Newsom v. Commissioner of Social Security

Filing 20

ORDER - The decision of the ALJ is reversed and remanded solely for the calculation of benefits from Plaintiff's claimed onset of disability. Signed by Senior Judge Donald E OBrien on 3/19/15. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
PENNY HELON NEWSOM,
Plaintiff,

No. 14-CV-3012-DEO

v.
ORDER

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

matter

is

before

the

Court

pursuant

to

Penny

Newsom’s [hereinafter Ms. Newsom] application for Disability
Insurance Benefits under Title II of the Social Security Act
(“Act”), and Supplemental Security Income (“SSI”) benefits
under Title XVI of the Act.

After considering the parties’

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

FACTUAL BACKGROUND
Ms. Newsom was born on May 12, 1964, and was 48 years old

at the time of the hearing before the Administrative Law Judge
(ALJ).

She lives in the Ft. Dodge, Iowa, area.

has limited education.

Ms. Newsom

She dropped out of school in 10th

grade, but received her GED in 1982.

She also attended a

cosmetology course in Kansas.

Ms. Newsom worked a variety of

jobs over the years, including for a cleaning service and an
adult care facility.
Ms.

Newsom

claims

disability

based

on

a

number

of

conditions, including hypertension, gastroesophageal reflux
disease, diverticulitis, bilateral knee arthritis, obesity,
bipolar disorder, panic disorder without agoraphobia, and
substance abuse.
II.

PROCEDURAL HISTORY
Ms. Newsom applied for disability insurance benefits and

supplemental security income (SSI) under Titles II and XVI of
the

Social

1381-1385,

Security
on

Act

November

(Act),
4,

2010,

42
and

U.S.C.

§§

October

401-434,
5,

2010,

respectively, alleging an onset date of October 27, 2009.
Plaintiff’s claims were denied initially on February 16, 2011,
and upon reconsideration on May 26, 2011.

On October 26,

2012, following a hearing, the ALJ found that Ms. Newsom was
not under a “disability” as defined in the Act.

Ms. Newsom

appealed the ALJ’s decision to the Appeals Council, who denied
her appeal on January 9, 2014.

Ms. Newsom filed the present

Social Security appeal on February 12, 2014.
2

The ALJ set out the issue presently before the Court:
[t]he issue is whether the claimant is
disabled under sections 216(I), 223(d) and
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
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. With respect to the claim for a
period
of
disability
and
disability
insurance benefits, there is an additional
issue
whether
the
insured
status
requirements of sections 216(I) and 223 of
the Social Security Act are met.
The
claimant’s earnings record shows the
claimant has acquired sufficient quarters
of coverage to remain insured through June
30, 2013.
Thus, the claimant must
establish disability on or before that date
in order to be entitled to a period of
disability
and
disability
insurance
benefits.
Docket No. 7, Tr. 9.
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential

evaluation

process

for

determining

individual is disabled and entitled to benefits.
404.1520.

The five successive steps are:

whether

an

20 C.F.R. §

(1) determination

of whether a plaintiff is engaged in “substantial gainful
3

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

an

incapacity

their

past

relevant

of

determination

indicates

of

whether,

given

a

to

perform

the

work,

and

(5)

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).

20

At step 3, if a plaintiff’s

impairment meets or medically equals the criteria of an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1, and lasts at least 12 months, a plaintiff is deemed
4

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
(8th Cir. 1982)(en banc) abrogated on other grounds by Higgins
v.

Apfel,

222

F.3d

504,

505

(8th

Cir.

2000)).

When

determining 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).
5

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.

20

416.920(a)(4)(v).

C.F.R.

§§

404.1520(a)(4)(v)

and

This step requires the ALJ to provide

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

20

In other words, at step 5, the

burden of proof shifts from a plaintiff to the Commissioner of
the S.S.A. Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir.
1984).

The ALJ generally calls a Vocational Expert (VE) to

aid in determining whether this burden can be met.
In this case, the ALJ applied the appropriate methodology
and found that Ms. Newsom has not engaged in substantial
gainful employment since October 27, 2009.
The

ALJ

combination

stated
of

that

severe

Ms.

Newsom

impairments:

has

the

following

hypertension;

gastroesophageal reflux disease; history of diverticulitis;
bilateral knee arthritis; obesity; bipolar disorder; panic
disorder without agoraphobia; and substance abuse (20 C.F.R.
§ 404.1520(c) and 416.920(c)).

6

However, the ALJ considered Ms. Newsom’s impairments
individually and combined and found that Ms. Newsom did not
suffer

from

a

Security Code.

disability

as

contemplated

by

the

Social

Specifically, the ALJ stated:

[t]he 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).
Docket No. 7, Tr. 12.
The ALJ considered Ms. Newsom’s mental impairments using
the "paragraph B" criteria and the "paragraph C" criteria as
set out in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. 416.920(d), 416.925 and 416.926), and determined that
Ms. Newsom’s mental impairments did not meet either set of
requirements.

Docket No. 7, Tr. 12-13.

The ALJ went on to consider residual functional capacity
and concluded:
[a]fter careful consideration of the entire
record, the undersigned finds the claimant
has the residual functional capacity to
perform light work as defined in 20 CFR
404.1567(b)
and
416.967(b)
involving
lifting 20 pounds occasionally and 10
pounds frequently; standing and sitting 2
hours at a time for 6 hours in an 8 hour
7

day; walking 2 blocks; never climbing
ladders, ropes, or scaffolds; never working
at heights; only occasionally climbing
ramps and stairs; and only occasionally
balancing, stooping, kneeling, crouching,
crawling, and bending.
The individual
would be limited to simple, routine tasks.
Docket No. 7 Tr. 14.
The ALJ than considered the Plaintiff’s credibility under
the Polaski standard and stated:
[a]fter considering the evidence of record,
the undersigned finds the claimant’s
medically determinable impairments could
reasonably be expected to produce the
alleged symptoms; however, the claimant’s
statements
concerning
the
intensity,
persistence, and limiting effects of these
symptoms are not fully credible.
Docket No. 7, Tr. 17.
The ALJ found significant certain inconsistences in the
record, stating:
[t]he record reflects the claimant made
inconsistent statements regarding matters
relevant to the issue of disability. For
instance, the claimant testified she was
capable of walking only about one-half
block as she experienced difficulty with
walking; yet, the claimant reported no
difficulty with walking in a Functional
Report. Examining sources observed normal
gait and medical evidence of record
revealed
"good
success"
after
knee
injections.
(Testimony, Exhibit 5E, and
Exhibit 21F). At one point or another in
8

the record, either in forms completed in
connection with the application, in medical
records, or in testimony, the claimant
reported she was capable of caring for her
personal
needs;
caring
for
two
grandchildren; caring for a pet; driving;
performing
household
chores
such
as
dusting, vacuuming, and doing laundry;
watching television; and playing on the
computer. The activities are not limited
to the extent one would expect, given the
complaints of disabling symptoms and
limitations.
Docket No. 7, Tr. 17.

Similarly, the ALJ stated that he

believed Ms. Newsom exaggerated her symptoms.

Docket No. 7,

Tr. 18.
The ALJ also emphasized perceived non-compliance with
medication, stating:
[t]here is evidence that the claimant was
not
compliant
in
taking
prescribed
medications, suggesting symptoms may not
have been as limiting as alleged.
The
claimant was advised to "restart" Seroquel
and progress notes in September 2012
indicated the claimant had not utilized
medication prescribed for hypertension for
nearly one year. (Exhibit 21F) Evidence
did not show the claimant did not have
access to free or low cost medical services
in accordance with the guidelines in Social
Security Ruling 96-7p.
Docket No. 7, Tr. 18.

9

In considering the medical evidence, the ALJ gave little
weight to the non-physician treating source, stating:
[w]hile the undersigned considered the
opinion of the nurse practitioner, it is
emphasized the treating source is not an
acceptable medical source.
Acceptable
medical sources include licensed physicians
(medical or osteopathic doctors); licensed
or
certified
psychologists
(including
school psychologists or other licensed or
certified individuals with other titles who
perform the same function in a school
setting);
licensed
optometrists
for
measurement of visual acuity and visual
fields;
licensed
podiatrists
for
impairments of the foot or foot and ankle;
and qualified speech/language pathologists
for speech and language impairments. (20
CPR
404.1513(a)
and416.913(a))
In
considering the opinion of the nurse
practitioner, the undersigned notes that
clinical records do not support the opinion
given and, in fact, contradict the opinion.
For example, the statement by the nurse
practitioner indicating the claimant was
"currently stable on medication regimen"
contradicted the significant limitations
included in the opinion.
Moreover, the
opinion was not well supported by generally
normal
findings
on
mental
status
examination which included good appearance,
appropriate affect, cooperative demeanor,
intact memory and insight, and no signs of
hallucinations,
delusions,
or
self-injurious behavior.
Consequently,
little weight is given to the opinion.
Docket No. 7, Tr. 18.

10

Similarly, the ALJ gave little weight

to the portions of

the opinions of Dr. Jordison and Dr. Porter which supported
severe limitations for Ms. Newsom.

Docket No. 7, Tr. 18-19.

However, the ALJ gave great weight to the portions of those
opinions which supported the ALJ’s RFC determination.

Id.

The ALJ concluded:
[i]n sum, no one doubts the claimant
experiences some limitations.
Yet, she
demonstrated a capacity to complete simple,
repetitive tasks on a sustained basis and
this conclusion is supported by function
report information as well as an examining
source’s opinion that the claimant can
understand instructions presented in a
straightforward manner. Furthermore, the
claimant demonstrated an ability to get
along with authority as documented in the
medical evidence of record. Consequently,
the above residual functional capacity
assessment is supported by the objective
medical evidence, the medical opinions when
afforded appropriate weight, and the
claimant’s subjective complaints during the
relevant period when taken in proper
context.
In view of all of the factors
discussed above, the limitations on the
claimant’s capacities which were described
earlier in this decision are considered
warranted, but no greater or additional
limitations are justified.
Docket No. 7, Tr. 21.
Based on his RFC, the ALJ concluded that Ms. Newsom could
not return to past relevant work.
11

Docket No. 7, Tr. 19.

However, based on the testimony of the vocational expert, the
ALJ concluded that there were jobs in the national economy
that Ms. Newsom could perform.

Specifically, the ALJ stated:

[t]o determine the extent to which these
limitations erode the unskilled light
occupational base, the Administrative Law
Judge asked the vocational expert whether
jobs exist in the national economy for an
individual
with
the
claimant’s
age,
education, work experience, and residual
functional capacity. The vocational expert
testified that, given all of these factors,
the individual would be able to perform the
requirements of representative occupations
such as clerical assistant, Dictionary of
Occupational Titles No. 239.567-010, light,
unskilled, specific vocational preparation
(SVP) of 2, representing 780 positions in
Iowa and 83,000 positions nationally;
cashier,
DOT
#
211.462-010,
light,
unskilled, SVP of 2, representing 44,000
positions in Iowa and 3,000,000 positions
nationally; and sales attendant, DOT #
299.677-010, light, unskilled, representing
16,000 position in Iowa and 1,500,000
positions nationally...
Based on the
testimony of the vocational expert, the
undersigned concludes that, considering the
claimant’s age, education, work experience,
and residual functional capacity, the
claimant is capable of making a successful
adjustment to other work that exists in
significant
numbers
in
the
national
economy. A finding of "not disabled" is,
therefore, appropriate under the framework
of the above-cited rule.
Docket No. 7, Tr. 20.

12

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 in 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
choice."

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

13

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
Neal ex rel. Walker v. Barnhart, 405 F.3d

his/her decision.

685, 688 (8th Cir. 2005); 42 U.S.C. 405(g).
IV.

ISSUES
Ms. Newsom argues that the ALJ’s hypothetical questions

to the vocational expert did not include all of Ms. Newsom’s
limitations.

Additionally, Ms. Newsom argues that the ALJ

failed to give appropriate weight to the opinions of the
treating

mental

health

provider,

and

failed

to

explain

adequate reasons for discounting her opinion.
V.

ANALYSIS
In

order

for

a

plaintiff

to

qualify

for

disability

benefits, they must demonstrate they have a disability as
defined in the Social Security Act [hereinafter the Act]. The
Act defines a disability as an:

14

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

Medical Evidence
first

argument

the

Court

will

consider

is

Ms.

Newsom’s contention that the ALJ improperly discounted certain
medical evidence.

Ms. Newsom argues that the ALJ improperly

ignored the medical records and opinions from Kaye Cleveland,
the nurse practitioner who treated Ms. Newsom at least eight
times.

Specifically, Ms. Newsom argues that:
[o]n February 1, 2012[,] Ms. Newsom began
seeing Kaye Cleveland, a nurse practitioner
who owns Lincoln Mental Health, to deal
with her depression and bipolar disorder.
This record shows that Ms. Cleveland had
eight total contacts with Ms. Newsom, six
of which occurred before Ms. Cleveland
completed a Mental RFC questionnaire for
the claimant.
AR 404-410...
the ALJ
discounts the opinion by the treating
source, Ms. Cleveland, because she is,
according to the rules of the Social
Security Administration, not an “acceptable
medical source.”

Docket No. 9, p. 10, 11.

Citing a recent ruling from

Magistrate Judge Strand of this Court, King v. Colvin, No.
15

C13-3039-LTS, 2014 WL 1344194, at *5-9 (N.D. Iowa 2014), Ms.
Newsom goes onto argue that:
[w]ithin [the context of Judge Strand’s
ruling] Ms. Cleveland’s records should be
analyzed.
Ms. Cleveland became Ms.
Newsom’s mental health provider after what
appears to be approximately a six month gap
in service. Ms. Cleveland practices only
as a mental health provider - specializing
in mental health issues.
Ms. Newsom’s
prior primary care provider was the
Community Health Center, a general medicine
practice providing health care in all
arenas
to
the
indigent
Fort
Dodge
community. Ms. Cleveland’s ideas for care
may have differed with what had occurred
before,
in
terms
of
the
types
of
medications prescribed, but it certainly
did not conflict with any prior evidence.
Ms. Cleveland’s analysis is much the same
as Dr. Linda Iler, MD who first diagnosed
Ms. Newsom with depression and a “rule-out”
diagnosis for the bipolar-disorder in
February 2008. Compare AR 277 with AR 414.
The ALJ discounted Ms. Cleveland’s opinion
according to the decision because “the
opinion was not well supported by generally
normal
findings
on
mental
status
examination which included good appearance,
appropriate affect, cooperative demeanor,
intact memory and insight and no signs of
hallucinations, delusions or self-injurious
behavior.” AR 18. Yet, these findings are
contained in Ms. Cleveland’s Mental Status
Examination.
AR 422-23.
They are also
found throughout Ms. Cleveland’s medical
records. 425; 427; 430; 432; 434.
Docket No. 9, p. 14.

16

In response, the Defendant argues that:
[t]he ALJ properly evaluated the medical
source evidence from nurse Kaye Cleveland,
a
non-acceptable
medical
source...
Evidence from other sources, such as a
nurse, therapist, or a relative is also
considered, but they are not acceptable
medical sources... Here, the ALJ discussed
and
analyzed
the
evidence
from
Ms.
Cleveland, and gave well-supported reasons
for his conclusion that her opinion
deserved little weight (Tr. 18)... [T]he
ALJ noted that Ms. Cleveland’s report was
internally inconsistent (Tr. 18).
She
opined that plaintiff’s impairments would
cause her to miss three days of work per
month, but she also stated plaintiff was
stable on medications (Tr. 410)... The ALJ
specifically observed that Ms. Cleveland
conducted mental status examinations with
largely normal results, including good
appearance, appropriate affect, cooperative
demeanor, and intact memory and insight...
Ms. Cleveland’s clinical notes do not
support
her
opinion.
For
example,
plaintiff
argues
that
Ms.
Cleveland
included clinical findings that were
consistent with her opinion...
However,
the records that plaintiff cites show that
plaintiff
had
only
mildly
impaired
attention
and
concentration,
good
appearance, appropriate affect, and intact
memory and insight...
However, Ms.
Cleveland opined that plaintiff’s mental
impairments would cause her to miss three
days of work per month. If Ms. Cleveland’s
statement meant what plaintiff claims, then
her
opinion
is
still
internally
inconsistent.
Plaintiff provides no
explanation for why her condition would
worsen on only three days a month, given
17

Ms. Cleveland’s alleged opinion that she
was not ‘going up and down in her mental
health cycle.’
Docket No. 11, p. 9-12.
It is beyond dispute that treating practitioners have the
clearest insight into the medical conditions at issue in
social security disability cases.

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); see also 20
C.F.R. §404.1527(c)(2) and Reed v. Barnhart, 399 F.3d 917, 920
(8th Cir. 2005).

Even if not entitled to controlling weight,

in many cases, a treating source’s medical opinion will be
entitled to the greatest weight and should be adopted. SSR
96-5p; see Reed, 399 F.3d at 920; 20 C.F.R. §404.1527(c)(2).
The ALJ must “always give good reasons . . . for the weight
[he

gives

the]

§404.1527(c)(2);

treating
see

source’s

Singh,

222
18

opinion.”
F.3d

at

452.

20

C.F.R.
In

the

decision’s narrative discussion section, the ALJ "must . . .
explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved."
SSR

96-8p.

Additionally,

the

opinions

of

an

examining

physician should be given greater weight than 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)).
The Plaintiff concedes that the ALJ and the Defendant are
correct, and that Ms. Kaye Cleveland cannot be considered a
treating

sources

under

the

rules,

but

argues

that

Ms.

Cleveland’s opinion is important because, as a matter of fact,
she was the treating medical provider.
Although

it

runs

contrary

to

the

current

trends

in

medicine, the social security regulations do not recognize
nurse practitioners and physician’s assistants as treating
sources.1

Accordingly, Ms. Cleveland is ‘another source’

1

Why the higher courts fail to recognize the equal
protection issues implicit in denying treating source status
to the providers most likely to provide treatment to poor
people in rural areas is beyond the scope of the issues argued
by the parties in this case.
19

under

the

rules.

The

8th

Circuit

has

given

explicit

instruction regarding the weight given to other sources:
[o]n August 9, 2006, the SSA issued Social
Security Ruling (SSR) 06-03p, 71 Fed. Reg.
45,593 (Aug. 9, 2006).
The ruling
clarified how it considers opinions from
sources who are not what the agency terms
“acceptable medical sources.”
Social
Security separates information sources into
two main groups:
acceptable medical
sources and other sources. It then divides
other sources into two groups:
medical
sources and non-medical sources. 20 C.F.R.
§§ 404.1502, 416.902 (2007).
Acceptable
medical sources include licensed physicians
(medical or osteopathic doctors) and
licensed or certified psychologists.
20
C.F.R. §§ 404.1513(a), 416.913(a) (2007).
According to Social Security regulations,
there are three major distinctions between
acceptable medical sources and the others:
(1) Only acceptable medical sources can
provide evidence to establish the existence
of a medically determinable impairment,
id., (2) only acceptable medical sources
can provide medical opinions, 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2) (2007), and
(3) only acceptable medical sources can be
considered treating sources, 20 C.F.R. §§
404.1527(d) and 416.927(d) (2007). Other
sources:
Medical sources include nurse
practitioners,
physician
assistants,
licensed
clinical
social
workers,
naturopaths, chiropractors, audiologists,
and therapists.
Non-medical sources
include school teachers and counselors,
public and private social welfare agency
personnel,
rehabilitation
counselors,
spouses, parents and other caregivers,
siblings,
other
relatives,
friends,
20

neighbors, clergy, and employers.
20
C.F.R. §§ 404.1513(d), 416.913(d) (2007).
“Information from these ‘other sources’
cannot establish the existence of a
medically
determinable
impairment,”
according to SSR 06-03p. “Instead, there
must be evidence from an ‘acceptable
medical source’ for this purpose. However,
information from such 'other sources’ may
be based on special knowledge of the
individual and may provide insight into the
severity of the impairment(s) and how it
affects
the
individual’s
ability
to
function.”
Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007).

The Sloan

Court went on to say, “[i]n general, according to the ruling,
the factors for considering opinion evidence include:

[h]ow

long the source has known and how frequently the source has
seen the individual; [h]ow consistent the opinion is with
other evidence; [t]he degree to which the source presents
relevant evidence to support an opinion; [h]ow well the source
explains the opinion; [w]hether the source has a specialty or
area of expertise related to the individual’s impairment(s);
and [a]ny other factors that tend to support or refute the
opinion.”

Sloan, 499 F.3d at 889.

Although the Court cannot credit specific conclusions
regarding Ms. Newsom’s ability to work, as that is a subject
left to the ALJ, the Court recognizes that Ms. Cleveland is
well acquainted with Ms. Newsom’s situation.
21

In her capacity

as a treating non-treating source, Ms. Cleveland opined that
Ms. Newsom would likely miss at least three days of work a
month.
for

The Defendant argues that statement is not consistent

two

reasons.

First,

the

Defendant

argues

that

Ms.

Cleveland stated that Ms. Newsom was “currently stable” on her
medicine,

and,

being

‘stable’

is

inline

with

conclusion that Ms. Newsom is not disabled.
argument is faulty.
brief,

Ms.

the

ALJ’s

However, that

As pointed out in the Plaintiff’s reply

Cleveland’s

statement

that

Ms.

Newsom

was

“currently stable” did not mean the same thing as if Ms.
Cleveland said Ms. Newsom was ‘normal.’

Rather, giving it a

plain meaning, currently stable means not getting any better,
or any worse.

Currently stable does not mean the same as

normal, or healthy, or functional, as the Defendant implies.
Second, the Defendant argues that there is no evidence that
Ms. Newsom’s condition would worsen on specific days such that
she would miss up to three days a month.

However, it is well

accepted that mental disorders, by their very nature, ebb and
flow.

Put another way, some days are worse than others.

Accordingly, Ms. Cleveland’s statement that Ms. Newsom would
miss up to three days a month is a statement regarding the
symptoms of Ms. Newsom’s mental impairments, not a disability
related conclusion.
22

Looking at the Sloan factors discussed above, it is clear
that Ms. Cleveland is a specialist with knowledge of mental
impairments and her opinions are internally consistent and
supported by the medical records. Additionally, Ms. Cleveland
had a long relationship with Ms. Newsom, one of the longest
relationships

contained

in

Ms.

Newsom’s

medical

record.

Finally, Ms. Cleveland’s conclusions are not contrary to other
medical opinions.

As the ALJ admitted, both consultants, Dr.

Jordison and Dr. Porter, concluded that Ms. Newsom would have
problems with concentration, carrying out instructions, and
working

at

steady

pace.

See

Docket

No.

7,

Tr.

15-16.

Additionally, although the Court notes that the Plaintiff in
this case did not directly attack the ALJ’s credibility
determination, Ms. Newsom’s allegations are consistent with
Ms.

Cleveland’s

record.

Accordingly,

the

Sloan

factors

indicate that Ms. Cleveland’s testimony is highly probative
regarding Ms. Cleveland’s ability to function and the ALJ’s
decision to give it little weight was an error.
B.
When

Hypothetical
questioned

by

the

ALJ,

the

vocational

expert

described Ms. Newsom’s past relevant work experience. The ALJ
then posed a hypothetical based on the past relevant work.

23

Specifically, the ALJ asked:
[f]irst hypothetical then would be age 48,
female, she has a GED, past relevant work,
20 pounds -- let’s see, 22E is past
relevant
work,
lifting
20
pounds
occasionally, 10 pounds frequently, sitting
and standing two hours at a time for at
least six out of an eight-hour day, walking
two blocks, no climbing ladders, ropes, or
scaffolds, no working at heights, only
occasionally climbing of ramps and stairs,
only
occasional
balancing,
stooping,
kneeling, crouching, crawling, and bending,
would be limited to simple, routine tasks.
Could the claimant do any of the past
relevant work under this hypothetical?
Docket No. 7, Tr. 44.
The vocational expert answered in the affirmative, that
Ms. Newsom would be able to perform various unskilled work.
Docket No. 7, Tr. 44-45.
hypothetical questions.

The ALJ then asked two additional
In the first, he described the same

limitations but stated that the claimant would miss work
several times a month due to drug use.

The vocational expert

testified in that event, the claimant would be unable to find
work.

Docket No. 7, Tr. 45.

In the second, the ALJ stated

the claimant would again miss several days of work a month,
but did not give a specific reason.

The vocational expert

again testified that the claimant would be unable to find
work.

Docket No. 7, Tr. 46.

24

The Plaintiff’s attorney then questioned the vocational
expert

and

posed

a

hypothetical

including

the

ALJ’s

limitations, quoted above, but then modifying the hypothetical
that instead of missing three days of work:
assume the same as the [ALJ’s hypothetical
limitations], except for that this person
would for up to a third of the day work at
a pace lower than what is required of the
job. What would your analysis be then?
Docket No. 7, Tr. 46.

The vocational expert responded that

such a claimant would not be competitively employable.
Ms. Newsom’s attorney then asked the same hypothetical:
taking away the missing three days of work,
[but] let’s assume that this person would
require additional supervision to stay on
task, need to be checked on, and also need
somebody to help them out if they get in a
stressful situations. What’s your analysis?
Docket No. 7, Tr. 46.
In her brief, the Plaintiff argues that:
[t]he error is that the ALJ completely
ignores - in the hypothetical - any work
restrictions stemming from his finding that
there are “moderate difficulties” with
concentration, persistence or pace... If
the ALJ had included that type of language
into the hypothetical question the VE could
then have assessed the work and made a
determination as to whether jobs were
available.... [Additionally] [a] “moderate”
capacity
means
different
things
to
different people and without definition can
not satisfy the requirement of being a
question that adequately describes the
25

Id.

limitations of the claimant. It must be
stated in terms of specific, work-related
functional abilities... The effect of this
is that the ALJ’s hypothetical question is
incomplete.
As such, any testimonial
responses by the Vocational Expert can not
constitute substantial evidence. Pickney
v. Chater, 96 F.3d 294, 296 (8th Cir.
1996).
When the VE’s response to an
incomplete hypothetical question is based
on a faulty determination of residual
functional capacity the response can not be
considered substantial evidence. As such,
the decision based on the response by the
VE is error.
Docket No. 9, p. 9-10.
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)).
The Defendant argues that:
plaintiff
ignores
that
the
ALJ’s
hypothetical question included a limitation
to simple routine tasks (Tr. 44).
The
hypothetical question “need not frame the
claimant’s impairments in the specific
diagnostic terms used in medical reports,
but instead should capture the concrete
26

consequences
of
those
impairments.”
Lacroix v. Barnhart, 465 F.3d 881, 889 (8th
Cir. 2006) (internal quotation marks
omitted)... Plaintiff has not shown that
the ALJ’s hypothetical question should have
included additional limitations...
The
ALJ’s
hypothetical
question
to
the
vocational expert captured the credible,
concrete
consequence
of
plaintiff’s
impairments. Thus, the vocational expert’s
testimony that plaintiff could perform the
jobs at issue constitutes substantial
evidence supporting the Commissioner’s
decision that plaintiff was not disabled
(Tr. 33-34).
Docket No. 11, p. 7 - 9.
In the previous section, the Court stated the ALJ failed
to properly weigh the medical evidence from the non-acceptable
medical source.

Based on that analysis, along with the

Plaintiff’s above-quoted argument, the Court is persuaded that
the ALJ failed to properly articulate Ms. Newsom’s limitations
in the hypothetical question(s) to the vocational expert.
stated in Ms. Newsom’s Reply brief:
[t]he ALJ made no attempt to define what he
may have meant by “simple routine tasks.”
However, what is clear from the testimony
of the vocational expert is that “simple,
routine tasks” do not include a [moderate]
limitation on concentration, persistence or
pace.
During the testimony of Melinda
Stahr, vocational expert, she acknowledged
when the ALJ limited the hypothetical to
“simple, routine tasks” the vocational
expert identified light jobs that could be
done:
clerical assistant, cashier and
sales attendant. Yet when the claimant’s
27

As

representative asked a question related to
pace -still limiting the hypothetical
question to “simple, routine tasks” but
adding a condition with respect to “pace
lower than what is required of the job” the
vocational expert testified that in her
opinion the individual would not be
competitively employable.
AR 346.
This
dramatically points out that - at least to
this vocational expert - “Simple, routine
tasks” must be performed at a certain pace.
In this record the Defendant points to no
other evidence which seems to suggest that
“simple,
routine
tasks”
includes
a
“moderate limitation on concentration,
persistence or pace” - a finding that is
made by three acceptable medical sources.
Because there is no evidence to the
contrary the ALJ committed error.
The
hypothetical question adopted by the ALJ as
his finding was incomplete.
Docket No. 12, p. 1-2.
In finding that Ms. Newsom was not disabled, the ALJ
relied on his first hypothetical question to the vocational
expert. In that question, the ALJ included the phrase ‘simple
routine tasks’ but offered no guidance on the degree that
limitation effected or incorporated Ms. Newsom’s work-pace.
As stated in the Defendant’s own brief, the hypothetical
questions

must

capture

claimant’s impairments.
failed

to

do.

The

the

concrete

consequences

of

the

But that is exactly what the ALJ
ALJ

articulated

specific

physical

limitations - which were not the major issue in this case but then relied on the very vague ‘simple, routine task’
28

phrase to convey Ms. Newsom’s broad range of limitations.

As

stated in Plaintiff’s Reply Brief, it is clear that the phrase
“simple, routine tasks” assumed a certain pace or speed,
because, when Plaintiff’s attorney asked about a slower pace,
the vocational expert gave a different answer.

Relying on a

hypothetical that failed to articulate specifics regarding
pace,

when

a

change

in

pace

changed

the

answer

to

the

hypothetical, was an error.
Because the hypothetical question relied on by the ALJ
was vague, the hypothetical questions that most closely stated
all of Ms. Newsom’s limitations were those posed to the
vocational expert by Ms. Newsom’s attorney.

Those questions

incorporated a reduced pace, which is a limitation supported
by the medical evidence. In response to those questions, the
vocational expert stated that no jobs exist that Ms. Newsom
could perform on a sustained basis.
VI.

Docket No. 7, Tr. 46-47.

CONCLUSION
It is clear the ALJ erred by failing to incorporate all

Ms. Newsom’s restrictions into the hypothetical questions
posed to the vocational expert and by discounting the opinion
of the treating mental health provider.

29

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 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. In this case,
overwhelming evidence supports a conclusion that Ms. Newsom
does not have the residual functional capacity to return to
work.

Specifically, the hypothetical questions posed by the

Plaintiff’s attorney to the vocational expert incorporated
most of Ms. Newsom’s medically determinable impairments.
response

to

those

hypothetical

questions,

the

In

vocational

expert opined that Ms. Newsom would be unable to maintain
employment.

Accordingly,

a

appropriate.

30

finding

of

disability

is

Therefore,
remanded

solely

the

decision

for

the

of

the

ALJ

calculation

is

of

reversed
benefits

and
from

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

Thus,

unless

this

decision

is

appealed,

if

plaintiff’s attorney wishes to apply for EAJA fees, it must be
done within thirty (30) days of the entry of the final
judgment in this case.
IT IS SO ORDERED this 19th day of March, 2015.

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

31