Soria v. Commissioner of Social Security

Filing 17

ORDER re 1 Complaint. The decision of the ALJ is reversed and remanded solely for the calculation of benefits from Plaintiff's claimed onset of disability. See text of Order. Signed by Senior Judge Donald E OBrien on 3/24/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ISMAEL SORIA,
Plaintiff,

No. 13-CV-4014-DEO

v.
ORDER

CAROLYN W. COLVIN,
Commissioner of Social
Security,1
Defendant.
____________________
This

matter

is

before

the

Court

pursuant

to

Ismael

Soria’s [hereinafter Mr. Soria] application for disability
insurance benefits under Title II of the Social Security Act
(“Act”), 42 U.S.C. §§ 401 et seq.
hearing on August 21, 2013.

The parties appeared for a

During the hearing, the Court

requested supplemental briefs, which the parties filed shortly
thereafter.

After considering the parties’ arguments, the

Court took the matter under advisement and now enters the
following.

1

Mr. Soria originally filed this case against Michael
J. Astrue, Comm. of Social Security. On February 14, 2013,
Carolyn W. Colvin became the Commissioner of SSA. The Court,
therefore, substitutes Commissioner Colvin as the defendant in
this action. Fed. R. Civ. P. 25(d)(1).

I.

FACTUAL BACKGROUND
Mr. Soria was born on December 21, 1974.

Storm Lake, Iowa.
old.

He lives in

At the time of the hearing, he was 37 years

He has a fifth grade education and is a native Spanish

speaker.

(There was some testimony that Mr. Soria went to

school intermittently in later grades, but did not complete
them.) Mr. Soria cannot read English, and only speaks limited
English.

He is married and has four children.

Mr. Soria has a varied work history.
doing basic farm labor.

His first jobs were

After that, he began working in

packing houses and meat packing plants.

He spent much of his

adult life working at the Tyson meat packing plant in Storm
Lake, Iowa.

While working at Tyson, Mr. Soria hurt his back

and that back injury is the basis for his present disability
complaint.

Mr. Soria first had back surgery in 2007.

After

returning to Tyson, he did light work but was eventually laid
off.

Since being laid off in 2009, Mr. Soria has made some

attempts to learn English and find other work.
Mr. Soria claims disability based on back pain, high
blood pressure and depression.

2

II.

PROCEDURAL HISTORY
Mr. Soria filed his application for disability benefits

on October 14, 2009.

Mr. Soria alleged he became disabled on

September 28, 2009. At the time Mr. Soria became disabled, he
was 34 years old.
Mr.

Soria’s

The Social Security Administration denied

application

on

December

2,

2009,

and

upon

reconsideration March 22, 2010. On August 16, 2011, Mr. Soria
appeared for telephonic hearing before an Administrative Law
Judge (ALJ). Because of issues related to the telephone based
interpreter, the hearing was continued. On November 29, 2011,
Mr. Soria appeared for an in person hearing in Sioux Falls,
South Dakota.

Administrative Law Judge (ALJ) Robert Maxwell

heard Mr. Soria’s claim and denied it on December 12, 2011.
Mr. Soria appealed to the Appeals Council, who denied his
claim on December 5, 2012.

Mr. Soria filed the present

Complaint on February 7, 2013.
The ALJ set out the issue presently before the Court:
The issue is whether the claimant is
disabled under sections 216(i) and 223(d)
of the Social Security Act. Disability is
defined as the inability to engage in any
substantial gainful activity by reason of
any medically determinable physical or
mental
impairment
or
combination
of
impairments that can be expected to result
3

in death or that has lasted or can be
expected to last for a continuous period of
not less than 12 months.
There is an
additional issue whether the insured status
requirements of sections 216(i) and 223 of
the Social Security Act are met.
The
claimant's earnings record shows that the
claimant has acquired sufficient quarters
of coverage to remain insured through
December 31, 2014. Thus, the claimant must
establish disability on or before that date
in order to be entitled to a period of
disability
and
disability
insurance
benefits.
Docket No. 5, Tr. 10.
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential

evaluation

process

for

determining

individual is disabled and entitled to benefits.
404.1520.

The five successive steps are:

whether

an

20 C.F.R. §

(1) determination

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
Capacity

(RFC)

indicates

an
4

incapacity

to

perform

the

requirements

of

determination

their

of

past

whether,

relevant

given

and

(5)

plaintiff’s

a

work,

RFC,

age,

education and work experience, a plaintiff can “make an
adjustment to other work.”

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,
there

is

no

disability

404.1520(a)(4)(I).

during

that

time.

20

C.F.R.

§

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).
impairments

meet

or

20

At step 3, if a plaintiff’s

medically

equal

the

criteria

of

an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1,

and

last

at

least

12

months,

a

plaintiff

is

deemed

disabled. 20 C.F.R. § 404.1520(e). Before proceeding to step
4

and

5,

the

ALJ

must

determine

Functional Capacity [RFC].
still

do”

despite

404.1545(a)(1).

their

a

plaintiff’s

Residual

RFC is the “most” a person “can
limitations.

20

C.F.R.

§

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.
5

Iowa 2009) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982)(en banc)). When determining RFC, the ALJ must
consider

all

of

the

relevant

evidence

and

all

of

the

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).

An ALJ

“may not simply draw his own inferences about a plaintiff’s
functional

ability

from

medical

reports.”

Strongson

v.

Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004).
At step 4, if, given a plaintiff’s RFC, a plaintiff can
still

perform

disability.

their

past

relevant

work,

20 C.F.R. § 404.1520(a)(4)(iv).

there

is

no

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
disability.

20

416.920(a)(4)(v).

C.F.R.

§§

404.1520(a)(4)(v)

and

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).

20

In other words, at step 5, the

burden of proof shifts from a plaintiff to the Commissioner of
the S.S.A..

Basinger v. Heckler, 725 F.2d 1166, 1168 (8th
6

Cir. 1984).

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 found that Mr. Soria had not engaged in substantial
gainful employment since September 28, 2009.

The ALJ stated

that Mr. Soria suffers from the degenerative disc disease and
status post lumbar fusion.2

However, the ALJ found that Mr.

Soria did not suffer from a disability as contemplated by the
Social Security Code.

Specifically, the ALJ stated:

[t]he claimant does not have an impairment
or combination of impairments that meets or
medically equals the severity of one of the
listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
There are no
medical opinions within the record that
conclude that any of the claimant's
impairments, alone or in combination,
medically
equals
one
of
the
listed
impairments in 20 CFR Part 404, Subpart P,
Appendix 1.
Moreover, the undersigned
concludes that the evidence of record does
2

The ALJ also noted several other impairments, including
affective disorder, hypertension, and high cholesterol.
However, the ALJ determined that they were non-severe.
Regarding the affective disorder (depression), the ALJ
considered Mr. Soria’s mental status, including a GAF score of
32, using the standard four functional areas set out in
disability regulations (paragraph B criteria) and determined
that his mental impairment was non-severe. See Docket No. 5,
Tr. 12-14.
7

not support a conclusion that any of the
claimant's
impairments,
alone
or
in
combination, meets one of the listed
impairments in 20 CFR Part 404, Subpart P,
Appendix 1.
The claimant carries the
burden to establish that his or her
impairment satisfies the requirements of a
listed impairment (Johnson v. Barnhart, 390
F.3d 1067, 1070 (8th Cir. 2004)). However,
the undersigned has examined all of the
impairments listed in 20 CFR Part 404,
Subpart P, Appendix 1, and specifically
considered Listing 1.04, and concludes that
the record does not support that the
criteria of this listing are satisfied.
The claimant's back impairment does not
meet Listing 1.04 because there is no
indication that the impairment has resulted
in compromise of a nerve root or spinal
cord with either: evidence of nerve root
compression,
characterized
by
neuro-anatomic
distribution
of
pain,
limitation of motion of the spine, motor
loss accompanied by sensory or reflex loss,
and positive straight leg raising test
(sitting and supine); spinal arachnoiditis;
or lumbar spinal stenosis resulting in
pseudoclaudication manifested by chronic
nonradicular
pain
and
weakness
and
resulting
in
inability
to
ambulate
effectively. Specifically, the claimant's
nerve root compression has not resulted in
neuroanatomic distribution of pain (Exhibit
4F).
It has resulted in limitation of
motion of the spine (Exhibit 7F, p. 3), but
there has been no sensory or reflex loss.
Similarly, there is no indication or
allegation that the claimant has spinal

8

arachnoidits
or
has
developed
pseudoclaudication. Thus, Listing 1.04 is
not met.3
Docket No. 5, Tr. 14.
The ALJ went on to consider residual functional capacity
and concluded:
[a]fter careful consideration of the entire
record, the undersigned finds that the
claimant has the residual functional
capacity to perform less than the full
range of light work as defined in 20 CFR
404.1567(b).
Specifically, the claimant
can
lift
and/or
carry
20
pounds
occasionally and 10 pounds frequently;
stand/walk for about 6 hours in an 8-hour
day with normal breaks and sit for about 6
hours in an 8-hour day with normal breaks.
He could occasionally balance, stoop,
kneel,
crouch,
crawl,
and
climb
stairs/ramps,
but
never
climb
ladders/ropes/scaffolds.
Docket No. 5, Tr. 14. The ALJ than considered the plaintiff’s
credibility under the Polaski standard and stated:
[t]he claimant reported that due to his
back impairment, he has significant pain in
his legs and back. He also reports that he
experiences dizziness and seeing "stars" or
"lights," possibly as a consequence of his
pain medication. He states he can walk for
5 minutes and has only limited ability to
perform all other exertional and postural
activities. He alleges the need to change
3

Pseudoclaudication simply means pain or cramps.
9

positions frequently.
After careful
consideration
of
the
evidence,
the
undersigned finds that the claimant's
medically determinable impairments could
reasonably be expected to cause the alleged
symptoms;
however,
the
claimant's
statements
concerning
the
intensity,
persistence and limiting effects of these
symptoms are not credible to the extent
they are inconsistent with the above
residual functional capacity assessment.
Docket No. 5, Tr. 15.
The ALJ found significant Mr. Soria’s medical history,
stating:
[t]he objective medical evidence is one
factor that the undersigned has considered.
The claimant is diagnosed with degenerative
disc disease and is status post a lumbar
fusion performed in July 2007, two years
prior to the alleged onset date (Exhibit
1F).
Since the alleged onset date,
physical examination has indicated limited
forward flexion, positive straight leg
raise, spinal tenderness, and muscle spasms
(Exhibit 16F, p. 1; 15F, p. 2-3; 4F, p. 3;
7F, p.3). However, these exams have also
consistently revealed intact sensation,
normal strength, and normal reflexes.
Furthermore, x-rays have consistently shown
a solid, intact fusion (Exhibit 4F). The
claimant's treating neurosurgeon, Jonathan
Fuller, M.D., has stated that the objective
findings do not explain the claimant's
symptomatic complaints (Exhibit 4F).

10

Docket

No.

5,

Tr.

15.

The

ALJ

considered

Mr.

Soria’s

[o]verall, this treatment history is not
consistent with the claimant's allegations.
The claimant did not follow through with
physical therapy, and his medication and
other treatment have been changed only
slightly, which suggests stability and
control over his pain. In addition, the
sheer
number
of
presentations
is
inconsistent
with
the
claimant's
allegations. Fewer than ten presentations
related to pain are reflected in the
medical evidence of record during the
period of alleged disability.
Moreover,
there are no presentations to the emergency
room or similar facility for acute pain
episodes.
The claimant's willingness to
explore physical therapy and his suspected
symptom exaggeration further detract from
his credibility.
No. 5, Tr. 16.
The ALJ considered Mr.

Soria’s

treatment notes and stated:

Docket

testimony that he did little house work because of his back
pain.

The ALJ did not find Mr. Soria’s testimony persuasive,

stating:
[t]he inconsistencies in the record raise
concerns with the claimant's credibility.
As
just
discussed,
the
claimant's
activities of daily living are both
internally inconsistent and inconsistent
with the medical evidence of record. Also
inconsistent are the claimant's statements
regarding his grasp of English.
At the
hearing, he alleged no ability to speak or
understand English, written or orally. The
record
does,
in
fact,
reflect
many
11

instances of translator use at medical
appointments and the like.
However, the
claimant alleged ability to speak and
understand English at his initial interview
(Exhibit 2E).
Moreover, the claims
representative
noted
no
problems
communicating with the claimant (Exhibit
lE).
Another
inconsistency
exists
regarding the claimant's education.
The
claimant reported at the hearing that he
had only six years of education, but he
alleged at the time of his application that
he attended school through ninth grade
(testimony). These inconsistencies carry
only the slightest weight; however, they do
raise some level of concern that the
claimant is attempting to appear more
disabled and less capable for purposes of
this application.
Docket No. 5, Tr. 17.

The ALJ discounted Mr. Soria’s work

history because he received unemployment benefits.

The ALJ

also discounted the testimony of Mr. Soria’s wife and the
other third party statements.
Finally, the ALJ concluded that Mr. Soria is capable of
returning to past relevant work.
[t]he claimant is capable of performing
past relevant work as an inspector. This
work does not require the performance of
work-related activities precluded by the
claimant's residual functional capacity (20
CFR 404.1565)...
Past relevant work is
work that (1) an individual performed
within the past 15 years; (2) that was
substantial gainful activity; and (3) that
lasted long enough for the individual to
12

learn
how
to
do
it
(20
CFR
§
404.1560(b)(1)).
The vocational expert,
after attesting to his familiarity with the
record and presence during testimony,
summarized
the
degree
of
skill
and
exertional demands of claimant's past work
as follows:
Inspector-(529.687-026)-unskilled
work
-light, both as described by the claimant,
and
as
generally
performed
per
the
Dictionary of Occupational Titles.
The
claimant stated that while performing this
position, he both stood and sat and did not
lift substantial weight.
This position constitutes past relevant
work:
the claimant performed this job
within the last 15 years (testimony;
Exhibits 7D and 3E ); the claimant's
earnings constituted substantial gainful
activity (Exhibit 7D; 3E and 20 C.P.R.§§
404.1572,404.1574,416.972, and 416.974);
and because the claimant worked in this
light, unskilled position for approximately
one year, the work lasted long enough for
the claimant to learn how to perform it.
Although not necessary to a step-four
determination, the vocational expert was
instructed
to
assume
a
hypothetical
individual
who
possessed
a
residual
functional
capacity
as
previously
determined and outlined in Finding No. 5.
When asked whether such a hypothetical
individual could perform the claimant's
past work, the vocational expert responded
in the affirmative. Thus, in the opinion
of the vocational expert, a person with the
claimant's residual functional capacity is
able to work as an inspector.
Docket No. 5, Tr. 19.
13

III.

STANDARD OF REVIEW
This

Court's

role

in

review

of

the

ALJ's

decision

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
(8th

Cir.

2008).

Substantial

evidence

is

less

than

a

preponderance but enough that a reasonable mind might find it
adequate to support the conclusion in question.

Juszczyk v.

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
ALJ's decision.

Karlix v. Barnhart, 457 F.3d 742, 746 (8th

Cir. 2006) (citing Johnson v. Chater, 87 F.3d 1015, 1017 (8th
Cir. 1996)).

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
choice."

Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.

14

2006) (citing Culbertson v. Shalala, 30 F.3d 934, 939 (8th
Cir. 1994)).
This Court may also ascertain whether the ALJ's decision
is based on 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
his/her decision.

Neal v. Barnhart, 405 F.3d 685, 688 (8th

Cir. 2005); 42 U.S.C. 405(g).
IV.

ISSUES
In his brief, Mr. Soria argues that ALJ erred in giving

significant weight to older medical opinions.
argues

that

the

ALJ

erred

in

finding

Mr. Soria also

that

depression was not a significant impairment.

Mr.

Soria’s

Finally, Mr.

Soria challenges the ALJ’s credibility analysis.
V.

ANALYSIS
In

order

for

a

plaintiff

to

qualify

for

disability

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
15

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).
A.

Credibility

The first argument the Court will address is about the
Plaintiff’s
determination.

credibility

and

the

ALJ’s

credibility

Mr. Soria argues:

[f]irst and foremost, the ALJ failed to
properly evaluate the medical evidence. As
noted above, the ALJ gave "significant
weight" to medical opinions that were not
even relevant to Mr. Soria's claim... The
ALJ essentially ignored the opinions of Dr.
John E. Cook, the pain specialist, who
diagnosed
Mr.
Soria
with
lumbar
radiculopathy with bilateral symptomatology
and lumbar facet syndrome secondary to
degenerative joint disease as well as
possible epidural adhesions. According to
Dr. Cook, Mr. Soria obviously had radicular
pain consistent with degenerative disk
disease and obvious nerve root compression
with
symptoms
consistent
with
radiculopathy. (AR 501) The ALJ's view of
the medical evidence during the relevant
time frame is not supported by substantial
evidence.
Moreover, the ALJ's decision
fails to recognize the subjective nature of
pain, particularly back pain...
The ALJ
overlooked or ignored evidence that, after
Mr. Soria had been fired by Tyson Foods,
Tyson was not covering his medical expenses
and the claimant did not have any way to
pay for medical treatment. (AR 464)
Further, Dr. Grant noted a history of
16

debilitating back pain. Mr. Soria had seen
multiple
orthopedics
for
further
opinions... 4
Docket No. 7, p. 19-21.

Mr. Soria goes on to address several

of the specific issues broached in the ALJ’s ruling.
The

standard

settled.

“In

regarding

order

to

credibility

assess

a

findings

claimant's

is

well

subjective

complaints, the ALJ must make a credibility determination by
considering
frequency,

the
and

claimant's
intensity

daily

of

the

activities;

pain;

duration,

precipitating

and

aggravating factors; dosage, effectiveness and side effects of
medication; and functional restrictions.”

Mouser v. Astrue,

545 F.3d 634, 638 (8th Cir. 2008) citing Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984).

The ALJ may not discount

subjective complaints solely because they are not supported by
objective medical evidence.

An ALJ must have sufficient

justification for doubting a claimant's credibility.

See

Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010) (quoting
Schultz

v.

Astrue,

479

F.3d

979,

983

(8th

Cir.

2007)).

However, “[a] disability claimant's subjective complaints of
pain may be discounted if inconsistencies in the record as a

4

Epidural adhesions refer to scar tissue formations.
17

whole bring those complaints into question.”

Gonzales v.

Barnhart, 465 F.3d 890, 895 (8th Cir. 2006).
As

stated

above,

the

ALJ

may

only

discount

the

plaintiff’s complaints if they are inconsistent with the
record as a whole.

The Defendant argues that:

[i]n evaluating plaintiff's credibility,
the ALJ considered the inconsistencies
between plaintiff's allegations and the
objective evidence...
[A]s the ALJ also
noted,
the
examinations
consistently
revealed intact sensation, normal strength,
and normal reflexes (Tr. 15, 384, 499-500).
Diagnostic testing showed a solid, intact
spinal fusion (Tr. 387, 414)... The ALJ
also
properly
considered
plaintiff's
"spotty treatment" since his alleged onset
date (Tr. 15)... The record does not show
that plaintiff followed Dr. Fuller's
recommendation of physical therapy (Tr. 15,
385)... Because plaintiff did not follow
through with physical therapy, and his
doctors changed his medication and other
treatment
"only
slightly,"
the
ALJ
concluded that plaintiff's pain was stable
and controlled (Tr. 16).
See Brown v.
Astrue, 611 F.3d 941, 955 (8th Cir. 2010)
(quoting Brace v. Astrue, 578 F.3d 882, 885
(8th Cir. 2009)) ("If an impairment can be
controlled by treatment or medication, it
cannot be considered disabling.").
Docket No. 9, p. 10-12.

The Defendant also relies on select

medical evidence, stating:
[i]n addition, plaintiff’s February 2011
Functional Capacity Evaluation (“FCE”)
18

showed that plaintiff reported “unreliable
pain ratings” (Tr. 483). An earlier FCE in
December 2008 was also considered invalid
due to “symptom magnification” (Tr. 392).
As the ALJ noted, plaintiff’s “symptom
exaggeration further detract[s] from his
credibility” (Tr. 16).
Docket No. 9, 12-13.
Regarding his ability to work, Mr. Soria testified during
the hearing that he has "a lot of pain, sensations with pain
going down my legs through the back."

Docket No. 5, Tr. 49.

Mr. Soria also stated that he "feel[s] a lot of dizziness,
kind of like drunkenness."

Docket No. 5, Tr. 49.

problems concentrating on his work.

Id.

He has

Mr. Soria also

testified that he does not feel that medicine helps his pain.
Docket No. 5. Tr. 51.

He stated that even spinal shots do not

alleviate his back pain.
persuaded

that

Docket No. 5, Tr. 51.

substantial

evidence

supports

The Court is
Mr.

Soria’s

claims, for a number of reasons.
First, both the ALJ and the Defendant rely on the fact
that Mr. Soria does some extremely limited work (such as
letting out the dog or driving short distances) to support the
ALJ’s

conclusion

relevant work.

that

Mr.

Soria

can

return

to

his

past

However, courts have repeatedly stated that

19

the "limited ability to complete light housework and short
errands does not mean [a claimant] has ‘the ability to perform
the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real
people work in the real world.'"

Tilley v. Astrue, 580 F.3d

675, 682 (8th Cir. 2009) citing McCoy v. Schweiker, 683 F.2d
1138, 1147 (8th Cir. 1982) (en banc).

Mr. Soria testified

that he cannot do much around the house and that his wife and
children do most of the housework.

Docket No. 5, Tr. 51.

The

ALJ’s decision to discount Mr. Soria’s complaints because of
his ability to do housework is not supported by substantial
evidence. Indeed, Mr. Soria testified that he is unable to do
housework.

The ALJ extrapolates Mr. Soria’s alleged ability

to do work from very weak inferences in Mr. Soria’s testimony.
In the ALJ’s opinion Mr. Soria’s testimony that he can only
drive short distances because of back pain, becomes an ALJ
conclusion that Mr. Soria does housework by driving his wife
to

work.

Similarly,

Mr.

Soria’s

testimony

that

he

is

depressed, in pain, and forced to stay home during the day,
becomes an ALJ conclusion that Mr. Soria is at home taking
care of his (school aged) children every day.

20

The ALJ also relied on the fact that Mr. Soria applied
for and received unemployment benefits to determine that Mr.
Soria’s testimony was not credible.
circumstances,

receiving

It is true that in some

unemployment

construed against a claimant.

benefits

Courts have stated:

“[a]pplying for unemployment benefits may
be some evidence, though not conclusive, to
negate a claim of disability.”
Johnson,
108 F.3d at 180-81. See also Cox v. Apfel,
160 F.3d 1203, 1208 (8th Cir. 1998)
(stating “the acceptance of unemployment
benefits, which entails an assertion of the
ability to work, is facially inconsistent
with a claim of disability,” but noting
the ALJ cannot base an adverse credibility
finding on this fact alone)...
Social
Security Ruling 00-01c, 2000 WL 38896 (Jan.
7, 2000), and Cleveland v. Policy Mgmt.
Sys. Corp., 526 U.S. 795, 119 S.Ct. 1597,
143 L. Ed. 2d 966 (1999), [discuss] the
intersection of claims under the Social
Security Act and the Americans with
Disabilities Act.
In Cleveland, the
Supreme Court held that claims under the
Social Security Act and the Americans with
Disabilities Act do not conflict to the
point where courts should apply a special
negative presumption that precludes relief
under the other Act. Cleveland, 526 U.S.
at 802-03, 119 S. Ct. 1597.
In other
words, it is not entirely inconsistent for
a person to assert “total disability”
under the Social Security Act while
asserting he or she could “perform the
essential functions of the job” under the
ADA because the Acts utilize different
standards. Id. at 807, 119 S. Ct. 1597.
21

can

be

For the same reasons, the Memo states,
“[I]t is SSA's position that individuals
need not choose between applying for
unemployment insurance and Social Security
disability benefits.”
Doc. No. 13-1 at 3.
The Memo reiterates that an application for
unemployment benefits is evidence that the
ALJ must consider together with all of the
other evidence and mentions that the
underlying circumstances are often more
relevant than the mere application for and
receipt of benefits.
Lopez v. Colvin, 959 F. Supp. 2d 1160, 1174 (N.D. Iowa 2013).
In this case, the ALJ seems to rely heavily on the fact
that Mr. Soria received unemployment benefits in determining
that

he

did

not

testify

credibly

about

his

back

pain.

However, the record makes clear that Mr. Soria has four
children to provide for.

It is undisputed that he worked his

entire life, without interruption, until he hurt his back
(while at work).

It makes sense that he would apply for

unemployment when his (light work) position was eliminated,
especially if his employer made the suggestion to do so.
Additionally, as stated in the Plaintiff’s brief, Mr. Soria’s
earning history entitles him to substantial credibility when
claiming disability.

See Nunn v. Heckler, 732 F.2d 645, 648

(8th Cir.1984); Jimmerson v. Astrue, 717 F. Supp. 2d 840, 862
(S.D. Iowa 2010).

Mr. Soria is not the profile of a man who
22

is out to claim benefits for which he is not entitled.

See

Mussman v. Apfel, 17 F. Supp. 2d 885, 891 (S.D. Iowa 1998);(a
claimant with a good work record is entitled to substantial
credibility when claiming an inability to work because of a
disability).

Mr. Soria has a good work history.

family to provide for.

He has a

He was injured on the job; and it is

undisputed that his injury (which required surgery) is real,
even if both the Defendant and the ALJ now claim he is
exaggerating his pain.
decision

to

rely

on

Mr.

Based on those facts, the ALJ’s
Soria’s

application

to

receive

unemployment benefits was an error and is not supported by
substantial evidence in the record.

In fact, Mr. Soria is

entitled to some assumption of credibility based on his work
history.
Next, the Plaintiff argues that Mr. Soria’s testimony is
supported by the third party reports contained in the record.
Mrs. Maria Soria, Mr. Soria’s wife, testified that his back
bothers him a lot.

Docket No. 5, Tr. 65.

She further

testified that he is always in pain, especially when sitting.
Id. She also testified that Mr. Soria cannot do housework and
that she and the children do all the work.

23

Docket No. 5, Tr.

66.

Mrs. Soria testified that Mr. Soria can not bend and has

a hard time sleeping through the night.
67.

Docket No. 5, Tr. 66-

Mrs. Soria’s testimony is supported by the statements

made by the claims representative. See Docket No. 5, Tr. 249.
The 8th Circuit Court of Appeals has stated, “statements of
lay

persons

regarding

a

claimant's

condition

must

be

considered when an ALJ evaluates a claimant's subjective
complaints of pain.

“Willcockson v. Astrue, 540 F.3d 878,

880-81 (8th Cir. 2008). That Court went on to say, “witnesses
such as the family members who gave statements here often may
be the only ones who witness a claimant's difficulties; though
the ALJ is of course not required to accept all lay testimony,
we think that it is almost certainly error simply to ignore it
altogether.”

Willcockson, 540 F.3d at 881.

In this case,

even though the ALJ referenced the supporting lay opinions, he
ignored them without sufficient justification.

The testimony

seems remarkably consistent that Mr. Soria is unable to do
much

in

the

way

of

work

and

his

activities

have

been

substantially restricted by his back pain. The ALJ’s decision
to discredit Mrs. Soria’s testimony is not supported by
substantial evidence.

24

Finally, as will be discussed more fully in the following
sections, Mr. Soria's testimony is supported by the medical
evidence in this case. Accordingly, substantial evidence does
not support the ALJ's decision to give little weight to Mr.
Soria's testimony regarding his inability to work.
Mr.

Soria's

statements

regarding

his

In fact,

disability

are

substantially supported by the record in this case, including
the medical records of Dr. Jonahthan Fuller, Dr. Roy Grant and
Dr. John Cook.

The ALJ's determination was not supported by

substantial evidence and was an error.

Because Mr. Soria

testified credibly about his pain, and that testimony was
supported by the medical evidence, the limitations outlined by
Mr. Soria should have been incorporated into the question
posed to the vocational expert.
B. Medical Evidence
The Plaintiff also argues that ALJ failed to give credit
to certain medical evidence.

Specifically, the Plaintiff

argues:
[t]he ALJ gave “significant weight” to
several medical opinions from outside the
relevant time period. As explained below,
the opinions reflected the fact that Mr.
Soria was, at that time, capable of working
in competitive employment... The ALJ gave
“significant weight” to the opinions of Dr.
Jonathan Fuller, citing Exhibit 4F, pages
25

8-9, 11, and 35. (AR 18) These opinions
are dated December 2007, December 2008,
January 2009, and March 2009. (See AR 389,
390, 392, 417)
Similarly, the ALJ gave
“significant weight” to the results of a
functional capacity evaluation from March
2009. (AR 18; see AR 377-80) At the time
that these opinions were issued, Mr. Soria
worked full-time. Mr. Soria earned almost
$28,000 in 2008 and almost $18,000 in 2009.
He stopped working and alleged disability
beginning September 28, 2009. (AR 10, 12)
These medical opinions, then, date from a
time period where Mr. Soria was working
full-time and made substantial gainful
activity.
See 20 C.F.R. §404.1574(b)...
The medical record reflects Mr. Soria’s
condition deteriorated after 2009. Dr. Roy
Grant saw Mr. Soria on October 19, 2009.
Mr. Soria had been fired by Tyson. As he
was no longer employed with Tyson, Tyson
was not covering his medical expenses.
Docket No. 7, p. 12-13.

The Plaintiff goes on to cite the

specific instances of Mr. Soria complaining of increased
difficulties after the summer of 2009.
462,

475,

increasing

477,

500-01,

medication

for

showing
his

See Docket No. 5, Tr.

that

back

Mr.

pain

Soria

from

2009-2011,

including epidural steroid infections.
As has been repeatedly stated:
[t]he opinion of a treating physician:
should not ordinarily be disregarded and is
entitled to substantial weight. A treating
physician's
opinion
regarding
an
applicant's impairment will be granted
controlling weight, provided the opinion is
well-supported by medically acceptable
clinical
and
laboratory
diagnostic
26

sought

techniques and is not inconsistent with the
other substantial evidence in the record.
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).

In this

case, the ALJ relied on the earlier medical reports, including
those from treating sources, to determine that Mr. Soria had
the residual capacity to return to his past relevant work and
was not testifying credibly about his pain and his ability to
work.

However, the medical evidence cited by the Plaintiff

makes clear that Mr. Soria’s condition has been deteriorating
over time.

Accordingly, it makes sense that Mr. Soria’s

earlier medical reports did not contain as much evidence of
disability as the later medical reports.

The ALJ’s decision

to give significant weight to the earlier medical records at
the

expense

of

the

later

records

is

not

supported

by

substantial evidence and was an error.
C. Depression - Severe Impairment
Next, the Court will consider the Plaintiff’s argument
regarding Mr. Soria’s depression. As was discussed above, the
ALJ determined that Mr. Soria’s depression was not severe.
The

Plaintiff

argues

that

this

was

an

error,

and

more

importantly, based on additional evidence, it was an error for
the Appeals Council to fail to reconsider the issue.

As this

Court has previously stated, the Appeals Council must consider
27

additional evidence if it is new, material, and relates to a
time

period

before

the

ALJ’s

decision.

20

C.F.R.

§

404.970(b); see Johnson v. Chater, 87 F.3d 1015, 1018 (8th
Cir. 1996).

SSA’s Hearings and Appeals Law and Litigation

Manual (HALLEX) Section I-4-2-30 provides:
The claimant or another SSA component may
submit additional materials to the [Appeals
Council] at any time. The materials may or
may not be part of a subsequent claim that
has been adjudicated.
If the claimant
files a subsequent application after
commencing a civil action on a prior claim,
the adjudicating component . . . will limit
its consideration to the period, if any,
following the period undergoing judicial
review. . . .
If the adjudicating
component makes a favorable determination
or decision on the subsequent application,
it will request the effectuating component
to forward the case to [the Office of
Appellate Operations] after effectuation to
determine the impact, if any, of the
favorable determination or decision on the
pending court case.
See HALLEX, available at:
http://www.ssa.gov/OP_Home/hallex/I-04/I-4-2-30.html (last
visited March 24, 2014).
When

the

Plaintiff

appealed

the

ALJ’s

ruling,

he

included additional evidence from Nurse Practitioner Sharon
Arndt-Nelson concerning his depression.
Tr.

493-523.

The

Appeals

Council

See Docket No. 5,
concluded,

without

explanation that “this information does not provide a basis

28

Docket No. 5, Tr. 2.5

for changing the [ALJ’s] decision.”
This was an error.

The regulations provide that the Appeals

Council must evaluate the entire record, including any new
and material evidence submitted that relates to the period
before the date of the ALJ's decision.

Lamp v. Astrue, 531

F.3d 629, 632 (8th Cir. 2008); Cunningham v. Apfel, 222 F.3d
496, 500 (8th Cir. 2000); see 20 C.F.R.§ 404.970(b).

The

newly

the

submitted

evidence

thus

becomes

part

of

"administrative record," even though the evidence was not
originally included in the ALJ's record.
Sullivan, 966 F.2d 363, 366 (8th Cir. 1992).

See Nelson v.
In this case,

it is clear that the ALJ’s analysis would have been more
accurate with this information.

It is likely that had the

ALJ had the opportunity to consider the additional evidence,
in light of the other evidence discussed above and below,
that the ALJ’s would have considered Mr. Soria’s depression
a

severe

impairment.

There

is

a

distinction

between

acknowledging new evidence, and considering it. In this case
the appeals council acknowledged the evidence, but failed to

5

The Defendant acknowledges Mr. Soria’s new depression
evidence, but argues that most of the mental health treatment
occurred after the ALJ’s decision, so under the rules, Mr.
Soria should file a new disability application rather than
continue to pursue this one. Docket No. 9, p. 7.
29

consider it in light of the entire record.

This was an

error.
D.

Hypothetical

At the hearing, the ALJ questioned the vocation expert
about Mr. Soria’s job prospects.

The vocational expert

testified that using the State Agency's assessment of Mr.
Soria's condition, it is likely that Mr. Soria would be able
to work as an inspector.

Docket

No. 5, Tr. 74.

Based on

the state's assessment, the vocational expert also stated
that Mr. Soria would be able to do a wide range of light
work.

Docket No. 5, Tr. 74.

The ALJ relied on those

statements to determine that Mr. Soria could return to his
past relevant work.
As has been repeatedly stated, “[a] vocational expert's
testimony constitutes substantial evidence when it is based
on a hypothetical that accounts for all of the claimant's
proven impairments.” Buckner v. Astrue, 646 F.3d 549, 560–61
(8th Cir. 2011).

“[T]he hypothetical need not frame the

claimant's impairments in the specific diagnostic terms used
in medical reports, but instead should capture the concrete

30

consequences of those impairments.”

Id. (quoting Hulsey v.

Astrue, 622 F.3d 917, 922 (8th Cir. 2010)).
Based on the forgoing analysis regarding credibility and
medical evidence, the Court is persuaded that the ALJ failed
to

properly

hypothetical

articulate

Mr.

question(s)

Soria’s
to

the

limitations

in

the

vocational

expert.

Specifically, the ALJ failed to include limitations as set
out

in

Mr.

Soria’s

credible

testimony,

the

third

party

reports, and the medical evidence from the period after 2009.
The vocational expert testified that when he considered all
the problems Mr. Soria testified to, Mr. Soria would not be
able to find jobs on a full time basis.

Docket No. 5, Tr.

72-73, 77. Because the ALJ failed to give appropriate weight
to

Mr.

Soria’s

functional

credible

capacity

testimony,

evaluation

is

the

ALJ’s

flawed

hypothetical answer the ALJ relied on.

as

residual
was

the

Accordingly, the

ALJ’s determination that Mr. Soria could return to past
relevant work is not supported by substantial evidence in the
record.
Finally, the Court notes the ALJ's past relevant work
analysis is flawed above and beyond those issues already
discussed.

The ALJ stated that Mr. Soria was able to return

to past relevant work as an inspector.
31

However, the record

makes clear that Mr. Soria only worked as an inspector while
assigned to special light duty after his back surgery.

Mr.

Soria's actual position at Tyson, prior to his back injury,
was as a line worker, a position which required him to stand,
carry buckets and lift up to 80 pounds.
57.

Docket No. 5, Tr.

That past position as a line worker is extremely

different from inspection work.

If the ALJ had considered

Mr. Soria’s actual previous employment as a line worker, as
opposed to his temporary light work position, there is little
doubt that the ALJ would have been forced to recognize Mr.
Soria could not return his past employment. However, the ALJ
casually

dismissed

the

fact

that

Mr.

Soria’s

real

past

position was as a line worker, a position he is no longer
capable of doing.
VI.

Even if not an error, this is wrong.

CONCLUSION
It is clear the ALJ erred in the credibility, medical

evidence and RFC sections discussed above. The question thus
becomes

whether

this

Court

should

remand

for

further

consideration or solely for the purpose of awarding benefits.
This Court has the authority to reverse a decision of
the Commissioner, “with or without remanding the cause for
rehearing," but the Eighth Circuit has held that a remand for

32

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) (citing Thompson v. Sullivan, 957 F.2d 611, 614
(8th Cir. 1992).
The Court has considered the entire record, the parties’
briefs, and the arguments presented at hearing.
medical
credible

evidence

are

testimony,

considered
this

Court

along
is

with

When the

Mr.

persuaded

Soria’s

that

the

overwhelming evidence supports a finding of disability.
Therefore, the decision of the ALJ is reversed and
remanded

solely

for

the

calculation

of

benefits

from

Plaintiff’s claimed onset of disability.
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 action.

Thus, unless this decision is appealed, if

plaintiff’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 case.

33

IT IS SO ORDERED this 24th day of March, 2014.

___________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

34