Rehnblom v. Commissioner of Social Security

Filing 28

ORDER: 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 for further information. Signed by Senior Judge Donald E O'Brien on 03/27/14. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
LORALYN LYNN REHNBLOM,
Plaintiff,

No. 13-CV-3012-DEO

v.
ORDER

CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
____________________

This matter is before the Court pursuant to Loralyn
Rehnblom’s

[hereinafter

Ms.

Rehnblom]

application

for

supplemental security income (“SSI”) benefits under Title XVI
of the Social Security Act (“Act”), 42 U.S.C. §§ 1381 et seq.
The parties appeared for a hearing on November 14, 2013.
After considering the parties’ arguments, the Court took the
matter under advisement and now enters the following.
I.

FACTUAL BACKGROUND
Ms. Rehnblom was born November 7, 1968, and was 41 years

old at the time the application was filed.

She has a limited

education; she took special education classes throughout her
life, and she only finished the ninth grade.

She is divorced

with four children.

She and two of her children live with her

mother in the Webster City, Iowa, area.
Ms. Rehnblom claims disability based upon a number of
mental and emotional issues, including depression, anxiety,
and limited mental functioning.
II.

PROCEDURAL HISTORY
Ms.

Rehnblom

filed

her

application

for

supplemental

security income (“SSI”) benefits under Title XVI of the Social
Security Act (“Act”), 42 U.S.C. §§ 1381 et seq. on January 5,
2010.

Her claim was denied initially on June 3, 2010, and

upon reconsideration on July 30, 2010.

On October 17, 2011,

Ms. Rehnblom appeared in Fort Dodge for a video hearing before
Administrative Law Judge (ALJ) John Sandbothe.

On December

13, 2011, the ALJ denied Ms. Rehnblom’s claim.

Ms. Rehnblom

appealed her claim to the Appeals Council, who denied it on
February 12, 2013.

Ms. Rehnblom then filed the present

Complaint on March 6, 2013.
The ALJ set out the issue presently before the Court:
[t]he issue is whether the claimant is
disabled under section 1614(a)(3)(A) of the
Social Security Act. Disability is defined
as the inability to engage in any
substantial gainful activity by reason of
any medically determinable physical or
2

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.
Although
supplemental security income is not payable
prior to the month following the month in
which the application was filed (20 CFR
416.335), the undersigned has considered
the complete medical history consistent
with 20 CFR 416.912(d).
Docket No. 9, Tr. 14.
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential

evaluation

process

for

determining

whether

individual is disabled and entitled to benefits.
404.1520.

The five successive steps are:

an

20 C.F.R. §

(1) determination

of whether a plaintiff is engaged in “substantial gainful
activity,” (2) determination of whether a plaintiff has a
“severe medically determinable physical or medical impairment”
that lasts for at least 12 months, (3) determination of
whether a plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
Capacity

(RFC)

requirements

of

indicates

an

incapacity

their

past

relevant

3

to

perform

work,

and

the
(5)

determination

of

whether,

given

a

Plaintiff’s

RFC,

age,

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

20 C.F.R. § 404.1520(4)(i-v).

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

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
4

(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,
a plaintiff can make an adjustment to other work, there is no
disability.
416.920(a)(4)(v).

20

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
5

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. Rehnblom had not engaged in substantial
gainful activity since January 5, 2010.
she had several severe impairments:

The ALJ found that

depression, anxiety, and

borderline intellectual functioning. The ALJ also noted other
impairments

he

headaches

and

Rehnblom

does

impairments

found

non-severe,

asthma.

However,

not

an

that

have
meet

or

including:

the

impairment
exceed

a

ALJ
or

migraine

found

that

combination

listed

Ms.
of

impairment.

Specifically, the ALJ stated:
[t]he record does not contain medical
findings obtained on clinical examination
or special study, which are the same as or
equal to any of those listed in any
subsection of the Listing of Impairments.
The undersigned has reviewed all of the
evidence and concludes that the claimant's
severe impairments do not meet or equal the
severity of any listing.
Docket No. 9, Tr. 17.

The ALJ considered Ms. Rehnblom’s

mental impairments using the “paragraph B” criteria and the
“paragraph C” criteria as set out in 20 CFR Part 404, Subpart
6

P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926) and
determined that Ms. Rehnblom’s mental impairment did not meet
either set of requirements.
The ALJ went on to consider residual functional capacity
and concluded:
[a]fter careful consideration of the
entire record, the undersigned finds that
the claimant has the residual functional
capacity to perform a full range of work
at all exertional levels but with the
following nonexertional limitations: the
claimant can perform work involving only
simple, routine, repetitive tasks, at no
more than a regular pace, and requiring no
contact with the public.
Docket No. 9 Tr. 19.
The ALJ than considered the plaintiff’s credibility under
the Polaski standard and stated:
[a]fter careful consideration of the
evidence, the undersigned finds that the
claimant's
medically
determinable
impairments could reasonably be expected
to cause the alleged symptoms; however, the
claimant's
statements
concerning
the
intensity, persistence and limiting effects
of these symptoms are not credible to the
extent they are inconsistent with the above
residual functional capacity assessment.

7

Docket No. 9, Tr. 20.

Regarding credibility, the ALJ went

onto say:
[i]n terms of the claimant's credibility,
the medical record reveals the claimant has
a long history of medication noncompliance
(Exhibits
14F/1-3;
26F/8),
missed
appointments (Exhibits 21F; 26F), and
ignoring medical advice (Exhibit lOF/3).
The
record
also
reveals
extensive
documentation of drug-seeking behaviors by
the claimant, for many years (Exhibits
llF/13, 19, 26; 14F/2, 5, 43, 52).
The
claimant has visited the emergency room
frequently to request shots for her
headaches, but was eventually denied by the
emergency room unless she had a note from
her primary care physician prescribing this
type of treatment (Exhibit 6F/1). During
hospitalizations for chest pain, the
claimant was noted to request more morphine
for her pain, and ultimately discharged
herself against medical advice when she was
informed she would receive no more morphine
(Exhibit
lOF/2).
During
another
hospitalization, the record shows the
claimant visited the nurses' station every
five minutes asking for morphine, after she
was
denied
this
medication
(Exhibit
14F/53).
The record also reveals the
claimant
visiting
numerous
hospitals
seeking medications (Exhibits lOP; llF;
12F; 14F/2). The undersigned finds these
facts weigh heavily against the claimant's
credibility.
Docket No. 9, Tr. 21.

8

Further, the ALJ emphasized the fact that Ms. Rehnblom
could

live

living.

independently

and

Docket No. 9, Tr. 20.

perform

functions

of

daily

The ALJ also emphasized the

fact that Ms. Rehnblom only sought ‘sporadic’ treatment.
Docket No. 9, Tr. 21.

The ALJ then discussed the fact that

Ms. Rehnblom has a limited work history, concluding that she
has a “poor work record.”

Docket No. 9, Tr. 21.

Looking at the opinion evidence, the ALJ gave little
weight

to

the

statements

treating physician.

of

Dr.

S.

Lee,

Ms.

Rehnblom’s

Similarly, the ALJ gave little weight to

independent examiner Dr. Joseph Brunkhorst.

Both Dr. Lee and

Dr. Brunkhorst opined that Ms. Rehnblom would be unable to
maintain employment.
Wright,

a

state

The ALJ gave some weight to Dr. Dee

examiner,

and

Dr.

William

Morton,

an

independent examiner, both of whom opined that Ms. Rehnblom
had no severe mental limitation. The ALJ gave great weight to
Dr. Jan Hunter, a state examiner, who stated Ms. Rehnblom did
not have a severe physical impairment.
Based on his RFC, the ALJ concluded that:
[c]onsidering
the
claimant's
age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
9

national economy that the claimant can
perform (20 CFR 416.969 and 416.969(a)).
Docket No. 9, Tr. 23.
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
(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
10

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.
(8th Cir. 2001).

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

If the ALJ applies an improper legal

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

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

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

ISSUES
In her brief, Ms. Rehnblom argues several issues. First,

Ms. Rehnblom argues the Appeals Council failed to consider
additional evidence she submitted.

Next, she argues that the

ALJ’s finding is not supported by substantial evidence, which
is an attack on the ALJ’s medical evidence and credibility
determination in relation to the RFC.

Finally, Ms. Rehnblom

argues the hypothetical the ALJ relied upon was incomplete.
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
11

Act defines a disability as an:
inability to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment
which can be expected to result in death or
which has lasted or can be expected to last
for a continuous period of not less than 12
months . . . .
42 U.S.C. § 423(d)(1)(A).
A.
The

New Evidence
first

issue

the

Court

will

consider

is

the

Plaintiff’s argument regarding new evidence. As was discussed
above, the ALJ determined that Ms. Rehnblom’s depression was
not severe.

Among other things, the ALJ cited the fact that

Ms. Rehnblom’s treatment was “sporadic.” Following, the ALJ’s
decision, Ms. Rehnblom appealed her case to the Appeals
Council. Ms. Rehnblom also submitted additional evidence from
Dr. Lee about her case to the Appeals Council.
9, Tr. 779-808.

See Docket No.

The Plaintiff argues that it was an error for

the Appeals Council to fail to consider the new evidence.

As

this Court has previously stated, the Appeals Council must
consider additional evidence if it is new, material, and
relates to a time period before the ALJ’s decision. 20 C.F.R.
§ 404.970(b); see Johnson v. Chater, 87 F.3d 1015, 1018 (8th

12

Cir. 1996).

SSA’s Hearings and Appeals Law and Litigation

Manual (HALLEX) Section I-4-2-30 provides:
[t]he claimant or another SSA component may
submit additional materials to the [Appeals
Council] at any time. The materials may or
may not be part of a subsequent claim that
has been adjudicated.
If the claimant
files a subsequent application after
commencing a civil action on a prior claim,
the adjudicating component . . . will limit
its consideration to the period, if any,
following the period undergoing judicial
review. . . .
If the adjudicating
component makes a favorable determination
or decision on the subsequent application,
it will request the effectuating component
to forward the case to [the Office of
Appellate Operations] after effectuation to
determine the impact, if any, of the
favorable determination or decision on the
pending court case.
HALLEX, available at:
http://www.ssa.gov/OP_Home/hallex/I-04/I-4-2-30.html (last
visited March 24, 2014).
When

the

Plaintiff

appealed

the

ALJ’s

ruling,

she

included additional evidence from Dr. Lee, including Dr.
Lee’s treatment notes from appointments where she requested
additional medicine for her severe emotional issues.

The

Appeals Council concluded, without explanation, that “this
information does not provide a basis for changing the [ALJ’s]

13

decision.”

Docket No. 9, Tr. 2.1

This was an error.

The

regulations provide that the Appeals Council must evaluate
the entire record, including any new and material evidence
submitted that relates to the period before the date of the
ALJ's decision.

Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir.

2008); Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir.
2000);

see

20

C.F.R.§

404.970(b).

The

newly

submitted

evidence thus becomes part of the "administrative record,"
even though the evidence was not originally included in the
ALJ's record.

See Nelson v. Sullivan, 966 F.2d 363, 366 (8th

Cir. 1992). There is a distinction between acknowledging new
evidence, and considering it.

In this case, the Appeals

Council acknowledged the evidence, but failed to consider it
in light of the entire record.

This was an error.

As will

be discussed in greater detail below, the new evidence was
relevant in that it was both from a treating source and it
bolstered Ms. Rehnblom’s credibility.

1

In his decision to

The Defendant acknowledges Ms. Rehnblom’s new evidence,
but argues that some of the mental health treatment occurred
after the ALJ’s decision, so under the rules, it should not be
considered as part of the record. Docket No. 14, p. 12-13.
The Court acknowledges that the relevant time period is prior
to December 13, 2011.
14

deny Ms. Rehnblom benefits, the ALJ gave little weight to Dr.
Lee’s assessments and seized upon Ms. Rehnblom’s “sporadic”
treatment.

Because the weight of Dr. Lee’s opinion and Ms.

Rehnblom’s “sporadic” treatment were issues central to the
ALJ’s ruling, the Appeals Council’s decision to not actually
“consider” the new evidence was especially egregious.
B. Credibility
The next argument the Court will address is about the
Plaintiff’s

credibility

and

the

ALJ’s

credibility

determination. In making his RFC finding, the ALJ determined
that Ms. Rehnblom was not credible in her testimony.
The standard regarding credibility findings is well
settled.

“In

order

to

assess

a

claimant's

subjective

complaints, the ALJ must make a credibility determination by
considering

the

claimant's

daily

activities;

duration,

frequency, and intensity of the pain; 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

15

not supported by objective medical evidence.
have

sufficient

credibility.

justification

for

doubting

An ALJ must
a

claimant's

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 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.

Ms. Rehnblom testified that she suffers

from severe depression.

Docket No. 9, Tr. 34.

She states

that she was abused sexually as a child, and since has had
problems interacting with others.

Docket No. 9, Tr. 34-35.

She has crying spells two or three times a day.
9, Tr. 35.

Docket No.

She cannot keep or balance a checkbook.

Id.

Elsewhere in the record, Ms. Rehnblom made it clear that she
is unable to function for more than a few hours at a time,
much less for a full work day.
181.

16

See Docket No. 9, Tr. 169-

The Defendant contends that:
[t]he
ALJ
properly
considered
the
credibility of plaintiff’s subjective
allegations, and found these allegations
were only credible to the extent that they
supported the limitations enumerated in
the RFC (Tr. 20). The ALJ articulated the
inconsistencies
on
which
he
relied,
including:
inconsistencies between the
objective medical evidence and plaintiff’s
subjective
allegations;
plaintiff’s
sporadic treatment and regularly missed
appointments;
her
noncompliance
with
prescribed medication; and her poor work
history (Tr. 20-22).
Docket No. 14, p. 11.
As was noted above, the ALJ seized on the fact that Ms.
Rehnblom’s treatment history has been “sporadic.”

As has

been repeatedly stated, “[t]o a poor person, medicine that he
cannot afford to buy does not exist.”
F.2d 55, 59 (5th Cir. 1987).

Lovelace v. Bowen, 813

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
regime].”

needed

to

understand

and

follow

her

[medical

724 F.2d 711, 713-14 (8th Cir. 1984); see also

Agan v. Astrue, 922 F. Supp. 2d 730, 753 (N.D. Iowa 2013).
17

Ms.

Rehnblom

testified

that

she

lost

her

medical

insurance, which is one reason that she was unable to treat
her issues as often as they probably needed.
Tr. 34.

Docket No. 9,

She also has had to stop her medications because she

could not afford them.

Docket No. 9, Tr. 36; see also Docket

No. 9, Tr. 282, explaining Ms. Rehnblom's financial situation
and its affect on her ability to treat her mental/emotional
issues.

Additionally, Ms. Rehnblom testified that Dr. Lee

would help her with everyday tasks, such as filling out forms
for food stamps and other social services.
34.

Docket No. 9, Tr.

(Accordingly, once Ms. Rehnblom could not go to the

doctor, the doctor who otherwise helped her get services, was
no longer available to help her get services.)
Rehnblom

testified

that

she

cannot

drive

Finally, Ms.
and

that

her

ex-husband drives her to appointments. Docket No. 9, Tr. 37.
As such, she is dependant on others to get to medical
appointments.
There is no serious argument in this record that Ms.
Rehnblom has the means to get consistent medical services.
Ms. Rehnblom is poor, lives with her mother (who also seems
to support Ms. Rehnblom’s disabled sibling), and has to take

18

care of her children. Ms. Rehnblom’s relationships are often
not beneficial and negatively impact her financial situation.
She

has

to

rely

on

others

to

even

get

to

the

doctor.

However, all that said, it is clear from the record that Ms.
Rehnblom actually treats in a fairly consistent manner when
she has the means to do so.

See, for example, medical

records at Docket No. 9, Tr. 497-611.

This conclusion is

bolstered by the additional evidence the Appeals Council
failed to consider, which shows that in late 2011, Ms.
Rehnblom
issues.

aggressively

treated

for

mental

and

emotional

(See for example, Dr. Lee’s note dated 10-11-2011,

where Dr. Lee stated, “[Ms. Rehnblom] returns for follow up.
Actually she walked in wanting a shot of something because
she is so worried, nervous and uncomfortable...

I... gave

her Chlorpromazine 50 mg intramuscularly.” Docket No. 9, Tr.
795).
Additionally, as has been alluded to above and will be
discussed more fully in the following section, Ms. Rehnblom’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. Rehnblom’s subjective

19

allegations/testimony regarding her disability. In fact, Ms.
Rehnblom’s

statements

regarding

her

disability

are

substantially supported by the record in this case.

The

ALJ's determination was not supported by substantial evidence
and was an error.

Because Ms. Rehnblom testified credibly

about her mental and emotional issues, and that testimony was
supported

by

the

medical

evidence,

the

ALJ

should

have

included those limitations in his RFC and the hypothetical
questions posed to the vocational expert.
C. Medical Evidence
Also included in the Plaintiff’s challenge to the ALJ’s
RFC determination is an allegation that the ALJ improperly
weighed the medical evidence.

Specifically, the Plaintiff

argues that, as an examining source, Dr. Lee’s opinion was
entitled to more weight than the ALJ gave it.
p. 8-9.

Docket No. 13,

In his opinion, the ALJ stated that “Dr. Lee’s

opinions are boldly inconsistent with the other opinions in
the file and the evidence as a whole.”

Docket No. 9, Tr. 22.

The Defendant argues that the ALJ’s evaluation was corrected
and supported by the evidence.

20

Docket No. 14, 18-20.

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).

Additionally, the opinions of an examining physician should
be given greater weight that the opinions of a source who had
not examined the claimant. See Shontos v. Barnhart, 328 F.3d
418, 425 (8th Cir. 2003), citing 20 C.F.R. § 404.1527(d)(1)
(now 20 C.F.R. §404.1527(c)).
In this case, the ALJ rejected the opinion of Dr. Lee,
the treating doctor.

Instead, the ALJ relied on consultive

opinions from Dr. Morton, Dr. Wright and Dr. Jan Hunter.
Docket No. 9, Tr. 22.

Those doctors each reviewed the files

and

Rehnblom

determined

Ms.

does

not

have

a

severe

impairment.2

2

Of course, the ALJ also discounted the opinion of
examining consultant Dr. Brunkhorst, even though examining
consultants are due greater consideration than mere record
21

The law is clear that the treating source should be
given greater weight than the opinion of the consultants.
Dr. Lee has repeatedly seen Ms. Rehnblom for mental and
emotional issues.
made

by

other

His opinion is consistent with comments

treating

providers

throughout

the

years,

including Dr. Lee Berryhill, Dr. Uzoma Okoli, physician’s
assistant

Angela

Grundmeyer,

Corsberg and others.
287.

physicians

assistant

Mike

Docket No. 9, Tr. 292, 299, 338, and

The Court is persuaded that Dr. Lee’s opinion that Ms.

Rehnblom is unable to function on a day to day basis is
consistent with the record.

See Docket No. 9, Tr. 774-775.

The ALJ’s decision to grant Dr. Lee’s opinion little (or no)
weight, while giving substantial weight to the non-examining
sources, is not supported by substantial evidence and was an
error.

reviewers, because Dr. Brunkhorst’s conclusion supported Ms.
Rehnblom’s severe depression. Similarly, the ALJ made only a
throw away reference to the opinion of Dr. P.E. Lonning, who
examined Ms. Rehnblom’s mental functioning and concluded, “Ms.
Rehnblom... is functioning at the borderline level... It is
felt that she will have problems remembering and understanding
instructions... [t]his is also true of her ability to carry
out instructions, maintain attention, concentration and
pace...” Docket No. 9, Tr. 285.
22

D.

Hypothetical

The ALJ questioned the vocational expert.
hypothetical, the ALJ asked:

In his first

“I limit her as follows:

physical limitations to speak of.

no

However, simple, routine,

repetitive work, no contact with the public, regular pace.
Are there jobs out there for such a person?”
Tr. 44.

Docket No. 9,

The vocational expert answered that there were jobs

she could perform, including as a laundry folder and a
housekeeper.

Id.

However, when the ALJ added an additional

criteria, that the claimant would have slow pace for a third
of the day, the vocational expert testified that she would be
unable to find a job.

Docket No. 9, Tr. 45.

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)).

23

Based on the foregoing analysis regarding credibility
and medical evidence, the Court is persuaded that the ALJ
failed to properly articulate Ms. Rehnblom’s limitations in
the first hypothetical question to the vocational expert.
The second hypothetical questions more accurately stated all
of Ms. Rehnblom’s limitations. In response to that question,
the vocational expert stated that no jobs exist that Ms.
Rehnblom could perform.
VI.

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

evidence and RFC sections discussed above. Additionally, the
Appeals Council failed to consider the new evidence submitted
by Ms. Rehnblom.

The question thus becomes whether this

Court should remand for further consideration or solely for
the purpose of awarding benefits.
This Court has the authority to reverse a decision of
the Commissioner, “with or without remanding the cause for
rehearing," but the Eighth Circuit has held that a remand for
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

24

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, the decision of the ALJ is reversed and
remanded

solely

for

the

calculation

of

benefits

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 done within thirty (30) days of the entry of the final
judgment in this case.
IT IS SO ORDERED this 27th day of March, 2014.

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

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