Figgins v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION recommend that the Commissioners decision be reversed, this case be remanded for further proceedings, and judgment be entered in favor of Charity Figgins and against the Commissioner of Social Security re 4 Complaint. Signed by Magistrate Judge Leonard T Strand on 1/2/2014. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
CHARITY FIGGINS,
Plaintiff,

No. C13-3022-MWB

vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

REPORT AND
RECOMMENDATION

Defendant.
____________________

TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 

II. 

BACKGROUND ............................................................................. 2 

III. 

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF ......... 3 

IV. 

SUMMARY OF ALJ’S DECISION ..................................................... 5 

V. 

THE SUBSTANTIAL EVIDENCE STANDARD ................................... 12 

VI. 

ANALYSIS ................................................................................. 13 
A. 
Did The ALJ Err In Evaluating The Medical Evidence? ................. 14 
1. 
Applicable Legal Standards ............................................ 14 
2. 
Discussion ................................................................. 15 
a. 
Dr. Vos ............................................................. 15 
b. 
Dr. Ramos ......................................................... 21 
c. 
Nurse Johnson ................................................... 22 
d. 
Dr. Harper ........................................................ 22 
e. 
State Agency Consultants ....................................... 24 
f. 
GAF Scores ....................................................... 25 
g. 
The Nevland Problem ........................................... 27 
B. 
Did The ALJ Err In Assessing Figgins’s Credibility? ..................... 30 
C. 
Was The VE’s Opinion Testimony Flawed? ................................. 32 

VII.  CONCLUSION AND RECOMMENDATION ....................................... 33 

I.

INTRODUCTION

Plaintiff Charity Figgins 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).

Figgins contends that the administrative record (AR) does not contain

substantial evidence to support the Commissioner’s decision that she was not disabled.
For the reasons that follow, I recommend that the decision be reversed and remanded
for further proceedings.
II.

BACKGROUND

Figgins was born in 1984 and was 25 years old on her alleged disability onset
date of November 5, 2010. AR 11, 232. She has a GED and past relevant work as a
nurse aide and residential aide. AR 32, 352. She protectively filed her applications for
DIB and SSI on November 5, 2010. AR 11. The applications were denied initially and
on reconsideration. Id. Figgins then requested a hearing, which was conducted May
14, 2012, by Administrative Law Judge (ALJ) John Sandbothe. Id. Figgins testified
during the hearing, as did her counselor and a vocational expert (VE). AR 30-59. The
ALJ issued a decision denying Figgins’s application on June 13, 2012. AR 11-21. On
February 20, 2013, the Appeals Council denied Figgins’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 April 16, 2013, Figgins commenced an action in this court seeking review of
the ALJ’s decision. This matter has been referred to me pursuant to 28 U.S.C. §
636(b)(1)(B) for the filing of a report and recommended disposition of the case. The
parties have briefed the issues and the matter is now fully submitted.

2

III.

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
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,
3

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.
§§ 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
4

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 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 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 the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
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).
IV.

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, 2013.

(2)

The claimant has not engaged in substantial gainful
activity since November 5, 2010, the alleged onset
date (20 CFR 404.1571 et seq., and 416.971 et seq.).

(3)

The claimant has the following severe impairments:
hepatitis C, bipolar disorder, anxiety, obesity,
5

borderline personality disorder, and history of
substance abuse (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
functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c), as
she is able to lift or carry 50 pounds occasionally and
25 pounds frequently but is limited to simple, routine,
repetitive work with superficial contact with the
public and 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 November 21, 1984 and
was 25 years old, which is defined as a younger
individual age 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 MedicalVocational 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, 404.1569a, 416.969, and 416.969a).
6

(11)

The claimant has not been under a disability, as
defined in the Social Security Act, from November 5,
2010 through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).

AR 13-21. At Step Two, the ALJ found all of Figgins’s claimed impairments (hepatitis
C, bipolar disorder, anxiety, obesity, borderline personality disorder, and history of
substance abuse) to be severe, as they cause more than minimal limitations in her ability
to perform work-related activities. AR 13. At Step Three, the ALJ found that none of
Figgins’s impairments, individually or in combination, met or equaled one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. AR 14. With regard to the
physical impairments of hepatitis C and obesity, the ALJ noted that no evidence
indicates limitations or complications sufficient to satisfy any listing. Id. Figgins does
not challenge this finding.1
As for mental impairments, the ALJ stated that he considered listings 12.04,
12.06, 12.08 and 12.09, and concluded that Figgins’s impairments do not meet those
listings. Id. He first analyzed the “paragraph B” criteria, noting that to satisfy these
criteria the impairments must cause at least two “marked” limitations or one “marked”
limitation and “repeated” episodes of decompensation.2 Id. A “marked” limitation is
one that is more than moderate but less than extreme. Id. The ALJ found that Figgins
1

As the Commissioner points out, Figgins’s briefs in this case do not raise any arguments
concerning the ALJ’s evaluation of her physical impairments. As such, I will not engage in a
detailed analysis of the physical impairments herein.

2

Episodes of decompensation are “exacerbations or temporary increases in symptoms or signs
accompanied by a loss of adaptive functioning, as manifested by difficulties in performing
activities of daily living, maintaining social relationships, or maintaining concentration,
persistence, or pace.” 20 CFR Part 404, Subpart P, Appendix 1. Repeated episodes of
decompensation, each of extended duration, means 3 episodes within 1 year, or an average of
once every 4 months, each lasting for at least 2 weeks. If the episodes of decompensation are
more frequent and of shorter duration or less frequent and of longer duration, the
Commissioner must “use judgment to determine if the duration and functional effects of the
episodes are of equal severity and may be used to substitute for the listed finding in a
determination of equivalence.” Id.

7

had no restrictions concerning activities of daily living, mild difficulties in social
functioning and moderate difficulties with regard to concentration, persistence or pace.
Id. The ALJ also found that Figgins had experienced no episodes of decompensation
which have been of extended duration. Id. Therefore, the ALJ found the paragraph B
criteria were not satisfied.

AR 15.

He also stated that he had considered the

“paragraph C” criteria and that the evidence failed to establish those criteria, as well.
Id. Figgins does not challenge any of these findings.
At Step Four, the ALJ provided a residual functional capacity (RFC) assessment
and found that Figgins had the RFC to perform medium work3 except that she is limited
to simple, routine, repetitive work with superficial contact with the public and no more
than a regular pace. Id. In explaining this determination, the ALJ first addressed the
credibility of Figgins’s statements concerning the disabling effects of her impairments.
AR 15. He referenced the relevant factors for weighing a claimant’s credibility and
concluded that her statements were not credible to the extent that they were inconsistent
with his RFC determination. Id. He provided the following reasons for this finding:
(1) Figgins’s allegations of total disability are inconsistent with the objective medical
evidence, (2) her own statements concerning her activities indicate that her symptoms
are not as severe as alleged, (3) Figgins’s ability to work on a part-time basis and her
efforts to find full-time employment were inconsistent with her allegations and (4) the
medical opinions, as weighted by the ALJ, do not support Figgins’s allegations. AR
16-19.
With regard to the medical evidence, the ALJ acknowledged that it “reflect[s] a
long history of depression, bipolar disorder, borderline personality disorder, and
substance use including methamphetamines, cocaine, marijuana, and alcohol.” AR 16.
He noted, however, that she completed addiction treatment in August 2010 and that she
receives ongoing therapy to manage her mental health symptoms. Id. The ALJ pointed
3

“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 C.F.R. §§ 404.1567(c) and 416.967(c).

8

out that Figgins’s treating psychiatrist, Dr. Ramos, managed her symptoms with
medication and, in December 2010, found that she demonstrated a good mood, full
affect, no suicidal or homicidal thoughts and no paranoia. Id. At the same time,
however, Dr. Ramos expressed concern about Figgins’s use of marijuana. AR 548.
Indeed, she had stopped taking her prescription medication (Risperdal) and instead was
smoking marijuana three times a day, declaring it to be “the wonder drug.” Id. Dr.
Ramos counseled Figgins to stop using marijuana and prescribed Invega as an
alternative. Id.
The ALJ next discussed Figgins’s visits to the emergency room in January 2011,
where she reported anxiety and feelings of hopelessness and worthlessness. AR 16.
Figgins denied having suicidal ideation but indicated that she was still smoking
marijuana daily. AR 556. After her second visit in three days she was admitted to the
hospital and discharged one day later.

AR 556-66.

The Minnesota Multiphasic

Personality Inventory-2 test was administered but produced invalid results “due to a
rather exaggerated response pattern.” AR 564.
The ALJ noted that Figgins was admitted again, this time for several days, in
June 2011. AR 17. This resulted from a suicide attempt involving an overdose of
Tylenol.

AR 17, 614, 680-81, 687-90.

Upon admission she was having a very

difficult time controlling her emotions but had stabilized enough to be released five
days later. AR 682. She returned to the emergency room in August 2011, stating that
she was out of her prescription medication and was feeling anxious and angry. AR
669.
The ALJ next noted that progress reports during 2011 by Dr. Ramos and Judy
Johnson, a nurse practitioner, indicated Figgins was doing reasonably well while on her
medications. AR 17. By December 2011, Figgins reported that she was feeling much
better and was hoping to be reunited with her children, who were in foster care. AR
17, 653. She also stated that she was looking for work and was attending school online
on a full-time basis. AR 17, 654.
9

As for Figgins’s reports of her daily activities, the ALJ noted that she
acknowledged being able to “do everything at times.” AR 19. He also described
Figgins’s reports that she likes being around people she knows, cares for her personal
hygiene, prepares meals, shops, performs household chores and drives a car. Id.

In

addition, the ALJ noted that Figgins watches movies and television, takes part in arts
and crafts activities, plays video games with friends and enjoys putting on makeup and
singing. Id. Moreover, by the time of the hearing Figgins had custody of her children
and testified that her daily activities include taking care of them and going to the store.
AR 19, 41-42.
With regard to opinion evidence, the ALJ first discussed questionnaires
completed by Nurse Johnson in May 2012, in which she reported that Figgins has
difficulty managing stress in the workplace, has only fair-to-poor work-related abilities
and should be limited to no more than part-time work. AR 17, 716-21. The ALJ
found that this opinion was not entitled to great weight because (a) Nurse Johnson is not
an acceptable medical source and (b) her assessment is not supported by either the
evidence of record or Nurse Johnson’s own treatment notes. AR 17.
A psychologist, Dr. Harper, provided opinions based on an evaluation of Figgins
in August 2011 regarding her parenting abilities. Id. He diagnosed major depressive
disorder, generalized anxiety disorder, borderline personality disorder and marijuana
dependence. AR 17, 593-605. Dr. Harper found that Figgins was not capable of
caring for her children and that she needed intensive mental health treatment. AR 603.
He opined that her mental health issues were likely to interfere with her ability to
maintain employment and recommended that she seek disability benefits. AR 604. The
ALJ determined that Dr. Harper’s opinions were not entitled to great weight. AR 18.
He noted that the evaluation was conducted to determine Figgins’s parenting abilities,
not her ability to function in the workplace. He also found that Dr. Harper’s opinion as
to Figgins’s ability to work was inconsistent with the evidence of record. Id.
10

Dr. Vos, a social worker, saw Figgins for regular therapy sessions beginning in
February 2011. AR 17. In May 2012, Dr. Vos prepared a written opinion indicating
that Figgins has serious limitations in her ability to function and noting that Figgins
suffered from considerable stress and anxiety while working part-time for two months.
AR 18, 707-09. Like Dr. Harper, Dr. Vos concluded that Figgins’s mental health
problems would continue to interfere with her ability to be employed. AR 709. The
ALJ found that Dr. Vos’s opinions were not entitled to great weight. AR 18. He noted
that Dr. Vos’s own records indicated that Figgins was stable and was making excellent
progress. Id. He also found that Dr. Vos’s opinions were inconsistent with other
evidence in the record. Id.
The ALJ then discussed opinions provided by state agency consultants based on
their review of Figgins’s records.

A medical consultant, Dr. Weis, found that

Figgins’s physical impairments of hepatitis C and obesity did not prevent her from
being able to perform medium work. AR 19. Two psychological consultants, Dr.
Wright and Dr. Tashner, found that Figgins had no more than moderate functional
limitations, including moderate limitations in (a) the ability to carry out detailed
instructions, (b) the ability to work in coordination with or in proximity to others
without becoming distracted, (c) the ability to complete a workday and workweek
without interruptions from psychological symptoms and (d) the ability to perform at a
consistent pace without an unreasonable number and length of rest periods. AR 19, 8083, 587.

The ALJ found that the opinions of the psychological consultants were

entitled to substantial weight because they were supported by the medical evidence,
Figgins’s work activities and her daily activities. AR 19.
After determining Figgins’s RFC, he found that the limitations included in that
RFC prevent her from performing any of her past relevant work. Id. This required the
ALJ to proceed to Step Five and determine whether Figgins is able to perform other
jobs that exist in significant numbers in the national economy. AR 20. Based on the
VE’s answers to hypothetical questions that incorporated Figgins’s age, education,
11

work experience and RFC, the ALJ found the answer to be “yes.” AR 20-21. The
VE’s testimony indicated that Figgins was capable of performing such positions as
laundry worker, marker and housekeeper/cleaner. AR 20, 57.

As such, the ALJ

concluded that Figgins was not disabled within the meaning of the Act. AR 21.
V.

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
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)).

12

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.”).
VI.

ANALYSIS

Figgins argues that the ALJ’s decision must be reversed because it is not
supported by substantial evidence in the record as a whole.

In support of this

argument, she contends (1) the ALJ improperly evaluated Figgins’s subjective
impairments, (2) the VE’s testimony was flawed because it was based on improper
hypothetical questions and (3) the ALJ erred in his weighting of the various medical
opinions. See Doc. No. 11. I will address these issues separately, but not in the order
Figgins presented them.
13

A.

Did The ALJ Err In Evaluating The Medical Evidence?
1.

Applicable Legal Standards

In evaluating a claim for DIB or SSI, the ALJ is required to consider all relevant
evidence, including medical records and medical opinions.

See 20 C.F.R. §§

404.1513, 404.1520, 404.1520b, 404.1527, 416.913, 416.920 and 416.920b. With
regard to medical opinions, the Commissioner’s regulations give great deference to
those provided by treating physicians:
Treatment relationship. Generally, we give more weight to
opinions from your treating sources, since these sources are likely to be
the medical professionals most able to provide a detailed, longitudinal
picture of your medical impairment(s) and may bring a unique perspective
to the medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations. If we find that a
treating source's opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight. When we do not give the treating source's opinion controlling
weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of
this section, as well as the factors in paragraphs (c)(3) through (c)(6) of
this section in determining the weight to give the opinion. We will always
give good reasons in our notice of determination or decision for the
weight we give your treating source's opinion.
20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2) [emphasis added].

This means a

treating physician's opinion is generally given controlling weight, but is not inherently
entitled to it. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating
physician's opinion “does not automatically control or obviate the need to evaluate the
record as a whole.” Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). But that
opinion will be given controlling weight if it is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record. Hacker, 459 F.3d at 937. The ALJ must
14

“always give good reasons” for the weight given to a treating physician's evaluation.
20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2); see also Davidson v. Astrue, 501 F.3d
987, 990 (8th Cir. 2007).
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) and 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.
The regulations distinguish opinions provided by licensed physicians and
psychologists from those provided by physicians’ assistants, nurse practitioners and
other sources. 20 C.F.R. §§ 404.1513 and 416.913. The former are “acceptable
medical sources” while the latter are not. Id. This means that the opinions of treating
professionals such as nurse practitioners are not entitled to controlling weight.

20

C.F.R. §§ 404.1513(d)(1) and 416.913(d)(1); see also Lacroix v. Barnhart, 465 F.3d
881, 885–86 (8th Cir. 2006). Their opinions must still be considered, but they are not
entitled to the deference afforded to medical opinions provided by a treating physician.
20 C.F.R. §§ 404.1513(d)(1) and 416.913(d)(1).
2.

Discussion
a.

Dr. Vos

Betty Vos, Ph.D., is a social worker and addictions counselor who had worked
with Figgins for over one year as of the date of the hearing. AR 48-49. In May 2012,
Dr. Vos completed a questionnaire describing Figgins’s treatment and progress and
15

indicating that Figgins has serious limitations that will “interfere with her
employability.” AR 707-09. The ALJ determined that Dr. Vos’s opinion was not
entitled to great weight, stating that it was inconsistent with her own records. AR 18.
The ALJ indicated that Dr. Vos’s treatment records show Figgins’s “excellent progress
and stable condition.” Id.
While there is no doubt that Dr. Vos is a treating source, there is a threshold
issue as to whether she is an “acceptable medical source” whose opinion is generally
entitled to controlling weight. Dr. Vos testified that she has a doctorate degree in
social work and is a certified addictions and drug counselor.

AR 48.

Commissioner’s regulations define “acceptable medical sources” as follows:
(1) Licensed physicians (medical or osteopathic doctors);
(2) Licensed or certified psychologists. Included are school psychologists,
or other licensed or certified individuals with other titles who perform the
same function as a school psychologist in a school setting, for purposes of
establishing mental retardation, learning disabilities, and borderline
intellectual functioning only;
(3) Licensed optometrists, for purposes of establishing visual disorders
only (except, in the U.S. Virgin Islands, licensed optometrists, for the
measurement of visual acuity and visual fields only);
(4) Licensed podiatrists, for purposes of establishing impairments of the
foot, or foot and ankle only, depending on whether the State in which the
podiatrist practices permits the practice of podiatry on the foot only, or
the foot and ankle; and
(5) Qualified speech-language pathologists, for purposes of establishing
speech or language impairments only. For this source, “qualified” means
that the speech-language pathologist must be licensed by the State
professional licensing agency, or be fully certified by the State education
agency in the State in which he or she practices, or hold a Certificate of
Clinical Competence from the American Speech-Language-Hearing
Association.

16

The

20 C.F.R. §§ 404.1513 and 416.913. A social worker, even with a doctorate degree,
does not fall within any of these categories. And, in fact, the Eighth Circuit Court of
Appeals has recognized that social workers are not “acceptable medical sources.” See,
e.g., Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007); Tindell v. Barnhart, 444 F.3d
1002, 1004-05 (8th Cir. 2006). Thus, the ALJ was not required to analyze Dr. Vos’s
opinion under the treating-source standard.
This does not mean her opinion has no relevance. The Commissioner considers
a licensed clinical social worker to be an “other” medical source whose opinions “are
important and should be evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in the file.” Social Security
Ruling (SSR) 06–3p (Aug. 9, 2006); see also 20 C.F.R. §§ 404.1513 and 416.913;
Sloan, 499 F.3d at 888-89. The standards for evaluating these opinions are as follows:
Opinions from “other medical sources” may reflect the source's judgment
about some of the same issues addressed in medical opinions from
“acceptable medical sources,” including symptoms, diagnosis and
prognosis, what the individual can still do despite the impairment(s), and
physical and mental restrictions.
Not every factor for weighing opinion evidence will apply in every case.
The evaluation of an opinion from a medical source who is not an
“acceptable medical source” depends on the particular facts in each case.
Each case must be adjudicated on its own merits based on a consideration
of the probative value of the opinions and a weighing of all the evidence
in that particular case.
The fact that a medical opinion is from an “acceptable medical source” is
a factor that may justify giving that opinion greater weight than an opinion
from a medical source who is not an “acceptable medical source”
because, as we previously indicated in the preamble to our regulations at
65 FR 34955, dated June 1, 2000, “acceptable medical sources” “are the
most qualified health care professionals.” However, depending on the
particular facts in a case, and after applying the factors for weighing
opinion evidence, an opinion from a medical source who is not an
“acceptable medical source” may outweigh the opinion of an “acceptable
medical source,” including the medical opinion of a treating source. For
17

example, it may be appropriate to give more weight to the opinion of a
medical source who is not an “acceptable medical source” if he or she has
seen the individual more often than the treating source and has provided
better supporting evidence and a better explanation for his or her opinion.
Giving more weight to the opinion from a medical source who is not an
“acceptable medical source” than to the opinion from a treating source
does not conflict with the treating source rules in 20 CFR 404.1527(d)(2)
and 416.927(d)(2) and SSR 96-2p, “Titles II and XVI: Giving Controlling
Weight To Treating Source Medical Opinions.”
SSR 06–3p. The ALJ is required to explain his or her analysis:
[T]he adjudicator generally should explain the weight given to opinions
from these “other sources,” or otherwise ensure that the discussion of the
evidence in the determination or decision allows a claimant or subsequent
reviewer to follow the adjudicator's reasoning, when such opinions may
have an effect on the outcome of the case.
Id.
Here, the ALJ explained his decision to discredit Dr. Vos’s opinion as follows:
The conclusion that the claimant cannot work is inconsistent with Dr.
Vos’ own records indicating her excellent progress and stable condition.
Their assessments [those of Dr. Harper and Dr. Vos] are inconsistent with
other substantial medical evidence of record as well as the overall
evidence.
AR 18. While a better, more-detailed explanation was surely possible, I cannot find
that the ALJ’s reasons are contrary to the evidence.

I have reviewed Dr. Vos’s

treatment notes in detail and find that they do, in fact, reflect that Figgins made
significant progress while being counseled by Dr. Vos. Those notes cover dozens of
interactions between Figgins and Dr. Vos during the period of time from March 2011
through March 2012 and consistently include comments about Figgins’s progress. AR
607-46.

On January 26, 2012, Dr. Vos wrote a progress report that described

Figgins’s improvement over the past year. AR 645-46. Among other things, Dr. Vos
reported that Figgins had not used marijuana for the past four months. AR 646. Dr.
Vos concluded as follows:
18

Charity has learned to apply several skills on a consistent basis to manage
her anxiety, focus on her goals and handle problematic situations
effectively. She has successfully avoided harmful behaviors since April
of 2011. She manages anger appropriately and is able to use interpersonal
skills to ask for what she wants or needs and set functional boundaries.
She has changed her social network. She no longer spends time with
former using friends, and instead participates in a church and related
positive activities.
Shortly before Christmas, she was hired part
time/seasonal through a church contact. She continued to turn in job
applications through employment agencies and has recently been hired at
Kraft.
Id.

This particular report was directed to the advocate for Figgins’s children,

apparently in the course of an evaluation as to whether the children should be returned
to Figgins.

AR 645.

While expressly discussing Figgins’s efforts to obtain

employment (and indicating that she had recently been hired), Dr. Vos did not state that
Figgins’s mental impairments would make it difficult for her to keep a job.
On March 13, 2012 – approximately two months after Figgins started working at
Kraft – Dr. Vos prepared a very positive progress note, indicating that Figgins
“continues in school and is working part time” and that she “is now appropriate for
transition to Continuing Care.”

AR 644.

This note stated that Figgins’s children

would be returned to her on March 15, 2012. Id.
On April 25, 2012, Dr. Vos wrote another progress report, again noting that
Figgins had ceased all substance use since the previous September, was attending
treatment regularly and “is consistently applying skills to improve her emotion
regulation.” AR 714. Dr. Vos also noted that Figgins had been working part-time at
Kraft since January and that she had resumed caring for her children. Id. Dr. Vos
then wrote: “I have been processing with her the impact of her work demands over the
last three months, and I believe it would be wise for her to prioritize caring for her
children over maintaining employment at the present time.”

Id.

There are no

treatment notes by Vos during the period of time between March 15, 2012 (the date the
children were to be returned) and the date of this progress report. Thus, there is
19

nothing in Dr. Vos’s records to suggest that Figgins actually reported any difficulties
arising from the combined tasks of working and caring for her children.
On May 2, 2012, Dr. Vos prepared her written opinion for this case, directing it
to Figgins’s attorney. AR 707-13. According to that report, Figgins was no longer
working at Kraft. AR 709. Figgins testified that she stopped working at Kraft because
she “just mentally didn’t feel like I could go.” AR 39. In her report to Figgins’s
attorney, Dr. Vos referenced the “considerable stress and anxiety” Figgins suffered
while working at the part-time job.

AR 709.

Dr. Vos concluded by expressing

agreement with an August 2011 evaluation by Dr. Harper which had included a finding
that Figgins’s “mental health problems are going to continue to interfere with her
employability.” Id.
On this record, it was not improper for the ALJ to conclude that Dr. Vos’s
opinion in support of Figgins’s disability claim was inconsistent with Vos’s treatment
notes and prior opinions. Over approximately one year of repeated interactions, Dr.
Vos’s treatment notes reflected consistent progress and improvements. AR 607-46.
When supporting Figgins’s effort to regain custody of her children, Dr. Vos spoke
positively of Figgins’s successful efforts to obtain employment. AR 646. She then
continued to report positive progress for the next two months.

AR 644.

After

Figgins’s children were returned, however, Dr. Vos wrote an opinion in support of
Figgins’s application for disability benefits stating that Figgins’s mental health problems
would interfere with her employability. AR 709.
There is no evidence that Figgins’s work performance at Kraft was deficient or
that she was otherwise at risk of being discharged due to performance or attendance
issues. Nor, as noted above, is there any indication in Dr. Vos’s own contemporaneous
treatment notes suggesting that Figgins was struggling with the stresses of working and
caring for children. Under these circumstances, it was not unreasonable for the ALJ to
question the credibility of Dr. Vos’s opinions. Frankly, one could easily conclude that
those opinions changed over a very short period of time to fit the differing purposes for
20

which they were offered. Simply put, I find that the ALJ provided good reasons,
supported by substantial evidence in the record, for the weight given to Dr. Vos’s
opinions.
b.

Dr. Ramos

Rogerio Ramos, M.D., has been Figgins’s treating psychiatrist. AR 16. As
such, he is clearly a treating source whose medical opinion may have been entitled to
controlling weight. Unfortunately, Dr. Ramos did not provide an opinion concerning
the nature and severity of Figgins’s impairments. Nonetheless, Figgins points out that
Dr. Ramos once recommended that Figgins “only work 20 hours per week due to her
current state.” AR 512. While it is not clear that Figgins is arguing that this was a
medical opinion of a treating source that should have been given controlling weight, I
reject that argument if it is being made.
First, Dr. Ramos made the “20 hour” recommendation in a treatment note
before Figgins’s alleged onset date.

Id.

Second, the recommendation was clearly

based on Figgins’s “current state.” Id. There is no indication as to how long the
recommendation remained in effect.4 Third, an opinion that a patient cannot work on a
full-time basis is not a “medical opinion” within the meaning of the Commissioner’s
regulations. Ellis, 392 F.3d at 994; see also Zulinski v. Astrue, 538 F. Supp. 2d 740,
751–52 (D. Del. 2008) (doctor's statement as to inability “to sustain full time, everyday
work on a regular basis” was not a medical opinion).
Dr. Ramos’s treatment records are part of the record in this case. Thus, the ALJ
was required to consider those records and, in fact, discussed them in his decision. AR
16-17. However, because Dr. Ramos provided no medical opinions in this case, the
ALJ was not required to determine whether those opinions were entitled to controlling
weight.
4

A progress note authored by Dr. Ramos just six weeks after he made the “20 hour”
recommendation makes no mention of that recommendation. AR 548.

21

c.

Nurse Johnson

Judy Johnson, ARNP, issued two written opinions in May 2012 indicating that
Figgins had difficulty managing stress in the workplace, causing her work-related
abilities to be only poor to fair. AR 716-21. Nurse Johnson stated that Figgins could
work on a part-time basis but recommended long-term disability benefits. AR 721.
The ALJ determined that Nurse Johnson’s opinions were not entitled to great weight.
AR 17. First, he noted that a nurse practitioner is not an acceptable medical source.
Id. This is correct. See 20 C.F.R. §§ 404.1513 and 416.913. Next, he found that the
marked limitations suggested by Nurse Johnson are not supported by either her own
treatment notes or Figgins’s own reports concerning her activities. AR 17.
I find that these are sufficient reasons, supported by the record, for not giving
great weight to Nurse Johnson’s opinions. As the ALJ pointed out, Nurse Johnson’s
treatment notes from late 2011 and early 2012 reflect progress and improvements. For
example, a progress report in December 2011 stated that Figgins was doing “much
better,” was looking for work and was in the process of attempting to re-gain custody
of her children. AR 653-54. The record contains no intervening progress reports from
Nurse Johnson that suggest the limitations she described in the opinions she issued in
May 2012.
Finally, and as discussed above with regard to Dr. Ramos, Nurse Johnson’s
opinion that Figgins could perform only part-time work is not a medical opinion. In
short, I find no basis to disturb the ALJ’s assessment of Nurse Johnson’s opinions.
d.

Dr. Harper

George Harper, Ed.D., a licensed psychologist, conducted a psychological
examination of Figgins in August 2011 for purposes of assessing her parenting abilities.
AR 597-605. Among other things, he reported that Figgins’s “rather insidious mental
health problems are probably going to continue to interfere with her successful
22

employment.” AR 604. He then recommended that she apply for Social Security
Disability benefits, noting that her “level of stress might be reduced if she is found to
be eligible for such.” Id.
Dr. Harper, as a licensed psychologist, is an “acceptable medical source.” 20
C.F.R. §§ 404.1513 and 416.913. However, Figgins acknowledges that he is not a
treating source. Doc. No. 11 at 31. Thus, the ALJ was not required to examine the
question of whether Dr. Harper’s opinions were entitled to controlling weight.
In determining that his opinions were not entitled to great weight, the ALJ relied
on the fact that they were given in the context of evaluating Figgins’s parenting
abilities, not for purposes of determining Figgins’s ability to work within the meaning
of the applicable Social Security rules and standards. AR 18. The ALJ also found that
Dr. Harper’s conclusion that Figgins cannot work is inconsistent with other substantial
medical evidence in the record and with the overall evidence. Id. As with Dr. Vos’s
opinions, a greater explanation of these reasons would have been helpful. Nonetheless,
I cannot find that the ALJ erred in declining to give great weight to Dr. Harper’s
opinions.
Dr. Harper’s written report, while extensive, does not specifically address
Figgins’s employment-related abilities and restrictions.

AR 597-605.

This is not

surprising in light of the fact that the evaluation was not conducted for that purpose.
Indeed, Figgins’s brief does not cite to any specific opinion by Dr. Harper that the ALJ
should have adopted, other than his conclusion that Figgins’s mental health issues
would interfere with her successful employment. Doc. No. 11 at 30-31.
As noted above, however, an opinion that an applicant is not able to work is not
a medical opinion. Ellis, 392 F.3d at 994. Thus, the ALJ was not required to consider
Dr. Harper’s conclusion that Figgins’s mental health issues will “probably” interfere
with successful employment. Instead, the ALJ was required to give consideration to
any opinions as to the nature and severity of Figgins’s impairments, including
symptoms, diagnosis and prognosis, what she was capable of doing despite her
23

impairments, and the resulting restrictions.

20 C.F.R. §§ 404.1527(a)(2) and

416.927(a)(2). To the extent Dr. Harper’s report does describe restrictions that might
translate to the workplace, the ALJ did not ignore those restrictions. For example, Dr.
Harper noted that Figgins has limited social skills that may contribute to “awkward,
inept or inappropriate management of interpersonal relationships.” AR 602. The ALJ,
in determining Figgins’s RFC, found that she is limited “to simple, routine, repetitive
work with superficial contact with the public and no more than a regular pace.” AR
15.
In short, I find that the ALJ gave sufficient reasons, supported by the record, for
not giving great weight to Dr. Harper’s opinions. As such, I will not disturb the ALJ’s
assessment of those opinions.
e.

State Agency Consultants

The ALJ gave great weight to the opinions of three medical consultants who
reviewed Figgins’s records but did not examine her. AR 19. In December 2010,
Dennis Weis, M.D., found that Figgins’s physical impairments of hepatitis C and
obesity did not prevent her from performing medium work. AR 80-81, 84-85. In
January and April of 2011, Dee Wright, Ph.D., and Myrna Tashner, Ed.D., found that
Figgins’s mental impairments caused no more than moderate functional limitations. AR
81-83, 587. The ALJ found that all of these opinions are entitled to substantial weight
because they are supported by the evidence and consistent with the record as a whole.
AR 19.
Figgins complains that it was error for the ALJ to rely on these opinions because
they were issued over a year before the hearing in this case. She contends that the
consultants did not have access to a substantial quantity of medical records generated
after they formed their opinions.

Of course, some period of time always passes

between a consultant’s review of an applicant’s records and a hearing before an ALJ.
24

The opinions of a medical consultant do not have an expiration date.

See, e.g.,

Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (“[B]ecause state
agency review precedes ALJ review, there is always some time lapse between the
consultant’s report and the ALJ hearing and decision. The Social Security regulations
impose no limit on how much time may pass between a report and the ALJ’s decision
in reliance on it.”); see also Kohn v. Colvin, No. C13-4003-MWB, 2013 WL 5375415,
at *13 n.5 (N.D. Iowa Sept. 26, 2013). Here, the subsequent medical records were
part of the evidentiary record and were examined by the ALJ. The ALJ was thus in a
position to compare those records to the consultant’s previously-issued opinions.
Procedurally, this was not improper.
Substantively, Figgins contends in general terms that the subsequent records
demonstrate greater levels of impairment than those found by the medical consultants.
However, she cites to no specific pages of the record in making that argument. Doc.
No. 11 at 31-32. There is no doubt that Figgins suffered from some serious setbacks
during 2011 and that the consultants’ opinions were issued before those events took
place. AR 17-18. At the same time, as the ALJ noted, the medical evidence reflects
significant improvement later in the year, and continuing into 2012. Id. The ALJ had
access to all of the records and was in a position to determine whether the consultants’
previously-issued opinions were consistent with the evidence as a whole. I cannot find
that his decision to afford substantial weight to the consultants’ opinions is contrary to
substantial evidence in the record.
f.

GAF Scores

Figgins also argues that the ALJ erred in failing to address the various global
assessment of functioning (GAF) scores assigned by various mental health providers

25

who treated and examined her.5 She contends that her GAF scores “were generally in
the 40’s and 50’s” and states that these scores demonstrate serious symptoms that
support a finding of disability. Doc. No. 11 at 28-29.
The Social Security Administration has declined to endorse the GAF scale for
“use in the Social Security and SSI disability programs,” and has indicated that GAF
scores have no “direct correlation to the severity requirements in our mental disorders
listings.” See Revised Medical Criteria for Evaluating Mental Disorders and Traumatic
Brain Injury, 65 Fed Reg. 50,746, 50,764-65, 2000 WL 1173632 (August 21, 2000).6
Thus, while GAF scores are relevant and should be considered, they are “not essential
to the accuracy of an RFC determination.” Earnheart v. Astrue, 484 Fed. Appx. 73,
75 (8th Cir. 2012) (citing Halverson v. Astrue, 600 F.3d 922, 930-31 (8th Cir. 2010)).
Here, the psychologist and nurse practitioner who regularly examined Figgins
consistently assigned a GAF score of 55 and increased that score to 60 in December
2011. AR 512-13, 548, 586, 649-51, 654, 656. While Dr. Harper assigned a GAF
score of 40 during his only evaluation of Figgins in August 2011, Figgins’s regular
providers assigned scores of 55 before and after that evaluation. AR 603, 650-51.
Moreover, Figgins’s claim that her GAF scores were “generally in the 40’s and 50’s”
is somewhat misleading. Most of the scores she cites pre-date her alleged disability
onset date of November 5, 2010. Doc. No. 11 at 28. Of the scores assessed after the
alleged onset date, Figgins had only had three scores below 55. Two of those scores
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).
5

6

The Commissioner points out that the fifth edition of the Diagnostic and Statistical Manual of
Mental Disorders (“DSM-V”), released in May 2013, no longer uses GAF scores to rate an
individual’s level of functioning. See Rayford v. Shinseki, No. 12-0042, 2013 WL 3153981, at
*1 n.2 (Vet. App. June 20, 2013) (citing DSM-V 16 (5th ed. 2013)). Use of the GAF scale
was abandoned because of, inter alia, “its conceptual lack of clarity” and “questionable
psychometrics in routine practice.” Id.

26

were associated with her hospitalizations for suicidal ideation in January 2011 and a
suicide attempt in June 2011. AR 561-62, 683-85. Dr. Harper’s score of 40 is the
only other score below 55. AR 603, 649-51. GAF scores of 51-60 indicate only
moderate symptoms or moderate difficulty in social, occupational, or school
functioning. See DSM-IV at 34. Figgins’s GAF scores during the relevant period of
time do not establish that the ALJ’s decision is unsupported by substantial evidence in
the record as a whole.
g.

The Nevland Problem

So far I have found that the ALJ’s weighting and analysis of the medical
evidence was supported by substantial evidence in the record.

This case turns,

however, on what is not in the record. The ALJ found, at Step Four that Figgins is not
capable of performing past relevant work. AR 19. He then found, at Step Five, that
she can perform various other jobs that exist in the national economy. AR 20-21.
However, the ALJ made this finding without the benefit of a medical opinion from any
acceptable treating or examining source concerning Figgins’s functional limitations.
Instead, as discussed above, the record contains:
i.

Treatment records, but no medical opinions, from Dr.
Ramos, a treating psychiatrist.

ii.

Treatment records and opinions from a social worker and a
nurse practitioner, neither of whom is an acceptable
medical source.

iii.

An opinion from an examining psychologist who evaluated
Figgins’s parenting abilities, not her vocational abilities and
limitations (and whose opinion the ALJ rejected).

iv.

Opinions from state agency medical consultants who never
examined Figgins.

27

In short, while the record in this case contains a rather unique array of evidence
concerning Figgins’s mental impairments, it does not contain a medical opinion from an
acceptable treating or examining source as to her mental RFC. As the Eighth Circuit
Court of Appeals has explained, this presents a problem:
In our circuit it is well settled law that once a claimant demonstrates that
he or she is unable to do past relevant work, the burden of proof shifts to
the Commissioner to prove, first that the claimant retains the residual
functional capacity to do other kinds of work, and, second that other work
exists in substantial numbers in the national economy that the claimant is
able to do. McCoy v. Schweiker, 683 F.2d 1138, 1146–47 (8th Cir.
1982)(en banc); O'Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir.
1983). It is also well settled law that it is the duty of the ALJ to fully and
fairly develop the record, even when, as in this case, the claimant is
represented by counsel. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir.
1983).
*

*

*

In the case at bar, there is no medical evidence about how Nevland's
impairments affect his ability to function now. The ALJ relied on the
opinions of non-treating, non-examining physicians who reviewed the
reports of the treating physicians to form an opinion of Nevland's RFC.
In our opinion, this does not satisfy the ALJ's duty to fully and fairly
develop the record. The opinions of doctors who have not examined the
claimant ordinarily do not constitute substantial evidence on the record as
a whole. Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir.1999). Likewise,
the testimony of a vocational expert who responds to a hypothetical based
on such evidence is not substantial evidence upon which to base a denial
of benefits. Id. In our opinion, the ALJ should have sought such an
opinion from Nevland's treating physicians or, in the alternative, ordered
consultative examinations, including psychiatric and/or psychological
evaluations to assess Nevland's mental and physical residual functional
capacity. As this Court said in Lund v. Weinberger, 520 F.2d 782, 785
(8th Cir.1975): “An administrative law judge may not draw upon his own
inferences from medical reports. See Landess v. Weinberger, 490 F.2d
1187, 1189 (8th Cir.1974); Willem v. Richardson, 490 F.2d 1247, 1248–
49 n. 3 (8th Cir.1974).”
Nevland v. Apfel, 204 F.3d 853, 857-58 (8th Cir. 2000).
28

Judge Bennett recently concluded that Nevland remains binding precedent in this
circuit with regard to both the Commissioner’s burden at Step Five and the ALJ’s
obligation to fairly develop the record. Hattig v. Colvin, Case No. C12-4092-MWB,
2013 WL 6511866, at *9-11 (N.D. Iowa Dec. 12, 2013). He recognized that remand
may not always be required under these circumstances if there is a great deal of medical
evidence supporting the RFC determination. Id. at *10 (citing Agan v. Astrue, 922 F.
Supp. 2d 730, 755-56 (N.D. Iowa 2013)). Indeed, this possibility arises directly from
the Nevland panel’s use of the word “ordinarily.” Nevland, 204 F.3d at 858.
Here, I find that the record is significantly less-developed than that in Agan, the
“exception” case. As noted above, the opinions provided by the non-treating, nonexamining medical consultants were issued over a year before the ALJ’s hearing. After
those opinions were issued, Figgins suffered serious setbacks and, indeed, required
hospitalization after a suicide attempt. AR 17. While I have determined that it was not
error for the ALJ to give substantial weight to those opinions as part of the RFC
determination, this does not mean those opinions satisfy the Nevland standard. This is
especially true in light of the paucity of other medical evidence in the record as to
Figgins’s functional capabilities and limitations relating to her mental impairments.
Applying Nevland, I find that the ALJ failed to fulfill his obligation to fully and fairly
develop the record by neglecting to either (a) obtain a medical opinion concerning
Figgins’s mental RFC from Dr. Ramos, the treating psychiatrist, or – at least – (b)
arranging a consultative psychiatric or psychological examination to obtain such an
opinion. Remand is necessary to correct this error. Once the record is fully developed
with the necessary medical opinion evidence, the ALJ shall revisit his determination of
Figgins’s RFC and, if necessary, shall conduct a new evaluation at Step Five
concerning Figgins’s ability to perform other work that exists in the national economy.

29

B.

Did The ALJ Err In Assessing Figgins’s Credibility?
Figgins argues the ALJ did not provide good reasons for discrediting her

subjective allegations. She contends that he did not discuss all of the relevant factors
and offered only a “minimal analysis” to explain his determination. Doc. No. 11 at 21.
In particular, she argues that the ALJ failed to consider her past work record and the
observations of others. Id. The Commissioner argues Figgins is essentially asking the
court to reweigh the evidence, which is improper, and that the court should uphold the
ALJ’s credibility determination because he provided good reasons which are supported
by substantial evidence in the record as a whole.
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 is not
required 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 ALJ acknowledged the Polaski factors by citing the relevant regulations and
Social Security rulings. AR 16. He found Figgins was not a credible witness to the
extent that she alleged disability and the inability to perform all work activity. Id. He
referred to Figgins’s own function reports, in which she indicated that she can “do
everything at times,” likes to be around people she knows, can care for her own
personal hygiene, prepare meals, do household chores, drive a car and go shopping.
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AR 19 (citing AR 286-93, 319-27). The ALJ also noted that Figgins reported daily
activities that include taking care of her children and doing crafts with them, visiting
friends, watching television, painting and playing video games. Id. He found that
these abilities and activities are inconsistent with Figgins’s claim of being disabled. Id.
This is an appropriate analysis.

Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir.

2009).
The ALJ also pointed out that during the time Figgins alleges disability, she
worked part-time and was looking for full-time work. AR 18. The ALJ is entitled to
take these facts into consideration while weighing Figgins’s credibility. Goff, 421 F.3d
at 792 (“Working generally demonstrates an ability to perform a substantial gainful
activity.”); Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004) (not unreasonable
for the ALJ to note that the claimant’s “part-time work . . . [was] inconsistent with her
claim of disabling pain.”); Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001)
(“Seeking work and working at a job while applying for benefits, are activities
inconsistent with complaints of disabling pain.”).
The ALJ also relied on his analysis of the medical evidence in assessing
Figgins’s credibility. AR 16-18. He concluded that the evidence, including records
from Dr. Vos and Dr. Ramos, demonstrated continued progress and improvement. AR
17-18. As discussed supra, I find that the ALJ’s assessment and weighting of the
medical evidence was not erroneous.
Figgins complains that the ALJ did not adequately consider her poor work
history and that this factor bolsters her credibility.

In fact, the ALJ did discuss

Figgins’s work history and acknowledged that her former employers assessed her work
performance and attendance as poor. AR 19. Nonetheless, in light of the medical
evidence and Figgins’s own statements as to her abilities and activities, the ALJ found
that Figgins was “capable of unskilled work notwithstanding the difficulties reported.”
Id. In other words, the ALJ did not ignore Figgins’s work history, he simply did not
give it the level of significance that Figgins would have liked. This was not error.
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Finally, Figgins complains that the ALJ’s credibility determination is flawed
because her allegations are supported by a third-party function report submitted by her
sister. AR 294-303. The ALJ discounted her sister’s statements because, in his view,
the evidence as a whole shows that Figgins is capable of unskilled work despite her
impairments. AR 19. Thus, the ALJ discounted the third-party function report for the
same reasons he discounted Figgins’s own statements. Because I have found that the
ALJ’s reasons for finding Figgins’s allegations to be less than fully credible were
appropriate, the same holds true with regard to Figgins’s sister’s allegations.
In reviewing the ALJ’s credibility determination I must consider the evidence
that both supports and detracts from the ALJ’s decision. Perks v. Astrue, 687 F.3d
1086, 1091 (8th Cir. 2012) (citing Ellis, 392 F.3d at 993). I cannot reverse the ALJ’s
decision simply because some evidence would support a different conclusion. Id. at
1091. Instead, I must defer to the ALJ’s determination regarding the credibility of
testimony as long as it is supported by good reasons and substantial evidence. Id.
(citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)). That is the case here.
As such, I will not disturb the ALJ’s finding concerning Figgins’s credibility.
Nonetheless, on remand, and after obtaining the medical evidence addressed in Part
A(2)(g), supra, the ALJ shall consider whether that evidence affects his credibility
assessment.

C.

Was The VE’s Opinion Testimony Flawed?
Figgins next argues that the ALJ erred in relying on the VE’s testimony because

the ALJ improperly formulated hypothetical questions that did not encompass all of
Figgins’s impairments. Figgins correctly notes that when a hypothetical question fails
to include all relevant impairments, the VE's answer to that question does not constitute
substantial evidence. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996). She points
out that when the limitations she believes are supported by the evidence were added to
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the hypothetical questions, the VE testified that no jobs would be available in the
competitive market. AR 58.
I have already concluded that I must recommend remand because the ALJ failed
to fully and fairly develop the record by obtaining a medical opinion, either from a
treating physician or via a consultative examination, as to Figgins’s mental RFC.
Taking these steps on remand will require the ALJ to re-evaluate Figgins’s RFC. If
that process results in changes to the ALJ’s findings concerning Figgins’s RFC, then
the ALJ will have to determine whether it is necessary to obtain additional VE
testimony based on the reformulated RFC.
VII. CONCLUSION AND RECOMMENDATION
For the reasons discussed above, I RESPECTFULLY RECOMMEND that the
Commissioner’s decision be reversed and this case be remanded for further
proceedings consistent with this report. Judgment should be entered in favor of Figgins
and against the Commissioner. On remand:
1.

The ALJ must fully and fairly develop the medical evidence concerning

Figgins’s mental RFC. At minimum, this will require that the ALJ obtain a medical
opinion concerning Figgins’s mental RFC from either a treating source (such as Dr.
Ramos) or, at least, a consultative examining psychiatrist or psychologist.
2.

The ALJ must, after obtaining this medical opinion, re-evaluate Figgins’s

RFC and, if necessary, determine whether she is able to perform work that exists in the
national economy. This may require the ALJ to obtain additional VE testimony.
3.

The ALJ should also consider whether the newly-obtained medical

opinion evidence impacts the ALJ’s assessment of Figgins’s credibility.
Objections to this Report and Recommendation in accordance with 28 U.S.C.
' 636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within fourteen (14) days of the
service of a copy of this Report and Recommendation. Objections must specify the
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parts of the Report and Recommendation to which objections are made, as well as the
parts of the record forming the basis for the objections. See Fed. R. Civ. P. 72.
Failure to object to the Report and Recommendation waives the right to de novo review
by the district court of any portion of the Report and Recommendation as well as the
right to appeal from the findings of fact contained therein. United States v. Wise, 588
F.3d 531, 537 n.5 (8th Cir. 2009).
IT IS SO ORDERED.
DATED this 2nd day of January, 2014.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

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