Draper v. Commissioner of Social Security

Filing 18

ORDER - The decision of the ALJ is reversed and remanded solely for the calculation of benefits from Plaintiff's claimed onset of disability. Signed by Senior Judge Donald E OBrien on 9/18/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JAMIE W. DRAPER,
Plaintiff,

No. 13-CV-4056-DEO

v.
ORDER

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

matter

is

before

the

Court

pursuant

to

Jamie

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

After considering the

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

FACTUAL BACKGROUND
Mr. Draper, 35 years old at the time of the ALJ hearing,

alleges disability arising out injuries he suffered during a
motor vehicle accident.

Mr. Draper was rear-ended while

driving down the interstate in a blizzard, and he suffered
various injuries to his neck and head.
Mr. Draper lives with his mother.

Since the accident,

Mr. Draper has a high school degree.

After graduating

from high school, Mr. Draper had a number of manual labor type
jobs; including, as a commercial glass installer, a painter,
and general construction work.

His final job prior to his

alleged onset date was working retail at the construction
supply store, Home Depot.

He was gainfully employed at all

times prior to the accident.
II.

PROCEDURAL HISTORY
Mr.

Draper

protectively

filed

an

application

for

disability insurance benefits under Title II of the Social
Security Act (“Act”), 42 U.S.C. §§ 401 et seq. (Tr. 72, 74,
163-69) on August 24, 2010.
and upon reconsideration.
was held before an ALJ.
Draper’s claim.

His claim was denied initially

Mr. Draper appealed, and a hearing
On May 21, 2012, the ALJ denied Mr.

Mr. Draper appealed to the Appeals Council,

who denied his claim on April 23, 2013.
present Complaint on June 21, 2013.

Mr. Draper 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) 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
2

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.
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. 7, Tr. 9.
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
3

Capacity

(RFC)

indicates

requirements

incapacity

their

past

relevant

of

determination

an

of

whether,

given

to

perform

the

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
4

. . . .”

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 the 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,

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.”
5

20

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
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.
In this case, the ALJ applied the appropriate methodology
and found that Mr. Draper had not engaged in substantial
gainful employment since January 1, 2010. The ALJ stated that
Mr.

Draper

cervical

has

and

severe

lumbar

impairments
spine

fusion

disorder, and anxiety disorder.

including

status

surgeries,

post

affective

However, the ALJ found that

Mr. Draper 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).
Although the
claimant has impairments considered severe,
the undersigned finds these impairments
were not attended, singly or in combination
with any other impairment, with the
specific clinical signs and diagnostic
findings required to meet or equal the
requirements of any listed impairment.
Moreover, no physician has opined that the
claimant equals a listed impairment alone
or in combination.
6

Docket No. 7, Tr. 12.
The ALJ went on to consider residual functional capacity
and concluded:
[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).
The undersigned
has considered all of the claimant's
impairments, singly and in combination, and
finds that they do not meet or medically
equal any of the listings found in 20 CFR
Part 404, Subpart P, Appendix 1.
Docket No. 7 Tr. 12.
The ALJ considered Mr. Draper’s neck/back problems and
stated:
[t]he
undersigned
has
evaluated
the
claimant's back and neck conditions under
the
section
1.00
listings
for
musculoskeletal impairments, but concludes
that none of the listings are met.
The
record does not document medical findings
that are equivalent in severity and
duration to any of the listed findings, and
the claimant's impairments therefore do not
medically equal a listing under this
section. The undersigned gave particular
consideration to listing 1.04 in evaluating
the claimant's back and neck disorders.
The "paragraph A" criteria of listing 1.04
are not met because the record does not
demonstrate
evidence
of
nerve
root
compression characterized by neuro-anatomic
distribution of pain, limitation of motion
7

of the spine, motor loss (atrophy with
associated muscle weakness) accompanied by
sensory or reflex loss, and positive
straight-leg raising.
"Paragraph B" and
"paragraph C" criteria are not met because
the record does not establish the presence
of spinal arachnoiditis or lumbar spinal
stenosis resulting in pseudoclaudication
and an inability to ambulate effectively.
Docket No. 7, Tr. 12.

The ALJ also considered Mr. Draper’s

mental impairments and stated:
[t]he severity of the claimant's mental
impairments, considered singly and in
combination, do not meet or medically equal
the criteria of listings 12.04 and 12.06.
In making this finding, the undersigned has
considered whether the "paragraph B"
criteria are satisfied... The undersigned
finds, consistent with the medical evidence
discussed below, that the "B" criteria of
the
section
12.00
listings
are
not
satisfied in that the claimant's mental
impairments resulted in no more than mild
restriction of activities of daily living,
mild
difficulties
maintaining
social
functioning,
moderate
difficulties
in
maintaining concentration, persistence or
pace, and no episodes of decompensation.
Because the claimant's mental impairments
do not cause at least two "marked"
limitations or one "marked" limitation and
"repeated" episodes of decompensation, each
of extended duration, the "paragraph B"
criteria are not satisfied.
Docket No. 7, Tr. 12-13.
did

not

meet

impairments.

the

The ALJ also found that Mr. Draper

paragraph

C

Id.
8

criteria

regarding

mental

Based

on

those

conclusions,

the

ALJ

found

that

Mr.

Draper:
has the residual functional capacity (RFC)
to perform light work as defined in 20 CFR
404.1567(b) with the following limitations:
the claimant is able to sit, stand and/or
walk for 6 hours each in an 8-hour workday;
he would require the opportunity to
alternate positions every 15 minutes,
remaining on the job and in the next fixed
position for up to 15 minutes, and
alternating
between
these
positions
throughout the workday with the totals
remaining sitting up to 6 hours and
standing/walking up to 6 hours; the
claimant can never climb ladders, ropes or
scaffolds; he can never crawl; he can
occasionally climb stairs or ramps; he can
occasionally balance, crouch, stoop and
kneel; he is limited to occasional overhead
reaching bilaterally; he should avoid
concentrated exposure to extreme cold,
vibrations, and/or work around hazards such
as dangerous machinery and unprotected
heights; the claimant is limited to
understanding, remembering, and carrying
out short, simple instructions.
Docket No. 7, Tr. 13.
The ALJ than considered the plaintiff’s testimony under
the Polaski standard and stated:
[a]fter 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
9

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. 7, Tr. 15.
The ALJ considered the medical evidence of Dr. Stephen
Veit, Mr. Draper’s primary physician, and gave it some weight.
However, the ALJ discounted Dr. Veit’s note that Mr. Draper
needs to change positions every 15 minutes. The ALJ also gave
some weight to agency reviews conducted by Dr. Chrystalla Daly
and Dr. John May and their findings regarding Mr. Draper’s
limitations.

Regarding Mr. Draper’s mental impairments, the

ALJ gave great weight to the opinions of Dr. William Morton
and Dr. Scott Shaffer and concluded that Mr. Draper had few
mental restrictions and had the functional capacity to perform
simple, routine tasks. Finally, the ALJ gave little weight to
the testimony and evidence from Mr. Draper’s friend, Gwen
Spooner, and to Mr. Draper’s mother, finding that their
testimony was inconsistent with the medical evidence.
The ALJ went on to find that:
Claimant has a steady work history and this
is a factor in his favor.
Claimant has
consistently complained of pain, and the
record reflects severe residuals from the
motor vehicle accident.
However, his
10

complaints of headaches, dizziness and
insomnia of the nature and frequency
alleged are not supported by the medical
records to the extent they would interfere
with work.
Further, claimant asserts a
need to lie down during the day and while
he may indeed do so, the medical necessity
of
this
has
not
been
established.
Considering the claimant's activities of
daily living and previous work activity,
the treatment records, the physical RFC
assessment findings at Exhibits llF and
16F, the limitations suggested by the
claimant's
treating
doctors,
the
consultative psychological examination at
Exhibit 12F, the mental assessment findings
at Exhibits 13F, 14F, and 15F, the
testimony of Ms. Spooner, the statements
from the claimant's mother, and the
claimant's
subjective
allegations
and
hearing testimony, the undersigned finds
that the claimant's limitations are not
fully disabling, and that the claimant
retains the capacity to perform work
activities with the limitations set forth
above.
Docket No. 7, Tr. 19.
Based on that, the ALJ found that Mr. Draper could not
return to his past relevant work.

However, the ALJ found

that:
[c]onsidering
the
claimant's
age,
education, work experience, and residual
functional capacity, there are jobs that
exist in significant numbers in the
national economy that the claimant can
perform
(20
CFR
404.1569
and
404.1569(a))...
The vocational expert
11

testified that given all of these factors
the individual would be able to perform the
requirements of representative occupations
such as deburrer (D.O.T. #676.686-014) with
143,140 jobs in the United States, hand
packager (D.O.T. #559.687-074) with 472,900
jobs in the United States, and assembler
(D.O.T. #701.687-010) with 288,000 jobs in
the United States. The vocational expert
noted that the number of available jobs in
each of these occupations would be reduced
by approximately 75 percent given the
requirement that the claimant be allowed to
alternate positions every 15 minutes.
Pursuant to SSR 00-4p, the undersigned has
determined that the vocational expert's
testimony
is
consistent
with
the
information contained in the Dictionary of
Occupational Titles, with the exception
that the vocational expert's testimony
regarding the alternation of positions
throughout the workday was based on his
experience in the field.
Based on the
testimony of the vocational expert, the
undersigned concludes that, considering the
claimant's age, education, work experience,
and residual functional capacity, the
claimant is capable of making a successful
adjustment to other work that exists in
significant
numbers
in
the
national
economy. A finding of "not disabled" is
therefore appropriate under the framework
of the above-cited rule.1
Docket No. 7, Tr. 20.

1

A deburrer generally runs a type of industrial sanding
machine.
12

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.

2006) (citing Culbertson v. Shalala, 30 F.3d 934, 939 (8th
Cir. 1994)).
13

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 ex rel. v. Barnhart, 405 F.3d 685, 688
(8th Cir. 2005); 42 U.S.C. 405(g).
IV.

ISSUES
In his brief, Mr. Draper argues two primary issues.

First, Mr. Draper argues that the ALJ failed to credit Mr.
Draper’s subjective complaints and that the ALJ erred in
determining Mr. Draper’s RFC.

Second, Mr. Draper argues that

the ALJ failed to give proper weight to the opinion of the
treating physician and, instead relied on the opinion of nontreating consultants.
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
14

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.

Credibility

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

credibility

and

the

ALJ’s

credibility

determination. Mr. Draper argues that the ALJ erred by giving
little weight to his subjective medical complaints.

The

standard regarding credibility findings is well settled.

“In

order to assess a claimant's subjective complaints, the ALJ
must make a credibility determination by considering the
claimant's

daily

activities;

duration,

frequency,

and

intensity of the pain; 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,
15

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

whole

bring

those

Gonzales v. Barnhart, 465 F.3d

complaints into question.”
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.

Mr. Draper testified that he cannot sit

for long periods of time.

Docket No. 7, Tr. 32, 37.

He also

stated that he cannot be on his feet for any duration of time.
Id. at p. 36.

He testified that he constantly needs to

reposition himself or he suffers from extreme pain.
No. 7, Tr. 32, 36.

Docket

Mr. Draper testified that he cannot spend

a long period in the car and that a two hour road trip would
lay him up for days.

Docket No. 7. Tr. 33.

He cannot grip

things tightly with his right hand and he cannot lift more
than 10-15 pounds.

Docket No. 7, p. 36.

Mr. Draper also

testified that he has delusions as a result of his medication.
Docket No. 7, Tr. 34.

He is depressed as a result of

diminished physical ability and suffers panic attacks. Docket
No. 7, Tr. 38.
16

The Defendant argues that:
the ALJ properly performed a credibility
analysis and considered the medical and
other evidence of record (Tr. 13-19)...
The ALJ carefully considered the objective
medical evidence, and found that it
undercut some of plaintiff’s allegations
(Tr. 13-19)...
[T]he ALJ properly found
the treatment records showed objective
clinical findings supporting limitations
less severe than those alleged by plaintiff
(Tr. 13-19).
Contrary to plaintiff’s
suggestion, see Pl.’s Br. at 19-20, the ALJ
acknowledged plaintiff’s significant back
and neck impairments and that plaintiff
experienced pain therefrom, but properly
found the records did not support the full
extent of the alleged limitations, such as
the need to lie down (Tr. 13-19). The ALJ
in
fact
explicitly
stated
plaintiff
experienced “severe residuals” from the
accident (Tr. 19). Although an ALJ may not
reject a claimant’s subjective complaints
solely for lack of objective medical
evidence, the ALJ may consider the absence
of objective medical evidence supporting
the degree of severity alleged as one of
several
factors
in
the
credibility
analysis. See 20 C.F.R. § 404.1529... The
ALJ acknowledged the severe limitations
stemming from plaintiff’s accident, yet
appropriately found, in light of the entire
record, that plaintiff retained the RFC for
a reduced range of light work (Tr. 13-19).
Docket No. 12, p. 7-9, 10-11, 12.
At the outset, the Court notes that the Plaintiff's
earnings history entitles him to substantial credibility when
17

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. Draper does not fit the profile of a

man who 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. Draper has a good work history.
He was injured in an automobile accident; and it is undisputed
that his injury (which required surgery and nearly a month in
the hospital) is real, even if both the Defendant and the ALJ
now claim he is exaggerating his pain.

Based on his work

history, Mr. Draper is entitled to some deference in the ALJ’s
credibility determination.
Moreover, as argued in the Plaintiff’s brief:
The ALJ observed Mr. Draper consistently
complained of pain, a factor supporting the
claimant’s testimony.
The ALJ then
asserted some of Mr. Draper’s complaints
“of headaches, dizziness and insomnia
[were] not supported by the medical
records.” (TR 19) The ALJ failed to make
any such finding regarding Mr. Draper’s
neck and back pain.
The second reason
given was that the medical evidence
allegedly did not support the need to lie
down during the day. (TR 19) As Dr. Veit
18

explained, as the claimant’s lower back
tried to compensate for the lack of motion
in his neck, Mr. Draper experienced greater
back pain. (TR 544) The ALJ believed Mr.
Draper’s
daily
activities
were
not
consistent with his disability claim. (TR
19)
There is no requirement that an
applicant be "completely bedridden" or
"unable to perform many household chores to
be considered disabled. Ludden v. Bowen,
888 F.2d 1246, 1248 (8th Cir. 19[89]),
quoting Easter v. Bowen, 867 F.2d 1128 (8th
Cir. 1989)...
[Additionally, the] ALJ
failed to acknowledge the claimant’s
medications...
Mr. Draper was taking
powerful medications consistent with his
disability claim. The ALJ failed to fully
address this factor.
Docket No. 21, p. 19-21.
The Court agrees that the medical evidence supports Mr.
Draper’s claim. As stated above, Mr. Draper had a substantial
work history.

As will be discussed more below, Dr. Viet, the

treating physician, found that Mr. Draper had significant
restrictions.

Dr. Veit’s restrictions support Mr. Draper’s

testimony, which is also supported by the testimony of Mr.
Draper’s mother and his friend, Ms. Spooner.

Based on that

analysis, substantial evidence does not support the ALJ's
decision to give little weight to Mr. Draper’s subjective
allegations/testimony regarding his disability.

In fact, Mr.

Draper’s statements regarding his disability are substantially
19

supported by the record in this case.

Because Mr. Draper

testified credibly about his pain, and that testimony was
supported by the medical evidence, the limitations outlined by
Mr. Draper should have been incorporated into the question
posed to the vocational expert.
B.

Medical Evidence

Mr. Draper argues that the ALJ improperly discounted the
opinion of the treating physician, Dr. Veit, and instead
relied on consulting medical experts.

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 v. Barnhart, 399 F.3d at 920; 20 C.F.R.
20

§404.1527(c)(2).

The ALJ must “always give good reasons . .

. for the weight [he gives the] treating source's opinion.”
20 C.F.R. §404.1527(c)(2); see Singh, 222 F.3d at 452. 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 that the opinions of
a source who had not examined the claimant.

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)).
There is no dispute that Dr. Veit was and is Mr. Draper’s
treating physician.

As Mr. Draper argues in his brief:

[a]fter five surgeries and almost twenty
office visits, Dr. Veit conducted the final
examination included in the administrative
record. From this examination, on April 4,
2012, Dr. Veit concluded that Mr. Draper,
"must have permanent job restriction of
changing (sic) what he is doing and
changing from sitting to standing to lying
down every 10-15 minutes at the most. No
power lifting with his upper extremities.
No repetitive neck action or even very much
neck action.
No stooping, squatting,
climbing, or crawling." (TR 544) As his
lower back tried to compensate for the lack
of motion in his neck, Mr. Draper
experienced greater back pain.
Dr. Veit
21

continued to note that Mr. Draper is only
able to sleep for short periods of time.
In
addition
to
back
exercises,
repositioning, and frequently lying down,
Dr. Veit continued his narcotic pain
prescriptions. (TR 544).
Docket

No.

11,

p.

12-13.

Because

the

ALJ

selectively

discounted Dr. Veit’s final opinion, his RFC differs from the
evidence contained in the treating physician’s medical record.
Specifically:
the ALJ found Mr. Draper needed to
alternate between sitting and standing; Dr.
Veit noted the need to alternate from
sitting to standing to laying down.
In
addition, the ALJ found the claimant must
alternate positions every 15 minutes while
Dr. Veit found the claimant needed to
change position every 10-15 minutes.
In
addition, Dr. Veit found Mr. Draper needed
to
avoid
repetitive
neck
action
or
extensive neck movement, while the ALJ
included
no
such
limitation.
The
vocational expert testified that if the
claimant needed to lay down three times a
week, he could not perform competitive
employment.
(TR 69)
The differences
between the ALJ’s findings and Dr. Veit’s
opinions, then, are material.
Docket No. 11, p. 13-14.
Veit’s

opinions

were

The Court is persuaded that Dr.

supported

by

the

medical

evidence,

including Mr. Draper’s detailed post-accident medical history.
The ALJ’s decision to discount Dr. Veit’s final conclusion is
22

not supported by substantial evidence.

Additionally, the

Court agrees with the Plaintiff that the ALJ’s decision to
rely on the opinion of Dr. Gust, who only saw Mr. Draper
around the time of his initial surgery, is not supported by
substantial evidence. Dr. Veit, who saw Mr. Draper throughout
the post-accident period, presents a much more current picture
of Mr. Draper’s medical condition.
C.

Hypothetical

During the ALJ hearing, the ALJ questioned vocational
expert Janavee Ogrun.

The vocational expert testified that

Mr. Draper would be unable to return to his past relevant
work.

Docket No. 7, Tr. 66.

The ALJ then set out a

hypothetical where an individual has the residual functional
capacity to lift up to 10 pounds frequently and 20 pounds
occasionally, to sit and stand/or walk about six hours each in
an eight hour day with normal breaks; the individual is
limited

to

never

climbing

or

crawling

and

can

only

occasionally climb, stoop, kneel or crouch; the individual is
also limited to occasionally reaching overhead; the individual
is limited in their ability to work with machines or in the
elements; and the individual can only handle simple and short
23

instructions.

The vocational expert testified that under

those circumstances, the individual would be able to find
jobs, including as a hand packager and as an assembler.
Docket No. 7, Tr. 67.

However, when Mr. Draper’s attorney

changed the hypothetical and asked about a situation where the
individual may have to lay down on the job and also avoid
stooping, the vocational expert testified that the individual
would be unable to find work.

Docket No. 7, Tr. 69.

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 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 articulate Mr. Draper’s limitations in the first
hypothetical question to the vocational expert.
24

Instead, the

hypothetical

questions

posed

by

Mr.

Draper’s

accurately stated Mr. Draper’s limitations.

attorney

In response to

those questions, the vocational expert stated that no jobs
exist that Mr. Draper could perform.
VI.

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

evidence and RFC sections discussed above.
becomes

whether

this

Court

should

The question thus

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
an 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.

When the

medical evidence is considered along with the Plaintiff’s
credible

testimony,

this

Court

is

persuaded

that

overwhelming evidence supports a finding of disability.

25

the

Therefore,
remanded

solely

the

decision

for

the

of

the

ALJ

calculation

is

of

reversed
benefits

and
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.
IT IS SO ORDERED this 18th day of September, 2014.

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

26