Sundling v. Commissioner of Social Security

Filing 19

ORDER - The Court is persuaded that the decision of the ALJ should be reversed, and this case should be remanded for further consideration pursuant to sentence four of 42 USC Section 405(g). Signed by Senior Judge Donald E OBrien on 9/24/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
TIMOTHY ALLAN SUNDLING,
Plaintiff,

No. 13-CV-4054-DEO

v.
ORDER

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

This matter is before the Court pursuant to Timothy
Sundling’s

[hereinafter

Mr.

Sundling’s]

application

for

Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act (“Act”), and Supplemental Security Income
(“SSI”)

benefits

under

Title

XVI

of

the

Act.

After

considering the parties’ arguments, the Court took the matter
under advisement and now enters the following.
I.

FACTUAL BACKGROUND
Mr.

Sundling,

a

resident

of

Sioux

City,

was

born

September 1, 1973, and was 38 years old at the time of hearing
before the Administrative Law Judge (ALJ).
wife.

He lives with his

He has a son, although his parental rights to that

child have been terminated.

He has a high school education.

He has experience as a “construction worker II,” “construction
worker,” “industrial-truck operator,” “machine feeder,” and a
“telephone solicitor.”

He has worked off and on at these

various construction type jobs throughout his adult life.
Mr.

Sundling

suffers

from

the

medically

diagnosed

impairments of bipolar affective disorder, post-traumatic
stress disorder, adjustment disorder with mixed anxiety and
depression, cannabis abuse in remission and polysubstance
abuse

in

remission.

Additional

medically

diagnosed

impairments that the ALJ determined to be non-severe are
asthma, back pain, arthralgia1 and myalgia.2

However, the

primary basis of Mr. Sundling’s alleged disability is his
mental health issues.
II.

PROCEDURAL HISTORY
Mr. Sundling filed his application on February 4, 2010,

alleging an onset date of July 1, 2009.3

The Social Security

1

Arthralgia is defined as severe pain in a joint; also
called arthrodynia.
2

Myalgia is defined as muscular pain or tenderness,
especially when diffuse and nonspecific; also called myodynia.
3

Mr. Sundling originally alleged an onset date of
December 1, 2008.
Because the ALJ determined that the
Plaintiff actually worked at substantial gainful activity
2

Administration denied Mr. Sundling’s application on April 13,
2010, and upon reconsideration, July 23, 2010.

On March 15,

2012, Mr. Sundling appeared for a telephonic hearing before
the ALJ.
2012.

The ALJ denied Mr. Sundling’s claim on March 29,

Mr. Sundling appealed to the Appeals Council, who

denied his claim on April 30, 2013.
present Complaint on June 14, 2013.

Mr. Sundling filed the
Docket No. 1.

The ALJ set out the issue presently before the Court:
[t]he issue is whether the claimant is
disabled under sections 216(i), 223(d), and
1614(a)(3)(A) 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 in death or that has
lasted or can be expected to last for a
continuous period of not less than 12
months. With respect to the claim for a
period
of
disability
and
disability
insurance benefits, 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 the
claimant acquired sufficient quarters of
coverage to remain insured through March
31, 2010.
Thus, the claimant must
establish disability on or before that date

after that date, the Plaintiff concedes that his disability
onset date should be July 1, 2009. Docket No. 9, p. 2.
3

in order to be entitled to a period of
disability
and
disability
insurance
benefits.
Docket No. 7, Tr. 12.
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential

evaluation

process

for

determining

whether

individual is disabled and entitled to benefits.
404.1520.

The five successive steps are:

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)

requirements

of

determination

of

indicates

an

incapacity

their

past

relevant

whether,

given

a

to

perform

the

work,

and

(5)

Plaintiff’s

RFC,

age,

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

20 C.F.R. § 404.1520(4)(i-v).

4

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 lasts 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.

Iowa 2009) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982)(en banc) abrogated on other grounds by Higgins
v.

Apfel,

222

F.3d

504,

505

(8th

Cir.

2000)).

When

determining RFC, the ALJ must consider all of the relevant
5

evidence and all of the Plaintiff’s impairments, even those
which are not deemed severe, as well as limitations which
result

from

symptoms,

404.1545(a)(2) and (3).

such

as

pain.

20

C.F.R.

§

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.
416.920(a)(4)(v).

20

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 Cir.
1984).

The ALJ generally calls a Vocational Expert (VE) to

aid in determining whether this burden can be met.
6

In this case, the ALJ applied the appropriate methodology
and found that Mr. Sundling had engaged in substantial gainful
employment from May 15, 2009, to July 10, 2009.

However, the

ALJ went on to find that there have been continuous 12-month
periods since the alleged onset date during which Mr. Sundling
did not engage in substantial gainful employment.
The ALJ stated that Mr. Sundling has severe impairments
including bipolar affective disorder, post-traumatic stress
disorder (PTSD); adjustment disorder with mixed anxiety and
depression; cannabis abuse, in remission; and polysubstance
dependence, in remission.
However, the ALJ found that Mr. Sundling 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, 404.1526, 416.920(d), 416.925,
and 416.926).
Docket No. 7, Tr. 15.
The ALJ considered Mr. Sundling’s mental impairments
using

the

“paragraph

B”

criteria
7

and

the

“paragraph

C”

criteria as set out in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926), regarding mental
impairments,

and

Sundling’s

mental

impairment did not meet either set of requirements.

Docket

No. 7, Tr. 15-16.

determined

that

Mr.

In doing so, the ALJ gave great weight to

the opinion of the medical consultant, Dr. Hutchinson.
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 a full range of work at
all
exertional
levels
but
he
has
nonexertional limitations due to his mental
impairments.
The claimant is limited to
simple tasks of 1, 2, or 3 steps and needs
reminders to perform work tasks 10% of the
time.
He can maintain concentration and
attention span 90% of the time, and he is
able to have contact with the public and
co-workers 75% of the time. In making this
finding, the undersigned has considered all
symptoms and the extent to which these
symptoms can reasonably be accepted as
consistent with the objective medical
evidence and other evidence, based on the
requirements of 20 CFR 404.1529 and 416.929
and SSRs 96-4p and 96-7p. The undersigned
has also considered opinion evidence in
accordance with the requirements of 20 CFR

8

404.1527 and 416.927 and SSRs 96-2p, 96-5p,
96-6p, and 06-3p.
Docket No. 7 Tr. 16-17.
The ALJ then considered the plaintiff’s credibility under
the Polaski standard and stated:
the undersigned finds 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.
The objective medical evidence fails to
show the claimant's mental problems are as
limiting as he has alleged. He has sought
minimal treatment since the alleged onset
date and has not taken his medications
consistently. He has a history of failing
to follow recommended treatment and has
been noncompliant in taking his medications
as prescribed.
He was released from
Siouxland Mental Health Center for missing
too many appointments and stopped getting
his medications filled there in January
2004. (Exhibits ClOP, C12F).
Docket No. 7, Tr. 18.
The ALJ found significant Mr. Sundling’s medical history,
including his history of drug use and refusal to see a
counselor after the breakup of his marriage.

The ALJ also

noted that Mr. Sundling worked part time after the [original]
9

alleged onset date, and he is able to take care of his daily
needs.

The ALJ gave little weight to the opinions of nurse

practitioners Nolan and Hassebroek, and gave little weight to
the testimony of Mr. Sundling’s wife, Dorothy.
Tr. 20.

Docket No. 7,

Instead, the ALJ gave substantial weight to the

report of Dr. Myrna Tashner and Dr. David Christiansen, the
state agency medical consultants.

Docket No. 7, Tr. 20.

The

ALJ also gave great weight to the testimony of Dr. Richard
Hutchison, who testified at the hearing.
21.

Docket No. 7, Tr.

The ALJ concluded:
[w]hile the undersigned does not doubt that
the claimant experiences some discomfort,
the allegations of limitations and a pain
level that precludes all types of work are
inconsistent with the objective medical
evidence, the absence of more aggressive
treatment, medical opinions, and the
evidence as a whole, and thus, the
allegations are not fully credible.
The
claimant can perform simple, routine,
repetitive work.

Docket No. 7, Tr. 21.
Based on his RFC, the ALJ concluded that Mr. Sundling
could return to past relevant work.
Additionally, the ALJ stated:

10

Docket No. 7, Tr. 21-22.

[a]lthough the claimant is capable of
performing past relevant work, there are
other jobs existing in the national economy
that
he
is
also
able
to
perform.
Therefore, the Administrative Law Judge
makes the following alternative findings
for Step 5 of the sequential evaluation
process... In the alternative, considering
the
claimant's
age,
education,
work
experience,
and
residual
functional
capacity, there are other jobs that exist
in significant numbers in the national
economy that the claimant also can perform
(20 CFR 404.1569, 404.1569a, 416.969, and
416.969a)...The vocational expert testified
that given all of these factors the
individual would be able to perform the
requirements of representative unskilled
occupations such as production assembler
(DOT 706.687-010) with 1,928 light jobs and
42,775 medium jobs in the regional economy
of Nebraska, Iowa, Kansas, and Missouri,
and 40,998 light jobs and 636,226 medium
jobs in the national economy; hand packager
(DOT 920.587-018) with 14,148 light jobs
and 7,319 medium jobs in the regional
economy and 311,534 light jobs and 161,138
medium jobs in the national economy; and
housekeeping cleaner (DOT 323.687-014) with
16,638 light jobs and 16,000 medium jobs in
the regional economy and 366,755 light jobs
and 360,000 medium jobs in the national
economy.
Docket No. 7, Tr. 22-23.
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

11

supported by substantial evidence in 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.

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.

Lauer v. Apfel, 245 F.3d 700, 702

12

(8th Cir. 2001).

If the ALJ applies an improper legal

standard, it is within this Court's discretion to reverse
his/her decision.

Neal ex rel. Walker v. Barnhart, 405 F.3d

685, 688 (8th Cir. 2005); 42 U.S.C. 405(g).
IV.

ISSUES
Mr. Sundling argues that the ALJ’s RFC determination is

not supported by substantial evidence because: the ALJ failed
to

take

into

account

how

the

effects

of

the

non-severe

impairments combined with the severe impairments; the ALJ
failed to give appropriate weight to the opinions of the
treating mental health therapist and psychiatrist, and failed
to explain adequate reasons for discounting those opinions;
the ALJ gave great weight to the non-treating, non-examining
medical witness on the telephone, while he gave little weight
to the treating mental health therapist and psychiatrist; the
ALJ’s hypothetical question was too vague and confusing and
did

not

capture

the

concrete

consequences

of

claimant's

deficiencies.
Based, on those alleged errors, the Plaintiff requests
that the:

13

ALJ’s decision should be reversed... and
this matter should be remanded. On remand
the Defendant should be instructed to
evaluate the affect of the non-severe
impairments on the RFC, contact the
treating
source(s)
and
obtain
such
information as is needed to determine what
Plaintiff’s RFC is.
Docket No 13, p. 5.
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
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.

Medical Evidence

The Plaintiff argues that the ALJ failed to give credit
to certain medical evidence.

First, the Plaintiff argues the

ALJ failed to consider Mr. Sundling’s limitations in light of
both his severe and non-severe impairments.

The 8th Circuit

has stated, that in determining the RFC, the ALJ was required
14

to “determine [the claimant’s] residual functional capacity...
the most that [the claimant] was capable of doing despite the
combined

effects

of

both

[their]

severe

medically determinable impairments...”
F.3d 979, 981 (8th Cir. 2008).

and

non-severe

Ford v. Astrue, 518

Mr. Sundling argues:

[a]fter the brief mention of asthma, back
pain, arthralgias and myalgias, and that
those impairments are not shown by evidence
to
be
severe
medically
determinable
physical impairments, they are never
mentioned again. The ALJ determined an RFC
that is unlimited in physical functional
capacity, [AR: 16-17] Plaintiff had medical
care for asthma and arthralgias and
myalgias.
[AR: 321]
He was prescribed
etodolac
[Id.]
a
nonsteroidal
anti-inflammatory drug used to relieve
arthritis pain. An MRI back in 2008 showed
that Plaintiff had mild degenerative facet
changes bilaterally at L3-4 and L5-S1,
small components of nodal cord remnants
upper endplates of L2 and L3, and suggested
faint degree of acquired spinal canal
stenosis. [AR: 425-426] The ALJ was
required by his own rules to discuss
whether these non-severe, but diagnosed,
impairments might reduce the number of jobs
he could perform. At least, the ALJ was
supposed to discuss whether these physical
impairments impacted the severity of his
mental impairments, when all are combined
and considered. Did physical pain add to
his depression, or to his irritability, or
to his poor attention or concentration?
Docket No 9, p. 9.

15

The

Defendant

responds

to

the

Plaintiff’s

argument

related to the non-severe impairments by noting that during
the

hearing,

the

Plaintiff

indicated

that

his

case

was

primarily about mental health and that the bulk of the medical
records in this case relate to Mr. Sundling’s mental health.
Because the Plaintiff focused on the mental health issues, the
Defendant argues that the ALJ was obligated to do the same.
Clearly, the Defendant misstates the relevant law.

As

has been repeatedly stated, the ALJ has a responsibility to
develop the record. Moreover, as noted above, the 8th Circuit
has stated that the ALJ must consider both the severe and nonsevere impairments in determining the Plaintiff’s RFC.

The

ALJ

the

has

that

responsibility

regardless

of

whether

Plaintiff’s attorney states that this is “primar[ily] a mental
residual functional capacity case.” See Docket No. 12, p. 18.
Accordingly, the Plaintiff is correct that the ALJ erred in
failing to consider the effects of the non-severe impairments
on the RFC.
Next,

the

Plaintiff

argues

that

the

ALJ

improperly

ignored the opinion of Mr. Sundling’s treatment providers in
favor of the opinions of the consulting examiners.

16

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
techniques and is not inconsistent with the
other substantial evidence in the record.
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); see also 20
C.F.R. §404.1527(c)(2) and Reed v. Barnhart, 399 F.3d 917, 920
(8th Cir. 2005).

Even if not entitled to controlling weight,

in many cases, a treating source's medical opinion will be
entitled to the greatest weight and should be adopted.

SSR

96-5p; see Reed, 399 F.3d at 920; 20 C.F.R. §404.1527(c)(2).
The ALJ must “always give good reasons . . . for the weight
[he

gives

the]

§404.1527(c)(2);

treating
see

source's

Singh,

222

opinion.”
F.3d

at

20

452.

C.F.R.
In

the

decision's narrative discussion section, the ALJ "must . . .
explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved."
SSR

96-8p.

Additionally,

the

opinions

of

an

examining

physician should be given greater weight than the opinions of
a source who had not examined the claimant.
17

See Shontos v.

Barnhart, 328 F.3d 418, 425 (8th Cir. 2003), citing 20 C.F.R.
§ 404.1527(d)(1) (now 20 C.F.R. §404.1527(c)).
The Plaintiff argues that:
[o]nly three health care providers had such
long term treatment related knowledge of
Plaintiff and frequent contact with him, to
know and understand not only his mental
health problems, but what other factors
played a role in his mental health and
general global functioning. “... 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...”
20
C.F.R.
§
404.1527(b)(2). Dawn Nolan, PA-C, Farrah
Hassebroek, ARNP, and Dr. Ronald W. Brinck,
MD, had been Plaintiff’s treating mental
health care team at the Siouxland Mental
Health Center, for over three years, and
definitely were the team of medical
professionals most able to provide a
detailed, longitudinal picture.
Docket No. 9, p. 10.
neither

Ms.

Nolan

nor

The Plaintiff goes on to note that
Ms.

Hassebroek

can

be

considered

treating sources, individually, under the rules; but argues,
they should be considered treating sources because, along with
Dr. Brinck, they constituted one treating team.

18

Although

it

runs

contrary

to

the

current

trends

in

medicine, the Social Security regulations do not recognize
nurse practitioners and physicians’ assistants as treating
sources.4

Accordingly, the Plaintiff is correct that Ms.

Nolan and Ms. Hassebroek are ‘another source[s].’

The 8th

Circuit has given explicit instruction regarding the weight
given to other sources:
[o]n August 9, 2006, the SSA issued Social
Security Ruling (SSR) 06-03p, 71 Fed. Reg.
45,593 (Aug. 9, 2006).
The ruling
clarified how it considers opinions from
sources who are not what the agency terms
“acceptable medical sources.”
Social
Security separates information sources into
two main groups:
acceptable medical
sources and other sources. It then divides
other sources into two groups:
medical
sources and non-medical sources. 20 C.F.R.
§§ 404.1502, 416.902 (2007).
Acceptable
medical sources include licensed physicians
(medical or osteopathic doctors) and
licensed or certified psychologists.
20
C.F.R. §§ 404.1513(a), 416.913(a) (2007).
According to Social Security regulations,
there are three major distinctions between
acceptable medical sources and the others:
(1) Only acceptable medical sources can
provide evidence to establish the existence

4

Why the higher courts fail to recognize the equal
protection issues implicit in denying treating source status
to the providers most likely to provide treatment to poor
people in rural areas is beyond the scope of the issues argued
by the parties in this case.
19

of a medically determinable impairment,
id., (2) only acceptable medical sources
can provide medical opinions, 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2) (2007), and
(3) only acceptable medical sources can be
considered treating sources, 20 C.F.R. §§
404.1527(d) and 416.927(d) (2007). Other
sources:
Medical sources include nurse
practitioners,
physician
assistants,
licensed
clinical
social
workers,
naturopaths, chiropractors, audiologists,
and therapists.
Non-medical sources
include school teachers and counselors,
public and private social welfare agency
personnel,
rehabilitation
counselors,
spouses, parents and other caregivers,
siblings,
other
relatives,
friends,
neighbors, clergy, and employers.
20
C.F.R. §§ 404.1513(d), 416.913(d) (2007).
“Information from these ‘other sources’
cannot establish the existence of a
medically
determinable
impairment,”
according to SSR 06-03p. “Instead, there
must be evidence from an ‘acceptable
medical source’ for this purpose. However,
information from such ‘other sources’ may
be based on special knowledge of the
individual and may provide insight into the
severity of the impairment(s) and how it
affects
the
individual's
ability
to
function.”
Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007).

The Sloan

Court went on to say, “[i]n general, according to the ruling,
the factors for considering opinion evidence include:

[h]ow

long the source has known and how frequently the source has
seen the individual; [h]ow consistent the opinion is with

20

other evidence; [t]he degree to which the source presents
relevant evidence to support an opinion; [h]ow well the source
explains the opinion; [w]hether the source has a specialty or
area of expertise related to the individual's impairment(s);
and [a]ny other factors that tend to support or refute the
opinion.”

Sloan, 499 F.3d at 889.

As set out in the Plaintiff’s brief:
Dawn Nolan, PA-C, was his main provider
from at least as far back as March 2009
until October of 2010.
[AR: 271-291,
534-539]
On March 29, 2010, Dawn Nolan
expressed to Plaintiff, and recorded in her
progress notes, that she thought it was a
good idea that he applied for disability
and that she agreed that “...he has never
been able to maintain employment because of
his mood...”, which she recorded to be
anxious at that session. [AR: 290] Farrah
Hassebroek has been his main provider since
10/14/2010.
[AR:
318,
487-533]
Psychiatrist, Dr. Ronald W. Brinck, M.D.,
supervised
both
Ms.
Nolan
and
Ms.
Hassebroek, and co-signed their progress
notes and cosigned the letter of May 19,
2011. [Id. and 50-51] Both Ms. Nolan and
Ms.
Hassebroek
also
expressed
their
opinions of Plaintiff’s disability on forms
for other purposes. [AR: 320 and 346]. In
the May 19, 2011, letter, Plaintiff’s nurse
practitioner and his psychiatrist, stated
that due to his illness he has not been
capable of maintaining employment for at
least as long as the period that Ms.
Hassebroek has been seeing him, October of
2010, and that “If you have any questions,
please contact me at 712-252-3871.” [AR:
318]
Again the following year Ms.
Hassebroek provided a letter stating the
21

same opinion, and making the same offer,
“If you have any questions, please contact
me at 712-252-3871.” [AR: 449]
Docket No. 9, p. 11-12.
Although the Court cannot credit Ms. Nolan’s and Ms.
Hassebroek’s conclusions regarding Mr. Sundling’s ability to
work, as that is a subject left to the ALJ, the Court
recognizes

that

Ms.

Nolan

and

Ms.

Hassebroek

are

well

acquainted with Mr. Sundling’s situation, and their thoughts
are consistent with and co-signed by Dr. Brinck.

In fact, it

seems from the record that the only professionals who have
downplayed the extent of Mr. Sundling’s mental and emotional
problems

are

the

consulting

sources

that

the

ALJ

gave

substantial weight to (Dr. Christiansen, Dr. Tashner and Dr.
Hutchison).

That conclusion is clearly out of line with the

law, cited above, which states that, generally, treating and
examining

sources

consultants.
non-examining

are

entitled

to

greater

weight

than

Accordingly, the ALJ’s decision to credit the
sources

over

the

treatment

team

was

not

supported by substantial evidence and was an error.
Additionally, the Court notes the Plaintiff in this case
did not directly attack the ALJ’s credibility determination.
However, it is clear that the ALJ emphasized the fact that Mr.
Sundling can take care of his daily needs in making the
22

credibility determination that Mr. Sundling overstated his
symptoms.

That determination completely ignores the entire

point of Mr. Sundling’s mental impairments:

he has a hard

time functioning around others in a work place type setting.
Mr. Sundling testified that he has had to flee jobs in the
past

out

of

fear

supervisors/customers.

that

he

may

attack/injure

Whether or not he can make himself a

can of soup is a substantially different issue.5
Similarly, in finding that Mr. Sundling had the residual
functional capacity to return to his previous employment, the
ALJ

highlighted

treatment history.

Mr.

Sundling’s

(alleged)

inconsistent

There is no serious argument that Mr.

Sundling has the funds to go the doctor as often as may be
necessary.

As has been repeatedly stated, "[t]o a poor

person, medicine that he cannot afford to buy does not exist."

5

Courts have repeatedly stated that 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) abrogated on other grounds by Higgins v. Apfel, 222
F.3d 504, 505 (8th Cir. 2000). There is no requirement that
an applicant be “completely bedridden” or “unable to perform
any household chores” to be considered disabled. Ludden v.
Bowen, 888 F.2d 1246, 1248 (8th Cir. 1989), quoting Easter v.
Bowen, 867 F.2d 1128 (8th Cir. 1989).
23

Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir. 1987).

In Tome

v. Schweiker, 724 F.2d 711, 713-14 (8th Cir. 1984), the Eighth
Circuit Court of Appeals reversed the district court's finding
of no disability because the claimant "did not consciously
decide not to follow ‘doctor's orders,’ but rather lacked the
financial resources and the discipline and education needed to
understand and follow her [medical regime];" see also Agan v.
Astrue,

922

F.

Supp.

2d

730,

753

(N.D.

Iowa

2013).

Additionally, it is undisputed in the record that Mr. Sundling
has a variety of mental impairments, including, bi-polar
disorder.

It is well known that the manic depression related

to that illness can cause patients to forgo their recommended
treatment.

However, skipping treatment is a symptom of the

illness; it is not a sign that the illness does not exist.
B.

Hypothetical

The Plaintiff argues that the vocational expert who
testified

during

hypothetical

the

question.

hearing
The

misunderstood
Defendant

argues

the
that

ALJ’s
the

vocational expert understood the question and testified Mr.
Sundling could return to his past relevant work.

24

A review of the record makes it clear that, at the very
least, the conversation between the ALJ and the vocational
expert was inartful. Because the Court is persuaded that this
case should be remanded so the ALJ can address the issues
discussed in the “Medical Evidence” (section A), the Court
need not determine what the vocational expert actually meant.
On remand, both the ALJ and the Plaintiff will have the
opportunity to address this issue directly to the vocational
expert.
VI.

CONCLUSION
It is clear the ALJ erred regarding the medical evidence

and RFC sections discussed above.
supported

by

substantial

The ALJ’s decision was not

evidence.

Additionally,

the

hypothetical conversation with the vocational expert was badly
flawed. Accordingly, the Court is persuaded that the decision
of the ALJ should be reversed, and this case should be
remanded for further consideration pursuant to sentence four
of 42 U.S.C. § 405(g).

On remand, the ALJ shall evaluate the

affect of the non-severe impairments on the RFC, contact the
treating/examining source(s) and obtain such information as is
needed

to

determine

what

Plaintiff’s

competent vocational expert evidence.

25

RFC,

and

acquire

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

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

26