admitted that work involved
standing the entirety of an 8-hour workday
and involved lifting and placing a dryer
motor on plates to screw them in, then
lifting that product and turning around to
11

pass it on to the next person, all of which
reportedly occurred "at a very fast pace."
Docket No. 8, Tr. 17.

The ALJ considered Ms. Robinson’s

treatment notes and stated:
[t]he medical evidence of record does not
reflect that claimant presented for medical
treatment with complaints of disabling pain
and other symptoms alleged as disabling in
this appeal immediately proximal to the
time
she
discontinued
working
for
Electrolux...
In late August 2009,
claimant
presented
to
Dr.
Lee
with
complaints of increased anxiety, mostly
worries and concerns about her future due
primarily to financial constraints such
that she was "struggling to make ends
meet." At this encounter, Dr. Lee reported
claimant "seems to think she has chronic
fatigue syndrome or fibromyalgia or both
and she wishes to be confirmed with the
diagnosis and treatment be initiated,"
which yielded his referral to her primary
physical healthcare physician in this
regard... In late February 2010, about 4
months after claimant protectively filed
her application for disability benefits,
but over 2 weeks prior to the date she
actually filed the application needed to
commence adjudication, and over 8 months
subsequent to the time she discontinued
working at Electrolux because ''the plant
closed down," claimant presented to Trimark
Family
Practice
Associates
reporting
"fibromyalgia acting up" and that she was
applying for disability benefits due to
that, but she again denied any chest pain
or
cardiovascular
problem
respiratory
problem, abdominal pain or diarrhea,
swelling, motor disturbance, or significant
12

neurological
problem.
A
physical
examination
yielded
minimal
reported
findings, but all reported were normal
aside from indications of obesity...
Docket No. 8, Tr. 17-18.

The ALJ continued through Ms.

Robinson’s medical record, generally discounting any report
where

Ms.

Robinson

complained

of

severe

pain.

The

ALJ

that

Ms.

concluded his medical analysis by stating:
[i]n reaching the residual functional
capacity assessment defined above, the
Administrative Law Judge accords accorded
great weight to the medical opinions
provided by the state agency medical and
psychological consultants as they are
mutually supportive, consistent with the
objective and clinical findings of record,
consistent with findings reported by Dr.
Latella, and supported by a preponderance
of the evidence of record as a whole.
Docket No. 8, Tr. 20.
Based

on

his

analysis,

the

ALJ

concluded

Robinson is capable of returning to past relevant work.
Docket No. 8, Tr. 20-21.
III.

STANDARD OF REVIEW
This

Court's

role

in

review

of

the

ALJ's

decision

requires a determination of whether the decision of the ALJ is
supported by substantial evidence on the record as a whole.
See 42 U.S.C. § 405(g); Finch v. Astrue, 547 F.3d 933, 935
13

(8th

Cir.

2008).

Substantial

evidence

is

less

than

a

preponderance but enough that a reasonable mind might find it
adequate to support the conclusion in question.

Juszczyk v.

Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (citing Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).

This Court must

consider both evidence that supports and detracts from the
ALJ's decision.

Karlix v. Barnhart, 457 F.3d 742, 746 (8th

Cir. 2006) (citing Johnson v. Chater, 87 F.3d 1015, 1017 (8th
Cir. 1996)).

In applying this standard, this Court will not

reverse the ALJ, even if it would have reached a contrary
decision, as long as substantial evidence on the record as a
whole supports the ALJ's decision.

Eichelberger v. Barnhart,

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

The ALJ's decision shall

be reversed only if it is outside the reasonable "zone of
choice."

Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.

2006) (citing Culbertson v. Shalala, 30 F.3d 934, 939 (8th
Cir. 1994)).
This Court may also ascertain whether the ALJ's decision
is based on legal error.

Lauer v. Apfel, 245 F.3d 700, 702

14

(8th Cir. 2001).

If the ALJ applies an improper legal

standard, it is within this Court's discretion to reverse
his/her decision.

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

Cir. 2005); 42 U.S.C. 405(g).
IV.

ISSUES
In her brief, Ms. Robinson argues that the ALJ errered

giving

little

weight

to

the

evidence

fibromyalgia and mental impairments.
argues

that

Finally,

Ms.

ALJ

relied

Robinson

on

an

argues

credibility determination.

of

the

Robinson’s

Next, Ms. Robinson

incomplete

that

Ms.

ALJ

hypothetical.
erred

in

his

The Court will address these

issues below.
V.

ANALYSIS
In

order

for

a

plaintiff

to

qualify

for

disability

benefits, they must demonstrate they have a disability as
defined in the Social Security Act [hereinafter the Act]. The
Act defines a disability as an:
inability to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment
which can be expected to result in death or
which has lasted or can be expected to last
for a continuous period of not less than 12
months . . . .
15

42 U.S.C. § 423(d)(1)(A).
A.

Credibility

The first argument the Court will address is about the
Plaintiff’s

credibility

and

the

ALJ’s

credibility

determination.
The

standard

settled.

“In

regarding

order

to

credibility

assess

a

findings

claimant's

is

well

subjective

complaints, the ALJ must make a credibility determination by
considering
frequency,

the
and

claimant's
intensity

daily

of

the

activities;

pain;

duration,

precipitating

and

aggravating factors; dosage, effectiveness and side effects of
medication; and functional restrictions.”

Mouser v. Astrue,

545 F.3d 634, 638 (8th Cir. 2008) citing Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984).

The ALJ may not discount

subjective complaints solely because they are not supported by
objective medical evidence.

An ALJ must have sufficient

justification for doubting a claimant's credibility.

See

Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010) (quoting
Schultz

v.

Astrue,

479

F.3d

979,

983

(8th

Cir.

2007)).

However, “[a] disability claimant's subjective complaints of
pain may be discounted if inconsistencies in the record as a

16

whole bring those complaints into question.”

Gonzales v.

Barnhart, 465 F.3d 890, 895 (8th Cir. 2006).
As

stated

above,

the

ALJ

may

only

discount

the

plaintiff’s complaints if they are inconsistent with the
record as a whole. During the hearing, Ms. Robinson testified
that

she

probably

would

not

have

continued

to

work

at

Electrolux, even if she had not been laid off, because "I had
started to feel this pain and I didn't know what it was..."
Docket No. 8, Tr. 35.

She stated that she "hurts all over...

My body aches real, real bad like if... I could describe it as
a growing pain, its real bad, and it can come and go anywhere
in [my] body."

Docket No. 8, Tr. 39.

However, she testified

that her most intense pain is in her legs and feet.
No. 8, Tr. 47-48.

Docket

Because of the leg pain, she is unable to

walk very far, at most thirty minutes, without taking a break.
Docket No. 8, Tr. 48.
or ten minutes.

Id.

Similarly, she can only stand for five
She can only sit for 15-30 minutes at a

time without experiencing

pain.

Docket No. 8, Tr. 50.

She

also testified that she missed work because of her depression.
Docket No. 8, Tr. 36.

Ms. Robinson testified that she is

unable to work because "I have pain throughout my body and I

17

had surgery on my neck some years ago.

I had a herniated disc

6 and 7 with a pinched nerve on the right side and it has
gotten worse."

Docket No. 8, Tr. 37.

She also stated that

she "can hardly carry anything with my right hand, too heavy,
and I get a lot of pain."

Docket No. 8, Tr. 38, 50-51.

The Defendant argues that:
[d]espite plaintiff's contention to the
contrary, see Pl.'s Br. at 7, the ALJ
specifically addressed her complaints and
diagnoses of fibromyalgia throughout the
RFC analysis (Tr. 17-19).
In order to
prove disability, however, plaintiff must
establish limitations, not just diagnoses.
See 20 C.F.R. § 404.1545(e)...
The ALJ
also considered that, in 2009, plaintiff
appeared
to
exaggerate
her
doctors'
diagnoses
regarding
fibromyalgia
(Tr.
18)... And in July 2010, despite reporting
"all
the
symptoms"
of
fibromyalgia,
plaintiff appeared in no acute distress,
showed full range of motion in all
extremities, and displayed tenderness in
only six of the eighteen fibromyalgia
tender points (Tr. 19, 362-65)...
In
determining credibility, the ALJ may take
notice of such "inherent inconsistencies"
in the record...
The ALJ further found
that plaintiff reported daily activities
inconsistent
with
her
complaints
of
disabling limitations...
Docket No. 13, p. 13-15.
It is clear both the ALJ and the Defendant rely on the
fact that Ms. Robinson does some limited work to support the
18

ALJ’s conclusion that Ms. Robinson can return to her past
relevant work.

However, courts have repeatedly stated that

the "limited ability to complete light housework and short
errands does not mean [a claimant] has ‘the ability to perform
the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real
people work in the real world.'"
675, 682 (8th Cir. 2009).

Tilley v. Astrue, 580 F.3d

Ms. Robinson testified that she

cannot do much around the house.
about

Ms.

including

Robinson’s
her

basement.

The ALJ draws conclusions

credibility

testimony

that

she

on

very

lives

limited

in

her

facts,

sister’s

The ALJ’s implication seems to be that if Ms.

Robinson really had as much pain as she claims, she would be
stuck in the basement forever, and unable to do such things as
venture out to testify at Social Security hearings.
conclusion seems faulty.

This

There is simply no evidence in the

record that Ms. Robinson does anything other than very basic
activities.

There is no requirement that to prove you suffer

from pain, you must also prove that you live on the main floor
of your dwelling. The ALJ’s determination that Ms. Robinson’s

19

credibility is impugned because she does basic housework is
not supported by substantial evidence in the record.
Similarly, the ALJ discounted the third party report of
Ms. Robinson’s sister.

Ms. Robinson’s sister reported that

Ms. Robinson takes care of a cat and makes herself lunch (even
though cooking causes her pain).

Docket No. 8, Tr. 174-177.

The sister also stated that she makes Ms. Robinson supper
daily.

She reported that Ms. Robinson cannot sleep

Id.

because of pain.

She stated that even when Ms. Robinson

Id.

does laundry and cleaning, she is in pain.

Her sister

Id.

also reported that when Ms. Robinson goes grocery shopping,
she returns tired and in pain.
The

8th

Circuit

Court

Docket No. 8, Tr. 176-177.
of

Appeals

has

ruled

that,

“statements of lay persons regarding a claimant's condition
must

be

considered

when

an

ALJ

subjective complaints of pain.
F.3d 878, 880-81 (8th Cir. 2008).

evaluates

a

claimant's

“Willcockson v. Astrue, 540
That Court went on to say,

“witnesses such as the family members who gave statements here
often

may

be

the

only

ones

who

witness

a

claimant's

difficulties; though the ALJ is of course not required to
accept all lay testimony, we think that it is almost certainly

20

error simply to ignore it altogether.”
at 881.
sister’s

Willcockson, 540 F.3d

In this case, even though the ALJ referenced the
opinion,

he

ignored

it

without

sufficient

justification, and, to the extent he did consider it, he
misrepresented it completely.

The testimony seems remarkably

consistent that Ms. Robinson is unable to do much in the way
of work and her activities have been substantially restricted
by her back pain.

Even those things which Ms. Robinson is

able to do, such as leave the basement, make herself lunch,
and go to the store, cause her pain.
discredit

the

lay

person

report

The ALJ’s decision to
is

not

supported

by

substantial evidence.
The Defendant also relied on the fact that Ms. Robinson
applied for and received unemployment benefits to determine to
bolster the ALJ’s credibility determination.
p. 16-17.

Docket No. 11,

It is true that in some circumstances, receiving

unemployment benefits can be construed against a claimant.
Courts have stated:
“[a]pplying for unemployment benefits may
be some evidence, though not conclusive, to
Johnson,
negate a claim of disability.”
108 F.3d at 180-81. See also Cox v. Apfel,
160 F.3d 1203, 1208 (8th Cir. 1998)
(stating “the acceptance of unemployment
21

benefits, which entails an assertion of the
ability to work, is facially inconsistent
with a claim of disability,” but noting
the ALJ cannot base an adverse credibility
finding on this fact alone)...
Social
Security Ruling 00-01c, 2000 WL 38896 (Jan.
7, 2000), and Cleveland v. Policy Mgmt.
Sys. Corp., 526 U.S. 795, 119 S. Ct. 1597,
143 L. Ed. 2d 966 (1999), [discuss] the
intersection of claims under the Social
Security Act and the Americans with
Disabilities Act.
In Cleveland, the
Supreme Court held that claims under the
Social Security Act and the Americans with
Disabilities Act do not conflict to the
point where courts should apply a special
negative presumption that precludes relief
under the other Act. Cleveland, 526 U.S.
at 802-03, 119 S. Ct. 1597.
In other
words, it is not entirely inconsistent for
a person to assert “total disability”
under the Social Security Act while
asserting he or she could “perform the
essential functions of the job” under the
ADA because the Acts utilize different
standards. Id. at 807, 119 S. Ct. 1597.
For the same reasons, the Memo states,
“[I]t is SSA's position that individuals
need not choose between applying for
unemployment insurance and Social Security
disability benefits.”
Doc. No. 13-1 at 3.
The Memo reiterates that an application for
unemployment benefits is evidence that the
ALJ must consider together with all of the
other evidence and mentions that the
underlying circumstances are often more
relevant than the mere application for and
receipt of benefits.
Lopez v. Colvin, 959 F. Supp. 2d 1160, 1174 (N.D. Iowa 2013).

22

In this case, the evidence supports a finding that Ms.
Robinson was laid off from her job at approximately the same
time that fibromyalgia began to have a significant impact on
her ability to function.2

The Defendant’s argument seems to

be that Ms. Robinson should have known the moment she started
to experience severe fibromyalgia pain that she would be
unable to ever work again.

It was her bad luck that she

happened to experience pain at the same time she was laid off,
but she should have known to forego unemployment and instead
immediately

apply

for

Social

argument is without merit.

Security

disability.

This

Ms. Robinson took the same action

that any rational person would; she assumed her pain would
improve and that she would be able to work again; that she
subsequently determined her medical condition would be more
serious should not be held against her. The AJL’s decision to

2

The Eighth Circuit held that fibromyalgia, "which is
pain in the fibrous connective tissue components of muscles,
tendons, ligaments, and other white connective tissues, can be
disabling" and "often leads to a distinct sleep derangement
which often contributes to a general cycle of daytime fatigue
and pain." Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.
1998), citing Cline v. Sullivan, 939 F.2d 560, 563, 567 (8th
Cir. 1991). The Court further described fibromyalgia as a
"degenerative disease which results in symptoms such as
achiness, stiffness, and chronic joint pain."
23

rely on these facts, and the Defendant’s reference to them, is
not supported by substantial evidence.
Next, the Defendant and the ALJ noted that Ms. Robinson
did not always take medication in the way proscribed by her
health care providers.

In her brief, Ms. Robinson argues:

[t]hroughout this period Ms. Robinson is at
the mercy of public dollars. She has no
health insurance - only IowaCares and
whatever the county pays for. To afford
the Prozac, Dr. Lee has to fill out forms.
Tr. 371. A claimant’s inability to afford
medication can not be used as a basis of
denying benefits. Tang v. Apfel, 205 F.3d
1084, 1086 (8th Cir. 2000). The record in
this case is replete with the frustrations
that Ms. Robinson has experienced in trying
to get free medical care to come up with a
cure of her disabling pain. This factor
should not be used against her.
Docket No. 10, p. 14-15.

During the hearing, Ms. Robinson

complained that because of her limited means, she has been
unable to see a neurologist to treat the numbness in her hands
and feet.

Docket No. 8, Tr. 38.

Similarly, she stated she

cannot afford a CPAP machine to treat her sleep apnea. Docket
No. 8, Tr. 40.

Ms. Robinson correctly points out that the

courts have repeatedly held that a plaintiff’s inability to
afford medication should not be held against them.

In this

case, the evidence suggest that Ms. Robinson has limited
24

means, survives off of public assistance programs, and has
depression issues.

All of these factors contribute to her

inability to comply with the best medical practices advised by
her doctors.

However, they should not be held against her

when determining her credibility, and it was an error for the
ALJ to do so.
Finally, as will be discussed more fully in the following
sections, Ms. Robinson’s testimony is supported by the medical
evidence in this case. Accordingly, substantial evidence does
not support the ALJ's decision to give little weight to Ms.
Robinson’s

testimony

regarding

her

pain

and

her

limited

functioning. In fact, Ms. Robinson’s statements regarding her
disability are substantially supported by the record in this
case, including the medical records of Dr. Lee, Dr. Mooney and
therapist Martha Miller.

The ALJ's determination was not

supported by substantial evidence and was an error.

Because

Ms. Robinson testified credibly about her pain, and that
testimony
limitations

was

supported

outlined

by

by

the

medical

Ms.

Robinson

evidence,

should

have

the
been

incorporated into the question posed to the vocational expert.

25

B.

Medical Evidence

The Plaintiff also argues that ALJ failed to give credit
to certain medical evidence.

Specifically, the Plaintiff

argues that the ALJ failed to give proper weight to Ms.
Robinson’s primary care provider, Dr. Lee, and failed to
credit her mental health issues because he only relied on the
opinion’s of the state’s reviewing doctors. Docket No. 10, p.
7-10.
As has been repeatedly stated:
[t]he opinion of a treating physician:
should not ordinarily be disregarded and is
entitled to substantial weight. A treating
physician's
opinion
regarding
an
applicant's impairment will be granted
controlling weight, provided the opinion is
well-supported by medically acceptable
clinical
and
laboratory
diagnostic
techniques and is not inconsistent with the
other substantial evidence in the record.
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).

The

Plaintiff is correct that the ALJ relied on the state’s
doctors at the expense of Ms. Robinson’s treating physicians.
The ALJ stated:
Laura Griffith, D.O., and John May, M.D.,
each a state agency medical consultant,
mutually opined that claimant's combined
physical
impairments,
including
consideration of those that are "severe"
and not "severe" within the meaning of the
regulations, do not meet or medically equal
26

the specific severity requirements of any
physical impairment set forth in the
Listing of Impairments. The Administrative
Law Judge accords great weight to the
mutually supportive opinions provided by
Drs. Griffith and May...
Docket No. 8, Tr. 14.

However, as a review of the record

makes clear, Ms. Robinson was treated for severe pain and
mental health issues for the entire relevant time period. See
for example, Dr. Lee’s records, Docket No. 8, Tr. 281-309, and
social worker Martha Miller’s treatment notes, Docket No. 8,
Tr. 379-446.

The ALJ’s decision to give great weight to the

consultants at the expense of treating providers, such as Dr.
Lee, other sources, including Martha Miller, is not supported
by substantial evidence and was an error.
C.

Hypothetical

At the hearing, the ALJ questioned the vocation expert
about Ms. Robinson’s employment prospects.
the

vocational

expert

with

an

The ALJ presented

individual

with

the

age,

education, and past work history of Ms. Robinson, who could
occasionally lift 20 pounds/frequently lift 10 pounds; stand
and walk for six hours out of an eight hour day and sit for
six hours of an eight hour day; who can occasionally, balance,
stoop, crouch, kneel, crawl, and climb and who's able to do
only simple, routine, receptive work.
27

Docket No. 8, Tr. 55.

The vocational expert testified that such a person would be
able

to

perform

all

of

Ms.

Robinson's

past

work.

The

vocational expert also testified that a person who could stand
and walk two hours a day would be able to find some sedentary
work.

Docket No. 8, Tr. 56.

However, the vocational expert

admitted that under either of those scenarios, if the person
missed more than two days a month, they would not be able find
competitive employment.

Docket No. 8, Tr. 57.

Additionally,

when asked about Ms. Robinson's employment prospects when all
the

limitations

she

testified

to

were

considered,

the

vocational expert stated she would not be able to find any
substantial employment.

Docket No. 8, Tr. 58.

As has been repeatedly stated, “[a] vocational expert's
testimony 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). “[T]he hypothetical need not frame the claimant's
impairments in the specific diagnostic terms used in medical
reports, but instead should capture the concrete consequences
of those impairments.”

Id. (quoting Hulsey v. Astrue, 622

F.3d 917, 922 (8th Cir. 2010)).

28

Based on the forgoing analysis regarding credibility and
medical evidence, the Court is persuaded that the ALJ failed
to properly articulate Ms. Robinson’s limitations in the
hypothetical question to the vocational expert that the ALJ
relied

upon.

Specifically,

the

ALJ

failed

to

include

limitations as set out in Ms. Robinson’s credible testimony,
the third party report of her sister, and the medical evidence
from Dr. Lee and Ms. Robinson’s therapy notes. The vocational
expert testified that when he considered all the problems Ms.
Robinson testified to, Ms. Robinson would not be able to find
jobs on a full time basis.

Docket No. 8, Tr. 58.

Because the

ALJ failed to give appropriate weight to Ms. Robinson’s
credible testimony, the ALJ’s residual functional capacity
evaluation is flawed as was the hypothetical answer the ALJ
relied on.

Accordingly, the ALJ’s determination that Ms.

Robinson could return to past relevant work is not supported
by substantial evidence in the record.
VI.

CONCLUSION
It is clear the ALJ erred in the credibility, medical

evidence and RFC sections discussed above.
becomes

whether

this

Court

should

The question thus

remand

for

further

consideration or solely for the purpose of awarding benefits.

29

This Court has the authority to reverse a decision of the
Commissioner,

“with

or

without

remanding

the

cause

for

rehearing," but the Eighth Circuit has held that a remand for
an award of benefits is appropriate only where “the record
‘overwhelmingly supports’” a finding of disability. 42 U.S.C.
405(g); Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000)
(citing Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir.
1992).
The Court has considered the entire record, the parties’
briefs, and the arguments presented at hearing.

When the

medical evidence is considered along with the Plaintiff’s
credible

testimony,

this

Court

is

persuaded

that

the

overwhelming evidence supports a finding of disability.
Therefore,
remanded

solely

the

decision

for

the

of

the

ALJ

calculation

is

of

reversed
benefits

and
from

Plaintiff’s claimed onset of disability.
Application for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (EAJA), must be filed
within thirty (30) days of the entry of final judgment in this
action.

Thus,

unless

this

decision

is

appealed,

if

plaintiff’s attorney wishes to apply for EAJA fees, it must be

30

done within thirty (30) days of the entry of the final
judgment in this case.
IT IS SO ORDERED this 26th day of March, 2014.

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

31