Niebaum v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATION: Recommending that the Commissioner's decision be reversed and this case remanded to the Commissioner for further proceedings re 3 Complaint. Judgment shall enter in favor of the plaintiff and against the defendant. Objections to R&R due by 3/18/2014. Signed by Magistrate Judge Leonard T Strand on 3/4/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MICHAEL DAVID NIEBAUM,
Plaintiff,

No. C13-4062-MWB

vs.

REPORT AND
RECOMMENDATION

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

____________________

Plaintiff Michael David Niebaum seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying his application for Social
Security Disability benefits (DIB) and Supplemental Security Income benefits (SSI) under
Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Niebaum
contends that the administrative record (AR) does not contain substantial evidence to
support the Commissioner’s decision that he was not disabled during the relevant period
of time. For the reasons that follow, I recommend that the Commissioner’s decision be
reversed and remanded for further proceedings.
I.

BACKGROUND

Niebaum was born in 1971 and previously worked as a concrete pipe maker,
warehouse worker, delivery driver and construction worker.

AR 182, 293.

He

protectively filed for DIB on February 12, 2010, alleging disability beginning on January
15, 2001. AR 19. He filed for SSI on April 28, 2010, alleging disability beginning

February 2, 2007. 1 Id. Niebaum alleged disability due to bipolar disorder, attention
deficit hyperactivity disorder (ADHD) and generalized anxiety. AR 188. He later added
physical impairments of episodic tachycardia, hypertension, obesity and asthma to his
claims. AR 21. His claims were denied initially and on reconsideration. AR 93-96.
Niebaum requested a hearing before an Administrative Law Judge (ALJ) and on February
9, 2012, ALJ Jan Dutton held a hearing during which Niebaum and a vocational expert
(VE) testified. AR 37-75.
On March 13, 2012, the ALJ issued a decision finding Niebaum was not disabled
since August 22, 2009. AR 19-29. Niebaum sought review of this decision by the
Appeals Council, which denied review on May 22, 2013. AR 1-3. The ALJ’s decision
thus became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.
On June 28, 2013, Niebaum commenced an action in this court seeking review of
the ALJ’s decision. This matter has been referred to me pursuant to 28 U.S.C. §
636(b)(1)(B) for the filing of a report and recommended disposition of the case. The
parties have briefed the issues and the matter is now fully submitted.
II.

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

A disability is defined as the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or that has lasted or can be expected to last for a continuous
period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant is “not
only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists . . . in

Because Niebaum’s previous application was denied on August 19, 2009, his alleged onset date
was amended to August 22, 2009. AR 19, 294.

1

2

significant numbers either in the region where such individual lives or in several regions
of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined
in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705,
707 (8th Cir. 2007). First, the Commissioner will consider a claimant’s work activity.
If the claimant is engaged in substantial gainful activity, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit the
claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d at
707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and
aptitudes include (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and
speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use
of judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work setting. Id. §§ 404.1521(b)(1)(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141, 107 S. Ct. 2287, 2291
(1987). “The sequential evaluation process may be terminated at step two only when the
claimant’s impairment or combination of impairments would have no more than a
minimal impact on her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (internal quotation marks omitted).
3

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

20

C.F.R.

§§

404.1520(a)(4)(iv),

404.1545(a)(4),

416.920(a)(4)(iv),

416.945(a)(4). “RFC is a medical question defined wholly in terms of the claimant’s
physical ability to perform exertional tasks or, in other words, what the claimant can still
do despite his or her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003) (internal quotation marks omitted); see 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1). The claimant is responsible for providing evidence the Commissioner
will use to make a finding as to the claimant’s RFC, but the Commissioner is responsible
for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain nonmedical evidence and other evidence listed in the regulations. See id. If a claimant
retains the RFC to perform past relevant work, then the claimant is not disabled. Id.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to prove that
there is other work that the claimant can do, given the claimant’s RFC as determined at
Step Four, and his or her age, education, and work experience. See Bladow v. Apfel,
4

205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must prove not only that
the claimant’s RFC will allow the claimant to make an adjustment to other work, but also
that the other work exists in significant numbers in the national economy. Eichelberger
v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in
significant numbers in the national economy, then the Commissioner will find the
claimant is not disabled. If the claimant cannot make an adjustment to other work, then
the

Commissioner

will

find

that

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

the

claimant

is

disabled.

20

C.F.R.

At Step Five, even though the burden of

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

SUMMARY OF ALJ’S DECISION

The ALJ made the following findings:
(1)

The claimant meets the insured status requirements of
the Social Security Act through September 30, 2013.

(2)

The claimant has not engaged in substantial gainful
activity since August 22, 2009, the alleged onset date
(20 CFR 404.1571 et seq., and 416.971 et seq.).

(3)

The claimant has the following severe impairments:
Attention-deficit/hyperactivity disorder (“ADHD”),
not otherwise specified; major depressive disorder,
recurrent, severe; bipolar I disorder, single manic
episode; generalized anxiety disorder; antisocial
personality
features;
episodic
tachycardia;
hypertension; obesity; and asthma (20 CFR
404.1520(c) and 416.920(c)). The claimant has a
history of substance use disorder, with claimed
sobriety for approximately 16 months. The State
agency noted alcohol dependence and amphetamine
dependence but did not find the claimant disabled, even
with the substance use disorder.

5

(4)

The 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).

(5)

After 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 exertion levels but with the following nonexertional
limitations: He should avoid working on ladders or
with hazards, as he has reported episodes of losing
consciousness. He can frequently perform postural
activities.
He is limited to work that is unskilled, SVP 1 or 2, and
does not require extended concentration or attention,
setting goals, or dealing with job changes. Social
interaction can be brief, superficial, and occasional, up
to 1/3 of the day, with co-workers, supervisors, and
the general public.

(6)

Step 4 – The claimant is capable of performing past
relevant work as a construction laborer and as an
automotive washer/detailer. This work does not
require the performance of work-related activities
precluded by the claimant’s residual functional
capacity (20 CFR 404.1565 and 416.965).

(7)

Step 5 – Although the claimant is capable of
performing past relevant work, there are a significant
number of other jobs existing in the national economy
that he is also able to perform.

(8)

The claimant has not been under a disability, as defined
in the Social Security Act, from August 22, 2009,
through the date of this decision (20 CFR 404.1520(f)
and 416.920(f)).

AR 21-29. At Step Two, the ALJ found all of Niebaum’s alleged impairments were
severe. AR 21. She also acknowledged his history of substance use disorder, but based
6

on the state agency findings, concluded he was not disabled even with the substance use
disorder. Id.
At Step Three, the ALJ found that Niebaum’s cardiovascular and respiratory
impairments were not of listing level severity. AR 22. There was no evidence of test
values or specific diagnoses to meet the listing requirements. His obesity also did not
meet or equal a listing when considered alone or in combination with his other
impairments. As for his mental impairments, the ALJ found they did not meet or equal
the criteria of Listings 12.04, 12.06, 12.08 and 12.09 when considered singly or in
combination. AR 22. She first analyzed the “paragraph B” criteria, which require two
“marked” limitations or one “marked” limitation and “repeated” episodes of
decompensation.2 Id. A “marked” limitation is one that is more than moderate but less
than extreme. The ALJ found that Niebaum had mild restriction in activities of daily
living and moderate difficulties in social functioning and concentration, persistence or
pace. Id. Niebaum had experienced two episodes of decompensation related to his
substance use disorder. AR 23. Therefore, the “paragraph B” criteria were not satisfied.
She also considered the “paragraph C” criteria, but found that the evidence failed to
establish those criteria, as well. Id.
At Step Four, the ALJ conducted her RFC assessment and found Niebaum was
capable of performing a full range of work at all exertional levels except that he should
avoid working on ladders or with hazards due to reported episodes of losing
consciousness. Id. The ALJ noted he could frequently perform postural activities. His

Episodes of decompensation are “exacerbations or temporary increases in symptoms or signs
accompanied by a loss of adaptive functioning, as manifested by difficulties in performing
activities of daily living, maintaining social relationships, or maintaining concentration,
persistence, or pace.” 20 CFR Part 404, Subpart P, Appendix 1. Repeated episodes of
decompensation, each of extended duration, means three episodes within 1 year, or an average
of once every 4 months, each lasting for at least 2 weeks.
2

7

nonexertional limitations included unskilled work, SVP 1 or 2,3 with no requirements of
extended concentration or attention, setting goals, or dealing with job changes. He could
handle brief, superficial and occasional social interaction up to one-third of the day with
co-workers, supervisors and the general public. Id.
As part of her RFC assessment, the ALJ evaluated Niebaum’s credibility and found
him to be not entirely credible.

The ALJ reasoned that there were “possible

inconsistencies” between Niebaum’s testimony at a prior hearing and his testimony at the
most recent hearing on the issue of substance use. AR 24. The ALJ pointed out that in
April 2009, Niebaum testified he was not using methamphetamine, but the record showed
he was hospitalized in August 2009 and using methamphetamine at that time. The ALJ
also noted he had been in inpatient treatment for methamphetamine abuse several times
in the past two to three years, but he testified he has been sober since October 2010. Id.
The ALJ stated, “There is some question as to credibility at the previous hearing, as the
claimant’s reports about sobriety and abstinence seem inconsistent.”

AR 25.

She

referenced testimony in which she had asked Niebaum why he misled the court at the last
hearing, and Niebaum stated he had been clean for 13 years but admitted he was using
in 2009 and up to October 2010. According to the ALJ, he also acknowledged drinking
heavily in 2010, stating he had four to five beers, but the ALJ noted his blood alcohol
was “.43, which is 4-5 times the legal limit.” AR 25. The ALJ maintained that Niebaum
had misled her at the previous hearing when he testified he was abstinent, but now
admitted he had been using methamphetamine and Adderall at that time. She also
remarked that after his last denial, he had applied again immediately and continued to
abuse alcohol for another year, “drinking heavily.” Id.
“SVP” refers to Specific Vocational Preparation, defined in Appendix C of the Dictionary of
Occupational Titles as “the amount of lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility needed for average performance in
a specific job-worker situation.” A position with an SVP of 1 requires a short demonstration
only while an SVP of 2 requires vocational preparation of no more than one month. See
Dictionary of Occupational Titles, Appendix C.
3

8

The ALJ also considered Niebaum’s daily activities, work history and third party
reports in evaluating the credibility of Niebaum’s allegations. She noted that he would
watch his daughter, take care of his dog, prepare meals, mow and weed the yard, drive
a car and go shopping. AR 26. His earnings record showed low earnings, including
some years for which he was not alleging disability. Niebaum’s spouse had submitted a
written statement supporting her husband’s claims of disability. AR 27. The ALJ did
not give her opinion great weight due to her relationship with the claimant and her failure
to address the ongoing abuse of methamphetamine, Adderall and alcohol in addition to
Niebaum’s failure to stay in treatment after the prior hearing and his refusal to take his
psychological medications.
In evaluating the medical opinions, the ALJ “generally agree[d]” with Dr. Quinn,
a state agency psychological consultant, that Niebaum’s credibility was partly eroded
because he “had not complied with treatment, as the claimant acknowledged; had abused
Adderall; and was noted to display drug-seeking behavior.” AR 24. Dr. Quinn found
Niebaum had difficulty maintaining mood stability, but this was largely secondary to drug
use and treatment noncompliance. He found Niebaum was capable of completing single
repetitive tasks on a sustained basis, which was consistent with a June 2009 consultative
evaluation.

Id.

Dr. Quinn noted work-related difficulties with extended attention,

detailed instructions, attendance, stress management, interpersonal functioning, judgment
and change, but thought Niebaum was capable of simple, repetitive tasks on a sustained
basis with superficial social interaction. Id.
The ALJ briefly discussed a consultative evaluation conducted by Dr. Baker in
June 2009, noting that Niebaum had reported he had not used methamphetamine in six
years and had stated alcohol was his “drug of choice.” AR 25. She later stated that
Niebaum had misled Dr. Baker about his ongoing drug use and again mentioned that he
had intentionally misled her during the evidentiary hearing in April 2009. She noted
Niebaum had stressed he was compliant with treatment, yet in June 2009 he had dropped
out of all treatment and was abusing drugs again in August 2009 while he appealed his
9

case to the Appeals Council. AR 26. The ALJ did acknowledge, however, that Niebaum
had successfully completed an outpatient program at Jackson Recovery Center from
September 2009 through June 2010. AR 25. His global assessment of functioning (GAF)
score was 58 on admission and 63 at discharge.4 Id.
The other medical evidence in the record comes from Siouxland Mental Health
Center (SMHC). There are no medical opinions because it is SMHC’s policy not to
provide medical source opinions. Id. The SMHC records show that Niebaum quit his
job in June 2009 because he was overwhelmed with responsibilities and decided not to
show up. He also quit taking his medications because he thought they were useless and
he had tried ten different kinds. Id. His GAF score was 55 at that time, but had been
60 on admission and had reached 63 during the past year. Id. Niebaum had not attended
12-step meetings following his discharge from the hospital in August 2009 and his
Adderall was discontinued. In September 2009, he expressed frustration about this,
stating it was due to a misunderstanding, and in October 2009 he stopped all of his
medication. Id.
In November 2009, Niebaum denied current substance use to his therapist. AR
26. Later that month, he stated he was looking forward to seeing an addiction specialist.
In December 2009, he reported he had abused Adderall he had obtained from a friend.
In February 2010, he reported his alcohol abuse and amphetamine dependence were in
remission. Id. Niebaum was seen in July 2010 at SMHC “in crisis.” Id. He had been
4

A GAF score represents a clinician’s judgment of an individual’s overall ability to function in
social, school, or occupational settings, not including impairments due to physical or
environmental limitations. See American Psychiatric Ass’n, Diagnostic & Statistical Manual of
Mental Disorders 34 (4th ed.) (DSM-IV). A GAF score of 51-60 indicates the individual has
moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts
with peers or co-workers). Id. A GAF score of 61-70 indicates the individual has some mild
symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational,
or school functioning (e.g., occasional truancy, or theft within the household), but is generally
functioning pretty well and has some meaningful interpersonal relationships. Id.

10

using methamphetamine, had not been sleeping and he reported hearing and seeing things.
Id. He was sent to Mercy Hospital for admission and treatment. After discharge, he
began a treatment program in Fort Dodge and indicated that prior to his hospitalization
he had been using Adderall that was not his and started smoking methamphetamine. He
also admitted he had not been compliant with his medication. Id.
In October 2010, Niebaum reported he had relapsed into substance use. According
to the ALJ, he tested .43 on a blood alcohol test which the ALJ noted was “4-5 times the
legal limit.” AR 27. In December 2010, he was avoiding drugs, but had been using
alcohol. AR 26. In February 2011, he had been abstinent for more than four months.
In October 2011, Niebaum reported he had abstained from cannabis for over 1 year and
from stimulants for over 8 months. There is no evidence of relapse in the medical records
from February 2011 through November 28, 2011. Id. The ALJ concluded she did not
find drugs and alcohol material to disability and agreed with Dr. Quinn’s assessment.
At Step Four, the ALJ also found that Niebaum was capable of performing his
past relevant work as a construction laborer and automotive washer/detailer. AR 27.
Alternatively, at Step Five, she found he was capable of performing other work in the
national economy such as packager, order picker and laundry worker based on the
vocational expert’s testimony. AR 28-29. For these reasons, the ALJ found Niebaum
had not been under a disability since August 22, 2009. AR 29.
IV.

THE SUBSTANTIAL EVIDENCE STANDARD

The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth Circuit
11

explains the standard as “something less than the weight of the evidence and [that] allows
for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of
choice within which the [Commissioner] may decide to grant or deny benefits without
being subject to reversal on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.
1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
12

Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”).
V.

DISCUSSION

Niebaum argues the ALJ’s decision is not supported by substantial evidence
because the only opinions in the record come from a non-treating, non-examining source
and a consultative examiner from a previous application. He also argues it was error for
the ALJ to find Niebaum had severe physical impairments but no physical limitations and
the ALJ should have ordered physical and mental consultative examinations. Niebaum
further argues the ALJ’s credibility determination is based on factual errors and the ALJ
improperly assumed the role of an adversary in evaluating Niebaum’s claim. I will
consider the ALJ’s evaluations of the medical evidence and Niebaum’s credibility
separately below.

A.

Evaluation of Medical Evidence
Niebaum’s arguments concerning the ALJ’s evaluation of medical evidence can be

narrowed down to two issues: (1) whether it was error for the ALJ to rely on the opinions
of a non-treating, non-examining source and a previous consultative examiner instead of
ordering new consultative examinations and (2) whether the ALJ erred by identifying
severe physical impairments but failing to include sufficient physical limitations in the
RFC. I will discuss each issue separately.
1.

Medical Opinions and Consultative Examinations

Niebaum argues the ALJ’s decision is not supported by substantial evidence
because there are no treating or examining source opinions describing Niebaum’s mental
or physical work-related limitations from his alleged onset date through the date of the
13

ALJ’s decision. Niebaum contends the ALJ erred by failing to adopt all of the limitations
identified by Dr. Quinn, the state agency consultant, or Dr. Baker, a previous consultative
examiner, who evaluated Niebaum’s mental impairments. He insists the ALJ should have
ordered consultative examinations to obtain examining source opinions on Niebaum’s
physical and mental work-related limitations.

The Commissioner contends it was

appropriate for the ALJ to give great weight to Dr. Quinn’s opinion as it was based on a
thorough review of the record, which included Dr. Baker’s June 2009 consultative
examination. She argues Dr. Quinn’s opinion was consistent with Dr. Baker’s and
appropriately found that Niebaum was not entirely credible. She contends the ALJ
adopted limitations that are consistent with Dr. Quinn’s and Dr. Baker’s opinions and the
rest of the evidence in the record.
Because non-examining sources have no examining or treating relationship with
the claimant, the weight given to their opinions “depend[s] on the degree to which they
provide supporting explanations for their opinions.” 20 C.F.R. §§ 404.1527(c)(3),
416.927(c)(3). When evaluating a non-examining source’s opinion, the ALJ “evaluate[s]
the degree to which these opinions consider all of the pertinent evidence in [the] claim,
including opinions of treating and other examining sources.” Id. The opinions of nontreating, non-examining sources “do not normally constitute substantial evidence on the
record as a whole.” Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003).
Here, the ALJ stated she “generally agree[d]” with Dr. Quinn’s opinion regarding
Niebaum’s mental impairments. AR 24. She described the limitations he identified, his
evaluation of Niebaum’s credibility and his opinion that Niebaum could complete simple,
repetitive tasks on a sustained basis with superficial social interaction. Id. She adopted
similar mental limitations in the RFC which include: work that is unskilled, SVP 1 or 2,
does not require extended concentration or attention, setting goals or dealing with job
changes and brief, superficial and occasional social interaction up to one-third of the day
with co-workers, supervisors and the general public. AR 23. Niebaum points out that
Dr. Quinn found additional moderate limitations in his ability to perform activities within
14

a schedule, maintain regular attendance, be punctual within customary tolerances,
complete a normal workday and workweek without interruptions from psychologically
based symptoms and perform at a consistent pace without an unreasonable number and
length of rest periods, which the ALJ failed to include in the RFC. Doc. No. 9 at 11,
AR 446-47. Moreover, he emphasizes that Dr. Baker identified more severe limitations,
including a GAF score of 45.5 AR 588. Niebaum contends the ALJ should have at least
used Dr. Baker’s opinion to evaluate his work-related limitations because it is the only
examining source opinion in the record. However, he points out that the ALJ only used
this opinion to further discredit Niebaum.
I have reviewed the record and I find the ALJ failed to fully and fairly develop the
record before making her RFC determination. Dr. Quinn’s opinion was based on Dr.
Baker’s consultative examination from June 2009 and Niebaum’s self-reports. AR 44849. Although he and the ALJ also discussed some treatment notes, none of these notes
contain a medical opinion from a treating source or otherwise provided medical evidence
about how Niebaum’s impairments affect his ability to function in the workplace. See
Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001) (noting that the claimant’s RFC is a
medical question and the ALJ’s assessment must be supported by “some medical
evidence” of the claimant’s ability to function in the workplace.).
Without an opinion from a treating or even examining source for the relevant time
period, crucial issues were undeveloped that required consultative examinations for
Niebaum’s physical6 and mental impairments. See Halverson v. Astrue, 600 F.3d 922,
933 (8th Cir. 2010) (“The ALJ is required to order medical examinations and tests only
if the medical records presented to him do not give sufficient medical evidence to
determine whether the claimant is disabled.”).

The obligation to obtain additional

A GAF of 41 to 50 indicates the individual has serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or a serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job). Id.

5

6

Niebaum’s physical impairments will be discussed in more detail infra Part V(A)(2).

15

medical evidence comes from the ALJ’s duty to develop the record. See Snead v.
Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (“Well-settled precedent confirms that the
ALJ bears a responsibility to develop the record fairly and fully, independent of the
claimant’s burden to press his case.”). The regulations provide that a consultative
examination may be purchased if the information is insufficient to make a determination
on the claim and the needed information cannot be provided by the claimant’s medical
sources. 20 C.F.R. §§ 404.1519a, 416.919a.
The evidence in the record was insufficient to determine whether Niebaum was
disabled and the needed information was unavailable from his medical sources. AR 57980. The record contains no opinions from treating physicians or consultative examiners
since Niebaum’s alleged onset date, and his treatment records do not otherwise detail any
work-related limitations associated with his impairments. Therefore, I find that the case
must be remanded for further development of the record. See Nevland v. Apfel, 204 F.3d
853, 858 (8th Cir. 2000) (remanding the case where the ALJ relied solely on the opinions
of non-treating, non-examining physicians who reviewed reports of the treating
physicians to form an opinion on the claimant’s RFC). On remand, I recommend the
ALJ arrange for consultative examinations to evaluate Niebaum’s mental and physical
impairments as the ALJ found severe impairments in both categories.
2.

Failure to Include Physical Limitations in RFC

Niebaum argues it was contradictory for the ALJ to find that he suffers severe
physical impairments of episodic tachycardia, hypertension, obesity and asthma, then fail
to include related physical limitations in the RFC. Niebaum points out that the ALJ
appeared to rely heavily on the opinion of Dr. Staples, a state agency consultant, but she
did not explain the weight given to his decision or why she found Niebaum had severe
physical impairments when Dr. Staples did not. The Commissioner argues the ALJ
appropriately accounted for Niebaum’s physical impairments by including limitations of
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frequent, but not constant performance of postural activities (such as climbing, balancing,
stooping, kneeling, crouching and crawling) and avoiding working with hazards or on
ladders. She contends these limitations are consistent with Niebaum’s own reports of his
symptoms and limitations and that any additional physical limitations are speculative.
A “severe” impairment is one that has more than a minimal impact on a claimant’s
ability to work. Page, 484 F.3d at 1043. “An impairment is not severe if it amounts
only to a slight abnormality that would not significantly limit the claimant’s physical or
mental ability to do basic work activities.” Kirby, 500 F.3d at 707; see 20 C.F.R. §§
404.1520(c), 404.1521(a), 416.920(c), 416.921(a). At Step Two, the ALJ identified
severe physical impairments of episodic tachycardia, hypertension, obesity and asthma.
She then noted that the focus of the decision was on Niebaum’s mental impairments and
that he had no medically determinable impairments that would cause exertional
limitations. She found his non-exertional physical limitations were postural (frequent,
but not constant ability to climb, balance, stoop, kneel, crouch and crawl) and
environmental (restricted from work on ladders and exposure to hazards due to reported
episodes of syncope). AR 21-22. These limitations were included in the RFC.
The claimant’s RFC is “what [the claimant] can still do” despite his or her physical
or mental limitations. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) “The ALJ must
determine a claimant’s RFC based on all of the relevant evidence.” Fredrickson v.
Barnhart, 359 F.3d 972, 976 (8th Cir. 2004). This includes “an individual’s own
description of [her] limitations.” McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir.
2003) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). However, the
claimant’s RFC “is a medical question,” Lauer, 245 F.3d at 704, and must be supported
by “some medical evidence.” Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per
curiam). The medical evidence should address the claimant’s “ability to function in the
workplace.” Lewis, 353 F.3d at 646.
The ALJ’s error here lies not in the lack of physical limitations identified in the
RFC, but in the lack of evidence (specifically medical evidence) evaluating any physical
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impairments or limitations.

The only medical opinions in the record discussing

Niebaum’s physical impairments come from the state agency consultants. On July 1,
2010, Dr. Staples reviewed the evidence in the record and considered alleged
impairments of episodic tachycardia, hypertension, overweight and history of
polysubstance abuse. AR 438. He concluded there was not a medically determinable
impairment that would have a significant effect on basic work activities, but suggested
hazard limitations due to Niebaum’s history of syncopal episodes. AR 445. Dr. May
reviewed this assessment on reconsideration and noted Niebaum’s activities of daily living
did not show any physical limitations and the record continued to show a non-severe
physical impairment. AR 468.
The ALJ failed to discuss either opinion in her RFC assessment. Moreover, what
is notably missing from the ALJ’s decision and the state agency consultants’ opinions is
any consideration of Niebaum’s asthma, which the ALJ found to be a severe impairment.
There are some treatment notes in the record confirming Niebaum’s asthma diagnosis,
but there are no evaluations or opinions on limitations related to this impairment. This
is not evidence that there are none. See Johnson v. Astrue, 628 F.3d 991, 995 (8th Cir.
2011) (citing Pate-Fires v. Astrue, 564 F.3d 935, 943 (8th Cir. 2009)) (stating “[a]
treating doctor's silence on the claimant's work capacity does not constitute substantial
evidence supporting [an] ALJ's functional capacity determination when the doctor was
not asked to express an opinion on the matter and did not do so, particularly when that
doctor did not discharge the claimant from treatment.”).
The ALJ clearly gave Niebaum’s physical impairments short shrift without
adequately developing the record to obtain medical opinions as to how those impairments
affect his ability to perform work-related activities. Because there is no opinion in the
record from a treating or examining source on Niebaum’s physical work-related
limitations, or any other medical evidence from which to glean those limitations, a
consultative examination is necessary.
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B.

Claimant’s Credibility
Niebaum argues the ALJ improperly evaluated his credibility by using information

from his previous application and administrative hearing, which she presided over. In
addition, Niebaum contends the ALJ made serious factual errors that were used to
discredit him and suggests these errors reflect bias against him. The Commissioner
argues Niebaum has not offered sufficient evidence to overcome the presumption of
honesty and integrity that is afforded to adjudicators so the ALJ cannot be found to be
biased. The Commissioner also argues the ALJ reasonably found that Niebaum made
inconsistent statements, which is a proper basis to discredit him. She fails to address
Niebaum’s assertions of other factual errors made by the ALJ.
The standard for evaluating the credibility of a claimant’s subjective complaints is
set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The ALJ must
consider the claimant’s daily activities; duration, frequency and intensity of pain; dosage
and effectiveness of medication; precipitating and aggravating factors; and functional
restrictions. Polaski, 739 F.2d at 1322. The claimant’s work history and the absence of
objective medical evidence to support the claimant’s complaints are also relevant.
Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir. 2000). The ALJ does not need to explicitly
discuss each factor as long as he or she acknowledges and considers the factors before
discrediting the claimant’s subjective complaints. Goff, 421 F.3d at 791. “An ALJ who
rejects [subjective] complaints must make an express credibility determination explaining
the reasons for discrediting the complaints.” Singh, 222 F.3d at 452. The court must
“defer to the ALJ’s determinations regarding the credibility of testimony, so long as they
are supported by good reasons and substantial evidence.” Guilliams v. Barnart, 393 F.3d
798, 801 (8th Cir. 2005).

19

The ALJ’s credibility determination was centered on her perception that Niebaum
“intentionally misled” her at the evidentiary hearing in April 2009.7 The ALJ stated,
“At the last hearing in April 2009 claimant asserted he was not using methamphetamine
but in August 2009 he was hospitalized and was in fact using methamphetamine.” AR
24. Before getting into whether this is really inconsistent, I must point out it is not
accurate. The hospital records state that Niebaum admitted to abusing his Adderall
prescription in August 2009, but he said he had not been using methamphetamine. AR
305. Adderall is a combination of amphetamine and dextroamphetamine mixed salts.
See RxList-The Internet Drug Index, http://www.rxlist.com/adderall-drug.htm (last
visited March 4, 2014).

A positive urine drug screen for amphetamines does not

necessarily indicate Niebaum was using methamphetamine, as it could have detected the
Adderall Niebaum admitted he was abusing.

The only suggestion he was using

methamphetamine at this time was in the “Physical Examination” portion of the record
where the doctor indicated Niebaum was a “heavy user of Methamphetamine,” but this
is more likely related to Niebaum’s reports that he had been using drugs most of his life
and methamphetamine was his drug of choice. AR 305-06.
With that inaccuracy aside, any intentional misrepresentation or even inconsistency
between these two facts is completely lost on me. It is obviously possible for a person
struggling with an addiction to be clean in April but using again four months later. The

The ALJ’s statements concerning her perception that Niebaum misled her at the previous
hearing in April 2009 became progressively more definite throughout the course of her decision.
She first stated she was “concerned about possible inconsistences” between his testimony in
April 2009 and his current testimony regarding substance use. AR 24. Later, she stated, “There
is some question as to credibility at the previous hearing, as the claimant’s reports about sobriety
and abstinence seem inconsistent.” Id. In the next paragraph she wrote, “Claimant’s creidibility
[sic] is affected by the fact that he misled the undersigned at the previous hearing when he
testified he was abstinent but now admits he was abusing methamphetamine and Adderall at that
time.” AR 25. By the end of the decision she had worked all the way up to stating that Niebaum
“misled the consultative psychologist Dr. Baker in June 2009 about his ongoing drug use, and
also intentionally misled the undersigned at the evidentiary hearing in April 2009.” AR 26.
7

20

hearing testimony offers no insight as to why the ALJ found Niebaum had intentionally
misled her. During the hearing, the ALJ stated, “Well let’s get down to the fact that you
were not truthful with me at the last hearing. Why did you lie about your drug use?”
AR 47. Niebaum replied that he might have been clean at the time, and admitted he had
relapsed, but did not think it was at the time of the last hearing. Id.

The ALJ’s own

explanation in her decision also offers no proof of misrepresentation. She wrote, “At the
[April 2009] hearing claimant stressed he was compliant with treatment, yet in June 2009
(two months later) he dropped out of all treatment and by August 2009 was abusing
drugs.” AR 26. She then notes that Niebaum was using drugs when he appealed his
case to the Appeals Council. While this may be true, it certainly does not establish that
Niebaum was untruthful when he testified in April 2009 that he was clean and compliant
with treatment. Because this reason for discrediting Niebaum is inaccurate and also does
not reflect inconsistent statements, I find it was not a good reason to discredit Niebaum.
The ALJ made another factual error when she discredited Niebaum based on her
perception that he was untruthful about his alcohol use. AR 24-25. The ALJ stated
Niebaum “acknowledged he was drinking heavily in 2010, he said 4-5 beers, but his
Blood alcohol level was .43, which is 4-5 times the legal limit.” AR 24-25. Later, she
claimed that following his hospitalization in August 2009, Niebaum “continued to abuse
polysubstances at least until October 2010 when he tested .43 (4-5 times the legal limit)
on a blood alcohol test.” AR 27. She also remarked this “relapse” occurred while
Niebaum was participating in a drug rehabilitation program. Id.
Niebaum points out that the alcohol test referenced by the ALJ was part of his
hospitalization in August 2009, not October 2010. AR 313. The ALJ even acknowledged
this in an earlier part of her decision where she wrote: “At the time of admission to
hospitalization in August 2009, the claimant’s urine drug screen was positive for
amphetamine and indicated an alcohol level of 43, with a maximum legal limit of 8.”
AR 25. There are no blood alcohol test results in the record from Niebaum’s intensive
outpatient treatment in October 2010. AR 480-85.
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Making matters worse, the ALJ inaccurately interpreted the blood alcohol content
to be four to five times the legal limit, when it was actually much lower. The urine test
in August 2009 revealed an alcohol content of 43 mg/dL. AR 313. In Iowa, “alcohol
concentration” means the number of grams of alcohol per sixty-seven milliliters of urine.
Iowa Code § 321J.1(1). The legal limit in Iowa is an alcohol concentration of .08 grams
per 67 milliliters. Iowa Code § 321J.2(1)(b). Niebaum’s alcohol concentration of 43
mg/dL amounts to 0.02881 grams per 67 milliliters. This is approximately one-third of
the legal limit in Iowa – a far cry from “4-5 times” over the legal limit, as stated by the
ALJ.
These two factual errors were the primary bases for the ALJ’s credibility finding.
It is understandable why Niebaum would raise questions of bias given the ALJ’s repeated
reference to “facts” that were blatantly wrong. However, finding that a professional
neutral acted with bias is no small matter. See, e.g., Rollins v. Massanari, 261 F.3d
853, 858 (9th Cir. 2001) (to demonstrate bias, the plaintiff must show that “the ALJ’s
behavior, in the context of the whole case, was ‘so extreme as to display clear inability
to render fair judgment.’”). While the ALJ made significant factual errors, I cannot find
that these errors prove she was biased against Niebaum.
Nonetheless, I do strongly recommend that this case be assigned to a new ALJ on
remand in light of the history between this ALJ and this claimant. Because the ALJ’s
credibility determination is not supported by good reasons or substantial evidence, a new
credibility analysis must be conducted on remand. See Brosnahan v. Barnhart, 336 F.3d
671, 677 (8th Cir. 2003) (reversing where the ALJ’s multiple reasons for discrediting the
claimant were unsupported by the record because the supposed inconsistencies were not
actually inconsistent and the ALJ relied on improper reasons to hold otherwise).

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VI.

CONCLUSION AND RECOMMENDATION

For the reasons set forth herein, I RESPECTFULLY RECOMMEND that the
Commissioner’s determination that Niebaum was not disabled be reversed and this case
be remanded to the Commissioner for further proceedings. Judgment shall enter in favor
of the plaintiff and against the defendant.
On remand, I recommend that a new ALJ be assigned to this case and that the new
ALJ obtain consultative examinations for Niebaum’s physical and mental impairments
and re-evaluate Niebaum’s RFC based on a consideration of the consultative examiners’
opinions, a new credibility determination and the rest of the evidence in the record. The
ALJ may also need to obtain additional VE testimony depending on the new RFC
determination.
Objections to this Report and Recommendation in accordance with 28 U.S.C.
' 636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within fourteen (14) days of the
service of a copy of this Report and Recommendation. Objections must specify the parts
of the Report and Recommendation to which objections are made, as well as the parts of
the record forming the basis for the objections. See Fed. R. Civ. P. 72. Failure to object
to the Report and Recommendation waives the right to de novo review by the district
court of any portion of the Report and Recommendation as well as the right to appeal
from the findings of fact contained therein. United States v. Wise, 588 F.3d 531, 537
n.5 (8th Cir. 2009).
IT IS SO ORDERED.
DATED this 4th day of March, 2014.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

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