Jennings v. Commissioner of Social Security

Filing 24

REPORT AND RECOMMENDATION to Reverse and Remand re 3 Complaint filed by Vanessa K Jennings. Objections to R&R due by 8/16/2018. Signed by Chief Magistrate Judge CJ Williams on 08/02/2018. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
VANESSA K. JENNINGS,
Plaintiff,

No. 17-CV-3062-LTS

vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

REPORT AND
RECOMMENDATION

Defendant.
___________________________
Plaintiff, Vanessa K. Jennings (“claimant”), seeks judicial review of a final
decision of the Commissioner of Social Security (“the Commissioner”) denying her
applications for disability and disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-34, as well as for supplemental security income under
Title XVI of the Social Security Act, 42 U.S.C. §§ 1382-83f. Claimant contends that
the Administrative Law Judge (ALJ) who heard her claims erred in determining that
claimant was not disabled. For the following reasons, I recommend that the District
Court reverse and remand the ALJ’s decision to determine whether work exists in
significant numbers in the national economy that claimant can perform.
I.

BACKGROUND

I adopt the parties’ Joint Statement of Facts (Doc. 14) and therefore only
summarize the pertinent facts here. Claimant was born in June 1967, and was forty-four
years old on the alleged onset date of disability, and fifty years old on the date of the

ALJ’s decision. (AR 207, 209).1 Claimant has at least a high school education2 (AR
207) and previously worked as a cashier II, sales attendant, and tractor-trailer truck
driver. (Doc. 14, at 5).
On November 23, 2009, claimant filed applications for benefits under the Social
Security Act; those applications were denied administratively and, ultimately, by a federal
district court. (AR 192). On July 18, 2013, claimant filed applications for disability and
disability insurance benefits, as well as for supplemental security income, alleging an
alleged onset date of disability of March 1, 2012, for each application. (Id.). Claimant’s
applications were denied initially and on reconsideration, and claimant thereafter
requested a hearing before an ALJ. (Id.). ALJ Eric S. Basse held an administrative
hearing on April 28, 2016, at which both claimant and a vocational expert testified. (AR
219-20). The ALJ issued a decision on June 1, 2016, in which he denied claimant’s
applications for benefits. (AR 192-209). On May 30, 2017, the Appeals Council denied
review. (AR 1-4). The ALJ’s decision therefore became the final decision of the
Commissioner. See 20 C.F.R. § 416.1481.
On July 19, 2017, claimant timely filed the instant complaint in this Court. (Doc.
3). On February 13, 2018, the Court deemed this case fully submitted and ready for
decision. On June 5, 2018, the Honorable Leonard T. Strand, Chief United States
District Judge, referred this case to me for a Report and Recommendation.

1

“AR” refers to the administrative record below.

2

One assessment reflects that claimant attained an eighth grade education and subsequently
received a general equivalency diploma (“GED”). (AR 1523). This is in slight contrast to the
assertion that claimant has a high school education, but this difference is immaterial, and neither
party takes issue with the ALJ’s assessment of claimant’s education. Further, claimant testified
during the administrative hearing that she received a regular high school diploma, as opposed to
a GED. (AR 221-22).

2

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
period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An
individual has a disability when, due to her physical or mental impairments, “[she] is not
only unable to do [her] previous work but cannot, considering [her] 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.
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows the five-step sequential evaluation process
outlined in the regulations. Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled.

20 C.F.R.

§ 416.920(a)(4)(i). “Substantial” work activity involves physical or mental activities.
(Id. § 404.1572). “Gainful” activity is work done for pay or profit, even if the claimant
did not ultimately receive pay or profit. (Id.).
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and mental impairments.
Id. § 416.920(a)(4)(ii). If the impairments are not severe, then the claimant is not

3

disabled. An impairment is not severe if it does “not significantly limit [a] claimant’s
physical or mental ability to do basic work activities.” Kirby, 500 F.3d at 707.
The ability to do basic work activities means the ability and aptitude necessary to
perform most jobs. These 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. Bowen v. Yuckert, 482 U.S. 137, 141 (1987); see also 20 C.F.R. 404.1521
(2015).
Third, if the claimant has a severe impairment, then the Commissioner will
determine the medical severity of the impairment. 20 C.F.R. § 416.920(a)(4)(iii). 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. 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 her past relevant
work. 20 C.F.R. § 416.920(a)(4)(iv). If the claimant can still do her past relevant work,
then she is considered not disabled. (Id.). Past relevant work is any work the claimant
performed within the fifteen years prior to her application that was substantial gainful
activity and lasted long enough for the claimant to learn how to do it. (Id. § 416.960(b)).
“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 . . .
her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir.
2003) (internal quotation marks omitted). The RFC is based on all relevant evidence.

4

The claimant is responsible for providing the evidence the Commissioner will use to
determine the RFC. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). 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. 20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c)(2). The Commissioner must
show not only that the claimant’s RFC will allow her to make the adjustment to other
work, but also that other work exists in significant numbers in the national economy.
Eichelberger, 390 F.3d at 591. If the claimant can make the adjustment, then the
Commissioner will find the claimant not disabled. At Step Five, the Commissioner has
the responsibility of fairly and fully developing the record before making a determination
about the existence of a disability. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004).
The burden of persuasion to prove disability remains on the claimant.

Stormo v.

Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
III.

THE ALJ’S FINDINGS

The ALJ made the following findings at each step with regard to claimant’s
disability status:
At Step One, the ALJ found that claimant had not engaged in substantial gainful
activity since March 1, 2012, the alleged onset date of disability. (AR 194).
At Step Two, the ALJ found that claimant suffered from the following severe
impairments: “obesity, obstructive sleep apnea, epilepsy, major depressive disorder,
general anxiety disorder, posttraumatic stress disorder, asthma, chronic obstructive
pulmonary disease, and hearing loss.” (AR 194). The ALJ also discussed claimant’s
other alleged impairments, and found that those impairments did not meet the definition

5

of “severe” impairments under the Social Security Administration regulations. (AR 19596).
At Step Three, the ALJ found that none of claimant’s impairments met or equaled
a presumptively disabling impairment listed in the regulations. (AR 196-98).
At Step Four, the ALJ found that claimant had the RFC to perform sedentary work
with the following limitations:
She can occasionally climb ramps and stairs. She can occasionally balance,
stoop, kneel, crouch, and crawl. The claimant cannot climb ladders, ropes
and scaffolds. She must avoid concentrated exposure to pulmonary
irritants. The claimant must avoid exposure to hazards such as machinery,
heights, and open bodies of water. She cannot perform commercial driving.
The claimant cannot be exposed to more than moderate noise levels and
cannot perform work that requires communication by telephone. The
claimant is limited to simple, routine tasks with simple instructions. She
can occasionally interact with the public. She cannot work at production
rate pace.
(AR 198-99). Also at Step Four, the ALJ found that claimant was unable to perform any
past relevant work. (AR 207).
At Step Five, the ALJ found that despite claimant’s RFC, there were jobs that
existed in significant numbers in the national economy that claimant could still perform,
including document preparer and addresser. (AR 208). Therefore, the ALJ concluded
that claimant was not disabled. (AR 208-09).
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 . . ..”). “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 (internal quotation marks

6

omitted). The Eighth Circuit Court of Appeals explains the standard as “something less
than the weight of the evidence . . . [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) (citations and
internal quotation marks omitted).
In determining whether the Commissioner’s decision meets this standard, a court
“consider[s] all of the evidence that was before the ALJ, but . . . do[es] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). A court considers
both evidence that 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, “do[es] 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 “find[s] 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

7

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.”).
V.

DISCUSSION

Claimant alleges that remand is necessary for the following reasons: 1) the ALJ’s
RFC assessment is flawed because the ALJ failed to properly evaluate the work-related
limitations assessed by Drs. Nirmal Bastola, M.D., and Dan Murphy, Ph.D., and the
ALJ’s RFC assessment is not supported by substantial evidence on the record as a whole;
2) the ALJ failed to prove that other work exists in significant numbers in the national
economy that claimant is capable of performing; and 3) the Commissioner failed to
provide a complete administrative record. (Doc. 15). I will address each issue in turn.
A.

The ALJ’s RFC Assessment

Claimant first asserts that the ALJ erred with respect to the weight the ALJ
afforded to the opinions of two medical professionals: Drs. Bastola and Murphy.
i.

Dr. Bastola

Dr. Bastola was claimant’s treating physician since at least September 16, 2014.
(AR 1775). Between September 2014 and February 2016, Dr. Bastola’s office saw
claimant on nine occasions. (AR 1675, 1684, 1712, 1719, 1738, 1748, 1759, 1775, and
1805). Dr. Bastola diagnosed claimant as having chronic low back pain, depression, type
II diabetes, morbid obesity, and hypertension. (AR 2052). Dr. Bastola opined that
claimant was able to sit and stand/walk for fewer than two hours each in an eight-hour
work day. (AR 2053). Dr. Bastola also opined that claimant’s mental impairments
rendered her incapable of performing low stress work and incapable of maintaining

8

attention and concentration. (AR 2056). The ALJ afforded Dr. Bastola’s opinion little
weight. (AR 205-06).
“‘A treating physician’s opinion is given controlling weight if it is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [a claimant’s] case record.’” Halverson
v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010) (alteration in original) (internal quotation
marks omitted) (quoting Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009)); 20 C.F.R.
§ 404.1527(d)(2). “Even if the [treating physician’s] opinion is not entitled to controlling
weight, it should not ordinarily be disregarded and is entitled to substantial weight.”
Samons v. Astrue, 497 F.3d 813, 817-18 (8th Cir. 2007) (internal quotation marks
omitted). A treating physician’s opinion, however, “does not automatically control or
obviate the need to evaluate the record as a whole.” Hogan v. Apfel, 239 F.3d 958, 961
(8th Cir. 2001). “It may have ‘limited weight if it provides conclusory statements only,
or is inconsistent with the record.’” Papesh v. Colvin, 786 F.3d 1126, 1132 (8th Cir.
2015) (quoting Samons, 497 F.3d at 818). “The ALJ ‘may discount or even disregard
the opinion . . . where other medical assessments are supported by better or more
thorough medical evidence, or where a treating physician renders inconsistent opinions
that undermine the credibility of such opinions.’” Id. (omission in original) (quoting
Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015)). Ultimately, an ALJ must “give
good reasons” for the weight given to a treating physician’s opinion. 20 C.F.R. §
404.1527(c)(2).

See also Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)

(“Whether the ALJ grants a treating physician’s opinion substantial or little weight, the
regulations provide that the ALJ must ‘always give good reasons’ for the particular weight
given to a treating physician’s evaluation.”).
With respect to Dr. Bastola, claimant argues that the ALJ erred in discounting the
weight afforded to Dr. Bastola’s opinions because the opinions were offered by a treating

9

physician, were supported by substantial evidence on the record as a whole and were,
plaintiff argues, therefore entitled to at least great weight, if not controlling weight. (Doc.
15, at 4-1; AR 205). Claimant argues that the major differences between the ALJ’s RFC
assessment and Dr. Bastola’s assessment were claimant’s “ability to sit and stand/walk;
need for frequent absences; and use of her hands.” (Doc. 15, at 7). Although claimant
does not explicitly state what she believes the ALJ’s RFC assessment should have
reflected on these issues, claimant would, presumably, advocate for the same limitations
assessed by Dr. Bastola.
Claimant sets forth a great deal of evidence that purportedly supports claimant’s
position that the ALJ erroneously discredited Dr. Bastola’s opinions. (See id., at 6-18).
The opinions that the ALJ discounted, specifically, were Dr. Bastola’s opinions that
“claimant was limited to less than the full range of sedentary [work] with restrictions that
included frequent breaks and missed work. Dr. Bastola also included mental limitations
such as incapability of performing low stress work and inability to maintain attention and
concentration.”3 (AR 205). The ALJ found these opinions “excessive in light of medical
evidence of record.” (Id.).
Dr. Bastola assessed claimant with both physical limitations and mental
limitations. (AR 205-06). As I will discuss such mental limitations at length when
discussing Dr. Murphy’s opinions, I will simply note here that the medical evidence of
record was sufficient to support the ALJ’s finding that claimant could perform “simple,
routine tasks with simple instructions,” and could work, but not “at a production rate
3

It is unclear whether the ALJ attributed little weight to only Dr. Bastola’s opinion that claimant
was incapable of performing low stress work and was unable to maintain attention and
concentration, or whether the ALJ also attributed little weight to the opinion that claimant was
limited to less than the full range of sedentary work, with restrictions that included frequent
breaks and missed work. (See AR 205). In the interest of giving claimant the greatest benefit
possible, I have assumed, in arguendo, that the ALJ afforded little weight to each opinion Dr.
Bastola offered.

10

pace.” (AR 199). As for physical limitations, I find no error with respect to the ALJ’s
treatment of Dr. Bastola’s opinions.
The ALJ noted that Dr. Bastola may have relied more on claimant’s subjective
reports than on objective medical evidence in assessing claimant’s limitations. (AR 205).
Although I agree that this is a distinct possibility, the record does not show whether Dr.
Bastola actually did so. Dr. Bastola’s treatment notes list numerous reports made by
claimant to Dr. Bastola, many of which appeared in Dr. Bastola’s medical source
statement as Dr. Bastola’s own opinions. (See, e.g., AR 1748, 1765, 1775; 2052-57).
This is potentially probative on the formulation of Dr. Bastola’s opinions, but this
evidence is insufficient to conclusively prove whether Dr. Bastola’s opinions were
independently corroborated.
The opinions at issue were offered on a form that was largely a checkbox form.
Although part of the form did require Dr. Bastola to write in responses—and Dr. Bastola
did so—the relevant opinions were offered almost purely by checking boxes.

For

instance, when asked if claimant would “need a job that would permit shifting positions
at will from sitting, standing or walking,” Dr. Bastola checked the box for “Yes,” but
offered no explanation as to why such a job would be necessary. (AR 2054). In response
to this same question, Dr. Bastola wrote “I don’t see how she can work 8 hrs a day.”
(Id.). I recognize that such a deviation from the “checkbox style” is probative on the
amount of weight to give to the opinions contained on the form. Dr. Bastola’s statement
that he could not see how claimant could work eight hours in a day, however, is
conclusory and does not lend itself to any beneficial analysis. As a result, it is of little
benefit. Further, Dr. Bastola merely checked boxes and circled responses when asked
about claimant’s need to walk throughout the day, claimant’s ability to carry certain
weights, and need to miss work. (AR 2054-56). When asked to explain his opinion that
claimant’s legs needed to be elevated, Dr. Bastola wrote “swelling tingling,” which does

11

lend support to that portion of Dr. Bastola’s opinion. (AR 2054). Claimant, however,
has not contested the ALJ’s treatment of this issue. (See Doc. 15, at 15-16).
Opinions that are contained in conclusory checkbox forms that offer no medical
evidence and provide little to no elaboration are of little benefit when assessing a
claimant’s application for benefits. Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir.
2012). The opinions that are primarily at issue here were offered on just such a checkbox
form and I therefore find that the ALJ could properly discount them. Further, claimant
testified that she did not know why Dr. Bastola opined that claimant would need to be
absent from work at least four days per month. (AR 230). Although a claimant’s lack
of knowledge on such an issue could lead to the conclusion that the opinion is based on
the medical evidence, as opposed to a claimant’s subjective complaints, claimant’s
answers to the ALJ’s follow-up questions are notable. The ALJ inquired as to whether
claimant needed to lay down or sit reclining frequently, or whether claimant had periods
where she needed to rest and “not do[ ] anything.” (AR 230-31). Claimant indicated
that she did not need to lay down or recline frequently and, instead, sat in a chair or in
her walker. (Id.). Further, claimant’s response indicates that she tries to occupy her
time with “little arts and crafts” and by picking up her house. (Id.). Claimant also cooks
and tries to do the dishes. (Id.). Such tasks and claimant’s apparent attempts to occupy
her time are inconsistent with claimant needing to miss work four or more days per
month. It is entirely possible that Dr. Bastola had a legitimate reason for opining that
such absences would be necessary. Based on the checkbox nature of the form, however,
and based on the lack of elaboration on the form, I am unable to ascertain such a reason.
Although the ALJ could have provided more specific information with respect to
the weight attributed to Dr. Bastola’s opinions, I find that the ALJ did offer good reasons
for the weight afforded to Dr. Bastola’s opinions and, therefore, I respectfully
recommend that the Court uphold the ALJ’s treatment of Dr. Bastola’s opinions.

12

Claimant also argues that “the ALJ failed to find [claimant] had a severe cardiac
impairment,” but claimant does not explain how the ALJ’s failure to find a severe cardiac
impairment relates to Dr. Bastola’s opinions, nor does claimant ask the Court to find that
such a severe impairment existed. To the extent claimant seeks relief with respect to her
cardiac abnormalities, I find no error.

Claimant alleges that the ALJ ignored an

electrocardiogram and a PET myocardial perfusion rest and stress test, both of which
were conducted in October 2012. (Doc. 15, at 17-18). The ALJ, however, directly
referenced both tests in determining that claimant’s cardiac abnormalities did not
constitute severe impairments. (AR 195). Claimant’s allegation that these tests were
ignored comprises the bulk of claimant’s argument that the ALJ erred. Because these
tests were not ignored, it is unclear why claimant argues the ALJ’s consideration of
claimant’s cardiac abnormalities was in error. Therefore, I decline to find that the ALJ
did err.
ii.

Dr. Murphy

Turning now to the ALJ’s treatment of Dr. Murphy’s opinions, I find no error.
Dr. Murphy served as a consultative psychologist. (AR 206). Claimant does not specify
what she objects to with respect to the ALJ’s discussion and ultimate conclusion regarding
Dr. Murphy’s opinions, but to the best of my understanding, claimant believes the ALJ
should have assessed claimant with an RFC that would be consistent with Dr. Murphy’s
opinions. (Doc. 15, at 20). More specifically, I understand claimant’s argument to be
that the ALJ’s RFC assessment was inconsistent with Dr. Murphy’s opinions that
claimant would have difficulty sustaining concentration and making simple work-related
decisions, remembering and carrying out instructions, maintaining schedules and
attendance, and working with others without becoming distracted. (See id.). I further
understand claimant to be arguing that the ALJ’s assessment that claimant could perform
“simple, routine tasks with simple instructions with occasional interaction with the public

13

and no production rate pace,” is materially different from Dr. Murphy’s assessment of
claimant’s abilities, which claimant argues should have been adopted by the ALJ. (Id.).
Dr. Murphy’s medical source statement with respect to claimant reads as follows:
She has adequate ability to understand and remember locations and
work-like procedures. She can understand and remember simple and/or
detailed instructions. She is likely to having [sic] difficulty sustaining
concentration and persisting in making simple work-related decisions, and
remembering and carrying out instructions, and maintaining schedules and
attendance, and sustaining routine while working in coordination with and
in proximity to others without being distracted by them. . . . She would
have difficulty adapting to changes in the work setting. . . .
(AR 1524). I disagree with claimant’s assertion that Dr. Murphy opined that claimant
could not perform simple, routine tasks with simple instructions. Dr. Murphy opined
that claimant “can understand and remember simple and/or detailed instructions,” but
that she would have difficulty remembering and carrying out such instructions. (Id.). It
is notable, however, that Dr. Murphy specifically opined that claimant was capable of
understanding and remembering such instructions. Even assuming, in arguendo, that
claimant would have difficulty with such instructions, that does not mean that claimant
was incapable of adhering to such instructions. Dr. Murphy’s opinion that claimant could
understand and remember simple and/or detailed instructions is indicative that claimant
would be able to do such tasks, even if they were difficult for her. I, therefore, do not
see the same disagreement that claimant sees between the ALJ’s assessment of claimant’s
ability to handle instructions and Dr. Murphy’s assessment of claimant’s ability to handle
instructions.
Claimant also seems to assert that the ALJ’s assessment that claimant could not
perform at production rate pace is inconsistent with Dr. Murphy’s assessment of
claimant’s abilities. (Doc. 15, at 20). I, however, fail to see the inconsistency. In fact,
Dr. Murphy does not opine at all on the issue. The most analogous opinion of Dr.

14

Murphy’s that I am able to find is that claimant would have difficulty “sustaining routine
while working in coordination with and in proximity to others without being distracted
by them.” (AR 1524). The ALJ, however, determined that claimant could not maintain
production rate pace.

(AR 199).

This restriction seems to adhere closely to Dr.

Murphy’s opinion that that claimant would have difficulty sustaining routine while
working with others without becoming distracted.
Assuming, in arguendo, however, that the ALJ’s RFC assessment departed from
Dr. Murphy’s opinion in each way claimant alleges, I still find no error. The ALJ
provided numerous reasons for discounting Dr. Murphy’s opinions, but, generally
speaking, the ALJ found that Dr. Murphy’s report did not support the limitations assessed
and that the report was internally inconsistent. Further, the ALJ found that Dr. Murphy’s
examination and other examinations “failed to reveal signs indicative of all the limitations
Dr. Murphy indicated.” (AR 207). I find that the ALJ properly considered Dr. Murphy’s
opinions.
As a consultative examiner, Dr. Murphy’s opinions are not inherently entitled to
the same degree of weight to which a treating physician’s opinion would be entitled.
Shontos v. Barnhart, 328 F.3d 418, 425 (8th Cir. 2003).

Further, Dr. Murphy’s

examination revealed that although claimant struggled with certain tasks, such as
recounting the names of the two presidents prior to the sitting president, calculating serial
sevens, and recalling two of three words after five minutes had elapsed, claimant
performed well on a number of other tasks. (AR 1523). Specifically, claimant knew the
date and the name of the city and state in which she lived, the name of the current
president, the name of the facility in which Dr. Murphy evaluated claimant, as well as
Dr. Murphy’s name. (Id.). Claimant could also recall the menu of her most recent meal,
estimated elapsed time correctly, was able to recall her mother’s maiden name, was able
to calculate serial threes properly to the fourth calculation, could spell a five-letter word

15

correctly both forward and backward, and was able to rearrange letters into alphabetical
order.

(Id.).

Finally, claimant was able to recall six digits forward, three digits

backward, and resequenced four digits. (Id.).
With respect to other examinations, the ALJ found that other examinations did not
support the limitations Dr. Murphy assessed and, particularly, that “examinations failed
to show that the claimant would have difficulty sustaining concentration and persisting in
making simple work-related decisions.” (AR 207). In support, the ALJ turned to a
finding that on one occasion, claimant’s “attention and concentration were fine.” (AR
204, 1816). The ALJ further found that claimant had, at least at times, “logical and goal
directed [sic] thought process.” (AR 204, 1086). Finally, the ALJ found that on
numerous occasions, claimant “was observed to have normal psychomotor activity.”
(AR 204, 1910, 1912, 1915). On those same occasions, claimant’s judgment, reasoning,
and insight were found to be “fair.” (AR 1910, 1912, 1915). Notably, the reports to
which the ALJ cited span a lengthy period of time, from September 2014, through
September 2015, with an additional record being from October 2012. This supports the
ALJ’s finding that “examinations failed to show signs consistently that the claimant had
significant psychiatric symptoms.” (AR 203 (emphasis added)).
Although the evidence detracting from the ALJ’s finding as to claimant’s ability
to concentrate and follow instructions could lead one to find that claimant is not capable
of concentrating and following instructions, it is just as possible to conclude that claimant
does have the capabilities with which the ALJ assessed claimant. Because the substantial
evidence on the record as a whole could support the ALJ’s finding, I must defer to the
ALJ’s determination. See Kluesner, 607 F.3d at 536. As such, I find that the ALJ’s
determination as to claimant’s ability to concentrate and follow instructions is proper.
Likewise, I find that the ALJ properly considered Dr. Murphy’s opinion with respect to
claimant’s ability to follow a routine. As such, I recommend that the Court uphold the

16

ALJ’s consideration of Dr. Murphy’s opinions and the weight the ALJ afforded to Dr.
Murphy’s opinions.
iii.

Substantial Evidence on the Record as a Whole

Claimant next argues that the ALJ’s residual functional capacity assessment is
flawed because it is not supported by substantial medical evidence from a treating or
examining source. (Doc. 15, at 22-23). In support, claimant argues that the ALJ’s
residual functional capacity assessment is flawed because the ALJ rejected the limitations
assessed by Dr. Bastola. Claimant also references Dr. Robert P. N. Shearin, M.D.’s
findings to assert that Dr. Shearin’s findings were consistent with Dr. Bastola’s
conclusions, but I am unable to discern the significance claimant seems to attribute to this
notation. (Id., at 23).
Where an ALJ does not rely on opinions from treating or examining sources, there
must be some other medical evidence in the record for the ALJ’s opinion to be supported
by substantial medical evidence on the record. Harvey v. Barnhart, 368 F.3d 1013, 1016
(8th Cir. 2004) (“It is true that we do not consider the opinions of non-examining
consulting physicians standing alone to be ‘substantial evidence.’” (emphasis added)).
“The opinions of non-treating practitioners who have attempted to evaluate the claimant
without examination do not normally constitute substantial evidence on the record as a
whole.” Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
Here, the ALJ addressed claimant’s physical impairments, as well as claimant’s
mental impairments. In addressing both the physical and mental impairments, the ALJ
turned to claimant’s statements and the statements of claimant’s friends. (AR 200-01).
The ALJ then discussed the medical records at length. (AR 201-04). Notably, in
discussing the medical records, the ALJ did not attempt to interpret the records; the ALJ’s
discussion is limited to recounting the information contained in the records and the ALJ’s

17

own discussion of how the records were weighed in assessing claimant’s RFC. The ALJ
then discussed the opinion evidence that was offered by various medical sources.
In addressing claimant’s physical impairments, specifically, the ALJ turned to
multiple sources. First, the ALJ attributed “some weight” to the opinions of nonexamining state medical consultant Dr. Donald Shumate, D.O. (AR 205). The ALJ
discounted the weight afforded Dr. Shumate’s opinions because Dr. Shumate did not have
the benefit of certain evidence that was submitted after Dr. Shumate’s evaluation; the
subject evidence “indicate[d] greater limitation in activities such as lifting, walking, and
standing.” (Id.). Next, the ALJ turned to Dr. Bob Badger, D.O., who was one of
claimant’s treating physicians.

(Id.).

The ALJ’s attributed “little weight” to Dr.

Badger’s opinions. (Id.). The ALJ attributed “very little weight” to physician assistant
Lynn Gingerich’s “recommendation for temporary limitations” that claimant avoid “long
road trips due to recent gastric bypass surgery and due to risk for developing deep vein
thrombosis.” (Id.). The ALJ attributed “some weight” to consultative examiner Dr.
Shearin’s opinions. (Id.). Finally, as discussed above, the ALJ attributed “little weight”
to Dr. Bastola’s opinions. (AR 205-06).
Turning to claimant’s mental impairments, the ALJ again consulted the opinion
evidence of record. (AR 206-07). The ALJ attributed “some weight” to the opinions of
state agency non-examining psychological consultant Dr. Dee Wright, Ph.D. (AR 206).
The ALJ afforded Dr. Wright’s opinions only some weight because Dr. Wright did not
have the benefit of certain evidence that had not been submitted as of the date Dr. Wright
conducted her review. (Id.). As set forth above, the ALJ attributed consultative examiner
Dr. Murphy’s opinions “little weight.” (AR 206-07). The ALJ gave “little weight” to
the opinions of claimant’s therapist, Julianne Klesel. (AR 207). Finally, the ALJ
likewise gave “little weight” to the opinions of nurse practitioner Shelby Allen-Benitz.
(Id.).

18

In this case, the ALJ was confronted with a great volume of evidence and a large
number of medical opinions. The ALJ’s decision shows that he carefully considered each
piece of evidence and relied on the findings contained in the medical records themselves,
as well as the opinions offered by the various medical sources. Notably, in relying on
the medical records, the ALJ did not take it upon himself to interpret the records, but
rather recounted those objective findings and opinions claimant’s medical providers
included when generating the records. As such, the ALJ was able to turn to the records
themselves to support his decision. Further, although the ALJ discounted the weight
given to all of the medical personnel offering opinions—and, indeed, did not afford
“controlling weight” or “great weight” to a single opinion—the ALJ still attributed at
least “some weight” or “little weight” to each opinion offered. “Some weight” and “little
weight” is greater than “no weight.” Thus, the ALJ’s consideration of the medical
opinions of record lends additional support to the ALJ’s decision. Based on the ALJ’s
consideration of the entire body of medical records offered in this case, and based on the
ALJ’s consideration of the medical opinions of record, I find that the ALJ’s decision is
supported by substantial evidence on the record as a whole. I therefore recommend that
the Court decline to reverse the ALJ’s decision on this basis.
B.

Whether Work Exists in Significant Numbers in the National Economy
that Claimant Can Perform

Claimant’s next argument is a legal argument of whether the Commissioner
showed that there are jobs existing in significant numbers in the national economy that
claimant can perform. (Doc. 15, at 24-27). The ALJ determined that claimant could
perform the jobs of document preparer and addresser, both of which the ALJ found to
exist in significant numbers in the national economy. (AR 208). Claimant argues two
points: 1) that the job of addresser is obsolete such that it cannot exist in significant
numbers in the national economy; and 2) that the job of document preparer is beyond

19

claimant’s capabilities and, thus, is not a job that claimant can perform. I will first
address whether the job of document preparer is available to claimant.
The Dictionary of Occupational Titles provides that the job of document preparer
requires a reasoning level of three.

U.S. DEP’T OF LABOR, DICTIONARY OF

OCCUPATIONAL TITLES Code No. 249.587-018 (4th ed., rev. 1991). Claimant argues
that based on the RFC the ALJ assessed claimant with, claimant has a reasoning level
that is insufficient to perform a job requiring a reasoning level of three. (Doc. 15, at 2627). Specifically, claimant states that “[a] limitation to simple, routine, or repetitive
work is inconsistent with Reasoning Level 3.” (Id., at 26). The ALJ limited claimant to
“simple, routine tasks with simple instructions.” (AR 199). In the abstract, there is
tension between the ALJ’s RFC assessment and the ALJ’s determination that claimant
could perform the work of a document preparer. See Hillier v. Soc. Sec. Admin., 486
F.3d 359, 367 (8th Cir. 2007) (“In the abstract, tension exists between only being able
to understand, remember, and follow simple, concrete instructions and working as a
cashier.”). Although this tension is not dispositive of whether claimant is capable of
performing the job of document preparer, the ALJ did not attempt to resolve this tension,
and the record is otherwise unclear as to whether claimant could perform the job of
document preparer.4 I am unable to determine, on this record, whether claimant is
capable of performing the job of document preparer. See id. (providing that the Eighth
Circuit “do[es] not decide cases in the abstract”). The Eighth Circuit has held that where
a claimant has performed the subject job, and there is no evidence of mental deterioration,
deciding the claimant’s ability to perform said job would not necessarily be a decision
made in the abstract. Id. There is no evidence in this record that claimant ever worked
4

The Commissioner’s brief does not address the merits of whether claimant could perform the
job of document preparer and instead states that “[t]he Court need not address [claimant’s]
argument regarding the document preparer occupation.” (Doc. 20, at 22).

20

as a document preparer in the past. I will therefore assume, in arguendo, that claimant
is incapable of performing the job of document preparer.
Because I am proceeding as though claimant is incapable of performing the job of
document preparer, I must address the issue of whether the job of addresser exists in
significant numbers in the national economy. Claimant does not challenge her ability to
perform this job, but rather argues that the job is now obsolete. When determining
whether work exists in significant numbers, the Court should consider many criteria,
including the reliability of the vocational expert’s testimony, the types and availability of
work identified, and other such factors. See Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th
Cir. 1988). After considering such factors, the trial judge should then make a “common
sense” decision as to whether work exists in significant numbers by “weighing the
statutory language as applied to a particular claimant’s factual situation.” Johnson v.
Chater, 108 F.3d 178, 180 (8th Cir. 1997) (citation and internal quotation marks
omitted). Importantly, when the ALJ reaches Step Five and must determine whether
work exists in significant numbers in the national economy that claimant can perform,
the Commissioner bears the burden of proof. Id.
The vocational expert testified that claimant could perform the job of addresser,
which involves “stuffing envelopes, putting labels on envelopes.” (AR 259). The
vocational expert’s explanation of the duties of an addresser was slightly different from
the Dictionary of Occupational Titles’ description of an addresser as one who
“[a]ddresses by hand or typewriter, envelopes, cards, advertising literature, packages,
and similar items for mailing. May sort mail.” DICTIONARY OF OCCUPATIONAL TITLES,
Code No. 209.587-010.5 When there is a conflict between a vocational expert’s testimony
Unfortunately, the 1991 Fourth Edition is the most recent version of the Dictionary of
Occupational Titles in existence despite the obvious and significant technological changes that
have occurred in the economy since then. Moreover, the addresser occupation was last updated
in 1977.
5

21

and the Dictionary of Occupational Titles, the ALJ “must elicit a reasonable explanation
for the conflict before relying on the [vocational expert testimony] to support a
determination or decision about whether the claimant is disabled.” Policy Interpretation
Ruling: Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence,
and Other Reliable Occupational Information in Disability Decisions, 2000 WL 1898704,
at *2 (Dec. 4, 2000). Kemp ex. rel. Kemp v. Colvin, 743 F.3d 630, 632-33 (8th Cir.
2014).
Here, the ALJ did not elicit such a reasonable explanation, and such a reasonable
explanation is not immediately apparent from the record. The Commissioner argues that
the vocational expert’s testimony differed from the Dictionary of Occupational Titles’
description of “addresser” because the vocational expert elaborated upon the Dictionary
of Occupational Titles’ description. (Doc. 20, at 22). Although the Social Security
Administration has opined that such elaboration could be a reasonable explanation for a
conflict, 2000 WL 1898704, at *2, I am unable to tell if this is the reason for the conflict
presented in the instant case. The ALJ did not ask the vocational expert to provide an
explanation for why the expert’s definition of addresser differed from the definition. As
such, I am unable to tell if the vocational expert’s testimony on the issue of the addresser
occupation is reliable. As a result, I cannot determine whether the vocational expert’s
seemingly more modern explanation of “addresser” should be used over the description
given in the Dictionary of Occupational Titles. Because I do not have this information,
I am not in a position to determine whether the job of addresser is now obsolete. I
therefore find it appropriate to entirely refrain from reaching the question of whether the
job of addresser is obsolete. In using my common sense, I am unable to definitively find
whether the job of addresser exists in significant numbers in the national economy that
claimant can perform. See Johnson, 108 F.3d at 180.

22

I have considered both the job of document preparer and of addresser and have
been unable to make a definitive finding as to whether work exists in significant numbers
in the national economy that claimant can perform. I find that there is a possibility that
claimant could perform the work of “document preparer,” but the record is insufficient
to determine whether claimant has the requisite reasoning level to perform the job. As
for addresser, I find that the ALJ erred by failing to reconcile the conflict between the
vocational expert’s testimony and the Dictionary of Occupational Titles and, as a result,
it is unclear whether the job of “addresser” should be considered using the vocational
expert’s description or using the Dictionary of Occupational Titles’ description. Because
this is unclear, I am unable to reach the question of whether the job of addresser, as
identified in this case, is now obsolete. The ALJ identified no other jobs that claimant
could perform. Because the ALJ’s decision became the final decision of the
Commissioner and the ALJ failed to identify any such jobs, I find that the Commissioner
has failed to meet her burden of proof in showing that work exists in significant numbers
in the national economy that claimant can perform. I therefore recommend that the Court
reverse and remand the ALJ’s decision with instructions to reevaluate whether work
exists in significant numbers in the national economy that claimant can perform. If the
Commissioner finds claimant can perform the job of document preparer, I recommend
that the Court instruct the Commissioner to make specific findings with respect to whether
claimant has the reasoning level necessary to perform the job.
C.

Completeness of the Administrative Record

Finally, claimant alleges that remand is required because the Commissioner failed
to include in the administrative record sixty pages of medical records from the University
of Iowa Hospitals and Clinics, dated January 11, 2013, through July 31, 2014. (Doc.
15, at 27-29).

Claimant further asserts that the Court “cannot properly review

23

[claimant’s] claim as the Commissioner has not provided a complete [record] of the
administrative proceedings.” (Id., at 28).
The records alleged to be missing from the record, however, appear to be
included. Indeed, the record includes eighty-five pages of medical records dated between
January 11, 2013, and July 31, 2014.

(AR 1419-74, 1633-53, 2058-65).

By all

appearances, the record is complete, and plaintiff has failed to show that the record is
incomplete. Further, when the Commissioner pointed out that the record appeared to be
complete (Doc. 20, at 22-23), and claimant responded, claimant did little more than state,
once again, that “new evidence” was erroneously omitted from the record. (Doc. 22, at
4). Claimant does not indicate that there are additional records to be had from the
University of Iowa Hospitals and Clinics beyond those that are already included in the
record and, based on my assessment of the record in light of plaintiff’s assertions, I am
unable to find any errors in the compilation of the record. Therefore, I recommend that
the Court not reverse and remand the ALJ’s decision based on the alleged elimination of
certain medical records from the administrative record.
VI.

CONCLUSION

For the aforementioned reasons, I respectfully recommend that the Court reverse
and remand the ALJ’s decision for further proceedings consistent with this Report and
Recommendation. Specifically, I recommend that the Court reverse and remand the
ALJ’s decision with instructions to reevaluate whether work exists in significant numbers
in the national economy that claimant can perform. If the Commissioner finds claimant
can perform the job of document preparer, I recommend that the Court instruct the
Commissioner make specific findings with respect to whether claimant has the reasoning
level necessary to perform the job.
Parties must file objections to this Report and Recommendation within fourteen
(14) days of the service of a copy of this Report and Recommendation, in accordance

24

with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b). 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 2nd day of August, 2018.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

25