Morris v. Commissioner of Social Security

Filing 16

MEMORANDUM Opinion and Order re 1 Complaint reversing and remanding to the Commissioner for further proceedings. Judgment shall enter in favor of the plaintiff and against the defendant. Signed by Judge Leonard T Strand on 6/16/2016. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
J. MICHAEL FITZGERALD MORRIS,
IV,
Plaintiff,

No. C14-4068-LTS

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

MEMORANDUM OPINION
AND ORDER

Defendant.
___________________________

Plaintiff J. Michael Fitzgerald Morris, IV, seeks judicial review of a final decision

of the Commissioner of Social Security (Commissioner) denying his applications for
Social Security Disability benefits (DIB) and Supplemental Security Income benefits (SSI)
under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Morris
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 time
period. For the reasons that follow, the Commissioner’s decision will be reversed and
remanded.
I.

BACKGROUND

Morris was born in 1976, has a high school education and has past relevant work
as a phlebotomist, telephone solicitor, sales attendant and sales representative – financial
services. AR 22, 74-75, 390. He filed an application for DIB on September 6, 2011,
and an application for SSI on September 20, 2011. AR 237-43, 244-50. He originally
alleged a disability onset date of June 20, 2007, but later amended that date to June 12,
2008. AR 12, 34-35, 237, 244.

Morris’ claims were denied initially and on reconsideration. AR 102-12, 169-79.
He then requested a hearing before an administrative law judge (ALJ). On March 4,
2013, ALJ Jan E. Dutton conducted a hearing at which Morris and a vocational expert
(VE) testified. On April 5, 2013, the ALJ issued a decision finding that Morris was not
disabled within the meaning of the Act. AR 12-24. The Appeals Council denied Morris’
request for review of the ALJ’s decision on May 22, 2014. AR 1-6. The ALJ’s decision
thus stands as the final decision of the Commissioner. AR 1; see also 20 C.F.R. §§
404.981, 416.1481.
Morris filed a complaint (Doc. No. 1) in this Court on July 28, 2014, seeking
review of the Commissioner’s decision. This case was originally assigned to Senior
United States District Judge Donald E. O’Brien. Judge O’Brien heard oral argument by
telephone on January 29, 2015. Doc. No. 15. Unfortunately, Judge O’Brien passed
away before he was able to issue a ruling. This case was reassigned to me on February
17, 2016. The parties have briefed the issues and the matter is 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 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505, 416.905. An individual has a disability when, due to his physical
or mental impairments, he “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(a)(3)(B). If the claimant is able to do work which exists in the
national economy but is unemployed because of inability to get work, lack of
2

opportunities in the local area, economic conditions, employer hiring practices or other
factors, the ALJ will still find the claimant not disabled. 20 C.F.R. §§ 404.1566(c)(1)(8), 416.966(c)(1)-(8).
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations. Id. §§ 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). “Substantial” work activity involves physical or
mental activities. “Gainful” activity is work done for pay or profit. 20 C.F.R. §§
404.1572(a), 404.1572(b).
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and medical impairments.
If the impairments are not severe, then the claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii).

An impairment is not severe if “it does not

significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R.
§ 404.1521(a); see also 20 C.F.R. §§ 404.1520(c), 416.920(c), 416.921(a); Kirby, 500
F.3d at 707.
The ability to do basic work activities is defined as having “the abilities and
aptitudes necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These
abilities and aptitudes include (1) physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying or handling; (2) capacities for seeing, hearing
and speaking; (3) understanding, carrying out and remembering simple instructions; (4)
use of judgment; (5) responding appropriately to supervision, co-workers and usual work
situations; and (6) dealing with changes in a routine work setting. Id. §§ 404.1521(b)(1)(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987).

3

Third, if the claimant has a severe impairment, then the Commissioner will
determine its medical severity.

If the impairment meets or equals one of the

presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education and work experience. 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan,
133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) and the demands of his past relevant work.
If the claimant cannot do his past relevant work then he is considered disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). Past relevant
work is any work the claimant has done within the past 15 years of his application that
was substantial gainful activity and lasted long enough for the claimant to learn how to
do it. Id. § 416.960(b)(1). “RFC is a medical question defined wholly in terms of the
claimant’s physical ability to perform exertional tasks or, in other words, what the
claimant can still do despite his or her physical or mental limitations.” Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks omitted); See 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). The RFC is based on all relevant medical and other
evidence. Id. §§ 404.145(a)(3), 416.945(a)(3). The claimant is responsible for providing
the evidence the Commissioner will use to determine the RFC. Id. If a claimant retains
enough RFC to perform past relevant work, then the claimant is not disabled. Id. §§
404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to show there
is other work the claimant can do, given the claimant’s RFC, age, education and work
experience. Id. §§ 416.912(f), 416.920(a)(4)(v). The Commissioner must show not only
that the claimant’s RFC will allow him to make the adjustment to other work, but also
4

that other work exists in significant numbers in the national economy. Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). If the claimant can make the adjustment, then the Commissioner will
find the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At
step five, the Commissioner has the responsibility of developing the claimant’s complete
medical history before making a determination about the existence of a disability. Id. §§
404.145(a)(3), 416.945(a)(3). 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 June 12, 2008, the amended alleged onset
date (20 CFR 404.1571 et seq., and 20 CFR 416.971
et seq.).

(3)

The claimant has the following severe impairments:
congenital heart disorder; atrial fibrillation; hemophilia
A; history of ablation and supraventricular
tachycardia; post-traumatic stress disorder; obsessive
compulsive disorder; and depression (20 CFR
404.1520(c) and 416.920(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
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).

(5)

The claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b)
and 416.967(b) except as follows: The claimant can
occasionally lift or carry 20 pounds; and frequently lift
5

or carry 10 pounds. He has no restriction in his ability
to stand, sit, or walk. The claimant can occasionally
perform all postural activities such as climb, balance,
stoop, kneel, crouch, and crawl. He should not work
on ladders. The claimant needs to avoid concentrated
exposure to cold, heat, humidity, and hazards.
Mentally, the claimant is limited to performing
unskilled work (SVP 1 or 2). He needs to avoid work
that requires extended concentration or attention.
Socially, the claimant should avoid large groups of
people or intense interaction. His social interactions
can be brief, superficial, and occasional but avoid large
crowds or groups.
(6)

The claimant is unable to perform any past relevant
work (20 CFR 404.1565 and 416.965).

(7)

The claimant was born on October 27, 1976 and was
31 years old, which is defined as a younger individual
age 18-49, on the amended alleged disability onset date
(20 CFR 404.1563 and 416.963).

(8)

The claimant has at least a high school education and
is able to communicate in English (20 CFR 404.1564
and 416.964).

(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 CFR 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 CFR
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 June 12, 2008, through
6

the date of this decision (20 CFR 404.1520(g) and
416.920(g)).
AR 18-26.

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).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
7

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.”).
V.

DISCUSSION

Morris makes two arguments:
1.

There Is Not Substantial Evidence In This Record To Support The ALJ’s
Determination Of Plaintiff’s Residual Functional Capacity And Denial Of
Disability.

2.

The ALJ Improperly Evaluated Plaintiff’s Credibility, Which Affected Her
Judgment.

Doc. No. 9. I will address these arguments separately.
A.

The RFC Assessment and Step Five Denial
1.

Applicable Standards
8

a.

RFC

The claimant’s RFC is “what [the claimant] can still do” despite his or her
“physical or mental limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). “The
ALJ must determine a claimant’s RFC based on all of the relevant evidence.”
Fredrickson v. Barnhart, 359 F.3d 972, 976 (8th Cir. 2004).

This includes “an

individual’s own description of [her] limitations.” McGeorge v. Barnhart, 321 F.3d 766,
768 (8th Cir. 2003) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)).
The claimant’s RFC “is a medical question,” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001), and must be supported by “some medical evidence.” Dykes v. Apfel, 223 F.3d
865, 867 (8th Cir. 2000) (per curiam).

The medical evidence should address the

claimant’s “ability to function in the workplace.” Lewis, 353 F.3d at 646. The claimant
has the burden to prove his RFC and the ALJ determines the RFC based on all relevant
evidence. See Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004).
The ALJ is not required to mechanically list and reject every possible limitation.
McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011). Furthermore, “[a]n ALJ’s failure
to cite specific evidence does not indicate that such evidence was not considered.”
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (quoting Black v. Apfel, 143 F.3d
383, 386 (8th Cir. 1998)). “[T]he ALJ may reject the conclusions of any medical expert,
whether hired by a claimant or by the government, if inconsistent with the medical record
as a whole.” Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir. 1995). The RFC must only
include those impairments which are substantially supported by the record as a whole.
Goose v. Apfel, 238 F.3d 981, 985 (8th Cir. 2001); see also Forte v. Barnhart, 377 F.3d
892, 897 (8th Cir. 2004).

b.

Opinion Evidence

9

“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. §§ 404.1527(a)(2),
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).
Acceptable Medical Source Opinions. Medical opinions can come from a treating
source, an examining source or a non-treating, non-examining source (typically a state
agency medical consultant who issues an opinion based on a review of medical records).
Medical opinions from treating physicians are entitled to substantial weight. Singh v.
Apfel, 222 F.3d 448, 452 (8th Cir. 2000). A treating physician's opinion “does not
automatically control or obviate the need to evaluate the record as [a] whole.” Leckenby
v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). Nonetheless, if the ALJ finds that a treating
physician’s medical opinion as to the nature and severity of the claimant’s impairment is
“well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in [the claimant’s] record, [the
ALJ] will give it controlling weight.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
“When an ALJ discounts a treating physician’s opinion, he should give good reasons for
doing so.” Brown v. Astrue, 611 F.3d 941, 951-52 (8th Cir. 2010). Note, however,
that a treating physician’s conclusion that an applicant is “disabled” or “unable to work”
addresses an issue that is reserved for the Commissioner and therefore is not a “medical
opinion” that must be given controlling weight. Ellis v. Barnhart, 392 F.3d 988, 994
(8th Cir. 2005).
10

At the other end of the medical-opinion spectrum are opinions from non-treating,
non-examining sources: “The 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). This does not mean, however, that such opinions are to be disregarded. Indeed,
“an ALJ may credit other medical evaluations over that of the treating physician when
such other assessments are supported by better or more thorough medical evidence.”
Prosch v. Apfel, 201 F.3d 1010, 1014 (8th Cir. 2000) (internal quotations and citations
omitted). Unless a treating source’s opinion is given controlling weight, the ALJ “must
explain in the decision the weight given to the opinions of a State agency medical or
psychological consultant.” 20 C.F.R. §§ 404.1527(e)(2)(ii). 416.927(e)(2)(ii).
In the middle of the spectrum are opinions from consultative examiners who are
not treating sources but who examined the claimant for purposes of forming a medical
opinion. Normally, the opinion of a one-time consultative examiner will not constitute
substantial evidence, especially when contradicted by a treating physician’s opinion.
Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000).
Ultimately, it is the ALJ’s duty to assess all medical opinions and determine the
weight to be given these opinions. See Finch, 547 F.3d at 936 (“The ALJ is charged
with the responsibility of resolving conflicts among medical opinions.”); Estes v.
Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (“It is the ALJ’s function to resolve conflicts
among ‘the various treating and examining physicians.’”) (citing Bentley v. Shalala, 52
F.3d 784, 785-87 (8th Cir. 1995)).
Other Opinion Evidence. Opinion evidence may also come from health care
providers who do not fall within the Commissioner’s definition of an “acceptable medical
source,” such as nurse practitioners and physician assistants. Social Security Ruling 0603p nonetheless requires the ALJ to give consideration to such opinions. That ruling
includes the following statements:
11

The distinction between “acceptable medical sources” and other health care
providers who are not “acceptable medical sources” is necessary for three
reasons. First, we need evidence from “acceptable medical sources” to
establish the existence of a medically determinable impairment. See 20 CFR
404.1513(a) and 416.913(a). Second, only “acceptable medical sources”
can give us medical opinions. See 20 CFR 404.1527(a)(2) and
416.927(a)(2). Third, only “acceptable medical sources” can be considered
treating sources, as defined in 20 CFR 404.1502 and 416.902, whose
medical opinions may be entitled to controlling weight. See 20 CFR
404.1527(d) and 416.927(d).
***
In addition to evidence from “acceptable medical sources,” we may use
evidence from “other sources,” as defined in 20 CFR 404.1513(d) and
416.913(d), to show the severity of the individual's impairment(s) and how
it affects the individual's ability to function. These sources include, but are
not limited to:
•

Medical sources who are not “acceptable medical
sources,” such as nurse practitioners, physician
assistants, licensed clinical social workers,
naturopaths,
chiropractors,
audiologists,
and
therapists;
***

Although the factors in 20 CFR 404.1527(d) and 416.927(d) explicitly
apply only to the evaluation of medical opinions from “acceptable medical
sources,” these same factors can be applied to opinion evidence from “other
sources.” These factors represent basic principles that apply to the
consideration of all opinions from medical sources who are not “acceptable
medical sources” as well as from “other sources,” such as teachers and
school counselors, who have seen the individual in their professional
capacity.
***
Opinions from “other medical sources” may reflect the source's judgment
about some of the same issues addressed in medical opinions from
12

“acceptable medical sources,” including symptoms, diagnosis and
prognosis, what the individual can still do despite the impairment(s), and
physical and mental restrictions.
***
The fact that a medical opinion is from an “acceptable medical source” is
a factor that may justify giving that opinion greater weight than an opinion
from a medical source who is not an “acceptable medical source” because,
as we previously indicated in the preamble to our regulations at 65 FR
34955, dated June 1, 2000, “acceptable medical sources” “are the most
qualified health care professionals.” However, depending on the particular
facts in a case, and after applying the factors for weighing opinion evidence,
an opinion from a medical source who is not an “acceptable medical source”
may outweigh the opinion of an “acceptable medical source,” including the
medical opinion of a treating source. For example, it may be appropriate to
give more weight to the opinion of a medical source who is not an
“acceptable medical source” if he or she has seen the individual more often
than the treating source and has provided better supporting evidence and a
better explanation for his or her opinion.
See SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006). Among other things, this ruling
means a physician assistant’s opinion is not a “medical opinion,” is not entitled to
controlling weight and cannot establish the existence of a medically-determinable
impairment. However, that opinion can be used as evidence of the severity of an
impairment and how the impairment affects the individual's ability to function. An ALJ
must evaluate the opinion with reference to the same factors that apply to other medical
sources, including:






How long the source has known and how frequently the source has seen the
individual;
How consistent the opinion is with other evidence;
The degree to which the source presents relevant evidence to support an opinion;
How well the source explains the opinion;
Whether the source has a specialty or area of expertise related to the individual's
impairment(s), and
13



Any other factors that tend to support or refute the opinion.

See 20 C.F.R. § 404.1527(c). “In determining what weight to give ‘other medical
evidence,’ the ALJ has more discretion and is permitted to consider any inconsistencies
found within the record.” Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005).
c.

The Step Five Analysis

Where, as here, the sequential disability determination reaches Step Five, the
Commissioner has the burden of showing there is other work that the claimant can do,
given the claimant’s RFC, age, education and work experience. Bladow v. Apfel, 205
F.3d 356, 358-59 n.5 (8th Cir. 2000). In Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000),
an ALJ made a Step Five determination that a claimant who could not perform past
relevant work could, nonetheless, perform certain other jobs identified by a VE. Id. at
857. Various non-treating and non-examining physicians had reviewed the claimant’s
records and provided opinions about the claimant’s RFC, which the ALJ then used in
formulating hypothetical questions to a VE. Id. at 858. The Eighth Circuit Court of
Appeals began its analysis as follows:
In our circuit it is well settled law that once a claimant demonstrates that he
or she is unable to do past relevant work, the burden of proof shifts to the
Commissioner to prove, first that the claimant retains the residual functional
capacity to do other kinds of work, and, second that other work exists in
substantial numbers in the national economy that the claimant is able to do.
McCoy v. Schweiker, 683 F.2d 1138, 1146–47 (8th Cir. 1982)(en banc);
O'Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir. 1983). It is also well
settled law that it is the duty of the ALJ to fully and fairly develop the
record, even when, as in this case, the claimant is represented by counsel.
Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Id. at 857. The court noted that while the record contained many treatment notes, none
of the treating physicians provided opinions concerning the claimant’s RFC. Id. at 858.
The court then stated:
14

In the case at bar, there is no medical evidence about how Nevland's
impairments affect his ability to function now. The ALJ relied on the
opinions of non-treating, non-examining physicians who reviewed the
reports of the treating physicians to form an opinion of Nevland's RFC. In
our opinion, this does not satisfy the ALJ's duty to fully and fairly develop
the record. The opinions of doctors who have not examined the claimant
ordinarily do not constitute substantial evidence on the record as a whole.
Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999). Likewise, the
testimony of a vocational expert who responds to a hypothetical based on
such evidence is not substantial evidence upon which to base a denial of
benefits. Id. In our opinion, the ALJ should have sought such an opinion
from Nevland's treating physicians or, in the alternative, ordered
consultative examinations, including psychiatric and/or psychological
evaluations to assess Nevland's mental and physical residual functional
capacity. As this Court said in Lund v. Weinberger, 520 F.2d 782, 785
(8th Cir. 1975): “An administrative law judge may not draw upon his own
inferences from medical reports. See Landess v. Weinberger, 490 F.2d
1187, 1189 (8th Cir. 1974); Willem v. Richardson, 490 F.2d 1247, 1248–
49 n. 3 (8th Cir. 1974).”
Id. (emphasis in original).
2.

The ALJ’s Reasoning

As noted above, the ALJ found that despite having severe impairments, Morris
retained the RFC to perform light work,1 but with the following physical and mental
limitations:

1

According to the Commissioner’s regulations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or

15

The claimant can occasionally lift or carry 20 pounds; and frequently lift or
carry 10 pounds. He has no restriction in his ability to stand, sit, or walk.
The claimant can occasionally perform all postural activities such as climb,
balance, stoop, kneel, crouch, and crawl. He should not work on ladders.
The claimant needs to avoid concentrated exposure to cold, heat, humidity,
and hazards.
Mentally, the claimant is limited to performing unskilled work (SVP 1 or
2).2 He needs to avoid work that requires extended concentration or
attention. Socially, the claimant should avoid large groups of people or
intense interaction. His social interactions can be brief, superficial, and
occasional but avoid large crowds or groups.
AR 16. Based on this RFC, the ALJ found that Morris was unable to perform any past
relevant work. AR 21. This required the ALJ to proceed to Step Five, at which the ALJ
determined that Morris can perform certain jobs that exist in significant numbers in the
national economy, such as production helper on a food line, machine packager and
housekeeper cleaner. AR 22-23.
The ALJ based these findings on a record that contains no opinion from any
acceptable treating or examining source as to how Morris’ impairments affect his ability
to function. Instead, the ALJ relied on treatment records and opinions provided by state
agency medical and psychological consultants who reviewed records but did not examine
Morris. AR 17-20. With regard to Morris’ physical RFC, the ALJ afforded great weight
to the opinion of Jim Takach, M.D., a state-agency expert who opined in November 2007

wide range of light work, you must have the ability to do substantially all of these
activities.
20 CFR §§ 404.1567(b), 416.967(b).
2

“SVP” refers to Specific Vocational Preparation, defined in Appendix C of the Dictionary of
Occupational Titles as being “the amount of lapsed time required by a typical worker to learn
the techniques, acquire the information, and develop the facility needed for average performance
in a specific job-worker situation.” A position with an SVP of 1 requires a short demonstration
only while a position with an SVP of 2 requires vocational preparation up to and including one
month. See Dictionary of Occupational Titles, Appendix C.

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that plaintiff could perform light work with the same physical, nonexertional limitations
the ALJ ultimately assessed. AR 20, 634-41. In formulating the mental RFC, the ALJ
assigned some weight to the opinions of state-agency consultants Russell Lark, Ph.D.,
and Myrna Tashner, Ed.D., who authored reports in December 2011 and February 2012,
respectively, concluding that Morris could “complete simple, repetitive tasks on a
sustained basis when compliant with medications and abstinent.” AR 20, 95-98, 120-23.
In addition to those limitations, the ALJ found that Morris needed to “avoid large groups
of people or intense interaction” and his social interactions should only be “brief,
superficial, and occasional.” AR 16, 20.
The ALJ discounted both (a) Morris’ own statements as to the severity of his
symptoms and (b) opinions and reports provided by Farrah Hassebroek, a nurse
practitioner who treated Morris’ mental impairments. AR 20-21. The ALJ provided
various reasons for discounting the validity of Morris’ subjective statements, including
her determination that those statements are inconsistent with the medical evidence of
record. Id. As for Nurse Hassebroek, the ALJ stated that she offered opinions with
“little explanation of the evidence relied on.” AR 20. The ALJ also found (a) most of
Nurse Hassebroek’s opinions lack support in the evidence and (b) Morris’ reported daily
activities indicate that he is not as limited as Nurse Hassebroek suggests. Id.
3.

Analysis

Morris contends that because the record lacks opinion evidence from any
acceptable treating or examining sources, the ALJ should have developed the record
further, such as by ordering a consultative examination. Doc. No. 9 at 10-11. Indeed,
he notes that the state agency itself determined that a medical examination was needed in
connection with a prior claim for benefits. AR 86, 88. Specifically, the agency claimed
in April 2010 that Morris “did not take the medical examination we asked you to have at
our expense” and wrote that the exam “was needed to fully evaluate your condition.” Id.
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Morris, however, testified that he does not recall ever receiving notice of a consultative
examination. AR 66-67. He explained that during the time period in which the exam
was allegedly scheduled, he was staying at a respite center in Texas due to problems with
his medications. Id. Record submitted by Morris’ counsel confirm this. AR 1230-97.
Meanwhile, as Morris also points out, the record contains scant (if any) evidence that
any notice of a consultative examination was ever sent to him. Doc. No. 9 at 12.
The Commissioner responds by arguing that alleged “no show” situation is
irrelevant because it involved a prior claim. As noted above, Morris filed the applications
at issue in this case in September 2011, more than a year after the state agency deemed
a consultative examination to be necessary to evaluate his prior application.

The

Commissioner further points out that the ALJ did not cite Morris’ failure to appear for
that examination as a reason for denying benefits. Finally, the Commissioner states that
the record was considerably more developed in April 2013, when the ALJ issued her
ruling, than it was in 2010. Doc. No. 10 at 12-13. Thus, the Commissioner argues that
the ALJ’s failure to arrange a consultative examination was not error.
The Commissioner misses the point. Morris does not claim that the ALJ penalized
him for failing to submit to a consultative examination in 2010. Morris is making a
Nevland argument. That is, Morris contends the ALJ erred by making a Step Five
determination without the benefit of opinion evidence from any treating or examining
source. Morris cites the state agency’s attempt to schedule a consultative examination in
2010 as support for his argument that the record is insufficient without such evidence.
Instead of addressing that issue squarely, the Commissioner simply ignores it. Indeed,
the Commissioner’s brief does not cite Nevland or otherwise attempt to explain why the
Eighth Circuit’s holding in that case does not compel remand. Doc. No. 10 at 11-13.
As I have explained:
Nevland holds that the Commissioner “ordinarily” cannot meet this [Step
Five] burden without an opinion from at least one doctor who actually
examined the claimant. Id. at 858. Of course, “ordinarily” does not mean
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“never.” Judge Bennett recently noted that Nevland “does not compel
remand in every case in which the administrative record lacks a treating
doctor's opinion.” Hattig v. Colvin, No. C12–4092 MWB, 2013 WL
6511866, at *10 (N.D. Iowa Dec. 12, 2013). Thus, if other medical
evidence in the record clearly establishes a claimant's RFC to do other
work, and to function in the workplace, the absence of an opinion from
examining physicians may not require remand. Id. at *11 (citing Nevland,
204 F.3d at 858).
Kruger v. Colvin, No. C13–3036–MWB, 2014 WL 1584411, at *10 (N.D. Iowa Apr.
21, 2014). Thus, the question is whether the lack of opinion evidence from a treating or
examining source is overcome in this case by other medical evidence that clearly
establishes Morris’ mental and physical RFC.
While the Commissioner notes that the record “includes a wealth of evidence
postdating August 2010,” she does little more than cite generally to a list of exhibits.
Doc. No. 10 at 12-13. She references Nurse Hassebroek’s opinions – the same opinions
the ALJ found to be of little value.3 Id.; AR 20. She then cites the reports of the state
agency consultants who neither treated nor examined Morris. Doc. No. 10 at 13. This
is rather circular, as it basically suggests that the opinions of nonexamining sources are
adequate because they exist.
Having carefully reviewed all of the medical evidence of record, I conclude that
it is not sufficient, under Nevland, to excuse the lack of opinion evidence from any
treating or examining source. While the record contains treatment notes and other
records reflecting that Morris received care for his impairments (see, e.g., AR 642-881,
897-1168), those records do not answer the critical question of how those impairments
affect his ability to function in the workplace. Compare Figgins v. Colvin, No. C13–
3022–MWB, 2014 WL 1686821, at *9-10 (N.D. Iowa Apr. 29, 2014) (remand not

3

In each of Nurse Hasselbroek’s opinions, she indicated (among other things) that Morris’
condition is permanent and that he was either unable to work at all or could work for less than
10 hours per week. AR 1332-39.

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necessary because the treatment notes of record addressed the claimant’s employability
and her ability to function in a work environment). Here, for example, mental health
treatment notes from 2010, 2011 and 2012 reflect serious, “uncontrolled” impairments
with severe symptoms and in-patient psychiatric hospitalization. AR 1042-90, 1114-15,
1136-64. I find that the ALJ erred by failing to fully develop the record and that the
ALJ’s physical and mental RFC findings are not supported by substantial evidence.
Remand is necessary.
On remand, the ALJ should fully develop the record by obtaining physical and
mental RFC opinions from treating or examining sources.

Upon obtaining those

opinions, the ALJ shall consider those opinions, along with the other evidence of record,
to determine Morris’ RFC and complete Step Four and Step Five of the sequential
evaluation process.
B.

Assessment of Morris’ Credibility
1.

Applicable Standards

“The credibility of a claimant’s subjective testimony is primarily for the ALJ to
decide, not the courts.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).
Accordingly, 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.
To determine 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
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(5)

any functional restrictions.

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). “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)). An ALJ may not discount a
claimant’s subjective complaints solely because they are unsupported by objective
medical evidence, Halverson v. Astrue, 600 F.3d 922, 931-32 (8th Cir. 2010) rather such
evidence is one factor that the ALJ may consider. Ford v. Astrue, 518 F.3d 979, 982
(8th Cir. 2008). The ALJ need not explicitly discuss each factor, as long as the ALJ
acknowledges and considers the factors before discounting the claimant’s subjective
complaints.

Goff, 421 F.3d at 791.

If an ALJ discounts a claimant’s subjective

complaints, he or she is required to “detail the reasons for discrediting the testimony and
set forth the inconsistencies found.” Ford, 518 F.3d at 982 (quoting Lewis, 353 F.3d at
647).
2.

Analysis

The AJL found Morris’ statements as to the intensity, persistence and limiting
effects of his symptoms to be “not entirely credible.” AR 18. Among other things, the
ALJ based this conclusion on (a) the routine nature of the care and treatment Morris
sought, (b) his failure to show up for various scheduled appointments, (c) the extent of
his regular daily activities and (d) the ALJ’s belief that the objective medical evidence is
not consistent with Morris’ allegations. AR 18-21. All of these reasons are proper.
However, because I have determined that remand is necessary under Nevland for
additional development of the record, I will direct the ALJ to reevaluate Morris’
credibility in light of the new opinion evidence the ALJ will procure. Regardless of
whether the ALJ’s credibility finding remains the same on remand, the ALJ should

21

provide good reasons and explain how, if at all, the new opinion evidence impacts that
finding.
VI.

CONCLUSION

For the reasons set forth herein, the Commissioner’s determination that Morris
was not disabled is reversed and this case is remanded to the Commissioner for further
proceedings consistent with this opinion. Judgment shall enter in favor of the plaintiff
and against the defendant.
IT IS SO ORDERED.
DATED this 16th day of June, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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