Freerks v. CSS
Filing
17
MEMORANDUM Opinion and Order affirming the Administrative Law Judges decision. Judgment shall be entered in favor of the Defendant Commissioner of Social Security and against Plaintiff Tonya Freerks, Surviving Spouse of Bruce James Freerks. Signed by Magistrate Judge CJ Williams on 3/31/2016. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
TONYA FREERKS,
Surviving Spouse of Bruce James Freerks,
No. C14-3082-CJW
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER
Defendant.
___________________________
The claimant, Bruce James Freerks, passed away on January 30, 2016. Doc. 15
at 1. Plaintiff, the surviving spouse of claimant, represents the claimant in this matter.
The plaintiff, on behalf of the claimant, seeks judicial review of a final decision of the
Commissioner of Social Security (Commissioner) denying claimant’s application for
Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C.
§ 401 et seq. (Act). Plaintiff contends that the administrative record (AR) does not
contain substantial evidence to support the Commissioner’s decision that claimant was
not disabled during the relevant time period. For the reasons that follow, the court
affirms the Commissioner’s decision.
I.
BACKGROUND
Claimant was born in 1967, had completed three years of college, and had past
work as a quality inspector. AR 180, 185. He filed an application for DIB on March
16, 2012, alleging a disability onset date of November 1, 2011. AR 139–40. He
contended that he was disabled due to arthritis, a deformed ankle, legal blindness in one
eye, acute arthritis caused by birth defect, and glaucoma. AR 184. The Commissioner
denied his claims on April 23, 2012. AR 81–84.
Claimant requested reconsideration on April 29, 2012, which the Commissioner
denied on July 11, 2012. AR 85, 87–90. He then requested a hearing before an
Administrative Law Judge (ALJ) on July 24, 2012, and ALJ David G. Buell conducted
a hearing on August 28, 2013, at which claimant and a vocational expert (VE) testified.
AR 27–55, 93–94. On November 7, 2013, the ALJ issued a decision denying claimant’s
claim. AR 7–19.
Claimant sought review from the Appeals Council, which denied his request on
November 7, 2014. AR 1–6, 26. The ALJ’s decision thus became the final decision of
the Commissioner. AR 1–3; 20 C.F.R. § 404.981.1
Claimant filed a complaint (Doc. 3) in this court on December 19, 2014, seeking
review of the ALJ’s decision. On January 13, 2015, with the consent of the parties (Doc.
6), the Honorable Mark W. Bennett transferred this case to a United States Magistrate
Judge for final disposition and entry of judgment. The parties have briefed the issues
and the matter is now fully submitted.
II.
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 which has lasted or can be expected to last for a continuous
1
SSA Appeals Council Rev., 20 C.F.R. § 404.981 (2016).
2
period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505, 416.905.2 An individual has a disability when, due to his physical
or mental impairments, he “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). If the claimant is able to do work which exists in the
national economy but is unemployed because of inability to get work, lack of
opportunities in the local area, economic conditions, employer hiring practices, or other
factors, the ALJ will still find the claimant not disabled. 20 C.F.R. §§ 404.1566(c)(1)(8), 416.966(c)(1)-(8).3
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations. Id. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705, 707–08 (8th
Cir. 2007).4 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). “Substantial” work activity involves
physical or mental activities. Id. § 404.1572(a).5 “Gainful” activity is work done for
2
42 U.S.C. §§ 423(d)(1)(A) (2015), 1382c(a)(3)(A) (2015); SSA Definition of Disability, 20
C.F.R. §§ 404.1505 (2016), 416.905 (2016).
3
SSA Vocational Considerations, 20 C.F.R. §§ 404.1566(c)(1)-(8) (2016), 416.966(c)(1)-(8)
(2016).
4
SSA Evaluation of Disability, 20 C.F.R. §§ 404.1520 (2016), 416.920 (2016).
5
SSA Substantial Gainful Activity, 20 C.F.R. § 404.1572(a) (2016).
3
pay or profit, even if the claimant does not ultimately receive pay or profit. Id. §
404.1572(b).
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and medical impairments.
If the impairments are not severe, then the claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii).
An impairment is not severe if “it does not
significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R.
§ 404.1521(a); see also 20 C.F.R. §§ 404.1520(c), 416.920(c), 416.921(a); Kirby, 500
F.3d at 707.6
The ability to do basic work activities is defined as having “the abilities and
aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These
abilities and aptitudes include: “(1) physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing,
hearing, and speaking; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, 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 (1987).
Third, if the claimant has a severe impairment, then the Commissioner will
determine 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. §§
6
SSA Evaluation of Disability, 20 C.F.R. § 404.1521(a) (2016); see also id. § 416.921(a)
(2016).
4
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) and the demands of his past relevant work.
If the claimant can still do his past relevant work then he is considered not disabled. 20
C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4).7 Past
relevant work is any work the claimant has done within the past 15 years of his application
that was substantial gainful activity and lasted long enough for the claimant to learn how
to do it. Id. § 416.960(b)(1).8 “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 omitted); see 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). The RFC is based on all relevant medical and other
evidence.
Id. §§ 404.1545(a)(3), 416.945(a)(3).
The claimant is responsible for
providing the evidence the Commissioner will use to determine the RFC. Id. If a
claimant retains enough RFC to perform past relevant work, then the claimant is not
disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to show there
7
SSA Residual Functional Capacity, 20 C.F.R. §§ 404.1545(a)(4) (2016), 416.945(a)(4) (2016).
8
SSA Vocational Considerations, 20 C.F.R. § 416.960(b)(1) (2016).
5
is other work the claimant can do, given the claimant’s RFC, age, education, and work
experience. Id. §§ 416.912(f), 416.920(a)(4)(v).9 The Commissioner must show not
only that the claimant’s RFC will allow him or her to make the adjustment to other work,
but also that 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 the adjustment, then the
Commissioner will find the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). At Step Five, the Commissioner has the responsibility of developing
the claimant’s complete medical history before making a determination about the
existence of a disability. Id. §§ 404.1545(a)(3), 416.945(a)(3). The burden of persuasion
to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th
Cir. 2004).
If after these five steps the ALJ has determined the claimant is disabled but there
is medical evidence of substance use disorders, the ALJ must decide if that substance use
was a contributing factor material to the determination of disability.
42 U.S.C. §
423(d)(2)(C). The ALJ must then evaluate the extent of the claimant’s limitations without
the substance use. Id. If the limitations would not be disabling, then the disorder is a
contributing factor material to determining disability and the claimant is not disabled. 20
C.F.R. §§ 404.1535, 416.935.10
III.
THE ALJ’S FINDINGS
The ALJ made the following findings:
9
SSA Evidence, 20 C.F.R. § 416.912(f) (2016).
10
SSA Medical Conditions, 20 C.F.R. § 404.1535 (2016); SSA Drug Addiction and Alcoholism,
20 C.F.R. § 416.935 (2016).
6
(1)
The claimant meets the insured status requirements of
the Social Security Act through September 30, 2016.
(2)
The claimant has not engaged in substantial gainful
activity since November 1, 2011, the alleged onset date
(20 C.F.R. § 404.1571 et seq.).
(3)
The claimant has the following severe impairments:
glaucoma with monocular vision, residuals of a left
ankle surgery with non-union, and obesity (20 C.F.R.
§ 404.1520(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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526).
(5)
After careful consideration of the entire record, the
undersigned finds that the claimant has the Residual
Functional Capacity to perform a range of sedentary
work as defined in 20 C.F.R. § 404.1567(a). He can
occasionally stoop, kneel, crouch, and crawl; cannot
climb ladders, ropes, or scaffolds; needs a work
environment where he is not exposed to moving
machinery or work at unprotected heights due to poor
vision; has no useful vision in his left eye, including
no peripheral vision on the left or depth perception;
can frequently use near visual acuity with the right eye;
and needs to avoid walking on uneven surfaces.
(6)
The claimant is unable to perform any past relevant
work. (20 C.F.R. § 404.1565).
(7)
The claimant was born on August 6, 1967, and was 44
years old, which is defined as a younger individual age
18-44, on the alleged disability onset date. The
claimant subsequently changed age category to a
younger individual age 45-49.
(20 C.F.R. §
404.1563).
7
(8)
The claimant has at least a high school education and
is able to communicate in English. (20 C.F.R. §
404.1564).
(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;
20 C.F.R. 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 C.F.R.
§§ 404.1569, 404.1569(a)).
(11)
The claimant has not been under a disability, as defined
in the Social Security Act, from November 1, 2011,
through the date of this decision. (20 C.F.R. §
404.1520(g)).
AR 10–19. To render his decision regarding claimant’s residual functional capacity, the
ALJ relied on the following medical opinions in the record: (a) considerable weight was
given to the opinions of nonexamining, state agency consultants Russell Lark, Ph.D., Jan
Hunter, D.O., and Laura Griffith, D.O.; (b) partial weight was given to treating sources
Andrew J. Pugely, M.D., and Phinit Phisitkul, M.D.; and (c) little weight was given to
the opinion of consultative examiner John E. Williams, Ph.D. AR 17.
Here the court summarizes these medical opinions.
Dr. Russell Lark, Ph.D.
Dr. Lark is a nonexamining, state agency consultant. In July 2012, Dr. Lark
found that claimant was not disabled. AR 72–73. Dr. Lark determined that claimant had
non-severe Adjustment Disorder with Depressed Mood, no mental limitations, and intact
memory, but had difficulty handling stress. AR 73. Dr. Lark based his finding on a
8
preponderance of the evidence (citing to tests performed in March, April, and June of
the year 2012). Id. The ALJ gave Dr. Lark’s medical opinion considerable weight. AR
17.
Jan Hunter, D.O.
Dr. Hunter is a nonexamining, state agency consultant. In April 2012, Dr. Hunter
determined claimant was not disabled. See generally AR 56–65. She based her finding
on vision testing (including the Goldman test) at UIH on February 23, 2011, which
indicated claimant had distance VA (visual acuity measurement) with correction (with
glasses) of 20/40 OD (right eye) and 20/100 OS (left eye). AR 63. And subsequent
vision testing at UIH, on January 12, 2012, indicated claimant’s distance VA with
correction was 20/40 +1 OD with pinhole to 20/20 +3, but OS was hand motion only.
AR 63. Dr. Hunter summarized these results as indicating good vision in the right eye
sufficient to “see well enough to perform most activities.” AR 63. Dr. Hunter also
found claimant showed no muscle wasting and exhibited good recovery from his ankle
surgery. AR 65. The ALJ gave Dr. Hunter’s medical opinion considerable weight. AR
17.
Laura Griffith, D.O.
Dr. Griffith is a nonexamining, state agency consultant. In late May 2012, Dr.
Griffith found that claimant was not disabled. See generally AR 76–79. Dr. Griffith
found claimant’s allegation of pain credible, and affirmed Dr. Hunter’s determination
from April 20, 2012, that claimant’s ankle post-surgery was recovering as expected and
that claimant should be capable of full time sedentary employment by November 2012.
AR 77. The ALJ gave Dr. Griffith’s medical opinion considerable weight. AR 17.
Phinit Phisitkul, M.D. and Andrew J. Pugely, M.D.
Dr. Phisitkul and Dr. Pugely are treating sources. On April 12, 2012, Dr.
Phisitkul saw claimant for his five month post-left foot reconstruction surgery visit. AR
9
409. Dr. Phisitkul explained to claimant that it was “unlikely [he] will ever be able to
go back to working 8 hours a day on his feet and doing heavy lifting. He will likely only
be able to do sedentary work or light duties, even after his foot is well healed.” Id. The
ALJ directly cited the clinic note from May 10, 2012, excerpted below, as follows:
The patient should progress to full weightbearing. He may
bear 75% weight with the help of crutches . . . . We
recommend the patient be off work for another weeks [sic]
and then transition back to work part-time, 4 hours per day
for the first week, 6 hours per day for the second week, 8
hours per day for the fourth week. He will have the following
restrictions: No ladders and occasional stairs and no major
heavy lifting. The patient will return to clinic in roughly 4-6
weeks’ time for reevaluation of his ability to work.
AR. 419. The ALJ also cited to Dr. Phisitkul’s letter on August 21, 2012, stating that
“[w]e would also keep his work restriction to less than 30 minutes of standing at a time.”
AR 431. The ALJ gave the medical opinions of Dr. Phisitkul and Dr. Pugely partial
weight. AR 17.
John E. Williams, Ph.D.
John E. Williams is a consultative examiner. AR 17. John Williams is a licensed
psychologist in Iowa. AR 396. He evaluated claimant’s mental status on June 12, 2012.
AR 392. Dr. Williams found that claimant appeared “in tact [sic] cognitively and
demonstrated no difficulties related to the mental status examination . . . . His thought
process was logical, and his short-term memory appeared intact . . . his ability to handle
stress appears some-what limited.” AR 395. John E. Williams recommended that
claimant seek psychotherapy to deal with his current limitations and family stress. Id.
10
Lastly, Dr. Williams gave claimant a Global Assessment of Functioning (GAF) score of
55.11 AR 396. The ALJ gave this medical opinion little weight. AR 17.
IV.
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 . . . .”).12
“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 Court of Appeals 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) (internal quotation omitted).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but we do not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (internal citation
omitted). 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.
11
Court notes that a GAF score of 55 is considered moderate symptoms and does not fall into
the other GAF categories of serious symptoms, major impairments, delusional, some danger to
self or others, or persistent danger to self or others. See Jones v. Astrue, 619 F.3d 963, 973 (8th
Cir. 2010) (quoting Diagnostic and Statistical Manual of Mental Disorders 30 (4th ed.1994)).
12
42 U.S.C. § 405(g) (2015).
11
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)).
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.”) (internal citation omitted).
V.
DISCUSSION
The court now examines whether the Commissioner’s denial of benefits is
supported by substantial evidence on the record as a whole. Berger v. Apfel, 200 F.3d
1157, 1161 (8th Cir. 2000). Claimant raises three issues before the court. He claims
12
that: (1) a remand is necessary to consider the post-hearing opinions of his
Ophthalmologist, Dr. Wallace Alward; (2) the ALJ failed to properly apply the Polaski
factors to his subjective complaints about the intensity, persistence, and limiting effects
of his symptoms; and (3) the ALJ erred in relying on the VE’s response to an incomplete
hypothetical question. The court addresses each issue in turn.
A. Claimant Argues that Remand for Consideration of the Opinions of
Claimant’s Treating Ophthalmologist, Dr. Wallace Alward, M.D., is
Necessary
Claimant argues that a remand to the ALJ is necessary to consider the new medical
statements by Dr. Alward (hereinafter new evidence) obtained post-hearing.
Furthermore, claimant argues that Dr. Alward is a treating source, and thus, the
Commissioner should have given Dr. Alward’s opinion controlling weight. Doc. 11 at
17–19. Claimant also argues that the ALJ failed his independent duty to fully develop
the record by not requesting additional testimony from Dr. Alward prior to the hearing.
Id. at 18.
Approximately two and a half months after the ALJ issued his decision to deny
benefits on November 7, 2013, Dr. Alward’s new evidence was submitted to the Appeals
Council on January 27, 2014. AR 1–4. On November 7, 2014, the Appeals Council
issued a notice denying claimant’s request to review the ALJ’s decision. AR 1–9. The
Appeals Council, under agency regulations, must consider additional new and material
evidence relating to the period on or before the date of the ALJ’s decision. 20 C.F.R.
§ 404.970(b). When “the Appeals Council considers the new evidence but declines to
review the case, we [the court] review the ALJ’s decision and determine whether there
is substantial evidence in the administrative record, which now includes the new
evidence, to support the ALJ’s decision.” Nelson v. Sullivan, 966 F.2d 363, 366 (8th
13
Cir. 1992) (internal citation omitted). If the Appeals Council considers the new and
material evidence and yet denies review, then the AJL’s decision transforms into the
Secretary’s final decision. Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995). At that
point, the court no longer may review the Appeals Council’s action, which becomes
“non-final agency action.” Id. “At this point, our [the court’s] task is only to decide
whether the ALJ’s decision is supported by substantial evidence in the record as a whole,
including the new evidence deemed material by the Appeals Council that was not before
the ALJ.” Id. To be new, evidence needs to be “more than merely cumulative of other
evidence in the record.” Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008) (quoting
Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000)). And evidence is material
when “it is relevant to claimant’s condition for the time period for which benefits were
denied.” Id. The court in Mackey, illuminating the Eighth Circuit Court of Appeals’
approach to new post-hearing evidence, writes: “[s]ome circuits simply refuse to consider
such tardy evidence as a basis for finding reversible error . . . . But we do include such
evidence in the substantial evidence equation.” Mackey, 47 F.3d at 953.
The court finds Dr. Alward’s new evidence is both new and material as the
Appeals Council defines such terms. First, Dr. Alward’s statements are new since they
were not available to the ALJ at the hearing but pertain to claimant’s visual impairment,
which was at issue in claimant’s disability hearing. Lamp, 531 F.3d at 632. Specifically,
Dr. Alward’s new evidence includes a new visual acuity (VA) measurement, namely
20/100-2 with glasses, for claimant’s right eye. AR 639–40. Such VA measurement
was not presented to the ALJ at the hearing. Whether the new evidence is material is a
closer question. The new evidence must be relevant to claimant’s visual impairment as
it existed until November 7, 2013 (when the ALJ issued his decision). The last visit
claimant made to Dr. Alward, this court found in the record, was on June 4, 2013. AR
544. On that June visit, Dr. Alward gave claimant’s right eye a VA measurement of
14
20/50+1. Id. Then suddenly, without any evidence of a subsequent visit by claimant to
Dr. Alward in the record, Dr. Alward’s new evidence dated December 9, 2013, gives
claimant’s right eye a VA measurement of 20/100-2 (which indicates worse vision). AR
639. Furthermore, the December 2013 new evidence includes a comment that “I [Dr.
Alward] have enclosed a copy of his [claimant’s] last clinic note and his most recent
visual field.” AR 640. The court is perplexed as to which visit’s clinic note Dr. Alward
refers, as Dr. Alward’s last clinic visit documented in the administrative record is from
June 2013 (again where a VA measurement of 20/50+1 was found). Regardless, the
court finds, despite these factual perplexities in the record, that Dr. Alward’s new
evidence dated December 2013 and January 2014 could pertain to the relevant period of
June 5, 2013 (a day after the last recorded visit to Dr. Alward where a VA measurement
of 20/50+1 was determined) to November 7, 2013 (the date the ALJ made his decision).
Thus, the court considers the new evidence to be material. As the court finds Dr.
Alward’s new evidence to be both new and material, such evidence becomes part of the
administrative record before the court. Nelson, 966 F.2d at 366. Furthermore, the court
notes that the parties agree that claimant’s new evidence submitted to the Appeals Council
is part of the record before this court. Doc. 11 at 15, Doc. 12 at 5.
1. Treating Sources and Controlling Weight
The court here reviews the applicable law for medical sources qualifying as
treating sources. A treating source is an acceptable medical source who has an ongoing
treatment relationship providing medical treatment or evaluation to the claimant;
however, such relationship may not exist solely to establish claimant’s disability, 20
15
C.F.R. § 404.1502.13 Under agency regulations, an acceptable medical source includes
licensed physicians, either medical or osteopathic doctors. Id. § 404.1513(a).14 An
ongoing treatment relationship is generally established when the medical evidence is
consistent that the claimant has seen “the source with a frequency consistent with accepted
medical practice for the type of treatment and/or evaluation required for your medical
condition(s).” Id. § 404.1502.
Under agency regulations, the ALJ evaluates and weighs a medical opinion by
considering the following factors: (1) examining relationship (generally greater weight is
given to a source who has examined the claimant; (2) length, nature, and extent of the
treatment relationship; (3) supportability (the more relevant evidence that exists to
support an opinion, then the more weight such opinion gets); (4) consistency (the more
consistent that the opinion is with the record as a whole, then the more weight it is given);
(5) specialization (great weight given to specialists in their medical areas of specialty);
(6) other factors. Id. § 404.1527(c)(1)-(6).15 Generally, a treating source gets controlling
weight if not contradicted by other substantial evidence on the record.
The claimant alleges that Dr. Alward is a treating source and that the
Commissioner should have afforded his statements controlling weight. Doc. 11 at 17–
19. For the reasons given herein, the court agrees that Dr. Alward is a treating source
13
SSA General, 20 C.F.R. § 404.1502 (2016).
14
SSA Evidence, 20 C.F.R. § 404.1513(a) (2016).
15
SSA Medical Considerations, 20 C.F.R. § 404.1527(c)(1)-(6) (2016).
16
and that his medical opinions, consistent with the substantial evidence on the record,
should be given controlling weight.
Dr. Wallace Alward is a licensed medical doctor. AR 404. Thus, he satisfies the
“acceptable medical source” requirement mandated in 20 C.F.R. § 404.1513(a). The
record also establishes that claimant saw Dr. Alward repeatedly prior to filing for
disability. According to forms completed by Mrs. Tanya Freerks on claimant’s behalf,
Dr. Alward began treating claimant in 1980 or 1981. AR 208 (for the 1980 date), 187
(for the 1981 date).16
The purpose of claimant’s visits were to evaluate and treat
claimant’s juvenile glaucoma. AR 404. The record lists claimant’s clinic visit dates with
Dr. Alward, as follows: January 17, 2012; July 19, 2012; August 21, 2012; October
24, 2012; October 30, 2012; November 27, 2012; December 7, 2012; February 3, 2013;
and June 4, 2013. On October 24, 2012, Dr. Alward was the attending staff surgeon in
claimant’s placoemulsification, new lens implant, and cyclophotocoagulation surgeries.
AR 523–29. As Dr. Alward is claimant’s long-term, examining ophthalmologist, who
has used his specialization to evaluate and treat claimant’s juvenile glaucoma extensively,
the court finds treating Ophthalmologist Dr. Alward’s medical opinions should be given
controlling weight if not contradicted by other substantial evidence on the record.
2. Court Finds That Dr. Alward’s New Evidence is Vastly Comprised of NonMedical Opinions
There is a category of certain opinions, even if rendered by acceptable medical
professionals, which do not qualify as medical opinions. Ellis v. Barnhart, 392 F.3d
988, 994 (8th Cir. 2005). Opinions by treating medical professionals stating that an
16
Dr. Alward wrote in his clinic visit comments that a Dr. Matt Pollanstrini treated claimant in
the past. AR 523.
17
applicant is “unable to work” or “disabled” do not count as medical opinions. Id. (citing
to Stormo, 377 F.3d at 806). Such opinions address an issue reserved solely for the
Commissioner’s discretion. Id. An ALJ may give limited weight to a treating source’s
opinion if such opinion only provides conclusory statements or is inconsistent with the
substantial evidence on the record. Chamberlain v. Shalala, 47 F.3d 1489, 1489–94 (8th
Cir. 1995). For example, in Chamberlain v. Shalala, the Eighth Circuit Court of Appeals
found that an ALJ properly discounted a treating physician’s conclusory statement that
claimant was unable to perform any job requiring stooping or bending when the following
facts existed: claimant’s x-rays showed no abnormalities; another doctor found claimant
could occasionally stoop or bend; at the hearing claimant himself testified when asked
about his ability to bend or stoop that he only had issues using the toilet; and the physician
did not cite any objective medical tests, diagnostic data, or even discuss claimant’s
deceased range of motion. Id. at 1493–94.
The court finds that Dr. Alward’s new evidence should be given only limited
weight. First, the court conducts a careful review of Dr. Alward’s new evidence.
Claimant submitted the following two exhibits to the Appeals Council: (1) Exhibit 20E:
Representative Letter (by attorney Hugh M. Field) dated January 27, 2014, introducing
Dr. Alward’s new evidence and asking the Appeals Council to expedite the case if
possible; and (2) Exhibit 21F: Medical Source Statements from Wallace L. M. Alward,
M.D., dated November 26, 2013, and January 2, 2014. AR 5. Dr. Alward’s two
opinions comprise the substantive portion of the new evidence submitted. Such new
evidence submitted to the Appeals Council includes the following:
18
(a) Statement dated Dec. 9, 201317
Here Dr. Alward answers, in writing, questions from claimant’s attorney, Hugh
M. Field. AR 639–41. Dr. Alward writes that claimant’s diagnosis was “Juvenile open
angle glaucoma.” AR 639. And Dr. Alward writes that claimant would “not regain
vision,” and that “[h]e has surgery scheduled that will hopefully stop and slow the loss.”
AR 639. Also, Dr. Alward answers that claimant’s vision in his right eye, after best
correction, was “20/100-2” and claimant’s vision in his left eye, after best correction was
“20/400.” AR 639–40. Regarding claimant’s ability to do sedentary work and work
with small objects, Dr. Alward answers that “[claimant] has very poor vision and an
extremely constricted visual field. He is nearly blind in the left eye and is missing his
entire upper field in the right. Working with any fine printed materials would be very
hard.” AR 640.
(b) Statement dated January 2, 2014
Here Dr. Alward’s answers questions from claimant’s attorney, Hugh M. Field.
AR 642–43. Dr. Alward writes, “I do not feel that [claimant] has sufficient vision to
work at any job that requires reading.” AR 643. And in response to a question about
claimant’s ability to work as an order clerk, Dr. Alward answers that “I believe that any
job that requires reasonable vision would be beyond his abilities. Besides his very poor
central vision he has a severely constricted vision field.” AR 643. In response to
claimant’s ability to work as a charge account clerk, Dr. Alward writes “Not possible in
my opinion.” AR 642. Also, Dr. Alward writes that “[claimant] has remarkably
constricted peripheral vision. That makes ambulation a challenge. I [sic] leaves him
with terrible vision in low light. He also needs to scan to read a page of text which makes
this very challenging.” AR 643.
17
This represents the court’s best understanding of Dr. Alward’s handwritten opinions.
19
Again, an ALJ may give a treating source’s opinion limited weight if such opinion
only provides conclusory statements or is inconsistent with the substantial evidence on
the record. Chamberlain, 47 F.3d at 1489–94. Here, the court finds it was appropriate
for the Commissioner to give Dr. Alward’s new evidence limited weight. The court
divides the new evidence into two segments for its analysis, as follows: (1) medical
opinion—consisting only of Dr. Alward’s statement that claimant’s VA measurement CC
is 20/100-2 OD and 20/400 OS (AR 639–40); and (2) conclusory statements—the rest of
the new evidence.
The court finds the first segment, the VA measurements, to be a medical opinion.
Specifically, these measurements include a VA measurement with corrective glasses to
be 20/100-2 (right eye) and 20/400 (left eye). AR 639–40. The court finds this statement
to be a medical opinion, rendered by an ophthalmologist in his area of medical expertise.
Yet, the court finds the Commissioner appropriately afforded this medical opinion limited
weight, not controlling weight, given its inconsistency with the substantial evidence on
record regarding claimant’s right eye VA measurements. These inconsistencies include,
as follows: (1) Dr. Mark Wilkinson’s visit notes on August 21, 2012, that distance VA
with correction was 20/80-1 for claimant’s right eye, and near visual acuity without
correction was .6M continuous text print at 6” (AR 438); (2) prior inconsistent medical
opinion by Dr. Alward from claimant’s visit on February 12, 2013, when Dr. Alward
determined a distance VA with correction of 20/40+1 for claimant’s right eye—several
months after the cataract surgery claimant alleged caused the deterioration of his right
eye’s near acuity (AR 556); and (3) prior inconsistent medical opinion by Dr. Alward
from claimant’s visit on June 4, 2013, (the last visit to Dr. Alward documented in the
record) where Dr. Alward determined a distance VA with correction of “20/50+1” for
claimant’s right eye (AR 542).
20
The second segment—conclusory statements—is the rest of the new evidence,
absent the VA measurements. The court finds this segment to consist of mere conclusory
statements that the Commissioner could reasonably conclude deserved limited weight.
Similar to the ALJ’s treatment of the treating physician in Chamberlain, the court finds
Dr. Alward’s statements here to be solely conclusory. Chamberlain, 47 F.3d at 1489–
94. Here, Dr. Alward’s new evidence does not cite any objective medical tests or
diagnostic data in the record (in his December 2013 statement, Dr. Alward comments
that he enclosed “a copy of his [claimant’s] last clinic note and his most recent visual
field” see AR 640; but the court cannot locate any supporting visit notes in the record).
Substantial evidence in the record contradicts Dr. Alward’s assertion that claimant could
not perform a job that required reading or handling of small objects. Substantial evidence
that contradicts Dr. Alward’s conclusory statements includes, as follows: (1) Dr. Jan
Hunter’s opinion from April 2012, that claimant’s right eye vision with correction was
good enough to “perform most activities” (AR 65); (2) Dr. Wilkinson’s visit notes on
August 21, 2012, that claimant’s near visual acuity without correction was .6M
continuous text print at 6” for his right eye (AR 438); (3) claimant’s visit with Dr.
Alward, on February 12, 2013, where Dr. Alward determined a distance VA with
correction of 20/40+1 OD and found that claimant’s glaucoma and visual fields were
stable (AR 556); (4) Dr. Alward’s clinic notes from June 4, 2013, that claimant’s right
eye did great on the Humphrey test and stating that claimant’s glaucoma was stable and
claimant’s right eye did “great” (AR 544); (5) claimant’s own testimony that on May
7, 2013, he changed his lawnmower’s spark plug (AR 604); and (6) claimant’s additional
testimony at the hearing (again months after the cataract surgery that allegedly
significantly decreased his right eye vision) that he watched his 46 inch television, drove
up to 35 mph in town during the daytime, sometimes drove his kids to the local park,
could write checks, used his home computer and laptop with an increased font, and
21
watched movies with his family in theatres (AR 36–47). The court finds that Dr.
Alward’s non-medical opinions here are both unsupported and contradicted by the
substantial evidence. The court finds Dr. Alward’s conclusory statements invaded the
sole discretion of the Commissioner, who is tasked with determining “disability” status
under the Social Security Act. Ellis, 392 F.3d at 994. Thus, the court finds that the
Commissioner could properly afford limited weight to the segment of the new evidence
consisting of conclusory statements. As such, it does not undermine the substantial
evidence on the record supporting the ALJ’s decision to deny benefits.
Overall, the new evidence (both the medical opinion and the conclusory
statements) deserve limited weight. As such, they do not undermine the ALJ’s decision
to deny benefits, which remains supported by substantial evidence. The court notes that
the ALJ here did, in fact, rely on Dr. Alward’s prior consistent medical opinions as
claimant’s treating ophthalmologist to examine claimant’s severe physical impairment of
juvenile glaucoma. AR 16, see exhibit 17F and 19F.
3. ALJ’s Independent Duty to Fully Develop the Record
Claimant argues that the ALJ failed his independent duty to fully develop the
record by not requesting additional testimony from Dr. Alward prior to the hearing. AR
18. The court finds that the ALJ did not fail his independent duty.
Social security disability hearings are non-adversarial proceedings. Stormo, 377
F.3d at 806. “Well-settled precedent confirms that the ALJ bears a responsibility to
develop the record fairly and fully, independent of the claimant’s burden to press his
case.” Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (internal citation omitted).
The ALJ’s duty exists even when an attorney represents a claimant. Id. Yet, the ALJ’s
duty to fully develop the record does not include seeking “additional clarifying statements
from a treating physician unless a crucial issue is undeveloped.” Goff, 421 F.3d at 791
22
(citing to Stormo, 377 F.3d at 806). Also, the ALJ is not required to discuss all submitted
evidence and the ALJ’s failure to cite to evidence does not mean such evidence was not
considered. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012) (internal quotation
and citation omitted).
Here, as claimant’s attorney noted, a non-attorney representative, Ms. Allison
Belt, represented claimant for his disability insurance benefits application and during the
ALJ hearing. Doc. 11 at 10, AR 10. Given the substantial evidence, the court finds that
there was no crucial issue left undeveloped, so the ALJ was not required to seek additional
clarifying statements. Indeed, all of Dr. Alward’s clinic notes about claimant’s juvenile
glaucoma before the ALJ were consistent (see exhibit 10F, 17F, 19F). Furthermore, the
other relevant medical opinions on the record, like Dr. Mark Wilkinson’s opinion, were
also consistent with Dr. Alward’s medical opinions on record. See AR 438. The only
inconsistent statements were issued post-ALJ decision (November 2013) by Dr. Alward
in December 2013, and January 2014. This new evidence was deemed to deserve only
limited weight. Also here, the ALJ had no suspicion of inauthenticity for any treating
source’s opinion, see Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (court found
that ALJ failed his duty to develop the record where the ALJ questioned the authenticity
of data by a treating source and simply rejected it and relied on a non-treating, nonexamining physician without first determining the authenticity of the treating source’s
opinion). Such facts are not present here. Thus, the court finds that the ALJ did not fail
his duty to investigate by failing to request additional statements from Dr. Alward.
23
B. Claimant Argues that the ALJ Did Not Properly Evaluate His Subjective
Allegations About Intensity, Persistence, and Limiting Effects of His
Symptoms
Claimant argues that the ALJ did not properly consider the relevant Polaski
factors. Furthermore, claimant argues that the ALJ erroneously analyzed the one factor
the ALJ did consider, namely claimant’s daily activities. AR 15–17.
1. Applicable Standards
Under the Polaski factors, an ALJ must consider the “claimant’s prior work
record, and observations by third parties and treating and examining physicians relating
to such matters as: (1) claimant’s daily activities; (2) duration, frequency and intensity
of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side
effects of medication; and (5) functional restrictions.” Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984). In Lowe, the Eighth Circuit Court of Appeals stated, “[t]he
ALJ was not required to discuss methodically each Polaski consideration, so long as he
acknowledged and examined those considerations before discounting [claimant’s]
subjective complaints.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (internal
citation omitted). If the ALJ gives a good reason for discrediting a claimant’s credibility,
then the court will defer to the ALJ’s judgment “even if every factor is not discussed in
depth.” Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001).
The court also notes that “[a]lthough the ALJ may disbelieve a claimant’s
allegations of pain, credibility determinations must be supported by substantial evidence.”
Jeffery v. Sec’y of Health & Human Servs., 849 F.2d 1129, 1132 (8th Cir. 1988) (internal
citation omitted). “Moreover, the ALJ must make express credibility determinations and
set forth the inconsistencies in the record that lead him to reject the claimant’s
complaints.” Id. “Where objective evidence does not fully support the degree of severity
24
in a claimant’s subjective complaints of pain, the ALJ must consider all evidence relevant
to those complaints.” Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001)
(internal citation omitted). In evaluating a claimant’s subjective complaints of pain, an
ALJ may rely on a combination of his personal observations and a review of the record
to reject such complaints. Lamp, 531 F.3d at 632. However, the ALJ may not solely
rely on his personal observations to reject such claims. Id. Thus “[s]ubjective complaints
can be discounted [by the ALJ], however, where inconsistencies appear in the record as
a whole.” Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003) (citing to Polaski
opinion).
2. Analysis
The claimant argues that the ALJ’s determination of claimant’s credibility was
not supported by “good reasons” or “substantial evidence,” and that the ALJ’s analysis
“lacked the required detail.” Doc. 11 at 21. Claimant cites to the ALJ’s decision in the
administrative record from page 15 to page 17. Id. Specifically, claimant argues that
the ALJ failed to properly analyze claimant’s subjective complaints about the significant
limitations in his daily activities resulting from both his ankle impairment and his visual
limitations. Doc. 11 at 21–24. Further, claimant argues that the only Polaski factor that
the ALJ analyzed in detail was claimant’s daily activities, which the ALJ allegedly
misanalysed. Id.
At the hearing, the ALJ found that “claimant’s allegations regarding the intensity,
persistence, and limiting effects of his impairments are generally credible; however, to
the extent his allegations are credible, they do not support a finding that he is “disabled”
within the meaning of the Social Security Act.” AR 17.
The court begins its review of claimant’s subjective complaints at issue. The ALJ
was required to consider all evidence related to (1) claimant’s daily activities; (2)
25
claimant’s duration, frequency, and intensity of his pain; (3) any precipitating and
aggravating factors; (4) dosage, effectiveness, and side effects of claimant’s medication;
and (5) claimant’s functional restrictions. Polaski, 739 F.2d at 1322. The court again
notes that “[i]f an ALJ explicitly discredits the claimant’s testimony and gives good
reason for doing so, we will normally defer to the ALJ’s credibility determination.”
Renstrom, 680 F.3d at 1065 (internal citation and quotation omitted). The court now
turns to review the record and the ALJ’s decision with the following yardstick in mind
that “[claimant’s] credibility is primarily a matter for the ALJ to decide.” Edwards, 314
F.3d at 966 (citing to Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001)).
In making his disability determination, the ALJ considered multiple factors to
evaluate claimant’s subjective complaints in regards to claimant’s (1) congenital ankle
impairment; (2) juvenile glaucoma; and (3) the combined effect of claimant’s obesity
upon both his ankle and vision. Regarding claimant’s congenital ankle impairment, the
ALJ considered claimant’s subjective complaints of pain (see AR 258 [People’s Clinic of
Butler City], 267 [University of Iowa Hospital and Clinics]), medical history including
doctor visits related to claimant’s ankle (see AR 258, 267, 314, 338, 503, 507, 538),
ankle x-rays (see AR 271), medication management (see AR 258, 298, 332 [ibuprofen,
raproxen, tadalafil, fentanyl]), surgical options available (see AR 267 [ankle
arthroplasty]), recommended surgical revisions (see AR 267, 277, 536 [open ankle fusion
after undergoing a medial malleolar left osteotomy, revision using hindfoot nail with bone
graft from Synthes Reamer/Irrigator]), surgeries performed (see AR 296 [left foot
percutaneous osteotomy of the calcaneus tuberosity, ankle and subtalar joint arthrodesis,
and dorsal opening wedge osteotomy of the medial cuneiform by Dr. Phisitkul on
11/2/11]), externally applied devices used (see AR 333, 503, 507 [ankle-foot orthosis,
weightbearing total contact casts, weightbearing AFO]), and unsatisfactory surgical
results (see AR 325 [loosening of hardware post left foot reconstruction caused swelling
26
and foot pain]). See generally AR 16. After a thorough analysis of the record, the ALJ
concluded that although claimant’s congenital ankle impairment caused him longstanding
discomfort, claimant remains available to perform sedentary work. AR 16.
Regarding claimant’s juvenile glaucoma, the ALJ considered claimant’s
longstanding juvenile glaucoma diagnosis (see AR 263 [worse on left eye than right eye]);
the legally blind status of his left eye (see AR 301, 302 [left eye vision declined in late
2011 likely due to progressive nerve fiber loss; lost central acuity in left eye]); cataracts
(see AR 301 [in both eyes]); medication management (see AR 263, 309, 556 [Cosopt OU
prior to October 2012, Brimonidine OS, Tafluprost OU]); doctor visits related to
claimant’s vision (see AR 309, 438, 572, 556 [on February 12, 2013, Dr. Alward wrote
“glaucoma is stable. The intraocular pressures are within the target range. The optic
nerves are stable and without evidence of hemorrhage. The visual fields are stable.”]);
surgical options available (see AR 302 [cyclophotocoagulation for left eye]); surgeries
performed (see AR 572, 573 [on October 24, 2012,18 claimant underwent a
phacoemulsification to remove a cataract from his right eye, intraocular lens implant on
his right eye, and a cyclophotocoagulation (laser treatment for glaucoma to reduce
pressure) on his left eye]); and activities claimant reported being able to perform (see AR
200, 270, 323, 510, 36, 42, 43, 47, 35, 36, 44 [can pay bills, use a checkbook, visual
exam by doctor on April 28, 2011, shows claimant could “read questions from our forms
or newspaper,” and at the hearing on August 28, 2013, claimant testified to watching
movies in the theatre, watching television at home on 46 inch screen, driving in town at
35 miles per hour or less during the daytime, occasionally driving kids to the park,
18
Court notes that ALJ had misidentified the date of claimant’s eye procedures. They were
performed in October 2012, and not in March 2012. See AR 572–73. Note that this minor error
does not undermine the evidence supporting the ALJ’s decision to deny benefits.
27
watching his daughter at her volleyball games, although several times he had difficulty
picking her out of the group, doing dishes, using his laptop and computer at home where
he increases the font size, and having his wife fill out forms for him]). Although not
explicitly mentioned in the ALJ’s written decision, the court notes that the ALJ heard and
considered claimant’s in-person testimony at the disability hearing where claimant
testified that his right eye’s near vision declined after his October 2012 cataract surgery
and that the doctor was not happy with the results. AR 43.19 Specifically, claimant said
“since my cataract surgery, my near vision has really deteriorated . . . . They did the
surgery to improve my vision and it made it worse . . . . But he [the eye doctor] said
that he wasn’t happy with the results.” Id. After a thorough analysis of the record, the
ALJ concluded that although claimant has juvenile glaucoma, claimant retained the ability
to “frequently use near visual acuity.” AR 16.
Regarding claimant’s obesity, the ALJ considered that claimant is 6’3” tall and
weighs 240 pounds and has a BMI of 30.0 (30.0 and above is obese). AR 184, 17. The
ALJ considered the effect claimant’s obesity had in combination with his juvenile
glaucoma and congenital ankle impairment. AR 16–17.
The court notes that the new evidence by Dr. Alward does not undermine the
ALJ’s credibility determination. Using the touchstone that the ALJ need not methodically
discuss every Polaski factor, the court finds, given the above extensive review of the
19
The court carefully read the transcript from the hearing. Although, the transcript does not
comprise the ALJ’s conclusive fact determinations and explicit findings, the transcript shows the
court the ALJ’s thoroughness in hearing all of the claimant’s claims (including claimant’s claim
of worsening near vision in his right eye after his October 2012 cataract surgery). Having heard
all of claimant’s claims, the ALJ nonetheless determined that claimant was able to use frequent
near visual acuity on his right eye.
28
record by the ALJ, the ALJ’s credibility determination was supported by substantial
evidence on the record as whole. Lowe, 226 F.3d at 972.
The court also now addresses additional arguments on the issue of credibility by
both the claimant and the defendant. Claimant cites to Rainey v. Department of Health
and Human Services, 48 F.3d 292, 293 (8th Cir. 1995), for the assertion that the ALJ
must explain how activities of daily living are inconsistent with claimant’s allegations of
disabling symptoms. Doc. 13 at 4. Claimant argues that the ALJ failed to explain how
his daily activities (e.g., playing cards, attending church and sporting events, doing some
household chores like dishes, getting children ready for school) contradict claimant’s
assertion that he could not “frequently use near visual acuity.” Doc. 13 at 4; see Doc.
12 at 7–8. The court notes that Rainey was subsequently distinguished by the Eighth
Circuit Court of Appeals in Edwards v. Barnhart, 314 F.3d at 966–67 (stating that the
ALJ did explain the inconsistencies between claimant’s activities and their subjective
complaints when ALJ stated: “[claimant’s activities] necessitate[] the ability to do a
number of task and suggest[] a greater physical and mental capacity than asserted” and
further noted there was weak objective medical evidence for claimant’s functional
limitations.”). Such is the case here. After thoroughly reviewing the evidence, the ALJ
explained that:
Although the medical evidence supports a finding that the
claimant experiences a bothersome level of leg pain, he was
nevertheless able to perform sedentary work despite his
ailment. Additionally, the record does not document the
claimant’s ankle impairment resulting in motor, sensory,
reflex, or strength deficits consistent with an inability to
function within the limitations described above . . . .
Although the claimant has juvenile glaucoma, he retains the
ability to frequently use near visual acuity . . . . Despite his
deceased vision, the claimant reported being able to perform
a variety of tasks consistent with an ability to work within the
29
visual and environmental limitations described above. For
example, he can read questions on printed forms and
newspapers, writes checks, watches television, and drives for
short distances . . . . Accordingly, the undersigned [the ALJ]
has considered the combined effects of the claimant’s obesity
with the claimant’s other impairments when reaching the
findings herein. After a careful review of the record, the
undersigned finds that the claimant’s allegations regarding the
intensity, persistence, and limiting effects of his impairments
are generally credible; however, to the extent his allegations
are credible, they do not support a finding that he is
“disabled” within the meaning of the Social Security Act.
AR 16–17. The court finds that the above-quoted statements do constitute an adequate
explanation by the ALJ as envisioned in Edwards. Thus, the ALJ did explain how
claimant’s daily activities are inconsistent with finding that claimant is “disabled” under
the Social Security Act.
Defendant points out that claimant’s return to work (which the ALJ noted) was
inconsistent with claimant’s claims of disability and cites to Harris v. Barnhart, 356 F.3d
926, 930 (8th Cir. 2004) (stating that part-time work may demonstrate claimant’s ability
to perform gainful employment). The court finds the facts here distinguishable from
those in Harris. In Harris, the Eighth Circuit Court of Appeals found that the ALJ
properly rejected claimant Harris’ subjective complaints of debilitating headaches in
determining her RFC when claimant worked for 24 hours per week during the year. Id.
at 930. Here, claimant unsuccessfully attempted to return to his fulltime work. AR 12,
16. From January to March 2012, claimant returned to his work (subject to temporary,
special conditions of sedentary level fulltime). AR 16. In March 2012, when claimant
returned to his normal, pre-surgery routine at work (standing for over eight hours per
day), he reported that he stopped working due to leg pain. Id. The ALJ found that
claimant had not engaged in substantial gainful activity since November 1, 2011; the ALJ
30
noted that claimant worked after the alleged disability onset date but “that work activity
was an unsuccessful work attempt.” AR 12. Thus here, unlike in Harris, claimant was
not working part-time on the side but rather attempted, unsuccessfully, to return to his
fulltime employment. The court rejects defendant’s argument here and finds that this
consideration of claimant’s failed attempt to return to work actually weighs in favor of
claimant’s disability claim. Yet, despite this consideration, the court still finds there is
substantial evidence on the record as a whole to not disturb the ALJ’s decision to deny
disability here. The court notes that it must exercise a deferential stance to the ALJ’s
credibility findings and apply the applicable legal standards.
C. Claimant Argues that the ALJ Erred as a Matter of Law in Relying on the
VE’s Response to an Incomplete Hypothetical Question
The claimant alleges that the second hypothetical question asked by the ALJ to the
VE (and the ultimate hypothetical relied on by the ALJ) did not fully describe claimant’s
visual limitations. Doc. 11 at 24.
1. Applicable Standards
The Eighth Circuit Court of Appeals succinctly stated that “[t]estimony based on
hypothetical questions that do not encompass all relevant impairments cannot constitute
substantial evidence to support the ALJ’s decision. Hypothetical questions should set
forth impairments supported by substantial evidence on the record and accepted as true
and capture the concrete consequences of those impairments.” Jones, 619 F.3d at 972
(internal quotation and citation omitted).
Yet, the court notes that “[t]he ALJ’s
hypothetical question to the vocational expert needs to include only those impairments
that the ALJ finds are substantially supported by the record as a whole.” Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (internal quotation and citation omitted).
31
2. Analysis
Since the specificity of the ALJ’s hypothetical posed to the VE is being contested,
the court examines its exact language. The court summarizes the ALJ’s hypothetical
question, asking the VE if jobs for such a person exist, as follows:
[One] who has the past relevant work as we modified it during
the hearing, on 18E, and ask you [the VE] to assume this
worker has some functional limits which assume that he’s
limited to performing sedentary work as that term is defined
in the DOT. This worker is able to occasionally stoop,
crouch, kneel and crawl but cannot climb ladders, ropes or
scaffolds . . . . In terms of a walking surface, obviously one
needs to walk a little bit on the job, he needs a surface that’s
not uneven so I’m just going to say a typical indoor, carpeted,
tile, wood floor, concrete something like that . . . [and such]
a person could frequently use near acuity [ALJ cites to the
fact that Freerks testified at the hearing to being able to write
checks and drive in the daylight] with no limits other than lack
of peripheral vision and a lack of depth perception and could
read and handle small objects.
AR 48–50. In response to this hypothetical question, the VE listed three jobs that such
a person described in the hypothetical could perform. She listed (1) unskilled order clerk;
(2) charge account clerk; and (3) call out operator. AR 50–51. These jobs exist in
significant numbers in the nation and in Iowa. AR 50–51.
This hypothetical question is supported by substantial evidence on the record.
Here, the ALJ’s hypothetical question included all of claimant’s several limitations found
to exist by the ALJ and set forth in his description of claimant’s RFC. Based on the
court’s conclusion that the ALJ’s findings of claimant’s severe visual limitations was
supported by substantial evidence on the record as a whole, the court finds the
32
hypothetical question proper. And thus, the VE’s reply is further substantial evidence
supporting the ALJ’s decision to deny claimant’s disability benefits. Again, during the
hearing, the claimant testified that he could (a) write checks (even though he said this
was a struggle); (b) drive in town during the daylight at 35 mph or less; (c) occasionally
drive his children to the park; (d) use his laptop and home computer, although he has to
increase the font size; (e) watch his 46 inch television; (f) go to the movies with his
family. AR. 35–42, 47. Such testimony provides substantial evidence, in addition to
the concurring medical opinions on record, that claimant could “frequently use near
acuity” even after his October 2012 cataract surgery. Thus, the ALJ properly posed a
hypothetical question to the VE here, which embodied all of the severe impairments the
ALJ determined from the record. The ALJ was justified in relying on the VE’s response
to this hypothetical.
VI. CONCLUSION
The court appreciates the fact that claimant had severe impairments that
unfortunately caused him pain. After a thorough review of the entire record, the court
concludes that the ALJ’s decision to deny claimant’s disability benefits is supported by
substantial evidence on the record as a whole. Accordingly, the court affirms the
decision of the ALJ. Judgment shall be entered in favor of the Commissioner and against
claimant.
IT IS SO ORDERED this 31st day of March, 2016.
__________________________________
C.J. Williams
United States Magistrate Judge
Northern District of Iowa
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