Zinnel v. Commissioner of Social Security
ORDER - The Court finds that remand for the award of benefits is appropriate. See text of Order. Signed by Senior Judge Donald E O'Brien on 2/6/13. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
MARY ANN ZINNEL,
MICHAEL J. ASTRUE,
Commissioner of Social
This matter is before the Court pursuant to Mary Ann
disability benefits under Title II of the Social Security Act
(the “Act”), 42 U.S.C. §§ 401 et seq.
This Court has
authority to review the final decision of the Commissioner of
the Social Security (Commissioner) pursuant to 42 U.S.C. §
405(g). The parties appeared by phone for hearing on December
After hearing, the Court took the matter under
advisement and now enters the following.
At the time of the hearing, Ms. Zinnel was 47 years old.
She is married and lives with her husband near Haywood, Iowa.
She has a GED and has held a variety of manual type jobs over
the years, including:
retail, delivery, production and jobs
on the family farm.
Her disability claim arises out of a
stroke she suffered in 2006.
On or about November 10, 2008, Ms. Zinnel filed an
application for SSD benefits, alleging that her disability
began on December 15, 2006.
The claim was denied on January
reconsideration, and on May 5, 2009, the request was denied.
Ms. Zinnel filed a request for hearing in a timely fashion,
and a hearing was held in Sioux City, Iowa, on August 19,
2010, before the Hon. Ronald Lahners, Administrative Law Judge
(hereinafter “ALJ”). On September 9, 2010, the ALJ found that
Ms. Zinnel’s claim should be denied.
Ms. Zinnel filed a
timely Request for Review of Hearing Decision, and on February
23, 2012, the Appeals Council denied the Request for Review
(Tr. 1, 4).
Ms. Zinnel proceeded to file a request for
judicial review with this Court.
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
individual is disabled and entitled to benefits.
The five successive steps are:
20 C.F.R. §
of whether a plaintiff is engaged in “substantial gainful
activity,” (2) determination of whether a plaintiff has a
“severe medically determinable physical or medical impairment”
that lasts for at least 12 months, (3) determination of
whether a plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
requirements of his past relevant work, and (5) determination
of whether, given a Plaintiff’s RFC, age, education and work
experience, a plaintiff can “make an adjustment to other
20 C.F.R. § 404.1520(4)(I-v).
At step one, if a plaintiff is engaged in “substantial
gainful activity” within the claimed period of disability,
At step 2, if a plaintiff does not have a
“severe medically determinable physical or mental impairment”
that lasts at least 12 months, there is no disability.
C.F.R. § 404.1520(a)(4)(ii).
At step 3, if a plaintiff’s
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
disabled. 20 C.F.R. § 404.1520(e). Before proceeding to step
Functional Capacity [RFC].
RFC is the “most” a person “can
The RFC an ALJ assigns a plaintiff has been
referred to as the “most important issue in a disability case
. . . .”
Malloy v. Astrue, 604 F. Supp. 2d 1247, 1250 (S.D.
Iowa 2009) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982)(en banc)). When determining RFC, the ALJ must
Plaintiff’s impairments, even those which are not deemed
severe, as well as limitations which result from symptoms,
such as pain.
20 C.F.R. § 404.1545(a)(2) and (3).
“may not simply draw his own inferences about a plaintiff’s
Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004).
At step 4, if, given a plaintiff’s RFC, a plaintiff can
20 C.F.R. § 404.1520(a)(4)(iv).
At step 5, if,
given a plaintiff’s RFC, age, education, and work experience,
a plaintiff can make an adjustment to other work, there is no
This step requires the ALJ to provide
“evidence” that a plaintiff could perform “other work [that]
exists in significant numbers in the national economy.”
C.F.R. § 404.1560(c)(2).
In other words, at step 5, the
burden of proof shifts from a plaintiff to the Commissioner of
Basinger v. Heckler, 725 F.2d 1166, 1168 (8th
The ALJ generally calls a Vocational Expert (VE)
to aid in determining whether this burden can be met.
In this case, the ALJ applied the appropriate methodology
and determined that Ms. Zinnel is not under a disability.
Specifically the ALJ found that:
Through the date last insured, the claimant
had the following severe impairments:
residuals of cerebrovascular accident,1
status post right internal carotid artery
medication for numerous health issues,
including high blood pressure, arthritis
allergies...Prior to the alleged onset
date, the claimant sought chiropractic
services for headaches and back, knee, and
neck pain...The claimant also reported
having bone spurs on the bottom of her feet
and bad teeth...The overall evidence does
claimant’s mental impairments, considered
singly and in combination, did not cause
Commonly refereed to as a stroke.
more than minimal limitation in her ability
to perform basic mental work activities and
were therefore non-severe...
Through the date last insured, the claimant
did not have an impairment or combination
of impairments that met or medically
equaled one of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1526.)...After careful consideration of
the entire record, the undersigned finds
that through the date last insured, the
claimant had the residual functional
capacity to lift 20 pounds occasionally and
10 pounds frequently, and in an 8-hour day
she could sit for 6 hours, stand for 6
hours, and with normal breaks complete the
workday. She normally did not use a cane
for assistance but needed to work on level
ground and not climb ladders, scaffolds, or
anything involving heights due to balance
She could occasionally climb
stairs, stoop, kneel and crouch. She could
not perform fine fingering work on constant
The claimant alleged disability due to the
residual effects of a stroke...She reported
breaks, and not being able to be on her
feet for long periods.
having pain symptoms on and off during the
day that lasted a couple of hours, right
sided weakness, and difficulty walking...
undersigned finds the claimant’s medically
determinable impairments could reasonably
be expected to cause the alleged symptoms;
concerning the intensity, persistence, and
limiting effects of these symptoms are not
inconsistent with the above residual
functional capacity assessment...Through
the date last insured, the claimant was
capable of performing past relevant work as
a retail store manager. This work did not
equire the performance of work-related
activities precluded by the claimant’s
residual functional capacity...
STANDARD OF REVIEW
requires a determination of whether the decision of the ALJ is
supported by substantial evidence on the record as a whole.
See 42 U.S.C. § 405(g); Finch v. Astrue, 547 F.3d 933, 935
preponderance but enough that a reasonable mind might find it
adequate to support the conclusion in question.
Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (citing Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).
This Court must
consider both evidence that supports and detracts from the
Karlix v. Barnhart, 457 F.3d 742, 746 (8th
Cir. 2006) (citing Johnson v. Chater, 87 F.3d 1015, 1017 (8th
In applying this standard, this Court will not
reverse the ALJ, even if it would have reached a contrary
decision, as long as substantial evidence on the record as a
whole supports the ALJ's decision.
Eichelberger v. Barnhart,
390 F.3d 584, 589 (8th Cir. 2004).
The ALJ's decision shall
be reversed only if it is outside the reasonable "zone of
Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.
2006) (citing Culbertson v. Shalala, 30 F.3d 934, 939 (8th
This Court may also ascertain whether the ALJ's decision
is based in legal error.
(8th Cir. 2001).
Lauer v. Apfel, 245 F.3d 700, 702
If the ALJ applies an improper legal
standard, it is within this Court's discretion to reverse
Neal v. Barnhart, 405 F.3d 685, 688 (8th
Cir. 2005); 42 U.S.C. 405(g).
Ms. Zinnel argues that the ALJ’s determination is not
supported by substantial evidence.
Specifically, Ms. Zinnel
argues that the ALJ erred in determining that her testimony
was not credible, that she was not disabled as defined in
section 11.04 of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1.5, and that she does not have the
residual functional capacity to work. The Court will consider
each issue in turn.
benefits, they must demonstrate they have a disability as
defined in the Social Security Act [hereinafter the Act]. The
Act defines a disability as an:
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).
Ms. Zinnel asserts that the ALJ did not properly assess
her and her husband’s credibility. Docket No. 7, p. 8, 11-12.
An ALJ must give reasons if, as in this case, he does not
fully credit the claimant’s testimony (Tr. 23–24).
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); 20
evaluating symptoms); Social Security Ruling (SSR) 96-7p, 1996
WL 374186 (S.S.A. 1996) (discussing credibility).
decision, the ALJ found that Ms. Zinnel’s complaints were not
entirely credible for several reasons (Tr. 16-18). It is true
that credibility questions are “primarily for the ALJ to
Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir.
However, this Court must still consider whether the
ALJ’s determinations are supported by substantial evidence.
That includes the ALJ’s determinations regarding credibility.
To analyze a plaintiff’s subjective complaints of pain,
“Polaski” factors: 1) the claimant’s daily activities; 2) the
See Polaski, 739 F.2d at 1322; see also 20
C.F.R. §§ 404.1529, 416.929.
The ALJ stated that the opinion of Dr. O’Shea did not
support Ms. Zinnel’s testimony.
The ALJ stated that she was
noncompliant with treatment, she could do more than she
claimed, and examination did not support her testimony.
However, Ms. Zinnel argues that “the testimony
from Zinnel and her husband indicated that she suffered from
significant problems with fatigue and memory loss. The record
as a whole supports these assertions, and the ALJ erred in
failing to give them appropriate weight.”
Docket # 7, p. 12.
In making that argument, Ms. Zinnel relies on the case of
Holmstrom v. Massanari, 270 F.3d 715 (8th Cir. 2001). In that
case, the ALJ determined that the plaintiff’s testimony was
However, the Circuit Court disagreed and said that:
Although the record credited by the ALJ .
. . . may not contain sufficient objective
medical evidence to support Holmstrom’s
subjective complaints, the record as a
whole does support them. The record as a
testimony and all the medical records,
complaints in such a qualitative manner as
to negate the inconsistencies pointed out
by the ALJ... When the corroborative
subjective complaints are credible. When
Holmstrom’s credible testimony as to his
pain induced limitations is properly
considered, the RFC determined by the ALJ
is insufficient; it does not include all of
Holmstrom’s impairments, limitations, and
Id. at 722.
The Court agrees with the Plaintiff.
There is no dispute
that Ms. Zinnel suffered a severe stroke which resulted in
numerous challenges for her and her family.
There is no
medical testimony or evidence contained in the record that
repudiates Ms. Zinnel’s essential assertion that she continues
to suffer from the stroke’s after effects.
primary dispute regards the degree of those after effects.
testimony.2 As a treating physician, his opinion was entitled
to great weight.
Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir.
2001). Additionally, other medical reports, including that of
Dr. Baker, reaffirm Ms. Zinnel’s essential complaints,3 as
does the testimony of Ms. Zinnel’s husband.
consistently complained of fatigue as a result of her stroke
to medical professionals.4
Even the medical reports that the
Defendant relies upon note that Ms. Zinnel had lingering
Dr. Lassen stated that Ms. Zinnel has chronic upper
and lower extremity weakness, abnormal sensation with no
improvement expected. Tr. 649. He also stated that she had
limited fine motor skills, tremors, and fatigue. Id. at
648. Finally, Dr. Lassen stated that Ms. Zinnel would have
a hard time working or doing chores without breaks and could
not maintain a position for longer than 15 minutes. Id. at
Dr. Michael Baker, a psychologist in Sioux City, noted
that she requires naps in the afternoon, and that her
husband did most of household shopping and finances. Tr.
489. He also noted that Ms. Zinnel’s ability to recall is
poor, that she suffers from difficulty with concentration,
and she is not able to handle stress in the workplace. Id.
at 490. He stated that, “Client does walk with a shuffling
gait. She did not seem to be responding to internal
stimuli...recall is poor. Concentration is only
fair...considering her initial reaction to his interview,
she might not be able to handle stress in the workplace.”
See, as an example, the report of Dr. Horstman, where
Ms. Zinnel complained of fatigue and dizziness. Tr. 465.
See also the report of Julie Beehler, nurse practitioner,
who stated that Ms. Zinnel complained of fatigue. Tr. 453.
symptoms as a result of her stroke.5 Accordingly, substantial
evidence does not support a finding that Ms. Zinnel is not
testimony regarding the severity of her symptoms and her
ability to work.
Additionally, the ALJ seemed to rely heavily on the fact
that Ms. Zinnel smokes and drinks soda.
As stated in the
the ALJ noted plaintiff was instructed to
stop smoking and to decrease her caffeine
use (Tr. 17, 409, 470, 472).
plaintiff continued to smoke and was still
drinking four sodas a day in January 2009
(Tr. 45, 286, 288, 305, 410, 413, 419-20,
423, 427, 457, 534, 578; see also Tr. 668
(noting in December 2010 that plaintiff
“smokes one pack per day of cigarettes and
drinks a lot of caffeine.”)).
plaintiff’s impairment was as severe as
alleged, she would be expected to follow
treatment recommendations more closely.
Docket #8, p. 19-20.
It is true “[a] failure to follow a recommended course of
treatment . . . weighs against a claimant’s credibility.”
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005).
However, it is also true that it is not the job of the ALJ, or
this Court, to parse every personal decision Ms. Zinnel made.
See Dr. Bacharach’s report at Tr. 441, stating that
Ms. Zinnel had a tremor.
While it is relatively undisputed that stopping smoking and
drinking less soda are positive life choices, there is no
clear indication in the record that those choices are tied to
Ms. Zinnel’s conditions, other than perhaps exacerbating her
It is clear that the ALJ, and now the Defendant,
rely too heavily on the fact that Ms. Zinnel drank pop and
smoked in reaching the determination that she is not credible.
For those reasons, the ALJ’s credibility findings are not
supported by substantial evidence.
In fact, substantial
evidence supports a finding that Ms. Zinnel testified credibly
about her condition and the effects it has on her life and her
ability to work.
determining that she did not meet the criteria of section
11.04 of the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1.5.
For the reasons discussed below, this Court
The ALJ found that substantial evidence did not support
a finding that plaintiff met or equaled any listing.
The Eighth Circuit Court of Appeals has held that, “[t]he
burden of proof is on the plaintiff to establish that his or
Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004).
claimant must show that her impairment matches all of the
specified medical criteria of a listing.
See Boettcher v.
Astrue, 652 F.3d 860, 863-64 (8th Cir. 2011).
With one of the following more than 3 months
resulting in ineffective speech or communication; or (B).
Significant and persistent disorganization of motor function
in two extremities, resulting in sustained disturbance of
gross and dexterous movements, or gait and station (see
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.04.
plaintiff admits she does not have ineffective speech or
requirements of subsection (B), Ms. Zinnel must show that she
disturbance of gross and dexterous movements, or gait and
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.04.
assessment of “[p]ersistent disorganization of motor function
As indicated by the counsel during the hearing,
station in this context means standing.
. . . depends on the degree of interference with locomotion
and/or interference with the use of fingers, hands, and arms.”
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00(c).
The ALJ determined that Ms. Zinnel did not have an
impairment as described by 11.04.
However, Ms. Zinnel argues
conclusion that she suffers from significant and persistent
disorganization of motor function in two extremities.
opined that she needs a cane to walk.
He confirmed that she
Therefore, Dr. Lassen confirmed that she has significant
disorganization in both her hands and her legs as a result of
The ALJ erred by finding otherwise.”
This Court agrees.
It is undisputed in the record that Ms. Zinnel needs a
cane to walk with.
While there are suggestion in the record
that Ms. Zinnel does not use her cane as much as she should,
that does not negate the fact that as a result of the stroke
she needs a cane. Additionally, both the medical evidence and
the testimony show that Ms. Zinnel has a lingering issue with
both her strength and her ability to use her hands to hold
Even the ALJ concluded that Ms. Zinnel would be
Accordingly, it seems clear that substantial evidence supports
a finding that Ms. Zinnel has persistent disorganization of
Thus, it was an error for the ALJ to find
substantial evidence supported a finding that Ms. Zinnel was
not disabled under 11.04.
During the hearing, the Defendant pointed out that Ms.
Zinnel’s coverage period only extends to the end of 2008. The
Plaintiff cited the case of Bird v. Comm'r of Soc. Sec.
Admin., 699 F.3d 337, 345 (4th Cir. 2012) and the Defendant
cited Davidson v. Astrue, 501 F.3d 987 (8th Cir. 2007).
holdings in those cases are not in conflict.
In cases such as
these, courts can consider retrospective medical opinions.
Bird, 699 F.3d at 341.
However, the Court can only consider
the condition as it existed at the time the plaintiff was
“[plaintiff’s] insured status expired on December 31, 2003,
so, like the Commissioner, we consider her condition before
This Court has followed those precedents in
coming to its conclusion.
Dr. Lassen’s report, relied upon by both the Plaintiff
and the Court, is dated June 21, 2010, after coverage expired.
Plaintiff’s stroke, which occurred while she had coverage.
There is no medical evidence in the record to suggest that Ms.
Zinnel’s complaints arose after the coverage period ended or
that Dr. Lassen was discussing a condition arising after 2008.
Accordingly, it is proper retrospective medical evidence that
the Court can consider in determining what Ms. Zinnel’s
condition was during the coverage period.
that evidence, as well as the testimony discussed on pages 9
through 14 above, it is clear that substantial evidence
supports a finding that Ms. Zinnel was disabled at the time
her coverage expired.
Past Work and Functional Capacity
As discussed above, the ALJ erred in not crediting Ms.
Zinnel’s testimony and not finding her disabled under 11.04.
Accordingly, the Court need not reach the argument regarding
the ALJ’s determination that Ms. Zinnel could perform past
However, if the Court were to consider that argument, it
is clear that the ALJ erred by determining that Ms. Zinnel
could perform past relevant work.
The medical record, when
establishes that there are no jobs she can perform.
out above, Dr. Lassen stated that Ms. Zinnel would need to
take frequent unscheduled breaks at work, she would miss more
than two days a month, would need to walk with a cane, could
not do jobs which would require increased dexterity, and would
need to change positions every fifteen minutes.
Substantial evidence does not support a finding that she could
return to her prior employment or that she could find a job
that would accommodate her condition.
The Court has the authority to reverse a decision of the
rehearing," but the Eighth Circuit has held that a remand for
award of benefits is appropriate only where "the record
‘overwhelmingly supports'" a finding of disability. 42 U.S.C.
405(g); Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000).
In this case, the Court finds that remand for the award of
benefits is appropriate. The ALJ’s findings are not supported
overwhelmingly supports a finding that Ms. Zinnel is disabled.
Application for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (EAJA), must be filed
within thirty (30) days of the entry of final judgment in this
Thus, unless this decision is appealed, if Zinnel’s
attorney wishes to apply for EAJA fees, it must be done within
thirty (30) days of the entry of the final judgment in this
IT IS SO ORDERED this 6th day of February, 2013.
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
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