Plum v. Commissioner of Social Security

Filing 18

MEMORANDUM Opinion and Order Accepting 16 Report and Recommendations re 3 Complaint filed by Scott D Plum. The Commissioners determination is affirmed. Judgment shall enter against Plum and in favor of the Commissioner. Signed by Chief Judge Leonard T Strand on 3/31/2017. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
SCOTT D. PLUM,
No. C16-3012-LTS
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

Defendant.
___________________________
I.

INTRODUCTION

This case is before me on a Report and Recommendation (R&R) by the Honorable
C.J. Williams, Chief United States Magistrate Judge. See Doc. No. 16. Judge Williams
recommends that I affirm the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Scott Plum’s application for Social Security disability
benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the
Social Security Act, 42 U.S.C. § 401 et seq. (Act).
Plum has filed timely objections (Doc. No. 17) to the R&R. The Commissioner
has not filed a response. The procedural history and relevant facts are set forth in the
R&R and are repeated herein only to the extent necessary.
II.
A.

APPLICABLE STANDARDS

Judicial Review of the Commissioner’s Decision
The Commissioner’s decision must be affirmed “if it is supported by substantial

evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as

to any fact, if supported by substantial evidence, shall be conclusive . . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis v. Barnhart, 353 F.3d 641, 645 (8th Cir.
1999.) The Eighth Circuit explains the standard as “something less than the weight of
the evidence and [that] allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the [Commissioner] may decide to grant
or deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30
F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
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
2

Cir. 2008)). This is true even if 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.”).
B.

Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following

standards:
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
3

Bessemer City, 470 U.S. 564, 573 74 (1985) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
III.

THE R&R

Judge Williams noted that Plum alleged disability due to seizures and memory loss
suffered in a motorcycle accident in which he fractured his skull. Doc. No. 16 at 1-2.
After setting forth the relevant facts, he reviewed the ALJ's credibility assessment,
finding as follows:
The ALJ found claimant was not a credible source regarding the
intensity, persistence, and functionally limiting effects of his impairments.
(AR 20-21). In assessing claimant’s credibility, the ALJ referenced and
considered the factors set out in Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984). (AR 17, 21-22). The ALJ considered the following
factors: (1) claimant’s daily activities; (2) the duration, intensity, and
frequency of pain; (3) the precipitating and aggravating factors; (4) the
dosage, effectiveness, and side effects of medication; (5) any functional
restrictions; (6) claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints. (AR 21) (citing SSR
96-7p1, 1996 WL 374186 (July 2, 1996)).
The ALJ examined claimant’s daily activities and found them
inconsistent with claimant’s description of the severity of his alleged
seizures and memory problems. (AR 19, 21). The ALJ found claimant
was “capable of self-care, preparing simple foods, cleaning, laundry, and
1

The Court notes that SSR 16-3p superseded SSR 96-7p on March 28, 2016. At the time of
the ALJ’s decision, however, SSR 96-7p was in effect.

4

household repairs.” (AR 22). Claimant walked, biked, fished, watched
television, played computer games, fed the dog, ironed clothes, shopped,
went to car shows, helped friends with car repairs, used the library, mowed
the yard, and went to friends’ homes, sports events, and sports bars to hang
out. (AR 16, 22, 334-38, 878-81). Claimant also maintained the unusual
hobby of collecting thousands of four-leaf clovers and laminating them, on
which he testified he spent an “inordinate” amount of time. (AR 22, 77,
319, 881). It was reasonable for the ALJ to conclude that these activities
took a degree of concentration and memory that was inconsistent with
claimant’s statement that he was unable to remember what he did the day
before the hearing. (AR 22, 44).
The ALJ also found claimant’s poor compliance with medications
and treatment damaged his credibility. (AR 18, 22, 503, 530, 727, 73032, 738). Claimant’s poor compliance was not the result of poverty as he
was receiving his medications for free. (AR 55). See Whitman v. Colvin,
762 F.3d 701, 706 (8th Cir. 2014) (noting that noncompliance medical
treatment undercuts credibility). There was also a significant gap in
claimant’s treatment because he failed to keep appointments in early 2012.
(AR 727, 730-32).
The ALJ also concluded that the record showed claimant to be
manipulative, often seeking some secondary gain. (AR 19-22). Claimant
threatened to kill himself to get into or out of facilities and exaggerated his
symptoms and got angry when things did not go his way. (AR 479-81).
In January 2010, claimant endorsed serious depression, but a therapist
observed that claimant’s affect and mood were “incongruent” with his
alleged depression. (AR 540-42). Similarly, in 2011, claimant was
hospitalized briefly for suicidal ideation but improved rapidly and
specifically requested assistance obtaining disability benefits. (AR 814,
823, 850). The ALJ properly considered this behavior and motivation in
assessing claimant’s credibility. See, e.g., Jones v. Astrue, 619 F.3d 963,
973 (8th Cir. 2010) (holding that ALJ could take into account a claimant’s
exaggeration of symptoms in assessing credibility); Eichelberger, 390 F.3d
at 589 (holding that an ALJ may consider motivation for secondary gain in
assessing credibility).
Doc. No. 16 at 8-10. Judge Williams found that the record as a whole contained
substantial evidence to support the ALJ's credibility assessment. Id. at 11. In
5

addition, Judge Williams noted that the ALJ's credibility assessment affected the
assessment of the medical opinions. Id.
Turning to the evaluation of the medical evidence, Judge Williams outlined
the ALJ's opinion as follows:
It is true that Dr. Akbar, as a psychiatrist who saw claimant on a
number of occasions between 2011 and 2014 (AR 717, 894-900, 907-08),
is “an acceptable medical source” (20 C.F.R. § 404.1513(a)). The record
does not, however, support the finding that Dr. Akbar worked as a team
with Mr. Dickinson such that Mr. Dickinson’s opinion must be elevated to
that of an acceptable medical source. The medical records simply do not
reflect that Dr. Akbar and Mr. Dickinson coordinated treatment of
claimant, although they worked in the same facility. Mr. Dickinson’s notes
did not refer to Dr. Akbar’s participation in treatment other than to note
Dr. Akbar’s diagnosis. (AR 888). See Lacroix, 465 F.3d at 886
(considering fact that notes of nurse practitioner and therapists did not
reference a doctor’s participation in the case as indicating the absence of a
treatment team). Dr. Akbar did review and signed a single report issued
by Mr. Dickinson. (AR 753). Dr. Akbar did not, however, reference Mr.
Dickinson other than simply noting that claimant did not appear to benefit
from Mr. Dickinson’s treatment. (AR 898-900, 907). Therefore, I do not
find sufficient indication that Dr. Akbar and Mr. Dickinson were working
as a treatment team to elevate Mr. Dickinson’s opinions to those of an
acceptable medical source. Regardless, the ALJ considered the opinions of
Mr. Dickinson along with those of all the other medical providers.
The ALJ weighed the opinions of various medical providers,
affording some more weight than others. The ALJ afforded Dr. Akbar’s
opinions “some weight,” although he noted that “the value of Dr. Akbar’s
opinions is [sic] diminished when they are compared with his observations
and treatment notes.” (AR 20). The ALJ gave partial weight to Dr.
Akbar’s April 2014 statement regarding claimant’s mental problems and
included some of those limitations in claimant’s residual functional capacity
assessment. (AR 20, 907-14). But the ALJ concluded in other respects
that Dr. Akbar’s clinical observations were “completely at odds with the
extreme limits he identified in” his opinion. (AR 20). For example, on the
same day Dr. Akbar “reviewed” Mr. Dickinson’s opinion that claimant had
extremely limited memory, Dr. Akbar’s own records showed that
claimant’s memory was “intact.” (AR 900). An ALJ may discount the
6

weight given to opinions of treating doctors when, as here, the opinions are
inconsistent with other medical records. See Myers v. Colvin, 721 F.3d
521, 525 (8th Cir. 2013) (“We conclude that substantial evidence supports
the ALJ’s determination that [the doctor’s] opinion was inconsistent with
the treatment record and thus not entitled to controlling weight.”).
The ALJ afforded little weight to the opinions of Mr. Dickinson,
finding “the medical evidence of record simply does not support” the
limitations Mr. Dickinson endorsed. (AR 19). The ALJ also found there
was “nothing in the treatment notes from Mr. Dickenson that would provide
a factual basis for his conclusion about work absences.” Id. The ALJ also
found that claimant’s daily activities and work history were inconsistent with
the limitations that Mr. Dickinson endorsed. Id.
The ALJ similarly afforded little weight to the opinions of Dr. J.
Michael Seeley. (AR 18). The ALJ noted that Dr. Seeley relied heavily
on subjective assertions by claimant and [Rosemary] Weidler, and not on
his own observations or objective medical evidence. (AR 18, 611). The
ALJ afforded little weight to the opinions of consultative psychologist Ralph
Scott, Ph.D. (AR 19). The ALJ discounted the weight to afford the
opinions because it relied on claimant’s subjective allegations. (AR 19,
651-55). The ALJ further noted that Dr. Scott’s own notes reflected that
much of the history reported “has not been verified and is based on client
reports.” (AR 19, 655). The ALJ did give some credit to Dr. Scott’s
testing, however, which “show[ed] problems with memory,” but noted that
claimant’s memory “remains at a functional level, especially for rote
learning and visual learning.” (AR 653-54, 659).
Finally, the ALJ gave weight to the opinion of state agency medical
consultant, Beverly Westra, Ph.D., who found claimant was not disabled,
because her opinions were consistent with the other medical evidence,
including that from the UIHC. (AR 20, 656- 59). State agency
psychological consultants, like Dr. Westra, are highly qualified experts in
the evaluation of the medical issues in disability cases. SSR 96-6p, 1996
WL 374180 (July 2, 1996), at *1. Accordingly, the ALJ acted well within
his discretion in affording Dr. Westra’s opinion where, as here, that opinion
was supported by other medical evidence.

7

Doc. No. 16 at 12-14. Judge Williams found that the ALJ properly discounted
the medical opinions of Doctors Akbar, Seeley and Ralph Scott, as well as that of
Mr. Dickinson, because they each relied upon Plum’s subjective complaints which
the ALJ properly found were not credible. Id. at 14. Judge Williams noted that
Plum’s allegations of seizures were inconsistent and that Ms. Weidler’s account
of his seizures varied greatly with Plum’s inconsistent allegations. Id. at 14-15.
Additionally, Judge Williams noted that objective medical testing did not
corroborate the number or severity of seizures alleged by Plum. Id. at 15-16.
Judge Williams found that substantial evidence in the record as a whole supported
the ALJ's evaluation of the medical evidence. Id. at 17.
Judge Williams addressed the ALJ's RFC assessment as follows:
The medical records do support a finding that claimant had problems
with memory. (AR 864, 907-908). Dr. Scott was a consultative examining
psychologist. Dr. Westra noted that Dr. Scott’s clinical findings “show[ed]
problems with memory, but it remains at a functional level, especially for
rote learning and visual learning.” (AR 653- 54, 659). Dr. Westra rated
claimant’s functioning in twenty work-related areas, finding no significant
limitations in nine of those areas and only moderate limitations in the
remaining eleven. (AR 656-57). Based on Dr. Westra’s review of
claimant’s medical records, she concluded claimant could perform “simple,
repetitive, and overlearned tasks in predictable settings with minimal social
demands.” (AR 659). Dr. Westra also opined that claimant could learn
new tasks, but it might take him longer. Id. She also concluded claimant
could manage superficial contact with others. Id.
In determining claimant’s residual functional capacity, the ALJ
accounted for claimant’s memory problems by restricting claimant to
simple, routine, repetitive tasks with little interaction with others and no
independent judgment. (AR 16-17). The ALJ accounted for claimant’s
need for predictable settings with minimal social demands by restricting
him to tasks that would not require him to interact, share, or gather
information from the public. (AR 17). To account for claimant’s need for
only superficial contact with others, the ALJ indicated that claimant
requires a job that is performed independently, and that he should not be
required to coordinate his efforts with others, or organize his efforts with
8

others to achieve a task. Id. The ALJ’s residual functional capacity
determination, therefore, was consistent with the reviewing doctor’s
findings. See Buford v. Colvin, 824 F.3d 793, 797 (8th Cir. 2016) (finding
the ALJ’s residual functional capacity assessment was supported by
substantial evidence, noting that it was consistent with the limitations
identified by the reviewing consultant). With all of these limitations in
mind, the independent vocational expert testified that there were thousands
of jobs in Iowa and in the nation that claimant could still perform. (AR 2324).
Doc. No. 16 at 17-18. Judge Williams concluded that the ALJ considered all the opinions
and medical evidence in determining the RFC. Id. at 19. As such, Judge Williams found
no error in the ALJ's RFC determination, concluding that “even if some evidence may
support claimant’s assertion that he had other functional limitations, ‘the ALJ adequately
articulated his reasons for not fully crediting [claimant’s] subjective complaints.’” Id.
(citing Buford, 824 F.3d at 797).
IV.
A.

DISCUSSION

Plum’s Objections
Plum objects to Judge Williams’ findings that (1) the ALJ properly weighed the

medical evidence and properly discounted the work-related limitations offered by Dr.
Akbar and Therapist Scott Dickinson and (2) the ALJ's RFC is supported by substantial
evidence.
B.

I will review those issues de novo.

The ALJ’s RFC Assessment
Plum argues that the ALJ's RFC failed to account for work-related limitations

provided by his “treatment team,” Raja M. Akbar, M.D., and Scott Dickinson, LMHC
(licensed medical health counselor). Plum argues that these opinions were consistent
with the opinions of J. Michael Seeley, M.D., and consultative psychologist Ralph Scott,
Ph.D. However, Plum does not appear to object to Judge Williams’ finding that the ALJ
9

properly discounted the opinions of Dr. Seeley and Dr. Scott. As such I will review
those findings for clear error. Based on my de novo review of Plum’s objections, I find
no error, clear or otherwise.
Although Plum contends that Mr. Dickinson was part of his treatment team and
therefore his opinion deserves the same credence as that of Dr. Akbar’s, the record does
not support this finding. See Lacroix v. Barnhart, 465 F.3d 881, 886 (8th Cir. 2006)
(finding that the opinions of the therapists and nurse practitioners were not entitled to
“greater weight” than non-treating consultants because the record did not illustrate that
the treating doctor participated in claimant’s care provided by the therapists and nurse
practitioner). Here, Dr. Akbar endorsed one of Mr. Dickinson’s reports and later
updated the same report when replying to Plum’s attorney’s information request, making
the same findings in virtually all categories.

AR 748-53, 907.

Aside from these

instances, Dr. Akbar did not mention Mr. Dickinson’s care, other than noting that Plum
did not appear to benefit from the treatment, nor is there evidence that Dr. Akbar
participated in the care provided by Mr. Dickinson. AR 896-900. Further, as I will
explain below, Dr. Akbar contradicted Mr. Dickinson’s findings of severe impairments
in his progress notes. As such, Mr. Dickinson’s opinion is not entitled to “greater
weight.” Further, even if Mr. Dickinson and Dr. Akbar were part of a treatment team,
Mr. Dickinson’s opinion would not deserve the same weight as Dr. Akbar’s.

See

Lacroix, 465 F. 3d at 886 (citing Shontos v. Barnhart, 328 F.3d 418, 426-27 (8th Cir.
2003)). Finally, a finding that there is a treatment team does not eliminate the need to
evaluate the opinion evidence.
Mr. Dickinson. In reviewing the opinion of Scott Dickinson, LMHC, the ALJ
afforded it “little weight,” because the medical record does not support the limitations he
endorsed. AR 19. Like Judge Williams, I find that the objective medical evidence does
not support the level of severity Plum claims.

There is a complete lack of medical

evidence not based on Plum’s self-reported symptoms. AR 867-74. The absence of such
10

evidence supports the ALJ’s finding. Ultimately, of course, the claimant bears the burden
to demonstrate his disability. See Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir.
2004). EEG studies failed to register the existence of any seizures. AR 506, 867, 873.
While staying at the University of Iowa Hospitals and Clinics (UIHC), video
electroencephalography (VEEG) monitoring did not capture any seizures, despite Plum’s
claim that he experienced three to five seizures a day. AR 866-70. In March 2010, Plum
was admitted to a mental health facility for four days and staff did not record any
observations of seizures, despite Plum’s claim that during this time period he was having
daily seizures and despite the fact that he was placed under close supervision due to his
suicidal ideation. AR 479-81. Finally, neurological examinations reflected normal
findings. AR 529, 502, 507, 618, 826, 864-66. Although Mr. Dickinson found severe
limitations, Plum’s activities of daily living, the medical evidence and work history before
and after the alleged onset date do not support such severe limitations. Based on my de
novo review, I find no error. As such, Plum’s objection is overruled.
Dr. Akbar. Plum contends that the ALJ’s RFC is flawed because it failed to
include Dr. Akbar’s work-related limitations. The ALJ gave Dr. Akbar’s opinion “some
weight” but found that “the value of Dr. Akbar’s opinions is diminished when they are
compared with his observations and treatment notes.”

AR 20.

In updating Mr.

Dickinson’s “mental impairment interrogatories,” Dr. Akbar agreed with Mr.
Dickinson’s opinion that Plum would permanently experience poor memory, difficulty
thinking or concentrating, generalized persistent anxiety, suicidal ideation or attempts,
mood disturbance and that his memory was “very impaired.” AR 907-08, 748-53. This
opinion, along with the extreme limitations it accompanied, contrasts sharply with Dr.
Akbar’s report finding Plum’s memory was intact, he was fully oriented, doing well,
cooperative, more talkative and had a stable mood. AR 896. “Physician opinions that
are internally inconsistent . . . are entitled to less deference than they would receive in
the absence of inconsistencies.” Guilliams v. Barnhart, 393 F.3d 798, 803 (8th Cir.
11

2005). In addition, the ALJ's RFC took Plum’s mental limitations into account in
requiring that he only “work tasks that are simple, routine, and repetitive and which do
not require any close attention to detail or any independent judgment on the job.” AR
16. I find no error with the ALJ's RFC and the supporting evaluation of Dr. Akbar’s
opinion.
Dr. Scott. Plum contends that the ALJ failed to mention objective memory testing
conducted by Dr. Ralph Scott that supported his opinion. However, the ALJ specifically
referenced this testing. AR 19. On January 14, 2011, Dr. Scott performed a consultative
examination and administered a Wechsler Memory Scale IV test. AR 651-55. Dr. Scott
opined that Plum’s “short term memory functioning was moderately to severely impaired
and remote memory functioning moderately below age norms.” AR 651. Dr. Scott
found that Plum registered in the 25th percentile with regard to structured and rote
memory tasks, but did not score above the 9th percentile with regard to the remaining
testing. AR 654.
The ALJ noted that Dr. Scott concluded that Plum’s ability to “remember and
understand instructions and to maintain attention, concentration, and pace was marginally
fair to poor.” AR 19. The ALJ also noted that Dr. Scott found that Plum would have
difficulty maintaining part-time employment.

Id.

The ALJ discounted Dr. Scott’s

opinion because he noted that much of the history “has not been verified and is based on
client reports.” Id. The ALJ gave little weight to Dr. Scott’s opinion because it was
generally inconsistent with the record, noting that Plum’s previous employer, Myer Truck
Center, reported that he was able to work full time and would rehire him if the
opportunity arose. Id.
I find the ALJ properly discounted Dr. Scott’s opinion. Although Dr. Scott opined
that Plum would have difficulty with a part-time job, a physician's conclusion that an
applicant is “disabled” or “unable to work” addresses an issue that is reserved for the
Commissioner and therefore is not a “medical opinion.” Ellis v. Barnhart, 392 F.3d
12

988, 994 (8th Cir. 2005). As such, the ALJ was free to reject this conclusion. In
addition, the ALJ's RFC included memory limitations and Plum’s work history
contradicts Dr. Scott’s opinion. As such, I find no error.
Dr. Seeley. Plum argues that the record contains documentation of his memory
problems. Specifically, Plum cites an evaluation performed by Dr. Seeley, who issued
a statement on Plum’s behalf. AR 611-12. Dr. Seeley opined that due to Plum’s disorder,
he experienced short-term memory loss and had a difficult time maintaining a job. Id.
The ALJ noted that there was no evidence that Plum experienced a seizure or blackout at
work, despite his lack of medication during that time period, and that his previous
employer would rehire him if given the opportunity. AR 18-19. As such, the ALJ
afforded little weight to Dr. Seeley’s opinion. Dr. Seeley’s findings are based largely on
Plum’s subjective complaints and are not supported by objective medical testing. See
Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (providing that an ALJ is entitled to
give less weight to a medical source opinion where the opinion is based on a claimant's
subjective complaints rather than on objective medical evidence). Moreover, Plum does
not object to Judge Williams’ conclusion that the ALJ was entitled to find his subjective
complaints to be not entirely credible. Plum’s work history and his activities of daily
living do not support the severe limitations described in Dr. Seeley’s opinion. I find no
error with regard to the ALJ's evaluation of that opinion.
The ALJ rejected the opinions of Dr. Akbar, Mr. Dickinson, Dr. Seeley and Dr.
Scott because they were not supported by objective medical testing, the record as a whole
and were based largely on Plum’s subjective complaints. Here, Plum stopped working
at Myer Truck Center in October 2008 and alleges an onset date of November 30, 2008,
two months after he left his job. Although Plum stated he was let go from his job due to
a comment he made to a co-worker, his employer stated it was due to a lack of work.
AR 52-54, 344. In addition, Plum worked 40 hours a week changing oil in January 2010
and testified during an administrative hearing that he believed he could continue to
13

perform that job, provided he did not operate a lift. AR 79-80, 294-95. Plum also spent
time repairing friends’ cars. AR 319. Plum stated he performs all self-care, does
laundry, prepares simple meals, plays games on the computer, feeds the dog, shops with
a friend once a week for food, helps with simple housework, goes to car shows, fishes
with friends, watches TV, goes to sports bars and sporting events, and mows the yard.
AR 16, 22, 334-89, 878-81. As the ALJ noted, these activities require some amount of
memory and concentration. “The ALJ may reject the conclusions of any medical expert,
whether hired by the claimant or the government, if they are inconsistent with the record
as a whole.” Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001) (internal citations omitted)). The ALJ
was entitled to find that the opinions of Dr. Akbar, Mr. Dickinson, Dr. Seeley and Dr.
Scott were not entirely supported by the record as a whole. I find no error.
Finally, Plum contends the R&R incorrectly required objective medical evidence
supporting his seizures.

Citing the relevant listing, Plum claims there is no such

requirement. See Doc. No. 17-1 at 8-9. The listing requires “at least one detailed
description of your seizures from someone, preferably a medical professional, who has
observed at least one of your typical seizures.” 20 C.F.R. Part 404, Subpt. P, App. 1,
§ 11.00(H)(2). While it is true that the record contains statements about Plum’s seizures
from Rosemary Weidler,2 I find the ALJ properly evaluated these claims and accounted
for them in formulating the RFC. The record contains no statement from any medical
professional who observed his seizures and the ALJ properly considered and discounted
the claims presented by both Plum and Ms. Weilder due to inconsistencies with each
other and the record. AR 327, 329. The ALJ found at Step Three that Plum had a severe

2

Although the ALJ refers to Rosemary Weidler, LPN, as Plum’s “nurse advocate,” she is not
engaged in any medical care for Plum. Instead, Plum resides with Ms. Weidler and receives
some assistance from her, although on a non-medical relationship basis. As such, the ALJ was
required to evaluate Ms. Weidler’s statements in the same manner as any other third-party’s
submission.

14

seizure disorder and Plum makes no objection to the ALJ's Step Four finding that he did
not meet the listing requirement. As Judge Williams found, the objective medical testing
available did not corroborate the number or severity of Plum’s alleged seizures and
associated limitations. I find no error with the ALJ's finding. Plum’s objection is
overruled.
C.

The RFC Assessment
Plum argues that the ALJ's RFC assessment is not supported by substantial

evidence. Plum contends the RFC is flawed because it is not supported by any treating
or examining source, suggesting that the ALJ failed to fully develop the record. I
disagree.
The ALJ found that Plum had the RFC to perform a full range of work at all
exertional levels, but with the following nonexertional limitations:
He is able to work where he is not exposed to hazards such as
unprotected heights or near unguarded moving machinery. He is able to
perform work tasks that are simple, routine, and repetitive and which do
not require any close attention to detail or any independent judgment on
the job. In addition, he requires an occupation where all of the tasks
assigned to him can be performed without interaction with the public. He
could, however, be in proximity to a member of the public, but none of
the jobs tasks can require him to interact, share information, or gather
information with the public. Moreover, he requires an occupation that is
performed independently, and not be required to coordinate his efforts with
others, or organize his efforts with others to achieve a task.
AR 16-17. I find that the ALJ’s RFC determination was consistent with, and fully
accounted for, work limitations supported by substantial evidence. See Buford v.
Colvin, 824 F.3d 793, 797 (8th Cir. 2016) (finding the ALJ’s residual functional
capacity assessment was supported by substantial evidence, noting that it was consistent
with the limitations identified by the reviewing consultant).

15

The ALJ’s reliance on the state agency consultative psychologist’s opinion
provided substantial evidence for the ALJ’s RFC assessment. See Buford, 824 F.3d at
797 (finding ALJ did not have to obtain “an opinion from a treating or consultative
doctor as to Buford’s work related limitations” because “medical assessments of state
agency medical consultants as to Buford’s limitations are of record and were expressly
considered by the ALJ.”). An ALJ’s RFC findings do not need to “be supported by a
specific medical opinion.” Hensley, 829 F.3d at 932. Therefore, even if some evidence
may support claimant’s assertion that he had other functional limitations, “the ALJ
adequately articulated his reasons for not fully crediting [claimant’s] subjective
complaints.” Buford, 824 F.3d at 797. Additionally, as stated above, the ALJ properly
discounted portions of the medical evidence based on Plum’s unsupported subjective
complaints.
Finally, Plum argues that the ALJ did not review the state agency psychological
consultants’ opinions. However, the ALJ expressly referenced these opinions in his
findings and indicated that he afforded weight to them. AR 20. I note that Beverly
Westra, Ph.D., a state agency consultant, found that Plum had no significant limitations
in understanding and memory, sustained concentration and persistence, social
interaction or adaptation. AR 656-57. Dr. Westra also found that although Plum’s
memory is impaired, it “remains at a functional level, especially for rote learning and
visual learning.” AR 659.
Based on my de novo review, I find the RFC is supported by substantial evidence.
Plum’s objection is overruled.
V.

CONCLUSION

For the reasons set forth herein:
1.

Plaintiff Scott D. Plum’s objections (Doc. No. 17) to the magistrate judge’s

report and recommendation are overruled.
16

2.

Judge Williams’ Report and Recommendation (Doc. No. 16) is accepted

without modification.
3.

The Commissioner’s determination that Plum was not disabled is affirmed.

4.

Judgment shall enter against Plum and in favor of the Commissioner.

IT IS SO ORDERED.
DATED this 31st day of March, 2017.

________________________________
LEONARD T. STRAND
CHIEF UNITED STATES DISTRICT JUDGE

17