Crum v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATIONS recommend that the Commissioners determination be affirmed and that judgment be entered against Plaintiff and in favor of the Defendant re 3 Complaint filed by Noah William Crum. Signed by Magistrate Judge Leonard T Strand on 7/17/2015. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
NOAH WILLIAM CRUM,
Plaintiff,

No. C14-4055-MWB

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

REPORT AND
RECOMMENDATION

Defendant.
____________________
Plaintiff Noah William Crum 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
Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Crum
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
affirmed.
I.

BACKGROUND

Crum was born in 1959 and has an associate’s degree in banking and finance. AR
28, 82. He has worked as a retail store manager, a cashier, a salesperson, a truck loader
and a yard worker. AR 82. He applied for DIB and SSI benefits on January 9, 2009,
alleging a disability onset date of May 18, 2008. AR 245-57. He alleged disability due
to heart problems, depression, metal plates in his legs, hernia and diabetes. AR 284. On

April 23, 2009, his claims were denied. AR 138-41. Crum then filed a request for
reconsideration, which was denied. AR 145-46, 155-65.
Crum then requested a hearing before an Administrative Law Judge (ALJ). AR
166-68. The first hearing occurred on March 16, 2011, and was held before ALJ Ronald
Lahners. AR 116-27. Crum and a vocational expert (VE) testified. AR 77-107. On
April 21, 2011, the ALJ issued a decision denying Crum’s claim. AR 116-27.
Crum then sought review by the Appeals Council. AR 202-03. On May 10, 2012,
the Appeals Council granted Crum’s request and remanded the case to the ALJ with
directions for further proceedings. AR 134-36. A second hearing was held on November
27, 2012, during which Crum and the VE again testified. AR 36. During that hearing,
Crum amended the alleged onset date of disability to December 17, 2009, his fiftieth
birthday. AR 10, 41-43.
On January 29, 2013, the ALJ again denied Crum’s claims. AR 10-29. Crum
again sought review by the Appeals Council. AR 5. On May 13, 2014, the Appeals
Council denied his request. AR 1-4. The ALJ’s second decision thus became the final
decision of the Commissioner. AR 1; 20 C.F.R. § 404.981.
On July 9, 2014, Crum filed a complaint (Doc. No. 3) in this court seeking review
of the Commissioner’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 which 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);
accord 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the claimant
2

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 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(B).
To determine whether a claimant has a disability within the meaning of the 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), 416.920(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 also Bowen v. Yuckert, 482 U.S. 137, 141
(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
3

minimal impact on her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (internal quotation marks omitted).
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 also 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 also 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 will
also consider certain non-medical 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).

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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 show 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, 205
F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must show 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). 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
the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(v), 416.920(a)(4)(v). At Step Five,
while 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.

THE ALJ’S FINDINGS

The ALJ made the following findings:
(1)

The claimant meets the insured status requirements of
the Social Security Act through December 31, 2013.

(2)

The claimant has not engaged in substantial gainful
activity since December 17, 2009, the amended alleged
onset date (20 C.F.R. § 404.1571 et seq., and 416.971
et seq.).

(3)

The claimant has the following severe impairments:
depressive disorder, not otherwise specified (NOS);
anxiety disorder, NOS; diabetes mellitus; a history of
atherosclerotic heart disease; hypertension; and obesity
(20 C.F.R. § 404.1520(c) and 416.920(c)).
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 C.F.R. § Part 404, Subpart P, Appendix 1 (20
C.F.R. § 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 light work as defined in
20 C.F.R. § 404.1567(b) and 416.967(b), i.e., he can
lift and carry 20 pounds occasionally and ten pounds
frequently; sit six hours in an eight-hour workday;
stand six hours in an eight-hour workday; walk six
hours in an eight-hour workday; and has unlimited use
of the extremities. He should avoid climbing ladders
and scaffolding. He should avoid constant fingering,
bilaterally. He should avoid concentrated vibration.
Due to his mental impairments, he should be able to
remember and understand instructions, procedures,
and locations. Due to trying to interact with
supervisors, co-workers, and the public would need to
look at some type of employment that would be
absolutely minimized and certainly not working with
the general public at all. He could exercise good
judgment and respond appropriately to changes in the
workplace.

(6)

The claimant is unable to perform any past relevant
work (20 C.F.R. § 404.1565 and 416.965).

(7)

The claimant was born on December 17, 1959 and was
50 years old, which is defined as a person closely
approaching advanced age (age 50-54), on the
amended alleged disability onset date (20 C.F.R.
§ 404.1563 and 416.963).

(8)

The claimant has at least a high school education and
is able to communicate in English (20 C.F.R.
§ 404.1564 and 416.964).
6

(9)

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the
claimant has transferable job skills. (See SSR 82-41
and 20 C.F.R. Part 404, Subpart P, Appendix 2).

(10)

Considering 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 C.F.R.
§ 404.1569, 404-1569(a), 416.969, and 416.969(a)).

(11)

The claimant has not been under a disability, as defined
in the Social Security Act, from December 17, 2009,
the amended alleged onset date, through the date of this
decision (20 C.F.R. § 404.1520(g) and 416.920(g)).

AR 12-29.
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
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).

7

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.” Vester 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.
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.”).

8

V.

DISCUSSION

Crum contends the ALJ’s decision is flawed for three reasons: (1) it violates the
law of the case doctrine; (2) the ALJ erroneously ignored evidence and failed to explain
the changes made to the RFC determination on remand; and (3) the VE’s testimony was
flawed. I will address each argument separately.
A.

The Law of the Case Doctrine
Crum argues the ALJ’s decision on remand violated the law of the case by

amending Crum’s RFC. He contends that the Appeals Council’s remand order allowed
only for clarification of the limitations previously found, not a reevaluation of the entire
RFC. The Commissioner argues the law of the case doctrine is inapplicable and that the
remand order did not preclude the ALJ from changing any of the prior RFC findings.
The Commissioner further contends that the second decision was based on a
reconsideration of all evidence, including new evidence, and was “necessitated by an
initially faulty decision.” Doc. No. 13 at 7.
1.

Applicable Standards

The law of the case doctrine “provides that when a court decides a rule of law,
that decision should govern the same issues in subsequent stages of the same case.”
UniGroup, Inc. v. Winokur, 45 F.3d 1208, 1211 (8th Cir. 1995). The purpose of the
doctrine is to prevent the relitigation of settled issues. Id. Among other things, the
doctrine requires lower courts to follow remand orders and “adhere to decisions made in
earlier proceedings.” Vander Molen v. Astrue, 630 F.Supp.2d 1010, 1015 (S.D. Iowa
2009) (internal citations and quotations omitted).
The Eighth Circuit Court of Appeals has held that the law of the case doctrine
applies to both courts and administrative agencies on remand. Steahr v. Apfel, 151 F.3d
1124, 1125 (8th Cir. 1998); Brachtel v. Apfel, 132 F.3d 417, 419-20 (8th Cir. 1997). In
9

Social Security cases, the permissible scope of the ALJ’s decision after remand is guided
by the instructions from the Appeals Council. Meyerhoff v. Colvin, No. C12-3046MWB, 2013 WL 3283696 at *17 (N.D. Iowa 2013).
A reviewing court may remand with or without limitations. United States v. Bates,
614 F.3d 490, 494 (8th Cir. 2010). “ALJ’s may not re-litigate issues already settled by
their remand orders.” Ischay v. Barnhart, 383 F. Supp. 2d 1199, 1215 (C.D. Cal. 2005).
When remand orders contain instructions concerning the scope of decision, issues to be
addressed, or other evidence to examine, “deviation from the court’s remand order in the
subsequent administrative proceedings is itself legal error, subject to reversal on further
judicial review.” Id. at 1214 (quoting Sullivan v. Hudson, 490 US. 877, 886 (1989)).
The law of the case doctrine protects the “settled expectations of the parties.”
Clarke v. Bowen, 843 F.2d 271, 276 (8th Cir. 1988). The doctrine controls an issue
when the issue is unrelated to the reason for remand and nothing about the order suggests
a need to re-evaluate the issue. Meyerhoff, 2013 WL 283696, at *18. The doctrine
applies to issues that were either explicitly decided or settled by “necessary implication.”
Id. Factors to consider in determining whether an issue was implicitly decided are “(1)
resolution of the issue was a necessary step in resolving the earlier appeal; (2) resolution
of the issue would abrogate the prior decision and so must have been considered in the
prior appeal; and (3) the issue is so closely related to the earlier appeal its resolution
involves no additional consideration and so might have been resolved but unstated.”
McIlray v. Kerr-McGee Coal Corp., 204 F.3d 1031 (10th Cir. 2000) (quoting Guidry v.
Sheet Metal Workers Int'l Ass'n, Local No. 9, 10 F.3d 700, 707 (10th Cir. 1993),
modified on other grounds sub nom. Guidry v. Sheet Metal Workers Nat'l Pension Fund,
39 F.3d 1078 (10th Cir. 1994) (en banc)).
The law of the case doctrine does not apply to general remand orders or the issues
that formed the basis for remand. Williams v. Apfel, 65 F. Supp. 2d 1223, 1230 (N.D.
Okla. 1999). For example, when a court instructs the ALJ to simply “create a full and
10

proper record” there is no instruction to proceed upon a certain factual finding, so the
law of the case does not apply. Id. A district court is free to decide any issue not
expressly or impliedly disposed of on appeal. Dethmers Mfg. Co. v. Automatic Equip.
Mfg. Co., 229 F. Supp. 2d 903, 914 (N.D. Iowa 2004). When subsequent proceedings
follow a general remand, the ALJ may properly decide “anything not foreclosed by the
mandate.” See Guidry, 10 F.3d at 706.
2. Analysis
The relevant portion of the ALJ’s first RFC determination was as follows:
Due to his mental impairments, he would have moderate limitations in the
ability to respond appropriately to changes in the work setting and in the
ability to complete a normal workday or workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods.
AR 120. After determining that remand was necessary, the Appeals Council ordered:
Upon remand the [ALJ] will:
Obtain additional evidence concerning the claimant’s mental and physical
impairments in order to complete the administrative record in accordance
with the regulatory standards regarding consultative examinations and
existing medical evidence (20 CFR 404.1512-1513 and 416.912-913). The
additional evidence may include, if warranted and available, consultative
examinations with psychological testing and medical source statements
about what the claimant can still do despite the impairments.
Give further consideration to the claimant’s maximum residual functional
capacity and provide appropriate rationale with specific references to
evidence of record in support of the assessed limitations (20 CFR 404.1545
and 416.945 and Social Security Ruling 85-16 and 96-8p) . . .
In compliance with the above, the [ALJ] will offer . . . a hearing, address
the evidence which was submitted with the request for review, take any
further action needed to complete the [AR] and issue a new decision.
11

AR 136. After the second hearing, the relevant portion of the ALJ’s RFC determination
changed to the following:
Due to his mental impairments, he should be able to remember and
understand instructions, procedures, and locations. Due to trying to interact
with supervisors, co-workers, and the public would need to look at some
type of employment that would be absolutely minimized and certainly not
working with the general public at all. He could exercise good judgment
and respond appropriately to changes in the workplace.
AR 15. Crum contends that the ALJ’s initial finding of moderate limitations in his ability
to respond to changes in the workplace, complete a normal workday and perform at a
consistent pace should have remained in the RFC on remand. Doc. No. 12 at 6.
Courts have found error when an ALJ reexamined steps on remand that had no
connection to the issue on appeal. See Ruiz v. Apfel, 24 F. Supp. 2d 1045, 1050 (C.D.
Cal. 1998) (“The remand order did not authorize the Appeals Council or the ALJ to
revisit the previous step-four determination . . .” but only to make complete credibility
findings); Ischay, 383 F. Supp. 2d at 1218 (“The [remand] stipulation nowhere indicated
that remand was necessary to enable the ALJ to revisit any of the findings he made in
steps one through four . . . only that remand was necessary . . . on one narrow issue: . .
. further vocational expert testimony”); Allen v. Astrue, No. CV 09-7239 JCG, 2010 WL
4825925, at *6 (C.D. Cal. Nov. 2, 2010) (“[T]he stipulation for remand provided only
that remand was necessary for the ALJ to . . . obtain additional evidence on one narrow
issue—Plaintiff’s mental impairment”).
In Meyerhoff, this court found that the ALJ violated the law of the case when he
removed a limitation from the RFC on remand. 2013 WL 3283696 at *1-2. There, the
remand order was to make further inquiry into the claimant’s need for periodic breaks or
need to shift positions. Id. at *1. The order made no mention of other limitations in the
initial RFC. The court held those limitations were the law of the case. Id.

12

By contrast, in Bates the Eighth Circuit remanded a case without making factual
findings, instead instructing the trial court to “conduct the proceedings necessary to make
the appropriate findings” about the applicability of a particular law. 614 F.3d at 494.
The lower court was thus able to receive and reconsider evidence on that issue without
violating the law of the case doctrine. Id.; see also Brachtel, 132 F.3d at 420 (law of
the case doctrine did not apply because the Appeals Council did not make a finding of
fact but instead instructed the ALJ to make a “full and proper record.”).
Crum relies on Allen to argue that the ALJ cannot change earlier findings unless
the Appeals Council commands him to do so. Doc. No. 12 at 7 (citing Allen, 2010 WL
4825925 at *8). In Allen, the court held that the ALJ should not have reconsidered the
claimant’s physical limitations because the Appeals Council specifically requested
reconsideration of the claimant’s mental limitations. 2010 WL 4825925, at *8. Here,
however, the Appeals Council did not impose any express limits on the scope of the
ALJ’s reconsideration on remand. Nor did the Appeals Council explicitly or impliedly
decide any issues of fact concerning Crum’s RFC. Instead, the Appeals Council directed
the ALJ to obtain additional evidence, review the claimant’s limitations and provide
specific rationales for his findings. On remand, the ALJ then received approximately
350 pages of new medical evidence. AR 783-1137. The ALJ followed the Appeals
Council’s directive by giving “further consideration to the claimant’s maximum residual
functional capacity” and making new findings as to Crum’s RFC.
“The [ALJ] shall take any action that is ordered by the Appeals Council and may
take any additional action that is not inconsistent with the Appeals Council’s remand
order.” 20 C.F.R. §§ 404.977(b), 416.1477(b); see also Hamlin v. Barnhart, 365 F.3d
1208, 12224 (10th Cir. 2004) (it was “certainly within the ALJ’s province” to revise his
initial RFC determination when the case was remanded to establish the alleged onset date
of claimant’s disability); Campbell v. Bowen, 822 F.2d 1518, 1522-23 (10th Cir. 1987)
(finding no error when the Secretary changed the claimant’s RFC on a remand to obtain
13

testimony about the claimant’s transferability of skills). In considering all of the relevant
factors, I conclude that the law of the case doctrine did not preclude the ALJ, on remand,
from making new findings as to Crum’s RFC.
B.

Substantial Evidence
Crum argues that the ALJ’s decision on remand is not supported by substantial

evidence because the ALJ – without explanation – ignored relevant evidence from Dr.
Baker, Ph.D., and Jeanette Tobin, LSW. The Commissioner disagrees.
1.

Applicable Standards

The ALJ is not precluded from changing a previous determination on remand if
he is presented with substantially different evidence. Hulsey v. Astrue, 622 F.3d 917,
925 (8th Cir. 2010). The ALJ must determine the claimant’s RFC from all relevant
evidence, including medical records and observations from treating physicians and
others. Page, 484 F.3d at 1043. He must only “articulate his rationale sufficiently to
allow meaningful review.” Walker v. Bowen, 834 F.2d 635, 643 (7th Cir. 1987).
“A deficiency in opinion-writing is . . . not a sufficient reason to set aside an
ALJ’s finding, however inaccuracies, incomplete analysis, and unresolved conflicts of
evidence can serve as a basis for remand.” Kunik v. Colvin, 996 F. Supp. 2d 751, 762
(N.D. Iowa 2014) (citing Wildman v. Asture, 596 F.3d 959, 966 (8th Cir. 2010) (internal
quotations and citations omitted)). If relevant evidence was overlooked, that flaw could
form a basis for remand. Id. The ALJ must explicitly mention and discuss uncontradicted
evidence, even if it is only a brief discussion. Stephens v. Heckler, 766 F.2d 284, 287
(7th Cir. 1985). The ALJ also has a duty to explain his or her decision if it contradicts
some part of the evidence in the record. Pinkney v. Astrue, 675 F. Supp. 2d 9, 18
(D.D.C. 2009). A silent opinion could mean such evidence was ignored, forgotten,
irrelevant or rejected but the court would not know which. The court can review an
14

ALJ’s decision properly only if there is sufficient explanation for it. Brown v. Bowen,
794 F.2d 703, 708 (D.C. Cir. 1986).
At the same time, however, it is well-established that an ALJ is not required to
discuss every piece of relevant evidence. Wildman, 596 F.3d at 966. Failure to discuss
does not mean such evidence was not considered. Kunik, 996 F. Supp. 2d at 762. The
ALJ is only required to present a “minimal level of articulation” to show his or her
assessment of the evidence. Stephens, 766 F.2d at 287.
2.

Analysis

As discussed above, the ALJ was ordered on remand to obtain additional evidence
and give further consideration to the claimant’s RFC. By the time of the second hearing,
the record contained nearly one year’s worth of additional medical evidence. AR 7831137.

Crum argues that the ALJ ignored some of that new evidence, including a

statement in Dr. Baker’s opinion that Crum had poor responses to judgment items. AR
879; Doc. No. 16 at 2. Along with the sentence Crum cites, the report stated that Crum’s
“judgment and insight are low but not impaired” and concluded that Crum’s “[a]bility to
use good judgment and respond appropriately to change in the workplace seems present.”
AR 878-79.

Dr. Baker noted only mild difficulty in Crum’s ability to respond

appropriately in usual work situations. AR 881.
While the ALJ did not specifically comment on Dr. Baker’s notation that Crum’s
responses to judgment items were poor, he discussed Dr. Baker’s conclusions and
provided a summary of what the evaluation revealed. AR 23-24. As noted above, the
ALJ is not required to discuss every piece of relevant evidence, and certainly not every
finding contained in every report. See Wildman, 596 F.3d at 966. Instead, the ALJ must
sufficiently articulate his or her rationale. Walker, 834 F.2d at 643. The ALJ met this
standard by summarizing Dr. Baker’s report and incorporating its conclusions into his
analysis. AR 24, 26.
15

Crum also points to several reports from Ms. Tobin that he claims the ALJ
“completely failed to address.” Doc. No. 16 at 3. However, the ALJ discussed a
treatment note Ms. Tobin prepared on October 23, 2012, one month before the second
hearing. AR 25, 1022. In that document, Ms. Tobin noted that Crum’s judgment was
good and his insight was fair. AR 1022. Ms. Tobin indicated that Crum described his
concentration as fair and his memory as poor. Id. The same description of Crum’s
judgment, insight, concentration and memory was set forth in the previous treatment
notes that Crum claims the ALJ ignored. AR 886, 890-96, 901, 903, 907-14, 1022,
1027-29, 1032, 1037-39. By discussing the examination closest to the date of the second
hearing, which reported the same findings included in the previous treatment notes, it
was unnecessary for the ALJ to discuss each one individually. See Black v. Apfel, 143
F.3d 383, 386 (8th Cir. 1998) (“Given the ALJ’s specific references to the medical
findings set forth in Dr. Guntharp's letter, it is highly unlikely that the ALJ did not
consider and reject Dr. Guntharp's opinion . . .”).
The ALJ also referenced a November 14, 2012, letter from Ms. Tobin in which
she updated an opinion provided in March 2011. AR 25, 1018. The ALJ noted Ms.
Tobin’s findings that Crum continued to suffer from depression and anxiety, which
decreased his ability to be employed and work with others. AR 20, 25. The ALJ found
that Ms. Tobin’s opinion is not supported by the medical evidence of record, including
her own treatment notes. AR 20.
The ALJ discussed Dr. Baker’s and Ms. Tobin’s findings in the course of his RFC
analysis. While he did not expressly address every detail, it is incorrect to contend that
the ALJ simply ignored those findings. The real issue is whether the entire record,
including the old and the new evidence, supports the revised RFC. Even if the evidence
can support two inconsistent opinions, the decision must be affirmed so long as the ALJ
adopts one of them. Culbertson 30 F.3d at 939.

16

Here, a crisis assessment from Wade Keuhl, LISW, noted that Crum’s judgment
and insight were poor. AR 654. An assessment from Janette Cline, LMSW, noted that
Crum’s judgment was poor and his insight was limited. AR 683. However, an initial
assessment report from Joelle Fellinger, APNP, described Crum as having fair
concentration, fair insight, normal intelligence and impaired judgment from his current
situation. AR 563. In a mental RFC assessment, Linda Ingison, Ph.D., found that Crum
had good basic judgment, could understand, carry out and remember instructions, and
had organized thinking and normal speech. AR 573-76. However, she also found that
Crum had little insight into his own difficulties and might have problems with stress
demands in a typical work place. Id.
A state agency medical consultant, Michael Mandli, Ph.D., noted only moderate
limitations in the ability to respond appropriately to changes in the work place. AR 624.
Laurie Warren, P.A., found that Crum was “able to make good decisions at times.” AR
651. Notes from Ms. Tobin classify his judgment as good and his insight as either fair
or excellent. AR 743, 748, 752, 754, 758, 760, 886, 890-96, 901, 903, 907-14, 1022,
1027-29, 1032, 1037-39.
Crum cites a treatment note from Ms. Warren to argue that the limitations from
the first RFC should have been included in the second one. Doc. No. 16 at 2. However,
that note addressed anxiety. AR 873. The inclusion of anxiety as a limitation did not
change between the first and second RFC determination. On remand the ALJ noted that
Crum should locate or consider employment in which contact with co-workers and
supervisors “would be absolutely minimized” and he should not work with the public at
all. AR 15. Thus, while Warren’s treatment note supports an anxiety limitation, it does
not support Crum’s argument that the ALJ was required to include judgment and
workplace behavior limitations in the second RFC determination.
The ALJ also addressed various treatment notes from Ms. Warren and R. William
Brinck, M.D., including notes that were added to the record before the second hearing.
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AR 19-23, 25. These notes indicate that while Crum suffered from depression and
anxiety, he did well when taking medication regularly. AR 19, 651-52, 694, 750, 756.
His thoughts were clear and he was cleanly and casually dressed during appointments.
Id.

Meanwhile, Ms. Cline noted that Crum felt well mentally, though struggled

physically, and made progress with treatment. AR 700-02, 728-30.
Having carefully considered the record, I find that the ALJ appropriately analyzed
evidence that could support inconsistent conclusions and made RFC findings that are
within the permissible “zone of choice.” Culbertson, 30 F.3d at 939. As such, the ALJ’s
second RFC determination is supported by substantial evidence on the record as a whole.
C.

The VE’s Testimony
Based on the VE’s testimony, the ALJ found that Crum could not perform any

past relevant work. AR 27. The ALJ posed a hypothetical question to determine, at Step
Five, whether Crum could perform other work available in the national economy in light
of his RFC, age, education and work experience. AR 28, 67-75. The VE testified that
an individual with the characteristics described by the ALJ could perform light, unskilled
work, such as a production assembler, hand packer or cleaner. AR 69.
Crum argues, for various reasons, that the VE’s testimony does not constitute
substantial evidence supporting a finding that Crum can perform other work in the
national economy. First, he claims the ALJ erred because he did not ask the VE whether
his testimony was consistent with the Dictionary of Occupational Titles (DOT). Doc.
No. 12 at 9. Second, the DOT occupation number the VE provided for hand packer
actually refers to the job of ampoule filler, while the job of hand packer does not exist in
the DOT. Id. at 10. Finally, Crum argues the ALJ failed to incorporate the limitations
from the first RFC into his hypothetical questions to the VE.

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1.

Applicable Standards

The purpose of the VE’s testimony is to “determine whether jobs exist for someone
with [the] claimant’s precise disabilities.” Jelinek v. Bowen, 870 F.2d 457, 459 (8th Cir.
1989). In order to constitute substantial evidence to show that other jobs exist in the
national economy, a VE’s testimony must be based on a hypothetical question that
includes all the claimant’s impairments. Hulsey, 622 F.3d at 922; Brachtel, 132 F.3d at
420. This can be accomplished by “[capturing] the concrete consequences of those
impairments” and limiting the “universe of work” the claimant can do. Id. (internal
citation omitted). Only the impairments the ALJ has found credible must be included in
the hypotheticals. Pinkney, 675 F. Supp. 2d at 19. On remand, the ALJ may pose a
revised hypothetical with limitations based on his evaluation of both new and old
testimony and medical evidence. Hulsey, 622 F.3d at 925 (requirements for other jobs
were not incompatible with impairments described in the ALJ’s revised hypothetical in a
second hearing after receiving new evidence).
An ALJ errs if he or she fails to ask whether the VE’s testimony is consistent with
the DOT. Renfrow v. Astrue, 496 F.3d 918, 920 (8th Cir. 2007). If there is conflict
between the VE’s testimony and the demands listed in the DOT, the VE must explain it.
Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). Generally, the DOT controls
but may be rebutted if the VE can show that the cited jobs are ones the claimant can
actually perform. Montgomery v. Chater, 69 F.3d 273, 276 (8th Cir. 1995); see also
Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000) (“To the extent that there is any
implied or indirect conflict between the vocational expert’s testimony and the DOT . . .
the ALJ may rely upon the [VE’s] testimony provided that the record reflects an adequate
basis for doing so.”). However, if no conflict actually exists between the VE’s testimony
and the DOT, an ALJ’s failure to ask if the VE’s testimony is consistent with the DOT
is harmless error that does not require remand. Renfrow, 496 F.3d at 921.

19

2.

Analysis
a.

Alleged Inconsistencies with the DOT

The parties agree that the VE erred in testifying about the job of hand packer. The
DOT occupation number provided by the VE actually refers to the job of ampoule filler
while the job of hand packer is not listed in the DOT. The Commissioner contends that
the closest job, and the one the VE apparently meant to discuss, is hand packager, which
is DOT listing 559.687-074.
The VE testified that the hand packer job is light, unskilled work. AR 69. He
also stated that prolonged, necessary rest periods “would not be tolerated well” in that
position. AR 70, 72. He explained that the job would not require any interaction with
the general public or working as a team, though sharing work space with others might be
appropriate. AR 73-74. Based on these characteristics, the VE and the ALJ concluded
that the job of hand packer is one that Crum would be able to perform. AR 28, 69.
Because the DOT includes no such job, and the DOT occupation number provided by the
VE actually refers to a different job (ampoule filler), I find that the VE’s testimony – and
the ALJ’s resulting findings – concerning the job of hand packer must be disregarded.
While the Commissioner may be correct that the VE intended to refer to the job of hand
packager, this is pure speculation – especially in light of the fact that the DOT listing
number for that job does not match the VE’s testimony.
Disregarding the hand packer job does not end the analysis, as the VE testified
about two other jobs – production assembler and cleaner. AR 69. According to the VE,
approximately 200,000 production assembler positions exist in the national economy,
including approximately 7,000 in this region. Id. Similarly, there are about 350,000
cleaner positions in the national economy, with approximately 14,000 of those positions
in this region. Id. The VE testified that these are light, unskilled positions that the
hypothetical individual described by the ALJ could perform. Id. The ALJ adopted the
VE’s testimony concerning these positions in making a Step Five finding that Crum can
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perform other work available in the national economy. AR 28-29. If the VE’s testimony
about these positions is accurate, then disregarding the job of hand packer would not
impact the Step Five analysis.
Crum argues, however, that the DOT job descriptions for the positions of
production assembler and cleaner are inconsistent with the VE’s testimony. The DOT
describes the production assembler position as follows:
Performs any combination of following repetitive tasks on assembly line to
mass produce small products, such as ball bearings, automobile door
locking units, speedometers, condensers, distributors, ignition coils,
drafting table subassemblies, or carburetors: Positions parts in specified
relationship to each other, using hands, tweezers, or tongs. Bolts, screws,
clips, cements, or otherwise fastens parts together by hand or using
handtools or portable powered tools. Frequently works at bench as member
of assembly group assembling one or two specific parts and passing unit to
another worker. Loads and unloads previously setup machines, such as
arbor presses, drill presses, taps, spot-welding machines, riveting
machines, milling machines, or broaches, to perform fastening, force
fitting, or light metal-cutting operation on assembly line. May be assigned
to different work stations as production needs require or shift from one
station to another to reduce fatigue factor. May be known according to
product assembled.
DOT 706.684-022 [emphasis added]. Crum argues that the underlined portion of this
description is inconsistent with the VE’s testimony because the ALJ’s hypothetical
included a restriction that interaction with supervisors, coworkers and the public must be
“absolutely minimized.” AR 68. According to Crum, a position that would require him
to work as a member of an assembly group necessarily involves more than minimal
interaction with coworkers. However, the DOT’s detailed specifications of the position’s
requirements state that it does not require significant interaction with people. DOT
706.684-022. Indeed, those specifications indicate that the requirement of “talking” is
“not present.” Id. Thus, while the position may require that Crum work as a member
of an assembly group, and pass units to the next member, the position does not require
21

discussion or other interaction among the group members. As such, I reject Crum’s
argument that the VE’s testimony about the production assembler position is inconsistent
with the DOT.
The DOT’s description of the cleaner position is as follows:
Cleans rooms and halls in commercial establishments, such as hotels,
restaurants, clubs, beauty parlors, and dormitories, performing any
combination of following duties: Sorts, counts, folds, marks, or carries
linens. Makes beds. Replenishes supplies, such as drinking glasses and
writing supplies. Checks wraps and renders personal assistance to patrons.
Moves furniture, hangs drapes, and rolls carpets. Performs other duties as
described under CLEANER (any industry) I Master Title. May be
designated according to type of establishment cleaned as Beauty Parlor
Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according to area
cleaned as Sleeping Room Cleaner (hotel & rest.).
DOT 323.687-014. As with the production assembler job, the DOT’s specifications
indicate that this position requires no significant interaction with people and no talking.
Id. Again, then, there is no conflict between the VE’s testimony and the DOT. However,
Crum points to the VE’s acknowledgement that some brief contact with the public might
occur, such as “bump[ing] into somebody from the public in the halls.” AR 73. Crum
argues that this creates an inconsistency between the VE’s testimony and the ALJ’s
hypothetical question, which included a restriction that the hypothetical individual should
“certainly not [be] working with the general public at all.”

AR 68.

I disagree.

Encountering a member of the general public in the course of performing the job of
cleaner does not equate to “working with” the general public. Neither the VE’s testimony
nor the DOT’s description suggests that an individual working as a cleaner must take
directions from or provide information to members of the general public. With regard
to the job of cleaner, I find that there are no inconsistencies between the VE’s testimony
and either (a) the DOT or (b) the ALJ’s hypothetical questions.
In short, the VE’s testimony concerning the hand packer position is inconsistent
with the DOT, as no such position exists in the DOT and the listing number provided by
22

the VE corresponds to a different position. However, disregarding all testimony about
that position does not impact the Step Five analysis. The VE identified two other
positions available in the national economy that an individual described in the ALJ’s
hypothetical question could perform. The VE’s testimony concerning both positions is
consistent with the DOT. As such, the VE’s inconsistency as to the phantom hand packer
position does not require remand.1
b.

The Hypothetical Question

Crum’s remaining argument is that the hypothetical question the ALJ posed to the
VE during the second hearing failed to account for all of his impairments. In particular,
he contends that the question should have incorporated the same limitations contained in
the first RFC concerning Crum’s ability to respond to changes in the workplace, complete
a normal workday and perform at a consistent pace. Doc. No. 12 at 11-12. I have
already determined, however, that the ALJ’s second RFC, which omitted those moderate
limitations, is supported by substantial evidence. Thus, if the ALJ’s hypothetical question
during the second hearing was consistent with the second RFC, there is no basis for
remand.
Crum does not contend that the hypothetical question failed to conform to the
second RFC. Indeed, a comparison of the second RFC and the relevant hypothetical
question shows that they are virtually identical. AR 15, 68. Thus, I must reject Crum’s
argument. The hypothetical question posed during the second hearing properly included
all limitations that the ALJ found to be credible. As such, the VE’s testimony in response
to that question constituted substantial evidence supporting the ALJ’s Step Five finding.
Hulsey, 622 F.3d at 922.

1

Because the only inconsistency between the VE’s testimony and the DOT is inconsequential,
the ALJ’s failure to ask the VE if his opinions are consistent with the DOT is harmless error.
Renfrow, 496 F.3d at 921.

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VI.

CONCLUSION AND RECOMMENDATION

After a thorough review of the entire record and in accordance with the standard
of review I must follow, I RESPECTFULLY RECOMMEND that the Commissioner’s
determination that Crum was not disabled be affirmed and that judgment be entered
against Crum and in favor of the Commissioner.
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
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 17th day of July, 2015.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

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