Vega v. CSS

Filing 15

MEMORANDUM OPINION AND ORDER re 3 Complaint filed by Marisol Vega. The Commissioner's decision is reversed and remanded for further proceedings. Judgment shall enter in favor of the plaintiff and against the defendant. Signed by Magistrate Judge Leonard T Strand on 09/10/2015. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MARISOL VEGA, on behalf of K.I.V.,
Plaintiff,

No. C14-4060-LTS

vs.
MEMORANDUM
OPINION AND ORDER

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

___________________________

Plaintiff Marisol Vega (Vega), on behalf of her child, K.I.V., seeks judicial review

of a final decision of the Commissioner of Social Security (Commissioner) denying her
application for child Supplemental Security Income benefits (SSI) under Title XVI of the
Social Security Act, 42 U.S.C. § 401 et seq. (Act). Vega contends that the administrative
record (AR) does not contain substantial evidence to support the Commissioner’s decision
that K.I.V. was not disabled during the relevant time period. For the reasons that follow,
the Commissioner’s decision will be reversed and remanded.
I.

BACKGROUND

K.I.V. was born in 2003 and was in the fourth grade at the time of hearing. AR
38, 134. Vega alleges that K.I.V. is disabled due to partial complex seizures with
secondarily generalized tonic-clonic seizures, attention deficit hyperactivity disorder and
anxiety disorder. AR 291, 680.

Vega protectively filed an application for SSI on

K.I.V.’s behalf on August 31, 2011. AR 64-65, 72-73, 134-40. She alleged that K.I.V.
has been disabled since January 1, 2009. AR 134.

The application was denied initially and on reconsideration. AR 82-84, 89-92.
Vega then sought a hearing before an administrative law judge (ALJ). On March 4,
2013, ALJ Jan Dutton conducted a hearing, at which Vega and K.I.V. testified. AR 3363. On April 4, 2013, the ALJ issued a decision denying the claim. AR 10-27. The
Appeals Council denied Vega’s request for review on June 24, 2014. AR 1-3. The
ALJ’s decision thus became the final decision of the Commissioner. AR 1; 20 C.F.R. §
416.1481.
Vega filed a complaint (Doc. No. 3) in this Court on September 12, 2014, seeking
review of the ALJ’s decision. On October 20, 2014, with the consent of the parties (Doc.
No. 6), the Honorable Mark W. Bennett transferred this case to me for final disposition
and entry of judgment.  The parties have now briefed the issues and the matter is fully
submitted.
II.

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

The Commissioner’s regulations establish a three-step sequential evaluation
process for determining whether a child is disabled as defined in the Act: (1)
determination of whether the child is engaged in “substantial gainful activity,” (2)
determination of whether the child's impairment or combination of impairments is severe,
and (3) determination of whether the child's impairment or combination of impairments
“meets, medically equals, or functionally equals” a listed impairment. See 20 C.F.R. §
416.924(a).
At Step One, if the child is engaged in substantial gainful activity, the child is not
disabled. Id. § 416.924(b). At Step Two, if the child's impairment or combination of
impairments amounts only to “a slight abnormality or a combination of slight
abnormalities that causes no more than minimal functional limitations,” the child is not
disabled. Id. § 416.924(c). At Step Three, if the child's impairment or combination of
impairments does not “meet, medically equal, or functionally equal” a listed impairment,
2

the child is not disabled. Id. § 416.924(d). A listed impairment is an impairment
considered to be severe enough to prevent a child from doing any gainful activity and is
characterized by “impairments that cause marked and severe functional limitations.” Id.
§ 416.925(a). The listings are located at 20 C.F.R. Part. 404, Subpart P, Appendix 1.
When determining at Step Three whether the child's impairment or combination
of impairments is functionally equivalent to a listed impairment, an ALJ must consider
six domains of functionality: (1) acquiring and using information, (2) attending and
completing tasks, (3) interacting and relating with others, (4) moving about and
manipulating objects, (5) ability to care for oneself and (6) health and physical wellbeing. 20 C.F.R. § 416.926a(b)(1). To be found disabled at Step Three, the child's
impairment or combination of impairments “must result in ‘marked’ limitations in two
domains of [functionality] or an ‘extreme’ limitation in one domain.” 20 C.F.R. §
416.926a(a).
III.

THE ALJ’S FINDINGS

The ALJ made the following findings:
(1)

The claimant was born on January 31, 2003.
Therefore, she was a preschooler on August 31, 2011,
the date application was filed, and is currently a schoolage child (20 CFR 416.926a(g)(2)).

(2)

The claimant has not engaged in substantial gainful
activity since August 31, 2011, the application date (20
CFR 416.924(b) and 416.971 et seq.).

(3)

The claimant has the following severe impairments:
complex partial seizure disorder (controlled with
medication), attention deficit hyperactivity disorder,
and anxiety. (20 CFR 416.924(c)).

(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
3

20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.924, 416.925 and 416.926).
(5)

The claimant does not have an impairment or
combination of impairments that functionally equals
the severity of the listings (20 CFR 416.924(d) and
416.926(a).

(6)

The claimant has not been disabled, as defined in the
Social Security Act, since August 31, 2011, the date
the application was filed (20 CFR 416.924(a)).

AR 13-27.

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) (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)); 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 v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003). The
Eighth Circuit Court of Appeals has explained this 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
4

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 also 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

Vega contends the ALJ’s decision is not supported by substantial evidence and
makes the following arguments:
(1)

The ALJ failed to discuss or explain the correct criteria for Listings 112.06
and 112.011, and failed to discuss or explain any factual evaluation of the
5

criteria of those listings; and failed to even consider the Listing for
Plaintiff’s seizure disorder, Listing 111.03.
(2)

The ALJ failed to consider or explain reasons for not considering treating
source opinions, and failed to develop the record fully by contacting treating
sources or by obtaining medical expert assistance or consultative
evaluations.

(3)

The ALJ discounted the sworn testimony of K.I.V. and Vega without
providing good reasons for doing so.

I will address these arguments separately.
A.

Evaluations of Listing Criteria
Vega argues that the ALJ failed to conduct an appropriate evaluation of Listings

112.06 and 112.11. Additionally, she contends that the ALJ failed to even consider the
applicable listing for K.I.V.’s alleged seizure disorder. The Commissioner argues that
the ALJ correctly considered Listings 112.06 and 112.11 and was not required to consider
the seizure listing because Vega’s counsel represented during the administrative hearing
that Vega and K.I.V. were not arguing disability under that listing.
1.

Applicable Standards

The Supreme Court has explained the listings as follows:
The listings . . . are descriptions of various physical and mental illnesses
and abnormalities, most of which are categorized by the body system they
affect. Each impairment is defined in terms of several specific medical
signs, symptoms, or laboratory test results. For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical
criteria. An impairment that manifests only some of those criteria, no matter
how severely, does not qualify. . . .
For a claimant to qualify for benefits by showing that his unlisted
impairment, or combination of impairments, is “equivalent” to a listed
impairment, he must present medical findings equal in severity to all the
criteria for the one most similar listed impairment. . . . A claimant cannot
6

qualify for benefits under the “equivalence” step by showing that the overall
functional impact of his unlisted impairment or combination of impairments
is as severe as that of a listed impairment.
Sullivan v. Zebley, 493 U.S. 521, 529-32 (1990) [citations and footnotes omitted]. The
purpose of the listings is to streamline the decision process by identifying claimants whose
medical impairments are so severe that it is likely they would be found disabled regardless
of their vocational backgrounds. Bowen v. Yuckert, 482 U.S. 137, 153 (1987). Thus, if
an impairment meets or equals one of the listings, the claimant is considered disabled
regardless of age, education, and work experience. Kelley, 133 F.3d at 588.
The claimant has the burden of proving that his or her impairment meets or equals
a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). “There is no error
when an ALJ fails to explain why an impairment does not equal one of the listed
impairments as long as the overall conclusion is supported by the record.” Boettcher v.
Astrue, 652 F. 3d 860, 863 (8th Cir. 2011) (citing Pepper ex rel. Gardner v. Barnhart,
342 F.3d 853, 855 (8th Cir. 2003); Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001)).
2.

Analysis

The ALJ stated that she considered all applicable listed impairments, including
112.06 and 112.11. AR 17. The ALJ also noted that the state agency medical consultants
found that K.I.V. did not meet or medically equal the requirements of any listing. Id.
Unfortunately, it is clear that the ALJ considered the adult criteria for Listings 112.06
and 112.11, not the criteria for children. Appendix 1 lists the functional measuring
limitations for adults, which include: activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R., Subpt.
P., App. 1, (Part A), § 12. The ALJ referenced these criteria in finding that K.I.V. did
not meet the requirements of either listing. AR 17.
7

The functional criteria to be used for children include: motor function;
cognitive/communicative function; social function; personal function; and concentration,
persistence, or pace. 20 C.F.R., Subpt. P., App. 1, (Part B) § 112. While there is some
overlap between the two sets of criteria, they are far from identical. In addition, the
Listings recognize that there are disorders found in children that have no real analogy in
adults. 20 C.F.R., Subpt. P., App. 1, (Part B) § 112. Vega contends that the ALJ’s
consideration of the wrong criteria requires remand. The Commissioner argues that the
ALJ’s reference to the wrong criteria was harmless error.
I agree with Vega. The ALJ failed to follow the Social Security Administration’s
binding regulations, which dictate consideration of a different set of criteria when the
claimant is a child. The Commissioner’s suggestion that a reviewing court can ignore
this error, and predict what the ALJ might have done had she considered the correct
criteria, is contrary to basic principles of administrative law.

See, e.g., Carter v.

Sullivan, 909 F.2d 1201, 1202 (8th Cir. 1990) (per curiam) (“an agency's failure to
follow its own binding regulations is a reversible abuse of discretion”); Mayo v.
Schiltgen, 921 F.2d 177, 179 (8th Cir. 1990) (“A court must consider the agency's
rationale for its decision, and if that rationale is inadequate or improper the court must
reverse and remand for the agency to consider whether to pursue a new rationale for its
decision or perhaps to change its decision.”).
It is hardly unfair to expect that the Commissioner’s administrative law judges will
consider the correct criteria, as specified by the Commissioner’s own regulations, before
denying a claim. While it is certainly possible, as the Commissioner now suggests, that
the outcome would have been the same, it is not this court’s role to make that prediction.
This case must be remanded with directions that the ALJ consider Listings 112.06 and

8

112.11 in light of the appropriate “child” criteria, as set forth in 20 C.F.R., Subpt. P.,
App. 1, (Part B) § 112.1
B.

Evaluation of the Medical Evidence
Vega raises various arguments concerning the ALJ’s analysis of the medical

evidence at Step Three. She argues that the ALJ failed to develop the record fully by
obtaining opinions from treating or examining sources. She also argues that the ALJ
erroneously relied on the opinions of state agency consultants without giving proper
weight to evidence from treating sources.

Finally, she argues that new evidence

presented to the Appeals Council shows that the ALJ’s findings are not supported by
substantial evidence on the record as a whole.
1.

Applicable standards

An ALJ has a duty to develop the record fully and fairly, independent of the
claimant’s burden to press his or her case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th
Cir. 2010) (quoting Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). “[A]n ALJ
is permitted to issue a decision without obtaining additional medical evidence so long as
other evidence in the record provides a sufficient basis for the ALJ’s decision.” Anderson
v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (quoting Naber, 22 F.3d at 189).
“[R]eversal due to failure to develop the record is only warranted where such failure is
unfair or prejudicial.” Haley v. Massanari, 258 F.3d 742, 750 (8th Cir. 2001) (quoting
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1994)).

1

Vega also argues that the ALJ erred by failing to consider Listing 111.03, for nonconvulsive
epilepsy. During the hearing, however, counsel for Vega and KIV confirmed that KIV did not
meet any seizure listing. AR 63. This admission constitutes substantial evidence supporting the
ALJ’s decision. See, e.g., McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000) (admission
by claimant’s attorney to the ALJ constitutes substantial evidence). The ALJ may, but is not
required to, consider Listing 111.03 on remand.

9

The obligation to obtain additional medical evidence comes from the ALJ’s duty
to develop the record. See Snead, 360 F.3d at 838 (“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 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.” Halverson v. Astrue,
600 F.3d 922, 933 (8th Cir. 2010) (quoting Barrett v. Shalala, 38 F.3d 1019 (8th Cir.
1994)). The ALJ does not “have to seek additional clarifying statements from a treating
physician unless a crucial issue is undeveloped.” Stormo v. Barnhart, 377 F.3d 801, 806
(8th Cir. 2004) (citing Snead, 360 F.3d at 839). “The regulations do not require an ALJ
to recontact a treating physician whose opinion is inherently contradictory or unreliable.”
Hacker v. Barnhart, 459 F.3d 934, 938 (8th Cir. 2006).
“In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with ‘the rest of the relevant evidence’ in the record.” Wagner v. Astrue, 499 F.3d
842, 848 (8th Cir. 2007) (quoting 20 C.F.R. § 404.1527(b)). “Medical opinions” are
defined as “statements from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity of your impairment(s),
including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2).
Other relevant evidence includes medical records, observations of treating physicians and
others, and an individual’s own description of his limitations. McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000). “Unless a treating source’s opinion is given controlling
weight, the administrative law judge must explain in the decision the weight given to the
opinions of a state agency medical . . . consultant.” 20 C.F.R. § 416.927(e)(2)(ii).

10

2.

Analysis
a.

Did the ALJ Fail to Fully Develop the Record?

During the hearing, counsel for Vega and K.I.V. acknowledged that the record
contained no treating source opinions. AR 37. The ALJ ultimately decided the claim
based on the evidence already of record without seeking additional information or
opinions. Vega now contends that this was error.
As noted above, while a Social Security claimant bears the ultimate burden of
proof, the ALJ nonetheless has a duty to develop the record fully and fairly. Vossen,
612 F.3d at 1016. However, the ALJ must obtain addition information only if the existing
record is not sufficient to determine whether the claimant is disabled. Halverson, 600
F.3d at 933. The ALJ’s duty to re-contact treating physicians arises “only if a crucial
issue is undeveloped.” Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (citing
Stormo, 377 F.3d at 806). After my careful review of the record, I find Vega has failed
to show that the ALJ abrogated her duty to fully develop the record.
The record contains a large volume of treatment records from various providers.
Two state agency consultants reviewed the available records and provided detailed
opinions in October and November of 2011. AR 65-71, 73-81. While Vega complains
K.I.V.’s treating sources might have been able to provide “more detailed opinions” had
the ALJ contacted them, I find that she has failed to provide support for this claim.2 Vega
has not shown that any crucial issues were so undeveloped as to have required additional
development of the record.

2

Indeed, and as I will discuss further below, the only treating source evidence Vega provided to
the Appeals Council on review contained no new information of evidentiary value.

11

b.

Did the ALJ Properly Analyze the Medical Evidence?

Vega contends that the ALJ’s decision is not supported by substantial evidence
because the ALJ disregarded evidence from treating sources and relied entirely on the
opinions of the non-examining agency physicians. I find no merit in either argument.
With regard to evidence from treating sources, Vega references an October 18,
2010, report from Robin Rowland, K.I.V.’s therapist. AR 229-32. I agree with the
Commissioner that the ALJ was entitled to disregard that report for at least two reasons.
First, it was created nearly one year before the relevant period of time, which began
August 31, 2011 (the application date).3 AR 13. Second, Ms. Rowland was not an
acceptable medical source. 20 C.F.R. § 416.913(a)(1-6). Moreover, the report at issue
does not indicate limitations that are meaningfully more severe than those determined by
the ALJ.

Ms. Rowland found that K.I.V.’s baseline functioning was average and

assigned her Global Assessment of Functioning (“GAF”) score was 60, which
corresponds to only moderate degree of impairment. AR 230, 232.4
Vega also refers to an unsigned intake form, dated August 10, 2011, from
Siouxland Mental Health Center. AR 286-90. Again, this document pre-dates the
relevant period of time. Moreover, the fact that its author is unknown makes its probative
value unclear, at best. The ALJ was not required to give any particular amount of weight
to the intake form.

3

SSI benefits are not payable for any period of time prior to the application date. 20 C.F.R. §
416.335.

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.

12

Vega also references numerous treatment notes from various counselors and
physicians. Doc. No. 11 at 13-14. If she intends to argue that the ALJ failed to consider
that evidence, the ALJ’s decision indicates otherwise. The ALJ stated that she considered
evidence about K.I.V.’s seizures, her EEG and MRI testing, the effectiveness of her
seizure medications, treatment notes from Transitional Services of Iowa, updated mental
health clinic notes, Siouxland Mental Health Center records, a report by Jessica Barnes,
a Licensed Social Worker, records from Ronald Brinck, Ph.D., and statements from
K.I.V.’s teacher. AR 18-20, 22. While Vega clearly disagrees with the manner in which
the ALJ weighed that evidence, it is not the reviewing court’s task to re-weigh evidence
in the record. Toland v. Colvin, 761 F.3d 931, 935 (8th Cir. 2014). Vega has failed to
show that the ALJ’s analysis of treating-source evidence was improper.
As for the ALJ’s reliance on opinions from non-examining sources, Vega is correct
that “[t]he opinions of non-treating practitioners who have attempted to evaluate the
claimant without examination do not normally constitute substantial evidence on the
record as a whole.” Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003) (citing
Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999)). At the same time, however, state
agency physicians are to be treated as experts when issuing opinions “regarding the nature
and severity of an individual’s impairment(s).” SSR 96-6p, 1996 WL 374180, at *1; see
also 20 C.F.R. § 416.913(a)(1). In evaluating all evidence of record, the ALJ may rely
on the opinions of state agency consultants. See, e.g., Toland, 761 F.3d at 937; Smith
v. Colvin, 756 F.3d 621, 627 (8th Cir. 2014). This is true even when treating sources
have provided opinions that differ from those of the non-examining consultants. Hacker,
459 F.3d at 937-39 (affirming the ALJ’s finding that the opinion of a psychologist who
reviewed medical records was entitled to more weight than the opinions of two treating
sources).
Here, of course, there were no treating source opinions as of the date of the
hearing. The ALJ considered all of the evidence of record, including evidence submitted
13

after the state agency consultants issued their reports, AR 19, and made findings that are
largely consistent with the opinions provided by the state agency consultants. I conclude
that the ALJ did not err in relying on those opinions and that the ALJ’s findings as to the
severity of K.I.V.’s impairments are supported by substantial evidence on the record as
a whole.
c.

Was Remand Required Based on New Evidence?

Vega argues that remand is necessary because of new treating source evidence that
she submitted to the Appeals Council. That evidence was in the form a one-paragraph
letter dated May 2, 2013, and provided by Young Oliver, M.D. AR 747. Dr. Oliver
stated that K.I.V. was diagnosed with “complex partial seizures with secondary
generalized tonic-clonic seizures.” Id. He also stated that she was being treated with
Trileptal, that she was considered to have a disability, and that she required supervision
and assistance with daily living activities. Id.
The Commissioner’s regulations describe the process for consideration of new and
material evidence as follows:
[T]he Appeals Council shall consider the additional evidence only where it
relates to the period on or before the date of the [ALJ] hearing decision.
The Appeals Council shall evaluate the entire record including the new and
material evidence submitted if it relates to the period on or before the date
of the [ALJ] hearing decision. It will then review the case if it finds that the
[ALJ]'s action, findings, or conclusion is contrary to the weight of the
evidence currently of record.
20 C.F.R. § 416.1470(b). If the Appeals Council considers the new evidence, but
declines to review the case, the court reviews the ALJ's decision to determine whether
there is substantial evidence in the administrative record, which now includes the new
evidence, to support the ALJ's decision. Browning, 958 F.2d at 823 n. 4. Here, the
Appeals Council considered Dr. Oliver’s letter but declined review. AR 1-2, 4.
14

In arguing that remand is not required, the Commissioner notes that a treating
source opinion deserves no greater weight than any other opinion if it is vague and
conclusory. Doc. No. 12 at 14 (citing Toland, 761 F.3d at 937). While Toland involved
a pre-printed checklist form, Dr. Oliver’s letter is no better. Dr. Oliver made a short
series of statements about K.I.V.’s diagnosis and treatment. AR 747. He then stated
that she “is considered to have a disability,” id., thus commenting on an issue reserved
to the Commissioner. See, e.g., House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007)
(“A treating physician’s opinion that a claimant is disabled or cannot be gainfully
employed gets no deference because it invades the province of the Commissioner to make
the ultimate disability determination.”). Dr. Oliver then noted that she has “fair cognitive
function” but “requires assistance with daily living activities.” AR 747. He did not
explain the types or levels of assistance K.I.V. might need. Id. Nor did he offer any
opinions as to K.I.V.’s restrictions and capabilities. Id.
I agree with the Commissioner that Dr. Oliver’s letter does not require remand.
The opinion provides no guidance as to K.I.V.’s abilities with regard to any of the six
relevant domains of functionality. 20 C.F.R. § 416.926a(b)(1). Moreover, treating
source opinions are “not conclusive in determining disability status and must be supported
by medically acceptable clinical or diagnostic data.” Cumberlain v. Shalala, 47 F.3d
1489, 1494 (8th Cir. 1995) (quoting Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir.
1989)). Here, no clinical or diagnostic data was provided to support Dr. Oliver’s opinion.
In short, the new evidence added nothing of evidentiary value to the record. While
it was appropriate for the Appeals Council to consider Dr. Oliver’s letter, I find that there
is substantial evidence in the administrative record, which now includes the new
evidence, to support the ALJ's Step Three findings.

15

C.

Evaluation of Credibility
Finally, Vega argues that the ALJ failed to state adequate reasons for discounting

K.I.V.’s credibility and that the ALJ should have given more weight to Vega’s own
testimony.
1.

Applicable Standards

In determining a claimant’s credibility, the ALJ must consider:
(1)

the claimant’s daily activities;

(2)

the duration, intensity, and frequency of pain;

(3)

the precipitating and aggravating factors;

(4)

the dosage, effectiveness, and side effects of medication; and

(5)

any functional restrictions.

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); see also 20 C.F.R. §
416.929(c)(3). “Other relevant factors include the claimant’s relevant work history, and
the absence of objective medical evidence to support the complaints.” Mouser v. Astrue,
545 F.3d 634, 638 (8th Cir. 2008) (quoting Wheeler v. Apfel, 224 F.3d 891, 895 (8th
Cir. 2000)).
While an ALJ may not discount a claimant’s subjective complaints solely because
they are unsupported by objective medical evidence, the lack of such evidence is a factor
the ALJ may consider. Halverson, 600 F.3d at 931-32; Ford v. Astrue, 518 F.3d 979,
982 (8th Cir. 2008). A claimant’s credibility is “primarily for the ALJ to decide, not the
courts.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). Thus, 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. Barnhart,
393 F.3d 798, 801 (8th Cir. 2005). An ALJ may discount a claimant’s subjective
complaints if there are inconsistencies in the record as a whole. Id.

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2.

Analysis

The ALJ referenced the relevant factors and provided an explanation for her
decision to discredit K.I.V. AR 20. Having carefully reviewed the ALJ’s explanation,
I find it to be supported by substantial evidence. The ALJ noted, among other things:
1.

K.I.V.’s subjective complaints are not supported by objective evidence.

2.

No doctor or mental health professional suggested that K.I.V. apply for
disability benefits.

3.

Other than dizziness and sweatiness, K.I.V. admits that she has no special
physical needs or problems with standing, walking, sitting or lifting.

4.

K.I.V.’s anti-seizure medication and mental health medications have been
generally effective with no significant side effects.

5.

K.I.V.’s activities of daily living are inconsistent with disability.

AR 20. All of these factors are good reasons to discredit a claimant’s credibility and are
supported by substantial evidence. There is no evidence, for example, that any doctor
imposed any significant restrictions on K.I.V.’s activities. This lack of restrictions is
inconsistent with a claim of disability. See, e.g., Tennant v. Apfel, 224 F.3d 869, 870
(8th Cir. 2000).
As for daily activities, the relevant inquiry for a child is whether his or her
functioning is age-appropriate when compared to other children of the same age. See 20
C.F.R. § 416.924a(b)(3). The ALJ accurately summarized K.I.V.’s testimony that she
played with her cousins, helped her mother, and did her homework. AR 18, 40-42.
K.I.V. also testified that she got ready for school by herself. AR 41. She testified that
homework is “hard for me to, like, do because there’s like, lots of other stuff I want to
do; but I do it.” AR 43-44. The ALJ was entitled to find that K.I.V.’s activities of daily
living are inconsistent with her claim of disability.

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As for Vega’s credibility, Vega’s primary argument is that the ALJ interrupted
her testimony because the ALJ “clearly did not want to hear the answer.” Doc. No. 11
at 21 (citing AR 51, 56). This is hyperbole. On one of the cited pages (AR 51), the
transcript does make it appear that the ALJ twice asked a new question before Vega
completed her answer to the prior question. Of course, simply reading the transcript
does not reveal whether Vega was still talking, and was thus interrupted, or simply started
to say more and then stopped on her own before the ALJ asked the next question. Her
attorney (the same attorney who signed Vega’s brief) made no record about any alleged
interruption.
On the other cited page (AR 56), the ALJ said “Okay” in the middle of an answer
but allowed Vega to complete the answer. Over the course of ten transcript pages of
examination by the ALJ, which include several long answers by Vega, these are the only
instances of alleged “interruptions.” AR 48-54, 60-62. Her attorney then asked followup questions, after first noting that the ALJ had already asked most of his questions. AR
54-60. The ALJ concluded by asking Vega if they had “covered everything that you
wanted to say” and if there was “[a]nything else that you want to add?” AR 60-61. She
answered: “No.” AR 61.
On this record, Vega’s counsel’s contention that the ALJ interrupted Vega’s
testimony because the ALJ “clearly did not want to hear the answer” is one of the weakest
arguments I have ever encountered. The ALJ did not prevent Vega from testifying. If
Vega possessed relevant informant that somehow did not find its way into the record, her
own counsel is entirely to blame.
Vega makes no other argument about the ALJ’s assessment of her credibility.
While the ALJ did not separately address Vega’s credibility, it appears that she considered
it concurrently with K.I.V.’s. See, e.g., AR 20 (discussing an allegation made by K.I.V.
“and her parent”). An ALJ may discount third-party testimony on the same grounds as
he or she discounts a claimant's own testimony. Black v. Apfel, 143 F.3d 383, 387 (8th
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Cir. 1998). If an ALJ provides good reasons for discrediting a claimant’s testimony, the
ALJ is not required to address similar testimony by a third-party witness. See, e.g.,
Buckner v. Astrue, 646 F.3d 549, 559–60 (8th Cir. 2011) (ALJ's failure to explicitly
address observations of claimant's girlfriend did not require remand when the
observations were identical to claimant's statements and ALJ discounted credibility of
claimant).
Because the ALJ provided good reasons for discrediting K.I.V.’s testimony, he
was entitled to similarly discredit Vega’s testimony. I find that the ALJ’s credibility
determinations are supported by substantial evidence in the record as a whole.
VI.

CONCLUSION

For the reasons set forth herein, the Commissioner’s determination that K.I.V.
was not disabled is reversed and remanded for further proceedings consistent with this
order. Judgment shall enter in favor of the plaintiff and against the defendant.
On remand, the ALJ must evaluate Listings 112.06 and 112.11 in light of the
appropriate “child” criteria, as set forth in 20 C.F.R., Subpt. P., App. 1, (Part B) § 112.
In addition, the ALJ may, but is not required to, evaluate Listing 111.03.
IT IS SO ORDERED.
DATED this 10th day of September, 2015.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

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