Tomlinson v. Commissioner of Social Security

Filing 14

REPORT AND RECOMMENDATION recommend that the Commissioner's decision be affirmed and judgment be entered against Tomlinson and in favor of the Commissioner re 3 Complaint. Objections to R&R due by 3/29/2013. Signed by Magistrate Judge Leonard T Strand on 3/15/2013. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
TIMOTHY CRAIG TOMLINSON,
Plaintiff,

No. C12-4038-MWB

vs.

REPORT AND
RECOMMENDATION

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

____________________
Plaintiff Timothy Craig Tomlinson seeks judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying his applications for
disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C.
§ 401 et seq. (“Act”), and Supplemental Security Income (“SSI”) pursuant to Title XVI
of the Act. Tomlinson contends that the administrative record (“AR”) does not contain
substantial evidence to support the Commissioner’s decision that he was not disabled.
For the reasons that follow, I recommend that the Commissioner’s decision be affirmed.
Background
Tomlinson was born in 1960 and has obtained a GED. AR 34, 122. He has
past relevant work experience as salesperson (general), welder, machinist, maintenance
mechanic, restoration supervisor, and auto service manager.

AR 336-337.

suffered a myocardial infarction (“MI”) on October 16, 2007.

AR 210.

He
He

protectively filed his applications for DIB and SSI on November 14, 2007, alleging that
the date of his MI is his disability onset date. AR 11, 122.
Tomlinson’s claims were denied initially on June 3, 2008, and upon
reconsideration on August 6, 2008. AR 11. He then then requested a hearing before

an Administrative Law Judge (“ALJ”).

AR 78-79.

On May 26, 2010, ALJ Jan

Dutton held a hearing and on September 13, 2010, issued a decision denying
Tomlinson’s application. AR 11-20. On February 16, 2012, the Appeals Council of
the SSA denied plaintiff’s request for review.

AR 1-5. As such, the ALJ’s decision is

the final decision of the Commissioner. AR 1; see also 20 C.F.R. § 416.1481.
On April 20, 2012, Tomlinson filed a complaint in this court seeking review of the
ALJ’s decision.

This matter has been referred to me pursuant to 28 U.S.C. §

636(b)(1)(B) for the filing of a report and recommended disposition of the case. The
parties have briefed the issues and the matter is now fully submitted.
Summary of Evidence
I have reviewed the entire administrative record and provide the following
summary of the evidence relevant to Tomlinson’s claim:
A.

Medical Evidence
Tomlinson suffered his MI on October 16, 2007, and was hospitalized for one

week. AR 344-78, 390-400, 481-524. At the time of the MI, he was employed by
Design Homes as a laborer. AR 37, 310-11. One week after leaving the hospital, he
contacted Frank Addo, M.D., to request a note limiting him from work but was told to
speak to his pulmonologist.

AR 525.

He was advised that once cleared by

pulmonology, “he will be allowed to return to work.” AR 525.
Tomlinson then saw Diane Drevs, a physician assistant, on four occasions from
October to December 2007. AR 646-47, 652-54, 658-63. On December 18, 2007, he
reported that he “feels well with minor complaints.” AR 646. On January 4, 2008,
Ms. Drevs released Tomlinson to return to work two days per week. AR 719.

2

On January 22, 2008, a stress test was discontinued due to shortness of breath.
AR 526. Tomlinson’s shortness of breath improved after the test was stopped.

Id.

Dr. Addo then released Tomlinson to return to work on a “fulltime work status” with
avoidance of heights. AR 528.
In February 2008, Tomlinson was hospitalized for placement of an automatic
implantable cardioverter defibrillator with pacemaker. AR 402-12, 534-46, 716-18.
The discharge summary noted that since being discharged from his previous
hospitalization, Tomlinson had “done quite well” and denied any chest pains. AR 403.
He did, however, report shortness of breath after walking one block. AR 403. Later
that month, a nurse at Dr. Addo’s office examined Tomlinson’s surgical wound and
advised him to “continue to avoid heavy lifting and repetitive work for the next week.”
AR 546.
Tomlinson reported to the emergency room on March 22, 2008, and indicated that
he had suffered chest tightness, sweating and nausea while doing some things around the
house that morning. AR 448. He stated that the discomfort lasted about 20 minutes.
Id.

A chest x-ray and electrocardiogram were unremarkable.

AR 449.

He was

symptom free while at the emergency room. Id.
On April 14, 2008, Tomlinson returned to Dr. Addo for follow-up. AR 549-51.
He reported that after his discharge from AICD placement he was “doing quite well and
able to resume nearly all of his activities without much restriction,” but he began to have
increased shortness of breath in recent weeks. AR 550. He also reported that he had
resumed the use of oxygen at night. AR 551.
Tomlinson returned to Dr. Addo in June 2008, and reported shortness of breath
after walking one block and occasional chest tightness relieved by use of nitroglycerin.
AR 555. Dr. Addo concluded Tomlinson had Class II to III heart failure symptoms
according to the New York Heart Association (NYHA) Functional Classification
3

System,1 but “appear[ed] to be well compensated.” AR 556. He advised Tomlinson
to try to maintain a job that would give him health insurance.

Id.

On August 26, 2008, Dr. Addo reported that Tomlinson denied chest discomfort
but reported chronic fatigue. AR 558-59. He again noted that Tomlinson had NYHA
Class II to III symptoms, but was “presently well compensated.”

AR 559.

Two

months later, Tomlinson continued to report fatigue and had developed intermittent
dizziness. AR 565. Dr. Addo continued his prior NYHA Class assessment.

Id.

On September 9, 2008, Tomlinson had an abnormal polysomnogram resulting in
the use of a bipap machine at night. AR 623. On October 17, 2008, he complained of
fatigue and intermittent dizziness and Dr. Addo again assessed him as NYHA Class II to
III. AR 563-565.
Tomlinson reported to the emergency room on November 9, 2008, complaining
of chest pain. AR 675-82. The following day, he reported fatigue, dizziness, and
chest pain during exertion.

AR 568, 589.

Dr. Addo recommended a diagnostic

angiography, which showed ejection fraction of 36 percent, but no critical obstructive
coronary artery disease. AR 571-72, 590, 593-94. Tomlinson was found to have

1

According to the American Heart Association, NYHA Class II functional capacity is defined as:
Patients with cardiac disease resulting in slight limitation of physical activity. They
are comfortable at rest. Ordinary physical activity results in fatigue, palpitation,
dyspnea or anginal pain.

NYHA Class III functional capacity is defined as:
Patients with cardiac disease resulting in marked limitation of physical activity.
They are comfortable at rest. Less than ordinary activity causes fatigue,
palpitation, dyspnea or anginal pain.
www.heart.org/HEARTORG/Conditions/HeartFailure/AboutHeartFailure/Classes-of-Heart-Fai
lure_UCM_306328_Article.jsp (last visited March 15, 2013).
4

abnormal hemodynamics with an elevated left ventricular end-diastolic pressure,
compatible with left ventricular dysfunction and left ventricular enlargement with
moderate to severe global LV systolic dysfunction. AR 572.
On November 14, 2008, Ms. Drevs reported that Tomlinson “feels well with
minor complaints.” AR 632. A few days later, he reported to the emergency room
with a complaint that he became lightheaded and dizzy while working at Lowe’s. AR
575. The issues resolved after about 30 minutes.

Id. He was assessed with “a brief

episode of hypotension.” AR 578.
In January 2009, Thomas Wente, D.O., noted Tomlinson’s complaints of
shortness of breath with activity and fatigue.

AR 628.

Dr. Wente’s examination

showed easy respiratory effort, normal breath sounds and normal heart sounds. AR
629. He diagnosed NYHA Class III, shortness of breath and coronary artery disease.
AR 629.
Tomlinson reported to the emergency room in May 2009 complaining of
intermittent chest pain during the previous week.

AR 712.

He was hospitalized

overnight for consultation with cardiology the following morning. AR 715.
On July 9, 2009, Dr. Addo noted Tomlinson’s report of shortness of breath after
walking one to two blocks. AR 698. Dr. Addo recommended a stress test, which was
stopped due to fatigue after six minutes. AR 694, 698-99. Tomlinson reported chest
discomfort and shortness of breath during the test, with both conditions improving after
the test concluded.

AR 694.

Dr. Addo found Tomlinson’s post-stress ejection

fraction to be 31percent and stated that he was NYHA Class II to III. AR 699.
In October 2009, Ms. Drevs reported that Tomlinson felt “well with no
complaints.” AR 725. She further noted that he was “doing quite well, much better
after changing jobs.” Id.

5

After the ALJ issued her decision in September 2010, Tomlinson submitted
additional evidence to the Appeals Council.

AR 4-5, 760-90. That evidence indicates

he was hospitalized for two days in March 2011 after complaining that he suffered
worsening fatigue, shortness of breath, and chest pain for two weeks. AR 767-90.
B.

Medical Impairment Evaluation
On June 9, 2010, Ms. Drevs completed an impairment evaluation based on her

treatment of Tomlinson since October 2007.

AR 747-53. She stated that Tomlinson

suffers from coronary artery disease, left ventricle systolic dysfunction (with an ejection
fraction of 35%), cardiomyopathy and memory loss. AR 747. She then described the
symptoms, signs and laboratory findings of his impairments.

AR 748-49.

She

indicated that he has followed treatment but that his medical condition has not improved
and his prognosis is poor. AR 748.
Ms. Drevs reported that Tomlinson could never lift or carry up to 10 pounds, that
he could seldom reach in all directions except overhead, that he could never reach
overhead and that he should never bend, squat, crawl, or climb. AR 750. She further
stated he would never be able to perform at a rapid pace and would have a difficult time
handling work at even a slow pace. She opined that Tomlinson is unable to work due to
shortness of breath. AR 751.
C.

State Agency Medical Consultants
Lawrence Staples, M.D., conducted a physical RFC assessment dated June 2,

2008. AR 454-61. He noted that Tomlinson had been seen on April 14, 2008, was
doing well at that time, and was able to resume nearly all of his activities without much
restriction, although he had been short of breath for the preceding several weeks.
461.

AR

He further noted that Tomlinson was without chest discomfort or peripheral
6

edema and was working part-time at Lowe's.

Id.

Dr. Staples concluded that

Tomlinson would be capable of performing light work within twelve months of onset and
that the twelve-month duration requirements of 20 C.F.R. §§ 404.1509 and 416.909 had
not been met. In his opinion, Tomlinson was not disabled. Id.
On August 6, 2008, Dennis Weis, M.D., endorsed Dr. Staples' opinion, noting
that on June 23, 2008, Tomlinson was seen for follow-up by a cardiologist and reported
shortness of breath with significant standing and walking. AR 475-79. A physical
examination was essentially unremarkable without evidence of edema and the EKG was
unchanged from previous studies.

AR 475.

Dr. Weis stated Tomlinson was

considered well compensated for NYHA Class II to III heart failure symptoms and was
scheduled for follow-up.

Id.

Dr. Weis found no new evidence to document a

worsening of Tomlinson’s condition and reiterated Dr. Staples' conclusion that
Tomlinson’s impairments would not last at least twelve continuous months.

Id.

Hearing Testimony
A.

Claimant’s Testimony
Tomlinson testified that he was 49 years old on the day of the hearing. AR 34.

He has earned a GED and, as of the hearing, was living with his girlfriend and her child.
AR 34-35. Tomlinson has three adult children of his own. AR 34. He testified that
he worked as an auto mechanic for most of his life. AR 36. Prior to his MI in
October 2007 he worked at Design Homes but testified that he could not physically do
the work after the MI. AR 40-41.
Tomlinson began working at Lowe’s part-time in March 2008. AR 40. He
started working in the paint department 20 to 25 hours per week, but found the work too
heavy. He was moved to the hardware department where the lifting requirements were
less. Id. He left Lowe’s and began working part-time at O’Reilly’s Auto Parts in June
7

2008.

AR 41.

He testified that he sold auto parts, answered phones, assisted

customers at the counter and made some deliveries.

Id. He further testified that other

employees helped him lift items that were too heavy, that he was allowed to sit and stand
at the counter as he needed and that he uses oxygen for 2 to 5 minutes at a time at work.
AR 41, 47.
Tomlinson testified that he has been unable to work full time since October 2007
because of fatigue, shortness of breath, and problems with concentration and memory.
AR 45-46. He stated that he becomes very tired easily. AR 45. After four to five
hours he needs to nap for 60 to 90 minutes. AR 48.

He also testified that he naps

during his lunch break. Id. He has arranged with his employer to work only two days
in a row, as working more than that causes extreme fatigue. AR 51. He stated that
even simple household chores caused fatigue. AR 49. Any exertion, even bending
over to pick up a battery off of the floor or squatting down, will cause shortness of
breath. AR 46. He testified that he had to use oxygen after walking up eight steps to
get to the hearing room. Id.
In describing his memory problems, Tomlinson stated that he can forget a
customer’s order while walking from the counter to the shelf.

AR 46.

forgotten that a customer called in and he forgets when he is supposed to work.

He has
Id.

Tomlinson stated that he can stand for 15 to 20 minutes at a time, so long as he
can walk around while doing so. AR 47. If he has to stand in one place, he could only
do so for about 10 minutes. Id. He testified that he can sit for up to 20 minutes at a
time if he is able to move around a bit.

Id. He can walk for about a half of a block at

a time and can safely lift up to 25 pounds on an occasional basis. AR 47-48. If he had
to lift continuously, he would only be able to lift about 5 pounds. AR 48.
Tomlinson testified that his cardiologist restricted his work by telling him not to
overexert himself. AR 42, 49. He explained that Dr. Addo told him to stop and rest if
8

he became tired. AR 49. He was also told that he would have to rest frequently and if
anything he tried to do caused chest pains, then he should not do that anymore.

Id.

Tomlinson testified that he did not apply for unemployment benefits because of
these restrictions. He explained his understanding that he has to be “able and available”
to work in order to receive unemployment and that he is “not able.” AR 42.
B.

Vocational Expert’s Testimony
The VE found that Tomlinson has past relevant work as a salesperson (general),

welder, machinist, maintenance mechanic, restoration supervisor, and auto service
manager.

AR 336-337.

During the hearing, he gave the following answers to

hypothetical questions posed by the ALJ:
Q.
First question is for light exertional work. If the Claimant
could occasionally lift or carry 20 pounds frequently, ten pounds, stand,
sit, walk six hours in an eight-hour day, could occasionally do postural
activities, climb, balance, stoop, kneel, crouch, crawl. Should avoid
concentrated exposure to cold or heat, as well as concentrated fumes,
odors, dust, gases and should avoid dangerous equipment or ladders. With
that functional capacity, can he return to any of his light work?
A.
Your Honor, it would be my opinion that he would be able to
return to the general salesperson position.
Q.

What about store manager?

A.
Your Honor, I guess I should address. I have two changes on
the past relevant other than we talked about. The store manager position I
had down in reference to his job in the restoration, and that would be an
error. I would say that -- so I'm going to cancel the store manager job. The
adult teacher we've already taken out. I'd like to add two jobs. One is a
supervisor of home restoration. It relates to his content manager job from
'05 to '07. It's a skilled job performed at the medium physical demand
level, and then I'm going to add a position of an auto service manager. It's
a skilled job performed at the light physical demand level, and that would
have been done in 1996.
9

Q.

And you said that was skilled?

A.

Skilled level.

Q.

So that would have been within our 15 years. Okay.

A.
And based on that modification of the work summary, the
two jobs that are light work that would fit within this hypothetical would be
the salesperson position and the service manager position are both light
work, Your Honor.
Q. Do you have any information as to how many of those jobs exist
in the region or the nation?
A.
I should have, but I don't. Just one moment, Your Honor.
Your Honor, the -- the sales position, retail sales occupation, regionally,
which includes Nebraska, Iowa, Kansas and Missouri, approximately
70,000 positions, and nationally over two million positions. The service -the auto service manager position, regionally, approximately 1,000
positions, and nationally, approximately 40,000, Your Honor.
Q.
Thank you. In addition to past work with that functional
capacity, could he perform a wide range of light, unskilled work?
A.

Yes he would, Your Honor.

Q.

What percent of the full range do you feel would be retained?

A.
In my opinion at least 95% of the positions could be retained
at the light, unskilled level, Your Honor, based on this hypothetical.
Q.
Thank you. Second question is if we reduced the functional
capacity to sedentary, a job where he's not lifting or carrying over ten
pounds on an occasional or frequent basis, and it's primarily a sitting job,
he wouldn't be on his feet more than six hours in an eight-hour day, and
then carry over the rest of the first hypothetical. With that functional
capacity, does he have any transferrable skills to sedentary from the work
10

he has done in the past, including the factory work and auto work and sales
work?
A.
Your Honor, it would be my opinion that he would have
general clerical skills and customer service skills, cashier skills from his
past work that would transfer into semiskilled sedentary work. Would be
able to -- should be able to work as a sedentary cashier. DOT number
211.462-026. Regionally approximately 20,000 positions and nationally
700,000 positions. He should be able to work as a telemarketer, DOT
number 299.357-010. Regionally approximately 30,000 positions and
nationally over 300,000 positions. He should be able to work as a general
clerk, DOT number 209.587-014. Regionally 20,000 positions and
nationally 700,000 positions, Your Honor.
Q.
What is the source of the specific numbers you've given
today for the five jobs.
A.
The source would be information based on the DOT's
descriptions of jobs.
Q.
Is there any discrepancy between your testimony and the
Dictionary of Occupational Titles in terms of jobs, exertional levels and
skill levels?
A.

No there's not, Your Honor.

Q.
Thank you. Now the next question. You've heard the
Claimant's testimony today, the symptoms and severity that he has
endorsed. If those are considered to be credible, is there anything that you
heard that would cause you to question whether he could do the type of jobs
you've identified or any serious vocational concerns?
A.
Your Honor, based on the Claimant's testimony, two areas of
interest. One would include his physical abilities to engage in work
activities. The other one would be his ability to complete a normal
workweek. He testified today that his physical abilities, walking, standing
and sitting, plus his ability to lift are very decreased, and that -- also that he
needs to lie down and take a nap after working four or five hours for an
11

hour to hour and a half, those would generally not be allowed in the
workplace.
AR 56-59.
The VE testified further in response to follow up questions by Tomlinson’s
counsel:
Q.
I would ask one based on the hypothetical #1. If he would
need to be in a very low-stressed job because of the palpitations, the
problems with the heart, would that affect the jobs that you have indicated
were available?
A.
You would have to be able to identify for me what is what
you mean by low stress in this particular case.
Q.
Well, he -- I'm sorry. He indicated that -- that things like
scheduling, being busy, those kinds of things are stressful to him. So it
would have to be a type of job where there is – there's not a lot of -- there's
no quotas, having to get things done quickly within a schedule. That kind
of activity would need to be minimal.
A.
I'm not able to identify jobs where employers would –that
would employ someone if there was no quotas and they didn't have to work
within a schedule.
AR 59-60.
Finally, in response to an inquiry from the ALJ, the VE testified that the kind of
part-time work Tomlinson performed since his alleged onset date was light work,
consistent with his prior work as a general salesperson. AR 60.
Summary of ALJ’s Decision
The ALJ made the following findings:
(1)

The claimant meets the insured status requirements of
the Social Security Act through December 31, 2013.
12

(2)

The claimant has not engaged in substantial gainful
activity since October 16, 2007, the alleged onset date
(20 CFR 404.1571 et seq., and 416.971 et seq.).

(3)

The claimant has the following severe impairments:
Coronary artery disease, status post myocardial
infarction on the alleged onset date, status post
intervention by catheterization, and history of
automatic implantable cardioverter defibrillator
(“AICD”) / pacemaker placement in February 2008;
with hyperlipidemia (20 CFR 404.1520(c) and
416.920(c)).
The claimant also has history of
surgery to the cervical spine in 2000 and 2005.

(4)

The claimant does not have an impairment or
combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and
416.926).

(5)

After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except he is
limited to occasional climbing, balancing, stooping,
kneeling, crouching, and crawling. He should avoid
concentrated exposure to cold and heat, as well as
concentrated fumes, dust, odors, and gases. He should
avoid dangerous equipment and ladders.

(6)

The claimant is capable of performing past relevant
work as a general salesperson and an auto service
manager.
This work does not require the
performance of work-related activities precluded by
the claimant's residual functional capacity (20 CFR
404.1565 and 416.965).

(7)

The claimant has not been under a disability, as
defined in the Social Security Act, from October
13

16,2007, through the date of this decision (20 CFR
404.1520(1) and 416.920(1)).
AR 13-20.
The ALJ found that Tomlinson has the severe impairments listed above but also
found that while Tomlinson has been treated for depression, that condition is not severe
because it does not cause more than minimal limitation in his ability to perform basis
work activities.

AR 14.

In making this finding, the ALJ indicated that she had

considered the “paragraph B” and “paragraph C” criteria of section 12.00C of the
Listing of Impairments (20 C.F.R., Part 404, Subpart P, Appendix 1) and determined
that neither set of criteria are met. Id.
The ALJ also found that Tomlinson has no impairment or combination of
impairments that meets or medically equals one of the listed impairments in 20 C.F.R.,
Part 404, Subpart P, Appendix 1. Specifically, she determined that his cardiovascular
impairments do not meet the criteria for listing-level heart failure. AR 14-15.
In explaining her RFC determination, the ALJ compared Tomlinson’s statements
about the intensity and effect of his symptoms to the objective medical evidence and
found that his statements “are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.”

AR 15.

She gave weight to the

opinions of the two state agency consultants, Dr. Staples and Dr. Weis, noting that they
are acceptable medical sources and finding that their opinions are consistent with other
medical evidence in the record. AR 16.
By contrast, she gave little weight to the opinion of Ms. Drevs, the physician
assistant. The ALJ found that Ms. Drevs is not an acceptable medical source and that
her opinions are inconsistent with the record as a whole.

Id. The ALJ also gave little

weight to a function report submitted by Tomlinson’s fiancé, finding that it, too, was
inconsistent with the medical evidence of record. AR 18.
14

The ALJ noted that Tomlinson’s treating cardiologist had refused to provide an
RFC evaluation, despite requests from both the ALJ and Tomlinson’s counsel. AR 18.
Indeed, the ALJ asked Tomlinson’s counsel during the hearing if “there are any treating
source opinions about disability” and counsel responded “no.”

AR 33.

Counsel

explained that she had asked Dr. Addo to provide an opinion but was advised that he
does not “[f]ill out forms for disability cases.” Id. In her ruling, the ALJ stated that she
had mailed a RFC form to Dr. Addo but nothing was returned, “despite a lengthy post
hearing period.” AR 18.
After reviewing the medical evidence and weighing the various opinions, the ALJ
concluded that Tomlinson’s “symptoms and impairments are not as severe as alleged.”
AR 18.

She further found that even if Tomlinson’s impairments limited him to

sedentary work, “prior to age 50, he could perform the full range of unskilled sedentary
work and after age 50, he has transferable skills to sedentary work.” Id. She noted that
“he works at a light job currently.” Id.
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 that has lasted or can be expected to last for a continuous
period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is “not
only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists . . . in
significant numbers either in the region where such individual lives or in several regions
of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

15

To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process
outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500
F.3d 705, 707 (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. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.”

Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment

is not severe if it amounts only to a slight abnormality that would not significantly limit
the claimant’s physical or mental ability to do basic work activities.”

Kirby, 500 F.3d

at 707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities
and aptitudes include (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and
speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use
of judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work setting.

Id.

§§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107
S. Ct. 2287, 2291 (1987). “The sequential evaluation process may be terminated at
step two only when the claimant’s impairment or combination of impairments would
have no more than a minimal impact on her ability to work.”
1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).

16

Page v. Astrue, 484 F.3d

Third, if the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled, regardless of age, education, and work experience. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v.
Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of
the presumptively disabling impairments, then the Commissioner will assess the
claimant’s RFC to determine the claimant’s “ability to meet the physical, mental,
sensory, and other requirements” of the claimant’s past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4).

“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 omitted); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the Commissioner will use to make a
finding as to the claimant’s RFC, but the Commissioner is responsible for developing the
claimant’s “complete medical history, including arranging for a consultative
examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.”
§§ 404.1545(a)(3), 416.945(a)(3).

20 C.F.R.

The Commissioner also will consider certain

non-medical evidence and other evidence listed in the regulations.

See id.

If a

claimant retains the RFC to perform past relevant work, then the claimant is not
disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to prove that
17

there is other work that the claimant can do, given the claimant’s RFC as determined at
Step Four, and his or her age, education, and work experience. See Bladow v. Apfel,
205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must prove not only that
the claimant’s RFC will allow the claimant to make an adjustment to other work, but also
that the other work exists in significant numbers in the national economy.

Eichelberger

v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in
significant numbers in the national economy, then the Commissioner will find the
claimant is not disabled. If the claimant cannot make an adjustment to other work, then
the

Commissioner

will

find

that

§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

the

claimant

is

disabled.

20

C.F.R.

At Step Five, even though the burden of

production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
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. 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.”
934, 939 (8th Cir. 1994).
18

Culbertson v. Shalala, 30 F.3d

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 Cir. 2008)). This is true even in cases where the court “might have weighed
the evidence differently.”

Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan,

958 F.2d 817, 822 (8th Cir. 1992)). The court may not reverse the Commissioner’s
decision “merely because substantial evidence would have supported an opposite
decision.”

Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v.

Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative decision is not

19

subject to reversal simply because some evidence may support the opposite
conclusion.”).
Discussion
Tomlinson raises two arguments in challenging the ALJ’s decision:
A.

The ALJ failed to properly evaluate the opinion of a treating
source on issues including impairment severity and functional
effects pursuant to Social Security Ruling (SSR) 06-03p.

B.

The ALJ failed to properly apply the Polaski factors in determining
the credibility of Tomlinson’s subjective complaints.

Doc. No. 11 at 1. I will address these arguments separately.
A.

Treating Source Opinion
The Social Security regulations state, in relevant part:
Treatment relationship. Generally, we give more weight to opinions
from your treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your
medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone
or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating source's
opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in
your case record, we will give it controlling weight. When we do not give
the treating source's opinion controlling weight, we apply the factors listed
in paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in
paragraphs (d)(3) through (d)(6) of this section in determining the weight to
give the opinion. We will always give good reasons in our notice of
determination or decision for the weight we give your treating source's
opinion.

20

20 C.F.R. § 404.1527(d)(2) [emphasis added].2 What this means is that a treating
source’s opinion is generally given controlling weight, but is not inherently entitled to it.
Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating source’s opinion
“does not automatically control or obviate the need to evaluate the record as a whole.”
Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). But that opinion will be 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 the
case record. Hacker, 459 F.3d at 937.
In this case, the only potential “treating source” opinion is that of Ms. Drevs, a
physician assistant. AR 750-52. The ALJ considered her opinion, but determined that
it was not entitled to great weight as (a) she is not an acceptable medical source and (b)
“her limitations are inconsistent with the claimant’s work since the alleged onset
date . . . and with the record as a whole.” AR 16-17.

(Tr. 16, 17).

Tomlinson acknowledges that under existing Social Security regulations, a
physician assistant (or “PA”) is not an “acceptable medical source.” Doc. No. 11 at
8-9 (citing 20 C.F.R. §§ 404.1513(a) and 416.913(a)3). He notes, however, that Social
Security Ruling (“SSR”) 06-03p nonetheless required the ALJ to give consideration to
Ms. Drevs’ opinion. That ruling includes the following statements:
The distinction between “acceptable medical sources” and other health care
providers who are not “acceptable medical sources” is necessary for three
reasons. First, we need evidence from “acceptable medical sources” to
establish the existence of a medically determinable impairment. See 20
CFR 404.1513(a) and 416.913(a). Second, only “acceptable medical
sources” can give us medical opinions. See 20 CFR 404.1527(a)(2) and
2

Section 404.1527 has been amended, with certain paragraphs being re-numbered. All citations
to that section in this ruling are to the version in effect during the relevant period of time.
3

These regulations list “acceptable medical sources” who can “provide evidence to establish an
impairment.” Physician assistants are not on the list.
21

416.927(a)(2). Third, only “acceptable medical sources” can be considered
treating sources, as defined in 20 CFR 404.1502 and 416.902, whose
medical opinions may be entitled to controlling weight. See 20 CFR
404.1527(d) and 416.927(d).
***
In addition to evidence from “acceptable medical sources,” we may use
evidence from “other sources,” as defined in 20 CFR 404.1513(d) and
416.913(d), to show the severity of the individual's impairment(s) and how
it affects the individual's ability to function. These sources include, but are
not limited to:
•

Medical sources who are not “acceptable medical
sources,” such as nurse practitioners, physician
assistants, licensed clinical social workers,
naturopaths,
chiropractors,
audiologists,
and
therapists;
***

Although the factors in 20 CFR 404.1527(d) and 416.927(d) explicitly
apply only to the evaluation of medical opinions from “acceptable medical
sources,” these same factors can be applied to opinion evidence from
“other sources.” These factors represent basic principles that apply to the
consideration of all opinions from medical sources who are not “acceptable
medical sources” as well as from “other sources,” such as teachers and
school counselors, who have seen the individual in their professional
capacity.
***
Opinions from “other medical sources” may reflect the source's judgment
about some of the same issues addressed in medical opinions from
“acceptable medical sources,” including symptoms, diagnosis and
prognosis, what the individual can still do despite the impairment(s), and
physical and mental restrictions.

22

Not every factor for weighing opinion evidence will apply in every case.
The evaluation of an opinion from a medical source who is not an
“acceptable medical source” depends on the particular facts in each case.
Each case must be adjudicated on its own merits based on a consideration
of the probative value of the opinions and a weighing of all the evidence in
that particular case.
The fact that a medical opinion is from an “acceptable medical source” is a
factor that may justify giving that opinion greater weight than an opinion
from a medical source who is not an “acceptable medical source” because,
as we previously indicated in the preamble to our regulations at 65 FR
34955, dated June 1, 2000, “acceptable medical sources” “are the most
qualified health care professionals.” However, depending on the particular
facts in a case, and after applying the factors for weighing opinion
evidence, an opinion from a medical source who is not an “acceptable
medical source” may outweigh the opinion of an “acceptable medical
source,” including the medical opinion of a treating source. For example, it
may be appropriate to give more weight to the opinion of a medical source
who is not an “acceptable medical source” if he or she has seen the
individual more often than the treating source and has provided better
supporting evidence and a better explanation for his or her opinion.
See SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006). Among other things, this ruling
means a PA’s opinion (a) is not entitled to controlling weight and (b) cannot establish the
existence of a medically-determinable impairment. However, a PA’s opinion can be
used as evidence of the severity of an impairment and how the impairment affects the
individual's ability to function. An ALJ must evaluate the PA’s opinion with reference
to the same factors that apply to other medical sources, including:





How long the source has known and how frequently the source has seen the
individual;
How consistent the opinion is with other evidence;
The degree to which the source presents relevant evidence to support an opinion;
How well the source explains the opinion;

23




Whether the source has a specialty or area of expertise related to the individual's
impairment(s), and
Any other factors that tend to support or refute the opinion.

See 20 CFR §§ 404.1527(d) and 416.927(d). “In determining what weight to give
‘other medical evidence,’ the ALJ has more discretion and is permitted to consider any
inconsistencies found within the record.”

Raney v. Barnhart, 396 F.3d 1007, 1010 (8th

Cir. 2005).
Here, the ALJ followed the correct legal framework for considering the PA’s
opinion. Moreover, her conclusion that the opinion is inconsistent with the record as a
whole is supported by substantial evidence. Ms. Drevs reported that Tomlinson could
perform no sitting, standing, or walking – at all. AR 750. She further opined that he
could never lift any weight – at all. Id. According to Ms. Drevs, the only functional
capacity that Tomlinson could ever perform was seldom reaching in all directions except
overhead.

Id.

She concluded that all other functional capacities were entirely

precluded. AR 750-51.
The ALJ had sufficient grounds for finding that the record fails to support these
extreme limitations.

Ms. Drevs herself released Tomlinson to part-time work in

January 2008 and Tomlinson’s treating cardiologist, Dr. Addo, advised him in June 2008
to maintain a job that would give him health insurance. AR 526, 556. And, in fact, it
is undisputed that Tomlinson was able to work part-time from April 2008 through at least
the date of the hearing in May 2010.

AR 16, 51, 139, 141, 143, 154-55, 279.

Moreover, in February 2010 Tomlinson reported that during an 8-hour workday,
he could sit for 15 to 30 minutes at a time for a total of 4 hours, stand for 5 to 10 minutes
at a time for a total of 2.5 hours, walk half a block at a time for a total of 1.5 hours and
lift a maximum of 30 to 50 pounds. AR 333-34. During the hearing, he testified that
he was able to stand for 10 to 20 minutes, sit for 20 minutes, walk half a block and lift 25
24

pounds occasionally. AR 47-48. The fact that Tomlinson himself contradicted the
PA’s opinion gave the ALJ a valid basis for discounting that opinion.

See, e.g.,

Medhaug v. Astrue, 578 F.3d 805, 815 (8th Cir. 2009) (noting that a physician’s
statements were contradicted by the claimant’s own testimony).
In addition, two state agency medical consultants reviewed Tomlinson’s medical
records and found that his impairments were not disabling. AR 461, 475. While
Tomlinson points out that his cardiologist, Dr. Addo, assessed him at NYHA Class II or
III functional capacity, he cites no authorities holding that those classifications equate to
an inability to engage in substantial gainful activity. As noted earlier, individuals at the
Class II to Class III level are considered to have a “slight” to “marked” limitation of
physical activity. See Note 1, supra.
In any event, it is the ALJ’s duty to assess opinions and determine the weight to be
given these opinions. See Finch, 547 F.3d at 936 (“The ALJ is charged with the
responsibility of resolving conflicts among medical opinions.”); Estes v. Barnhart, 275
F.3d 722, 725 (8th Cir. 2002) (“It is the ALJ’s function to resolve conflicts among ‘the
various treating and examining physicians.’”) (citing Bentley v. Shalala, 52 F.3d 784,
785-87 (8th Cir. 1995)). The ALJ was not required to give any particular weight to
Ms. Drevs’ opinion. She gave good reasons for her decision not to give that opinion
great weight and those reasons are supported by substantial evidence in the record. As
such, I reject Tomlinson’s argument that the ALJ failed to properly evaluate Ms. Drevs’
opinion.
B.

Claimant’s Credibility
As noted above, the ALJ found that Tomlinson’s statements as to the intensity,

persistence and limiting effects of his symptoms were not credible to the extent they were
inconsistent with her assessment of his RFC.
25

“An ALJ who rejects [subjective]

complaints must make an express credibility determination explaining the reasons for
discrediting the complaints.”

Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). In

assessing a claimant’s credibility, the ALJ must consider “the claimant’s prior work
history; daily activities, duration, frequency, and intensity of pain; dosage, effectiveness
and side effects of medication; precipitating and aggravating factors; and functional
restrictions.” Medhaug, 578 F.3d at 816 (citing Polaski, 739 F.2d at 1322). “Other
relevant factors include the claimant’s relevant work history and the absence of objective
medical evidence to support the complaints.”

Mouser v. Astrue, 545 F.3d 634, 638

(8th Cir. 2008) (quoting Wheeler v. Apfel, 224 F.3d 891, 894 (8th Cir. 2000)).
However, lack of objective medical evidence cannot be the sole reason for discounting a
claimant’s subjective complaints.

Mouser, 545 F.3d at 638. An ALJ may discount a

claimant’s subjective complaints if there are inconsistencies in the record as a whole.
Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2009). The ALJ does not need to
discuss each Polaski factor as long as he or she “acknowledges and considers the factors
before discounting a claimant’s subjective complaints.”

Moore v. Astrue, 572 F.3d

520, 524 (8th Cir. 2009).
The ALJ acknowledged the applicable factors here. AR 15. She then discussed
the evidence of record that she found to be inconsistent with Tomlinson’s statements,
including objective medical evidence, the opinions of the state agency medical
consultants, Tomlinson’s ability to continue with part-time work, evidence of exercise
testing which was consistent with heavy to very heavy exertion, his statement that he
seldom used medication for chest pain and the lack of any medical opinion evidence of
limitations that would render him unable to work. 4

AR 15-18.

When the ALJ

articulates the inconsistencies on which she relied in discrediting a plaintiff’s subjective
4

It is significant that no physician who examined Tomlinson noted limitations consistent with a
finding of disability. See Choate v. Barnhart, 457 F.3d 865, 870 (8th Cir. 2006); Young v.
Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000).
26

complaints, and when those inconsistencies are supported by the record, the credibility
determination should be affirmed.

See Eichelberger, 390 F.3d at 590 (“We will not

substitute our opinion for that of the ALJ, who is in a better position to assess
credibility.”). The primary question is not whether Tomlinson actually experiences the
subjective complaints alleged, but whether those symptoms are credible to the extent that
they prevent him from performing substantial gainful activity. See Brown v. Barnhart,
390 F.3d 535, 541 (8th Cir. 2004) (“While there is no doubt the claimant experiences
pain, the important question is how severe the pain is.”)
The ALJ conducted a proper analysis of Tomlinson’s credibility. She credited
the subjective allegations that were supported by substantial evidence in the record and
discredited those allegations that were inconsistent with other evidence in the record or
had no objective support.

The ALJ’s credibility analysis, and her resulting RFC

determination, are supported by substantial evidence. When that RFC determination is
applied to the VE’s testimony, the ALJ correctly found that Tomlinson can perform a
wide range of unskilled light jobs and unskilled sedentary work. AR 19. As such, he
is not disabled within the meaning of the Act.
Recommendation
For the reasons discussed above, I RESPECTFULLY RECOMMEND that the
Commissioner’s decision be affirmed and judgment be entered against Tomlinson and in
favor of the Commissioner.
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.
27

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.
DATED this 15th day of March, 2013.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
NORTHERN DISTRICT OF IOWA

28