Schmidt v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS re 2 Complaint filed by Tammy Joanne Schmidt recommending the Court reverse the Commissioner's determination that claimant was not disabled and remand this case for further proceedings consistent with this Report and Recommendation. Objections to R&R due by 2/6/2017. Signed by Magistrate Judge CJ Williams on 1/23/2017. (pac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
TAMMY JOANNE SCHMIDT,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
REPORT AND RECOMMENDATION
The claimant, Tammy Joanne Schmidt (claimant), seeks judicial review of a final
decision of the Commissioner of Social Security (the Commissioner) denying her
application for disability insurance benefits (DIB) under Title II of the Social Security
Act, 42 U.S.C. § 401 et seq. (Act). Claimant contends that the Administrative Law
Judge (ALJ) erred in determining she was not disabled.
For the reasons that follow, I recommend the District Court reverse the
Commissioner’s decision and remand the case for further proceedings.
Claimant filed her application for DIB on March 25, 2013, alleging disability
beginning February 11, 2013. (AR 181-82).1 She subsequently amended her alleged
disability onset date to March 8, 2013. (AR 57). In her DIB application, claimant alleged
disability due to asthma, migraines, auto-immune disease, arthritis, borderline
“AR” refers to the administrative record below.
osteoporosis, allergies, Clostridium difficile, high blood pressure, Graves’ disease, acid
reflux, and hypothyroidism. (AR 222).
Claimant was born March 9, 1958, was 56 years old at the time of the ALJ’s
decision, and was 54 years old at the time of the alleged onset of her disability. (AR 23,
34-35, 218). Claimant completed high school and had past relevant work experience as
a cashier/customer service clerk. (AR 36-37, 223, 289).
On May 14, 2013, the Commissioner denied claimant’s application, and on August
9, 2013, denied her claim upon reconsideration. (AR 14). On September 24, 2014, ALJ
Jo Ann L. Draper held a hearing at which claimant and a vocational expert testified. (AR
29-60). On November 17, 2014, the ALJ found claimant was not disabled. (AR 14-23).
The Appeals Council denied claimant’s request for review. (AR 1). The ALJ’s decision,
thus, became the final decision of the Commissioner. Sims v. Apfel, 530 U.S. 103, 107
On March 11, 2016, claimant filed a complaint in this Court. Doc. 2. The parties
have briefed the issues, and on September 30, 2016, the Honorable Leonard T. Strand,
United States District Court Judge, referred this case to me for a Report and
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
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An individual has a
disability when, due to his/her physical or mental impairments, he/she “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). 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.
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
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. “Substantial” work activity
involves significant mental or physical activities. “Gainful” activity is work done for
pay or profit, even if the claimant does not ultimately receive pay or profit.
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. An impairment is
not severe if it does not significantly limit a claimant’s physical or mental ability to
perform basic work activities. Kirby, 500 F.3d at 707.
The ability to do basic work activities means having the ability and aptitude
necessary to perform most jobs. 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, co-workers, and usual work situations; and (6) dealing with
changes in a routine work setting. 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.
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/her past relevant
work. If the claimant can still perform past relevant work, then the claimant is considered
not disabled. Past relevant work is any work the claimant has done within the past 15
years of his/her application that was substantial gainful activity and lasted long enough
for the claimant to learn how to do it. A claimant’s “RFC is a medical question defined
wholly in terms of the claimant’s physical ability to perform exertional tasks or, in other
words, what the claimant can still do despite his or her physical or mental limitations.”
Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks and
citations omitted). The RFC is based on all relevant medical and other evidence. The
claimant is responsible for providing the evidence the Commissioner will use to determine
the RFC. If a claimant retains enough RFC to perform past relevant work, then the
claimant is not disabled.
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 is other work the claimant can do given the claimant’s RFC, age, education,
and work experience. See Bladow v. Apfel, 205 F.3d 356, 358 n.5 (8th Cir. 2000). 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). If the
claimant can make the adjustment, then the Commissioner will find the claimant is not
disabled. 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. 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.
THE ALJ’S FINDINGS
The ALJ engaged in the five-step sequential analysis outlined above, as reflected
in her written decision.
At Step One, the ALJ found claimant had not been engaged in substantial gainful
activity since March 8, 2013. (AR 16).
At Step Two, the ALJ determined claimant had the following severe impairments:
“asthma, degenerative disc disease, status post remote left total knee replacement, and
multiple right shoulder rotator cuff tears with November 2013 arthroscopic repair.” Id.
The ALJ found claimant had four other physical impairments which the ALJ deemed not
severe: borderline osteoporosis, hypothyroidism, Graves’ disease, and a visual
impairment. (AR 16). The ALJ also found claimant’s mental impairment and alleged
migraine headaches are not medically determinable impairments because there was no
sufficient medical evidence supporting a finding that claimant suffered from these
impairments. (AR 17).
At Step Three, the ALJ concluded that claimant did not have an impairment or
combination of impairments that met or medically equaled in severity one of the listed
impairments. (AR 17).
At Step Four, the ALJ determined claimant’s RFC. The ALJ found that “claimant
has the residual functional capacity to perform light work,” but with certain restrictions:
She can lift and carry 20 pounds occasionally and ten pounds frequently;
can stand or walk for six hours and sit for six hours per day; can never
climb ladders, ropes, or scaffolds, but can otherwise occasionally climb;
can occasionally balance, stoop, kneel, crouch, crawl, and reach overhead
with her right upper extremity; can tolerate occasional exposure to extreme
cold and humidity; and cannot tolerate exposure to pulmonary irritants,
such as fumes, odors, dusts, or gases.
Based on this RFC assessment, and still at Step Four, the ALJ determined claimant
was capable of performing past relevant work as a cashier and as a customer service
clerk. (AR 22). The ALJ concluded, therefore, that claimant was not disabled. (AR
23). Accordingly, the ALJ did not reach Step Five to determine if there were other jobs
in significant numbers in the local and national economy that the claimant could perform.
THE SUBSTANTIAL EVIDENCE STANDARD
A court must affirm the Commissioner’s decision “if the ALJ’s decision is
supported by substantial evidence in the record as a whole.” Wright v. Colvin, 789 F.3d
847, 852 (8th Cir. 2015) (quoting Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008));
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
it as adequate to support a decision.” Wright, 789 F.3d at 852 (quoting Juszczyk, 542
F.3d at 631).
The Eighth Circuit Court of Appeals has explained the standard as
“something less than the weight of the evidence and 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
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.
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) (quoting 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 “simply
because some evidence may support the opposite conclusion.” Perkins v. Astrue, 648
F.3d 892, 897 (8th Cir. 2011) (internal quotation marks and citation omitted). See also
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)).
Claimant describes the two ways in which she alleges the ALJ erred as follows:
Substantial evidence does not support the ALJ’s decision that
claimant is able to perform substantial gainful activity including past
work. (Doc. 13, at 5-22).
The ALJ committed error by not giving appropriate weight to the
opinions of claimant’s treating physicians. (Doc. 13, at 22-24).
In examining claimant’s arguments, however, I find that she has really raised four
issues. Specifically, claimant alleges the ALJ: (1) failed to give proper weight to opinions
of claimant’s treating physicians, especially as compared to the weight given to opinions
of non-examining consultative physicians (AR 7-14; 22-24); (2) improperly evaluated
claimant’s credibility (AR 14-19); (3) relied upon a flawed opinion by the vocational
expert (AR 19-21); and (4) improperly determined claimant’s RFC with regard to her
physical impairments (AR 21).
Accordingly, I have organized this Report and
Recommendation by addressing each of these issues, all of which fall under claimant’s
overall argument that substantial evidence does not support the ALJ’s decision.
A. Weight Given to Medical Opinions
Claimant argues that the ALJ gave insufficient weight to the opinions of her
treating physician and gave too much weight to non-examining consultative agency
physicians. Claimant argues that substantial evidence in the record as a whole does not
support the ALJ’s weighing of these medical opinions, and therefore, does not support
The ALJ gave “significant weight” to the opinions of non-examining state agency
medical consultants Donald Shumate, D.O., and Matthew Byrnes, D.O., finding their
opinions were reliable because they are familiar with the disability determination process
and based their opinions on comprehensive reviews of the record. (AR 21). The ALJ
also gave significant weight to the opinion of treating source Brandt Riley, D.O. Id. The
ALJ gave little weight to treating source Gary Levinson,2 M.D., because his opinions
were “not supported by his own treatment notes” and his opinion that claimant is disabled
and unable to return to her prior work is not a medical opinion. Id. The ALJ gave little
weight to a statement by Jamie E. Brantner because “she is not an acceptable medical
source” and “her assessment [was] not reasonably supported by the findings of a
contemporaneous examination.” Id. The ALJ gave no weight to Marcia E. Ring, Ph.D.,
because there were no treatment records in the claim file establishing a medically
determinable mental impairment.
Finally, the ALJ gave little weight to a
recommendation by Carrie Lankin that claimant avoid going up and down stairs because
The ALJ misspelled his name as “Levison.” (AR 21).
she was not an acceptable medical source and there was no evidence claimant’s knee pain
persisted. (AR 22).3
Claimant alleges that the ALJ erred in failing to give Dr. Levinson’s opinion great
weight, if not controlling weight. (AR 22-23). Dr. Levinson is a pulmonary specialist
who treated claimant since 2005. (AR 37, 641). Dr. Levinson clearly qualifies as a
treating source. See Randolph v. Barnhart, 386 F.3d 835, 840 (8th Cir.2004) (noting
that treating source status is typically reserved for physicians who examine a claimant
on more than three occasions); 20 C.F.R. § 404.1502 (defining treating sources as
In evaluating the medical opinion evidence, an ALJ must first determine whether
any treating-source opinion is entitled to controlling weight. 20 C.F.R. § 404.1527(c).
A treating source’s medical opinion is entitled to controlling weight if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with . . . other substantial evidence.” 20 C.F.R. § 404.1527(c)(2). In
evaluating medical opinions, “a treating physician’s opinion should not ordinarily be
disregarded and is entitled to substantial weight.” Ghant v. Bowen, 930 F.2d 633, 639
(8th Cir. 1991). An ALJ must determine whether a treating opinion is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the case record when evaluating a
treating physician’s opinion as to the nature and severity of a claim of disability. If so,
the ALJ must give it “controlling weight.” 20 C.F.R. § 404.1527(c)(2); see Papesh v.
Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015); Reed v. Barnhart, 399 F.3d 917, 920 (8th
This recommendation is contained in a two-page report signed both by Carrie Lankin, a nurse,
and Dr. Emil Li. Dr. Li is an acceptable medical source. As this opinion is not relevant to the
issues in dispute before the Court, the ALJ’s mistake here is immaterial.
Cir. 2005). The record must be evaluated as a whole to determine whether the treating
physician’s opinion should control. Tilley v. Astrue, 580 F.3d 675, 679-80; Reed, 399
F.3d at 920.
If a treating-source opinion is not entitled to controlling weight, then the opinion
should be weighed along with the other medical-opinion evidence pursuant to the criteria
set forth in 20 C.F.R. § 404.1527(c)(2).
Relevant factors include:
whether the expert examined the claimant;
whether and to what extent the expert treated the claimant;
whether the opinion relies upon probative evidence and provides a
the consistency of the opinion with the record as a whole;
the specialization, if any, of the medical source; and
any other relevant considerations, including the source’s familiarity with
the Commissioner’s standards and the extent to which the source is familiar
with the case record.
20 C.F.R. § 404.1527(c)(1)-(6). Although an ALJ’s analysis must follow the controlling
legal standards, “[i]t is the function of the [Commissioner] to weigh conflicting evidence
and to resolve disagreements among physicians.” Cline v. Colvin, 771 F.3d 1098, 1103
(8th Cir. 2014) (second alteration in original and citation omitted); accord Heino v.
Astrue, 578 F.3d 873, 879-80 (8th Cir. 2009). Furthermore, “[t]he interpretation of
physicians’ findings is a factual matter left to the ALJ’s authority.” Mabry v. Colvin,
815 F.3d 386, 391 (8th Cir. 2016). “Ultimately, the ALJ must ‘give good reasons’ to
explain the weight given the treating physician’s opinion.” Anderson v. Astrue, 696 F.3d
790, 793 (8th Cir. 2012) (citing 20 C.F.R. § 404.1527(c)(2)). In contrast to the opinion
of a treating physician, “[t]he opinion of a consulting physician who examines a claimant
once or not at all does not generally constitute substantial evidence.” Singh v. Apfel, 222
F.3d 448, 452 (8th Cir. 2000) (alteration in original and citation omitted).
The ALJ afforded little weight to Dr. Levinson’s opinions because the ALJ found
Dr. Levinson’s treatment notes did not support his opinions. Specifically, the ALJ found
Dr. Levinson’s “assertion that the claimant has uncontrolled asthma that is of such
seriousness that she is essentially homebound” inconsistent with treatment notes because
“she has not presented on exam with chronic respiratory abnormalities.” (AR 21). The
ALJ noted that “claimant’s condition was asymptomatic during the overwhelming
majority of appointments she had with Dr. Levison [sic], during which she necessary
[sic] ventured into public.”
Finally, the ALJ concluded that Dr. Levinson’s
statements that claimant is disabled and unable to return to her prior work as not deserving
of weight because they are not medical opinions. Id.
Claimant argues the ALJ erred here because the ALJ failed to account for the
improvement in claimant’s condition that occurred only after Dr. Levinson told claimant
she should quit her job and stay at home to avoid airborne irritants she encountered at
work. The record shows that claimant’s condition worsened in 2011-2012, during which
time Dr. Levinson prescribed increasing dosages of steroids and other medications which
carried adverse side effects and risks. (AR 38-40, 402-441, 501, 509, 642). During
2011 and 2012, claimant took many hours of sick leave because she had problems
breathing. (AR 40-41, 260). Finally, Dr. Levinson advised claimant that she should quit
her job in order to avoid exposure to irritants. (AR 580). Since leaving employment,
claimant remained largely housebound, limiting her exposure to irritants. (AR 42, 567,
570). As a result, her condition improved. (AR 567).
Claimant argues that the ALJ’s “interpretation of the medical records was severely
flawed,” therefore, because the ALJ focused on records after claimant quit her job and
thereby limited her exposure to irritants. (Doc. 13, at 12). I agree that the medical
records certainly could be, and probably should be, interpreted in the manner claimant
suggests. The ALJ did not address the change in claimant’s symptoms after she left
employment and her daily exposure to irritants.
The ALJ’s notation that claimant
obviously went outside to attend her doctor’s appointments reflects poor reasoning; there
is an obvious, significant difference between the claimant’s relatively brief exposure to
irritants when attending a doctor’s appointment and the exposure she would have working
daily in an environment where she interacted with customers. Therefore, I find the ALJ
did not provide good reasons for discounting the weight afforded to Dr. Levinson based
on the medical records.
Moreover, the degree to which an opinion is consistent with an interpretation of
the medical records is only one factor an ALJ should consider in determining the weight
to afford a treating physician. The remaining factors, identified above, all militate in
affording Dr. Levinson’s opinion greater weight. Dr. Levinson examined claimant and
treated her for years. Dr. Levinson’s opinion was based upon probative evidence and a
persuasive rationale. Dr. Levinson was a pulmonary specialist who showed familiarity
with the Commissioner’s standards. “Greater weight is generally given to the opinion of
a specialist about medical issues in the area of specialty, than to the opinion of a nonspecialist.” Thomas v. Barnhart, 130 Fed. App’x 62, 64 (8th Cir. 2005) (unpublished
per curiam) (citing 20 C.F.R. § 404.1527(d)(5); Hinchey v. Shalala, 29 F.3d 428, 432
(8th Cir. 1994)); see also Qualls v. Apfel, 158 F.3d 425, 428 (8th Cir. 1998) (“More
importantly, although a treating physician’s opinion is considered to be significant,
specialists’ opinions are generally afforded more weight.”). There is no indication in the
ALJ’s decision that she afforded Dr. Levinson’s opinion any greater weight, despite his
clear specialty in the very area of medicine at issue.
The Commissioner’s brief fails to address any of these issues.
Commissioner’s brief addresses only Dr. Levinson’s conclusion that claimant was
disabled and unable to work. (Doc. 14, at 13). The Commissioner correctly points out
that whether the claimant is disabled is not a medical opinion and invades the
Commissioner’s province. House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (“A
treating physician’s opinion that a claimant is disabled or cannot be gainfully employed
gets no deference because it invades the province of the Commissioner to make the
ultimate disability determination.”). Thus, the ALJ did not err in disregarding this
portion of Dr. Levinson’s opinion. It does not, however, justify the ALJ affording little
weight to the opinion of the pulmonary specialist who treated claimant for years, and
affording great weight, instead, to non-examining state consultative physicians.
Accordingly, I find that the ALJ erred in affording Dr. Levinson’s opinion little
weight and that the ALJ should have afforded his opinion greater weight.
The ALJ’s Credibility Determination
The ALJ found claimant was not a credible source regarding the intensity,
persistence, and functionally limiting effects of her impairments. (AR 19). In assessing
claimant’s credibility, the ALJ referenced Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
Cir. 1984). (AR 18). In Polaski, the Eighth Circuit Court of Appeals identified seven
factors ALJs must consider in assessing a claimant’s credibility. Those factors include:
(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. An ALJ
“need not explicitly discuss each Polaski factor.” Buckner v. Apfel, 646 F.3d 549, 558
(8th Cir. 2011) (internal quotation marks and citation omitted). Rather, a court should
“defer to the ALJ’s credibility finding if the ALJ ‘explicitly discredits a claimant’s
testimony and gives a good reason for doing so.’” Id. (quoting Wildman v. Astrue, 596
F.3d 959, 968 (8th Cir. 2010)). The question here is whether the ALJ’s credibility
determination is supported by a good reason. I find it is not.
Here, the ALJ stated she was “not persuaded by the claimant’s reportedly extreme
limitations with regard to her activities of daily living because those assertions lack
objective support and because she is a self-described ‘homemaker.’” (AR 20). It appears
the ALJ otherwise relied upon medical records from the time period after claimant quit
her job to avoid exposure to irritants to conclude that her description of her condition and
need for taking sick leave was unsupported. (AR 19-20).
When an ALJ rejects a claimant’s subjective complaints, the ALJ “must make an
express credibility determination detailing reasons for discrediting the testimony, must
set forth the inconsistencies, and must discuss the Polaski factors.” Kelley, 133 F.3d at
588. See also Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998) (“When rejecting a
claimant’s complaints of pain, the ALJ must make an express credibility determination,
must detail reasons for discrediting the testimony, must set forth the inconsistencies, and
must discuss the Polaski factors.”).
The finding on the credibility of the individual’s statements cannot be based
on an intangible or intuitive notion about an individual’s credibility. The
reasons for the credibility finding must be grounded in the evidence and
articulated in the determination or decision. It is not sufficient to make a
conclusory statement that ‘the individual’s allegations have been
considered’ or that ‘the allegations are (or are not) credible.’ It is also not
enough for the adjudicator simply to recite the factors that are described in
the regulations for evaluating symptoms. The determination or decision
must contain specific reasons for the finding on credibility, supported by
the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that
weight. This documentation is necessary in order to give the individual a
full and fair review of his or her claim, and in order to ensure a wellreasoned determination or decision.
SSR 96–7p, 1996 WL 374186 (July 2, 1996), at *4.
Only where an ALJ adequately explains his or her findings on the Polaski factors,
or the reasons for discrediting testimony in light of these factors, must a reviewing court
afford the ALJ’s credibility conclusions any deference. See Jones v. Callahan, 122 F.3d
1148, 1151 (8th Cir. 1997) (“‘We will not disturb the decision of an ALJ who seriously
considers, but for good reasons explicitly discredits, a claimant’s testimony of disabling
pain.’”) (quoting Browning, 958 F.2d at 821); see also Dixon v. Sullivan, 905 F.2d 237,
238 (8th Cir. 1990) (“If an ALJ explicitly discredits a claimant’s testimony and gives a
good reason for doing so, we will normally defer to that judgment.”).
In this case, I find the ALJ failed to provide a good reason of sufficient detail for
this Court to afford her credibility determination any deference. The ALJ did not
acknowledge or explicitly recognize the change in claimant’s functionality as shown in
the medical records between when she worked and was exposed to irritants, and when
she was no longer working and had far more limited exposure to such irritants. Although
the ALJ found claimant’s subjective “limitations with regard to her activities of daily
living” lacked objective support, nowhere in the ALJ’s decision does she discuss those
daily activities or articulate the objective support that is lacking.
Nor did the ALJ
specifically identify any inconsistencies between claimant’s subjective complaints and the
record. Ultimately, I cannot tell from the ALJ’s decision what limitations of claimant’s
daily activities the ALJ found incredible, or exactly why the ALJ found them incredible.
Nor did the ALJ mention claimant’s work history, which showed she had a long history
of steady work and significant earnings up until the time of the alleged onset of her
disability. (AR 188-202). An ALJ should give more credibility to a claimant who
demonstrates a steady work history. See O’Donnell v. Barnhart, 318 F.3d 811, 817 (8th
Cir. 2003) (noting that claimant’s 14-year work history bolstered her credibility).
Finally, the ALJ’s reference to claimant being a self-described homemaker is
singularly unhelpful without an explanation of what credibility inference the ALJ
purportedly derived from that fact. It is possible the ALJ concluded that claimant’s ability
to perform the work associated with homemaking tended to show she was not disabled.
See, e.g., Cragin v. Com’n of Soc. Sec., No. 2:12-CV-259, 2013 WL 3716537, at *6
(D. Vt. July 12, 2013) (noting that claimant’s status as a homemaker showed “she
retained significant physical functioning”); but see Hernandez v. Colvin, No. 2:15-CV268-JEM, 2016 WL 4506871, at *8 (N.D. Ind. Aug. 29, 2016) (criticizing the ALJ’s
credibility finding where the ALJ relied on a claimant’s self-description as a homemaker
to conclude she was not disabled because she could perform household chores). On the
other hand, perhaps the ALJ concluded that claimant’s self-description as a homemaker
showed that she lacked a motivation to work. See, e.g., Tanner v. Colvin, No. 4:15CV-27-FL, 2016 WL 626493, at *14 (E.D. N.C. Jan. 26, 2016) (holding that the ALJ
did not err in finding claimant’s occupation as a homemaker showed her lack of
employment was not due to disability); Nash v. Colvin, No. 14-V-3059-FVS, 2015 WL
3935265, at *5 (E.D. Wash. June 26, 2015) (holding it was not an error for ALJ to infer
claimant’s occupation as a homemaker showed she was choosing to stay home to raise
children instead of working). Thus, although an ALJ may draw a reasonable inference
from a claimant’s self-description as a homemaker, the problem here is that a reviewing
court has no clue what inference the ALJ drew to determine if it was a reasonable one.
Accordingly, I find the ALJ erred in failing to sufficiently articulate her credibility
findings to allow for meaningful review, necessitating a remand. To be sure, the ALJ
may ultimately reach the same conclusion regarding claimant’s credibility on remand,
but, if so, must provide an adequate explanation for that finding that a court may assess
its reasonableness upon review.
The Vocational Expert’s Opinion
Claimant argues that the hypothetical posed to the vocational expert was
inadequate, and therefore, the ALJ’s reliance on the vocational expert’s opinion fails to
provide substantial evidence to support her decision. (Doc. 13, at 19-22). Specifically,
claimant argues that the vocational expert “admitted that although the hypothetical said
‘no exposure to pulmonary irritants such as fumes, odors, dust or gases’ there would be
contact with such irritants” in a position as cashier/customer service representative.
(Doc. 13, at 20) (emphasis claimant’s). Further, claimant argues that the ALJ “failed to
include [claimant’s] frequent absenteeism due to her asthma.” Id.
With regard to the first of claimant’s alleged errors in the hypothetical, I do not
find that the ALJ erred. The vocational expert did testify that if claimant could not be
exposed to other irritants, such as the smell of smoke on customers’ clothes and aromatic
soaps, that claimant would not be able to return to her prior work. (AR 58-59). Claimant
bears the burden of establishing restrictions such as these. Yuckert, 482 U.S. at 146 n.5.
I cannot find on this record that the ALJ’s hypothetical was materially lacking. The
ALJ’s hypothetical question to the vocational expert contained all of the limitations the
ALJ found appropriate, and the vocational expert’s opinion, therefore, provides
substantial evidence to support the ALJ’s RFC determination. Hulsey v. Astrue, 622
F.3d 917, 922 (8th Cir. 2010). On remand, however, the ALJ may reassess whether she
should include claimant’s absenteeism in the hypothetical. The ALJ did not include that
limitation presumably because she did not give great weight to Dr. Levinson’s opinion
and did not credit claimant’s subjective testimony that she had to miss work because of
her asthma. On remand, the ALJ may determine that this limitation is warranted if she
gives Dr. Levinson’s opinion great weight and finds claimant more credible.
Claimant’s Physical Impairments and the RFC
Finally, claimant argues the ALJ erred by failing to provide in the RFC for her
physical limitations. (Doc. 13, at 21). The ALJ found claimant could perform “light
“Light work” is defined as the ability to lift up to 20 pounds
occasionally and 10 pounds frequently, and the ability to stand and walk for at least six
hours out of an eight-hour day. 20 C.F.R. §§ 404.1567(b). Claimant argues that,
although her breathing problems are the primary source of her disability, “the evidence
also establishes other physical impairments that limit [claimant’s] ability to stand for more
than 4-5 hours in a day or lift more than 10-15 pounds.” (Doc. 13, at 21). Claimant
argues that the ALJ should have limited her to sedentary work based on these physical
limitations. Id. The Commissioner completely failed to address this argument in her
Despite the Commissioner’s failure to address this issue, I find there is substantial
evidence in the record to support the ALJ’s RFC assessment regarding claimant’s physical
impairments. The ALJ conducted a thorough analysis of the medical records regarding
claimant’s physical impairments. (AR 20). This evidence demonstrates that claimant’s
physical impairments were ameliorated through treatment such that she is physically capable
of performing light work, her breathing problems aside.
For the reasons stated, I respectfully recommend the Court reverse the
Commissioner’s determination that claimant was not disabled and remand this case for
further proceedings consistent with this Report and Recommendation.
Objections to this Report and Recommendation in accordance with 28 U.S.C.
' 636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within fourteen (14) days of the
service of a copy of this Report and Recommendation. Objections must specify the parts
of the Report and Recommendation to which objections are made, as well as the parts of
the record forming the basis for the objections. See Fed. R. Civ. P. 72. Failure to object
to the Report and Recommendation waives the right to de novo review by the district
court of any portion of the Report and Recommendation as well as the right to appeal
from the findings of fact contained therein. United States v. Wise, 588 F.3d 531, 537
n.5 (8th Cir. 2009).
IT IS SO ORDERED this 23rd day of January, 2017.
Chief United States Magistrate Judge
Northern District of Iowa
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