Willett v. Colvin

Filing 18

ORDER Accepting 16 Report and Recommendation without modification. The Commissioner's determination that Willett was not disabled is affirmed, and Judgment shall enter against Willett and in favor or the Commissioner. Signed by Judge Leonard T Strand on 9/2/2016. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
WILLIAM CHARLES WILLETT,
No. C15-4036-LTS
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

MEMORADUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

Defendant.
___________________________
I.

INTRODUCTION

This case is before me on a Report and Recommendation (R&R) by the Honorable
C.J. Williams, United States Magistrate Judge. See Doc. No. 16. Judge Williams
recommends that I affirm a decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff William Charles Willett supplemental security income
benefits (SSI) under Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act).
Willett has filed timely objections (Doc. No. 17) to the R&R. The Commissioner
has not filed a response. The procedural history and relevant facts are set forth in the
R&R and are repeated herein only to the extent necessary.
II.
A.

APPLICABLE STANDARDS

Judicial Review of the Commissioner’s Decision
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 &
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 if the court “might have weighed the evidence differently.”
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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.”).
B.

Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following

standards:
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 74 (1985) (quoting United States v. U.S. Gypsum Co.,
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333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
III.

THE R&R

Judge Williams reviewed the ALJ's residual functional capacity (RFC) and
credibility determinations. He began by explaining the concept of a claimant’s RFC:
A claimant's RFC is the most a claimant can do, taking into account
his limitations. The ALJ must consider all relevant medical and other
evidence in the record to determine a claimant's RFC. 20 C.F.R. §
416.945(a)(1). While the RFC determination draws from medical sources,
the RFC is ultimately an administrative decision reserved to the
Commissioner. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007). Medical
records, physician observations, and the claimant's subjective statements
about his capabilities may be used to support the ALJ's RFC finding.
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011). The claimant has the
burden of proof to establish his RFC. Goff, 421 F.3d at 790.
Doc. No. 16 at 8. Judge Williams found that the ALJ's RFC findings were supported by
substantial evidence. Id. Among other things, he concluded that the opinions of Michael
P. Baker, Ph.D., and consultative examiners Jan Hunter, D.O., and John Tedesco,
Ph.D., support the RFC. Id. at 8-9.
In reviewing the ALJ's credibility determination, Judge Williams explained the
standards as follows:
The ALJ also evaluated Willett's subjective allegations properly,
within the framework established by the Commissioner's regulations and
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). AR 16-17. In
determining a claimant's credibility, an ALJ must consider:
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(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, 739 F.2d at 1322; 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)).
Although 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. The ALJ need not
discuss each Polaski factor if the ALJ “acknowledges and considers the
factors before discounting a claimant's subjective complaints.” Moore v.
Astrue, 572 F.3d 520, 524 (8th Cir. 2009).
Id. at 9-10. Judge Williams found that the ALJ properly assessed Willett’s credibility.
Among other things, Judge Williams made note of (a) the absence of medical records
providing objective support for Willett’s complaints and (b) Willett’s failure to seek
treatment. Id.

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IV.
A.

DISCUSSION

Willett’s Objections
Willett objects to Judge Williams’ findings that (1) the ALJ properly determined

Willett’s RFC and (2) the ALJ properly evaluated his credibility. Doc. No. 17. I will
review these issues de novo.
B. 

The RFC Determination
1.

The ALJ's Findings

The ALJ found that Willett had the RFC to perform a full range of work at all
exertional levels but with the following restrictions:
The claimant must avoid concentrated exposure to fumes, odors, dusts,
gases, environments with poor ventilation, cold temperature extremes,
extreme wetness, and humidity; he can perform simple tasks that are not
performed in a fast-paced production environment or as an integral part of
a team, involving relatively few work place changes.
AR 16. In determining Willett’s RFC, the ALJ gave significant weight to the opinion of
Michael P. Baker, Ph.D. Id. The ALJ gave some weight to the opinions of state agency
medical consultants Jan Hunter, D.O., and John May, M.D., finding they were consistent
with the record as a whole. Id. The ALJ gave significant weight to the opinions of state
agency psychological consultant John Tedesco, Ph.D., and Scott Shafer, Ph.D. Id. AR
19-20. The ALJ gave little weight to the opinion of Jeffrey Zoelle, M.D., because Dr.
Zoelle provided a check-box form opinion with no explanation and addressed a matter
reserved to the Commissioner. Id. at 20-21. The ALJ also considered a letter and a
function report from third parties. Id. at 20.
2.

Analysis

Willett argues that the ALJ’s RFC is not supported by substantial evidence because
it does not address (a) Willett’s inability to follow directions and work with appropriate
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concentration, persistence and pace, or (b) his difficulty interacting with co-workers and
the general public. Willett also argues that his Global Assessment of Functioning1
(GAF) scores support a finding of disability and contends that the ALJ failed to take them
into consideration.
I find no error in the ALJ's RFC analysis. With regard to GAF scores, the ALJ
noted that Willett had received two recent scores of 65, indicating only mild symptoms.2
AR 18-19. While the record contains evidence of other, lower GAF scores, his morerecent scores reflect a lack of disabling impairments. Moreover, while GAF scores may
be relevant in determining a claimant’s RFC, they are not controlling. See Halverson v.
Astrue, 600 F.3d 922, 930–31 (8th Cir. 2010) (a GAF score may be of considerable help
in formulating the RFC but is not essential to the RFC's accuracy); see also Jones v.
Astrue, 619 F.3d 963, 973 (8th Cir. 2010) (“[W]e are not aware of any statutory,
regulatory, or other authority requiring the ALJ to put stock on a [GAF] score.”). Here,
I find no error in the ALJ’s evaluation of Willett’s GAF scores.
I further find that the evidence of record supports the ALJ’s RFC findings. For
example, on October 1, 2013, Willett was examined at the Siouxland Mental Health
Center by Charles Tilley, MPAS, PA-C.

AR 318.

Tilley noted that Willett was

cooperative, pleasant and made good eye contact with no obvious abnormal neurologic

1

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).

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A GAF score of 61-70 indicates the individual has some mild symptoms (e.g., depressed mood
and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but is generally functioning pretty well and
has some meaningful interpersonal relationships. See DSM-IV at 34.

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movements. AR 320. Tilley estimated Willett’s intellectual ability as “mildly MR” but
found that he had a goal-directed thought process, which was logical for the most part
and coherent. Id. Tilley reported that Willett denied suicidal ideation or homicidal intent
or plan and had fair insight and judgment. Id. Tilley assigned a GAF score of 65 but
concluded that it would be difficult for Willett to maintain even a part-time job. AR 32021.3
Dr. Baker’s opinion, which is based on a consultative examination that occurred
on October 8, 2012, also supports the ALJ's RFC. AR 301. Dr. Baker noted that Willett
maintained good eye contact, suffered no delusional thought content and was alert and
oriented. AR 300. Dr. Baker found that Willett had fair concentration and adequate
recall and memory. AR 301. Dr. Baker noted that Willett was cooperative throughout
the examination and found that Willett’s insight and judgment, while immature, were not
impaired. Id.

In determining mental limitations related to work activities, Dr. Baker

found that Willett had the “ability to remember and understand instructions, procedures
and locations for fairly simple nondemanding tasks.” Id. Dr. Baker further found that
Willett would have the ability to maintain adequate attention, concentration and pace for
carrying out instructions and that he could interact appropriately with supervisors,
coworkers and the public if the work was not too demanding. Id. Given a low-stress
work environment, Dr. Baker opined that there would be no reason to expect any
problems associated with judgment or appropriate responses to changes in the workplace.
Id. Finally, Dr. Baker assigned a GAF score of 60. AR 302.
In addition, the ALJ’s RFC determination is consistent with the state agency
consultants’ opinions. Having reviewed the entire record, I find that the ALJ’s RFC

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The ALJ discounted Tilley’s statement concerning Willett’s inability to work on grounds that
it was based on a one-time assessment, was “far different” from prior examinations and was
based on complaints not supported by the record. AR 19. I find no error in the ALJ’s evaluation
of Tilley’s opinion.

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findings are supported by substantial evidence. Willett’s objection to this portion of the
R&R is overruled.
C.

The Credibility Assessment
Willett argues that the ALJ’s credibility assessment is not supported by substantial

evidence. He contends that the ALJ erroneously discounted a treatment history that,
according to Willett, supports his subjective complaints. Willett also argues that the ALJ
improperly relied on the sporadic nature of his recent treatment history, contending that
a sporadic treatment history is typical when dealing with mental health impairments.
The ALJ referenced the relevant factors for considering a claimant’s credibility
and then explained his reasons for discounting Willett’s credibility. The ALJ noted that
after applying for benefits, Willett did not seek treatment until shortly before the
administrative hearing.

AR 17. Even then, Willett sought only an evaluation, not

medication or treatment. Id. The ALJ further noted that in contrast to Willett’s claim
that he is unable to work because of anxiety, poor focus, social problems and respiratory
problems, during a consultative examination in 2012 he stated that he was unable to work
because he gets bored doing the same job. AR 17, 301; see Raney v. Barnhart, 396 F.3d
1007, 1011 (8th Cir. 2005) (finding no error when the ALJ to consider “inconsistent
statements to medical professionals” in assessing credibility).
Willett argues that it is error for an ALJ to use a claimant’s failure to seek medical
treatment as a factor in assessing credibility when the impairment involves mental health.
The Eighth Circuit has held that the failure to seek treatment, while not dispositive, may
indicate the relative seriousness of a medical problem. Shannon v. Chater, 54 F.3d 484,
486 (8th Cir. 1995) (finding no error when claimant’s subjective complaints about his
knee pain were not found credible due to a failure to seek medical treatment). However,
the court has also recognized that a mentally ill claimant’s noncompliance with medication
and treatment, or failure to seek treatment, may be a result of the mental impairment.
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See, e.g., Conklin v. Astrue, 360 F. App’x 704, 706 (8th Cir. 2010). Thus, in cases
involving mental impairments, the ALJ must take care not to place too much emphasis
on the claimant’s failure to seek treatment.
Here, I find no error in the ALJ’s analysis. The ALJ relied on several factors –
not just the lack of treatment – in discounting the credibility of Willett’s subjective
complaints. These factors included Willett’s inconsistent statements as to why he could
not work and the fact that the available opinion evidence does not support Willett’s claim
of disabling symptoms. Moreover, the ALJ was not required to ignore the curious timing
and nature of Willett’s decision to seek an evaluation. Willett applied for SSI in July
2012 and did not have an administrative hearing until October 16, 2013. AR 11. During
that nearly 15-month period of time, while allegedly suffering from disabling
impairments, Willett sought no treatment or medication. He instead sought an evaluation
(but not treatment) shortly before the hearing. AR 318-21.
In short, I find that the ALJ appropriately considered the Polaski factors and
provided good reasons for his decision to discredit Willett’s subjective complaints. As
such, there is no basis to disturb the ALJ’s credibility determination. Johnson v. Apfel,
240 F.3d 1145, 1148 (8th Cir. 2001). Willett’s objection to this portion of the R&R is
overruled.
V.

CONCLUSION

For the reasons set forth herein:
1.

Willett’s objections (Doc. No. 17) to the magistrate judge’s report and
recommendation are overruled;

2.

I accept United States Magistrate Judge Williams’ May 13, 2016, report
and recommendation (Doc. No. 16) without modification. See 28 U.S.C.
§ 636(b)(1).

3.

Pursuant to Judge Williams’ recommendation:
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a.

The Commissioner's determination that Willett was not disabled is
affirmed; and

b.

Judgment shall enter against Willett and in favor of the
Commissioner.

IT IS SO ORDERED.
DATED this 2nd day of September, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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