Chamberlain v. Commissioner of Social Security

Filing 20

ORDER re 3 Complaint. The decision of the ALJ is reversed and remanded. See text of Order for details. Signed by Senior Judge Donald E OBrien on 3/25/15. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
TINA MARIE CHAMBERLAIN,
Plaintiff,

No. 14-CV-4004-DEO

v.
ORDER

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

matter

is

before

the

Court

pursuant

to

Tina

Chamberlain’s [hereinafter Ms. Chamberlain] application for
Disability Insurance Benefits 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
Ms. Chamberlain was born June 11, 1978, and was 31 years

old on her alleged onset date.

She attended school through

the 11th grade, completely in special education classes and
courses.

She is 5'3" tall and weighs 170 pounds.

Ms.

Chamberlain has moved around most of her life, including

stints in Kansas, Connecticut, Montana, and currently in
northwest Iowa.

She is not married but lived with a roommate

at the time of the administrative hearing.
children but does not have custody of them.

She has two
She reported a

history of sexual abuse, giving rise to the mental disorders
discussed below.
Her work history is sporadic.

She has tried to work,

beginning when she was age 16, at various jobs, but none
lasted long.

Most recently, she worked a variety of jobs

through a temporary agency, her longest employment as an
assistant for a disabled person.
Ms. Chamberlain bases her alleged disability on a number
of issues.

Plaintiff reported that her disability is because

of scoliosis (a curved back condition); Post Traumatic Stress
Disorder;

anxiety;

inflammation);

sacroiliitis

asthma;

(a

type

hypothyroidism;

of

anxiety

low

back

disorder;

bipolar spectrum vs major depressive disorder; recurrent,
moderate, postraumatic stress disorder; panic disorder with
agoraphobia;

generalized

anxiety

disorder;

obsessive

compulsive features; and “lower IQ and learning disability
issues.”

The ALJ determined that the Plaintiff had the
2

following impairments that were severe impairments, right
sacroiliacitis, anxiety disorder not otherwise specified,
bipolar spectrum vs major depressive disorder, recurrent,
post-traumatic stress disorder, and lower IQ and learning
disability issues.
II.

PROCEDURAL HISTORY
Ms. Chamberlain applied for disability insurance benefits

and supplemental security income (SSI) under Titles II and XVI
of the Social Security Act (Act), 42 U.S.C. §§ 401-434,
1381-1385

on

December

27,

respectively,

alleging

an

2010,
onset

and
date

January
of

March

5,

2011,

5,

2010.

Plaintiff’s claims were denied initially on February 7, 2011,
and upon reconsideration on March 23, 2010.

On October 24,

2012, following a hearing, an Administrative Law Judge (ALJ)
found that Ms. Chamberlain was not under a “disability” as
defined in the Act.

Ms. Chamberlain appealed the ALJ’s

decision to the Appeals Council, who denied her appeal on
December 18, 2013.

Ms. Chamberlain filed the present Social

Security appeal on January 13, 2014.

3

The ALJ set out the issues in Ms. Chamberlain’s claim:
[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 that the
claimant has acquired sufficient quarters
of coverage to remain insured through June
3, 2011. 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. 15.
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”
4

that lasts for at least 12 months, (3) determination of
whether a plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
Capacity

(RFC)

indicates

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].

a

plaintiff’s

Residual

RFC is the “most” a person “can

5

still

do”

despite

404.1545(a)(1).

their

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
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

6

“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.
In this case, the ALJ applied the appropriate methodology
and found that Ms. Chamberlain does not have a history of
substantial gainful employment since the alleged onset date.
The ALJ stated that Ms. Chamberlain has the following
combination of severe impairments:

right sacroiliacitis,

anxiety disorder not otherwise specified, bipolar spectrum vs.
major depressive disorder, recurrent, post-traumatic stress
disorder and lower IQ and learning disability issues

(20

C.F.R. 404.1520(c) and 416.920(c)).1
However, the ALJ considered Ms. Chamberlain’s impairments
individually and combined and found that she did not suffer
from a disability as contemplated by the Social Security Code.
Specifically, the ALJ stated:
1

The ALJ discounted allegations that Ms. Chamberlain
suffered from panic disorder and obsessive-compulsive
features. The ALJ also noted non-severe impairments including
hypothyroid and asthma.
7

[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. 17.
The ALJ considered Ms. Chamberlain’s mental impairments
using

the

“paragraph

B”

criteria

criteria as set out in 20 C.F.R.

and
Part

the

“paragraph

C”

404, Subpart P,

Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926), and
determined that Ms. Chamberlain’s mental impairments did not
meet either set of requirements.

Docket No. 7, Tr. 18.

The ALJ went on to consider residual functional capacity
and adopted the state agency consultants’ conclusions. Docket
No. 7, Tr. 18.

To support that finding, ALJ discussed

inconsistences

the

in

record

regarding

contradictions

in

statements made by Ms. Chamberlain during her examinations by
Dr. McNaughton and statements made during her examinations by
nurse Kathryn Nelson.

See Docket No. 7, Tr. 19-20.

The ALJ

also found significant the fact that Ms. Chamberlain failed to
comply with prescribed medications.

2

Docket No. 7, Tr. 21.2

Ms. Chamberlain alleged she could not afford the
medications.
8

Although

noting

it

was

possible

that

Ms.

Chamberlain’s

condition had deteriorated in 2012, the ALJ concluded that Ms.
Chamberlain had made questionable and usupported claims during
her examinations in 2012.

Specifically, the ALJ stated:

[t]here
is
no
indication
that
Dr.
McNaughton has conducted any validity
testing to determine the reliability of the
claimant's current presentation.
Under
circumstances such as this, where there is
an individual seeking disability benefits,
and where other mental health providers,
including a provider at the same facility,
have not remotely observed the level of
symptoms presented, it is critical, if not
essential to eliminate concerns that the
current presentation may result from
secondary gain motivations. Dr. McNaughton
simply failed to do this. Accordingly, I
must
conclude
that
the
medical
and
psychiatric record, viewed as a whole, does
not demonstrate that greater psychiatric
limitations than those identified above are
warranted, and/or that the state agency
examining
psychiatric
consultant's
assessment is misplaced.
Docket No. 7, Tr. 21.

On that basis, the ALJ discounted Dr.

McNaughton’s

opinion

regarding

limitations.

Ms.

Chamberlain’s

work

Id. at p. 21-22.

The ALJ then considered the Plaintiff’s credibility under
the Polaski standard, stating:
[i]n making my residual functional capacity
determination, I considered the claimant's
alleged disabling symptoms, including pain,
and the allegations regarding her ability
9

to work.
However, due to the lack of
medical evidence and the inconsistencies in
the claimant's statements and actions, I am
unable to afford her allegations full
weight. 20 CPR 404.1529(a) and 416.929(a)
state that symptoms must be supported by
objective medical evidence in order to
establish “disability.”
As previously
detailed, there is a lack of medical
evidence indicating that the claimant’s
impairments are as disabling as she claims.
There simply is not enough objective
evidence to make her allegations readily
believable. However, I do not rely solely
on objective evidence and medical opinions
in assessing the reliability of the
claimant’s
allegations.
Inconsistent
statements and actions also undermine her
credibility.
As explained above, the
inconsistency of the claimant’s psychiatric
presentation and claims, over time, raise
serious concerns regarding the reliability
of her allegations. The claimant’s current
psychiatric presentation appears newly
developed, only after her efforts to obtain
support for her disability claims were
denied initially and upon reconsideration,
and only after the state agency examining
psychology consultant, Dr. Molly Earlywire,
and a psychiatric nurse could not find
clinical grounds supporting her disability
claims (Exhibit 16F, pp. 11,13). On top of
this, the claimant inconsistently advised
Dr.
McNaughton
that
she
had
been
hospitalized for panic attacks twice, a
claim she had denied earlier.
She also
advised him that panic attacks and job
slowness resulted in her having multiple
jobs. However, she inconsistently advised
the state agency examining psychiatric
consultant, that this job history was the
result of her moving frequently and
boredom.
These
inconsistencies
are
difficult to reconcile, particularly when
10

the claimant would not even fill a $5
prescription for psychotropic medication,
as Dr. McNaughton recommended... In sum,
there is ample reason to be cautious
accepting the claimant’s allegations in the
absence of substantial objective medical
support.
Docket No. 7, Tr. 22-23. The ALJ similarly gave little weight
to the opinion of third party source, Chad Bol, and the ALJ
found the that the third party report of Mr. Black did not
support Ms. Chamberlain’s claim.
Based on his RFC, the ALJ concluded that Ms. Chamberlain
could return to past relevant work.

Docket No. 7, Tr. 23.

Specifically, based on the testimony of the vocational expert,
the ALJ concluded that Ms. Chamberlain could return to work as
a home health aide or a bus driver.

Id.

The ALJ concluded

that:
[t]he claimant has not been under a
disability, as defined in the Social
Security Act, from March 5, 2010, through
the date of this decision (20 CFR
404.1520(f) and 416.920(f)).
Docket No. 7, Tr. 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
supported by substantial evidence in the record as a whole.

11

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.
(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

12

his/her decision.

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

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

ISSUES
Ms. Chamberlain argues that the ALJ improperly gave

controlling weight to the non-treating sources, failed to
obtain an IQ test, failed to correctly evaluate the severe
impairments, improperly discredited the treating source, and
erred in citing past relevant work not supported by the
record.
V.

The Court will consider these issues below.3

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
3

During the hearing, the parties also argued over Ms.
Chamberlain’s non-severe impairments, and whether the ALJ
correctly considered them. The Court gave the parties leave
to supplement the record on this issue, which they did. See
Docket Nos. 18 and 19.
While the Court appreciates the
parties willingness to supplement the record, the Court is
persuaded that there are other dispositive issues in this
case, which will be discussed below. Accordingly, the Court
will not consider the issue related to Ms. Chamberlain’s nonsevere impairments in any great detail.
13

for a continuous period of not less than 12
months . . . .
42 U.S.C. § 423(d)(1)(A).
A.

CUT AND PASTE RFC

In

many,

if

not

most,

social

security

appeals,

the

Plaintiff’s argument is factual and based in large part on the
medical evidence in the record.

However, this case, which

does contain an extensive discussion of the medical record,
also

contains

several

rather

pointed,

and

simple,

legal

arguments.

From that later category, the Plaintiff first

argues

ALJ

the

merely

copied

and

pasted

his

residual

functional capacity evaluation from opinions of the state
agency consultants.

The Plaintiff argues that copying and

pasting an RFC is an error.4
It is undisputed that the ALJ did copy and paste the RFC
from the consultant’s work.5

Thus, the question is whether

4

By ‘copy and paste’ or ‘cut and paste,’ the Plaintiff
means that the ALJ took the consultant’s conclusion word for
work from the medical record and put it in his own decision.
The word paste, used literally, would mean to glue.
5

The Defendant admits that the ALJ copied and pasted,
stating, “[t]he fact that the ALJ decided to use the wording
contained in an expert opinion is a testament to the ALJ’s
exactitude, not a detriment.” Docket No. 13, p. 6.
14

that is an error.

The Defendant argues that it is not.

As

stated in their its brief:
[a] residual physical functioning finding
is solely the province of the ALJ.
20
C.F.R. §§ 404.1527(e)(2), 416.927(e)(2);
SSR 96-5p... An ALJ is entitled to make
any
finding
that
is
supported
by
substantial evidence.
See Arkansas v.
Oklahoma, 503 U.S. 91, 112-13 (1992).
Docket No. 9, p. 6-7.
The Defendant’s own argument betrays the ALJ’s error. As
stated by the Defendant, the residual functioning capacity is
solely the province of the ALJ.

Accordingly, the ALJ cannot

sub-contract or assign the creation of the RFC to a consulting
expert.

Even if the ALJ generally agrees with a consultant’s

opinion, the ALJ has an obligation under the rules to add some
nuance to their RFC.

As stated in the Plaintiff’s brief:

[c]ontrolling weight may only be given to
opinion from a treating source. 20 CFR §§
404.1527(c)(2), 416.927(c)(2). Controlling
weight may not be given to nontreating
source
opinions.
POMS
DI
24515.006(B)(1)(c) Evaluating Nontreating
Source Medical Opinions. “We have stated
many times that the results of a one-time
medical evaluation do not constitute
substantial evidence on which the ALJ can
permissibly base his decision. See, e.g.,
Jenkins v. Apfel, 196 F.3d 922, 925 (8th
Cir. 1999) (stating that the opinion of a
consultative physician does not generally
satisfy
the
substantial
evidence
requirement).” Cox v. Barnhart, 345 F.3d
606, 610 (8th Cir. 2003). So, the one-time
15

CE reports are not even entitled to be
“substantial evidence,” yet this ALJ gave
them controlling weight.
Docket No. 9, p. 8-9.
In his RFC, the ALJ took four paragraphs verbatim from
the opinion of Dr. Douglas Martin.

See Docket No. 7, Tr. 350,

and compare with Docket No. 7, Tr. 18.

Dr. Martin examined

Ms. Chamberlain one time in January of 2011.

Dr. Martin did

not have access to her medical history, and certainly did not
have

access

McNaughton.

to

her

Nor,

subsequent

was

Dr.

treatment

Martin

privy

notes
to

from

the

Dr.

evidence

collected during the ALJ’s own hearing. The ALJ then took one
paragraph, verbatim, from the opinion of Dr. Michael Baker.
See Docket No. 7, Tr. 364, and compare with Docket No. 7, Tr.
18. Dr. Baker did have more access to Ms. Chamberlain’s prior
history,

but

of

course,

had

no

way

subsequent treatment by Dr. McNaughton.

to

know

about

her

Nor did Dr. Baker

have access to the testimony from the ALJ’s hearing.
There simply is no way that the consulting experts had
all the information that the ALJ had.

The parties agree that

it is for the ALJ and the ALJ alone to develop the RFC based
on the evidence in the record.

In this case, there simply is

no dispute that the ALJ allowed the consultants to fashion the
RFC,

even

though

they

had

incomplete
16

access

to

all

the

relevant

evidence.

considering

that

This

the

error

ALJ

admits

is

even

that

more

Ms.

glaring

Chamberlain’s

condition [apparently] changed in 2012 around the time she
began seeing Dr. McNaughton. Because the ALJ did not form the
residual functional capacity himself, and simply adopted the
the

RFC

from

the

consultants’

opinions,

his

RFC

is

not

supported by substantial evidence and is in error.
B.

IQ TEST

The ALJ found that Ms. Chamberlain suffers from “lower IQ
and learning disability issues.”

Docket No. 7, Tr. 16.

The

ALJ then never referred to Ms. Chamberlain’s intelligence
again in his entire opinion, other than to note that Dr.
McNaughton also said she had low intelligence.

The ALJ

provides no source for his IQ finding, does not explain the
severity

of

a

‘lower

IQ,’

does

not

explore

a

low

IQ’s

potential to be a listing criteria (§ 12.05C or otherwise),
nor

does

he

explore

how

the

low

IQ

Chamberlain’s other severe impairments.6

interacts

with

Ms.

Based on this vague

finding, the Plaintiff argues that the ALJ erred by not
ordering an IQ test.

6

The ALJ also notes that Ms. Chamberlain has a high
school equivalent education, but that is not supported by the
record.
17

It is well settled that a social security hearing is a
non-adversarial proceeding, and the ALJ has a duty to fully
See Smith v. Barnhart, 435 F.3d 926, 930

develop the record.
(8th Cir. 2006).

The claimant bears the burden of proving

disability and providing medical evidence as to the existence
and severity of an impairment.
834, 836 (8th Cir. 2004).

Snead v. Barnhart, 360 F.3d

The ALJ is not required to seek

additional clarifying statements unless a crucial issue is
Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir.

undeveloped.

2005). A consultative examination for further testing is only
necessary

when

inconclusive

the

or

medical

somehow

evidence

in

incomplete.

the
20

record
C.F.R.

is
§§

404.1519a(b), 416.919a(b).
The Defendant disagrees and argues that no IQ test was
necessary.

In making that argument, the Defendant relies on

the fact that Dr. McNaughton did not order an IQ test saying,
“[e]ven Dr. McNaughton, whom plaintiff sought out specifically
to obtain a disability statement, apparently did not believe
that he needed a diagnostic IQ test.”

Docket No. 13, p. 10.

However, Defendant’s own argument emphasizes the ALJ’s error,
showing

that

even

the

treating

medical

notes

did

illuminate the severity of Ms. Chamberlain’s low IQ.

not
The

Defendant goes on to discuss evidence in the record that Ms.
18

Chamberlain could function.

However, as noted above, the ALJ

already found that she suffered a low IQ.
severity of the low IQ.

The question is the

The best way to determine that is

through a test, which the ALJ failed to order.7

This case is

distinguishable from cases such as Cox v. Astrue, 495 F.3d
614, 618 (8th Cir. 2007), cited by the Defendant.

Cases

finding the ALJ did not need to order more testing almost
universally have either (a) an IQ test already in the record
(b) an indication that the ALJ considered other evidence
relevant to IQ that the ALJ considered and used to form his
(or her) opinion.

This case has neither.

It does not have a

valid IQ test, nor does the ALJ discuss what evidence supports
his conclusion regarding Ms. Chamberlain’s IQ.
Based on the RFC discussion in the previous section, and
the ALJ’s failure to order an IQ test, it is clear that the
ALJ’s decision is not supported by substantial evidence.
Accordingly, the Court must remand this issue for further
development of the record.

Accordingly, because remand is

7

“Standardized intelligence test results are essential
to the adjudication of all cases of mental retardation that
are not covered under the provisions of 12.05A.” 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(b); DI 24515.055
Evaluation Of Specific Issues Psychological/Psychometric
Testing.
19

clearly necessary, the Court will only briefly consider the
Plaintiff’s other arguments.
C.

Severe Impairment

Plaintiff next argues that during the hearing, the ALJ
incorrectly defined the term severe impairment.

It is true

that during the hearing, the ALJ seemed to incorrectly state
the severe impairment standard. (The Defendant admits as much
in its brief, but argues that what the ALJ said during the
hearing was not what the ALJ actually meant.
13, p. 13-14.)

See Docket No.

Regardless what was said during the hearing,

in his decision, the ALJ, at least textually, applied the
correct standard.

Because the Court is convinced that this

case must be remanded to further develop the record in regards
Ms. Chamberlain’s residual functional capacity and IQ as
discussed above, the Court need not further consider this
issue.

Suffice to say that the ALJ needs to apply the correct

severe impairment definition in any subsequent proceedings.
D.
The

Medical Evidence
Plaintiff’s

next

argument

is

that

the

ALJ

gave

controlling weight to the consultant opinions at the expense
of the opinion of the treating sources.

20

The Defendant argues

that the ALJ properly discounted the opinion of the treating
physician for a variety of reasons.
It is beyond dispute that treating practitioners have the
clearest insight into the medical conditions at issue in
social security disability cases.

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

452.

20

C.F.R.
In

the

decision's narrative discussion section, the ALJ "must . . .
explain how any material inconsistencies or ambiguities in the
21

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.

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)).
In the subsequent proceeding, the ALJ must consider the
above stated standard in accessing the opinion of the treating
physician.
E.

Past Relevant work.

The ALJ found that Ms. Chamberlain had past relevant work
as a bus driver and as a home health medical aide.

In her

brief, the Plaintiff sets out why her (brief) past work as a
bus driver does not qualify as substantial gainful employment.
See Docket No. 9, p. 16-17.

The Defendant concedes that the

Plaintiff’s analysis is correct.

See Docket No. 13, p. 19,

stating, “...plaintiff’s earnings as a driver fell below wages
that indicate substantial gainful activity...”

The Plaintiff

also argues that her job as a home health aide was specific to
one patient and no longer exists.
The ALJ cited two examples of past relevant work.
clearly an error.

One is

As set out in the Plaintiff’s brief,

22

“‘[t]he decision as to whether the claimant retains the
functional capacity to perform past work which has current
relevance has far-reaching implications and must be developed
and explained fully in the disability decision. Since this is
an important and, in some instances, a controlling issue,
every effort must be made to secure evidence that resolves the
issue as clearly and explicitly as circumstances permit.’ SSR
82-62: Titles II and XVI: A Disability Claimant’s Capacity to
do Past Relevant Work, in General.”

Docket No. 9, p. 19-20.

Finding two incidents of past relevant work and getting at
least one of them wrong shows that the ALJ did not apply the
type

of

diligence

evaluation.

The

required

in

post-remand

his

ruling

past
by

relevant

the

ALJ

work

must

be

supported by substantial evidence, including the ALJ’s finding
regarding past relevant work.
VI.

CONCLUSION
It is clear the ALJ erred when he allowed the consulting

experts

to

craft

Ms.

Chamberlain’s

residual

functional

capacity for his decision and by failing to develop the record
regarding Ms. Chamberlain’s IQ.

The question thus becomes

whether this Court should remand for further consideration or
solely for the purpose of awarding benefits.

23

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).
In this case, it is clear that the record must be further
developed before any decision can be reached.

Therefore, the

decision of the ALJ is reversed and remanded.

On remand, the

ALJ will supplement the record regarding Ms. Chamberlain’s IQ
through testing and will consider if her low IQ implicates a
listing

criteria.

Further,

the

ALJ,

rather

than

the

consulting experts, will craft a residual functional capacity
for Ms. Chamberlain.

Additionally, on remand, the ALJ will

properly weigh the evidence from the treating sources and
guarantee that any past relevant work finding is supported by
substantial evidence with specific citation to the record.
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
24

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 25th day of March, 2015.

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

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