Ricard v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER Accepting 14 Report and Recommendation without modification. The Commissioner's determination that Ricard was not disabled is affirmed, and Judgment shall enter against Ricard and in favor or the Commissioner. Signed by Judge Leonard T Strand on 9/15/2016. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
KARI SUE RICARD,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
MEMORADUM OPINION AND
ORDER ON REPORT AND
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. 14. Judge Williams
recommends that I affirm the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Kari Sue Ricard’s 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).
Ricard has filed timely objections (Doc. No. 15) 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.
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.
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.”
Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.
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.”).
Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following
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
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.,
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).
Judge Williams noted that Ricard alleged disability due to a brain injury suffered
on August 18, 2007, and resultant depression, balance issues, emotional problems,
memory loss, loss of taste and smell, arm and leg weakness and tiredness. Doc. No. 14
at 1-2. He then reviewed the ALJ's evaluation of the medical evidence – including the
opinion of John Meyers, Psy. D. - and the hypothetical question posed to the vocational
expert (VE). Judge Williams discussed Dr. Meyers’ opinion as follows:
On March 18, 2009, Dr. Meyers completed a neurological
assessment where he found that claimant's general attention, concentration,
and working memory were average and within normal functioning limits.
AR 329. Dr. Meyers further found that claimant's cognitive processing
speed and mental flexibility were average and within normal functioning
limits. AR 329. He further found that claimant's overall verbal reasoning
was low average, but also generally within normal functioning limits. AR
329. Further, he found claimant's overall verbal reasoning was within
normal functioning limits, while her visual reasoning skills were mildly
impaired. AR 329.
Dr. Meyers also found that claimant's ability to understand,
remember, and carry out very short and simple, as well as detailed,
instructions was within normal limits. AR 329. Dr. Meyers found
claimant's ability to maintain attention and concentration for extended
periods were normal, but her ability to perform activities within a schedule,
maintain regular attendance, and sustain an ordinary routine without special
supervision was mildly impaired. AR 328-330. Dr. Meyers further opined
that claimant's ability to make simple, work-related decisions, interact
appropriately with the general public, accept instructions, and respond
appropriately to criticism from supervisors were mildly to moderately
impaired. AR 330. Dr. Meyers also opined that claimant's ability to
maintain socially appropriate behavior and adhere to basic standards of
behavior were mildly impaired. AR 330. Finally, Dr. Meyers opined that
claimant's ability to maintain her own schedule and complete a work week,
without undue interruptions from psychologically based symptoms, were
only mildly impaired. AR 330.
Doc. No. 14 at 9-10. Judge Williams found that the ALJ properly evaluated Dr. Meyers’
opinion. Id. at 12-14. He explained that “although Dr. Meyers indicated claimant had
mild to moderate limitations in various areas of cognitive functioning, he did not assess
any specific, work-related restrictions. These opinions of Dr. Meyers are suggestions to
claimant on how to cope; they are not work-related limitations.” Id. at 11.
Williams also found that although the ALJ did not specifically state the weight she
afforded to Dr. Meyers’ opinion, it was clear from the record that she properly considered
the opinion. Id. at 12. Finally, Judge Williams found that the ALJ appropriately
considered the record as a whole and that substantial evidence supported her decision that
Ricard was not disabled. Id.
With regard to the hypothetical questions posed to the VE, Judge Williams found
that they accurately reflected Ricard’s limitations. Doc. No. 14 at 9. Judge Williams
correctly noted that “[h]ypothetical questions need only include those impairments and
limitations the record supports.” Id. (citing Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2015); Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999); Cruze v.
Chater, 85 F.3d 1320, 1323 (8th Cir. 1996)). Judge Williams also found that the VE’s
testimony provided substantial evidence that Ricard could perform other work existing in
significant numbers in the national economy. Id.
Ricard objects to Judge Williams’ findings (1) that the ALJ properly evaluated Dr.
Meyers’ opinion and (2) that the ALJ posed proper hypothetical questions to the VE. I
will review these issues de novo.
Evaluation of Dr. Meyers’ Opinion
Ricard argues that the ALJ improperly substituted her opinion for Dr. Meyers’.
Ricard argues that the ALJ's RFC and hypothetical question to the VE should have
included Dr. Meyers’ alleged findings that Ricard would have to (1) write notes to
herself, (2) maintain a memory book for organization, (3) develop patterns and routines,
(4) reduce sensitivity or overload by avoiding crowds and (5) take short naps in the early
afternoon. AR 330. Ricard argues that although not explicitly stated as being such, these
are all restrictions as to what she can do in a work setting.
Consideration of Medical Opinion Evidence
The Social Security regulations state, in relevant part:
Treatment relationship. Generally, we give more weight to opinions
from your treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your
medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone
or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating source's
opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your
case record, we will give it controlling weight. When we do not give the
treating source's opinion controlling weight, we apply the factors listed in
paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in
paragraphs (c)(3) through (c)(6) of this section in determining the weight to
give the opinion. We will always give good reasons in our notice of
determination or decision for the weight we give your treating source's
20 C.F.R. § 416.927(c)(2) [emphasis added]. Thus, a treating physician's opinion is
generally given controlling weight, but is not inherently entitled to it.
Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). 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). But that opinion will be given controlling
weight if it is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the case record.
Hacker, 459 F.3d at 937.
When a treating physician’s opinion is entitled to controlling weight, the ALJ must
defer to the physician's medical opinions about the nature and severity of an applicant's
impairments, including symptoms, diagnosis and prognosis, what an applicant is capable
of doing despite the impairment, and the resulting restrictions.
20 C.F.R. §
416.927(a)(2); Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005). The ALJ must
“always give good reasons” for the weight given to a treating physician's evaluation. 20
C.F.R § 416.927(c)(2); see also Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007).
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, 392 F.3d at 994.
“In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with ‘the rest of the relevant evidence’ in the record.” Wagner, 499 F.3d at 848
(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).
“Some medical evidence ‘must support the determination of the claimant’s RFC, and the
ALJ should obtain medical evidence that addresses the claimant’s ability to function in
the workplace.’” Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (quoting
Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). “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.
The ALJ's reasoning
The ALJ noted that Dr. Meyers performed neurological testing in March 2009 that
“showed some cognitive limitations in the setting of significant emotional distress, but
overall the claimant achieved a full scale IQ of 91, which fell in the average range.” AR
18. The ALJ also noted that Ricard was seen for follow-up, and to discuss her test
results, on March 18, 2009. Id. The ALJ explained that during this visit, Ricard reported
that her tinnitus, dizziness and headaches had improved. Id. (referring to AR 323). The
ALJ further noted that Dr. Meyers found that Ricard displayed good attention and
concentration on testing and that while her verbal memory was good, her visual memory
was impaired. Id. (referring to AR 323). After summarizing the subsequent medical
evidence, the ALJ found that Ricard’s condition had “significantly improved” since 2009,
noting that “there is no evidence of any ongoing office visits or treatment for symptoms
relating to the claimant’s closed head injury.” AR 19.
Based on my de novo review of the record, I find the ALJ properly weighed the
opinion of Dr. Meyers and did not simply substitute her own opinion. Ricard argues that
the statements in the “Behavioral Recommendations” section of Dr. Meyers’ report
should be treated as work-related limitations. I disagree. Dr. Meyers wrote the following
introduction to his list of recommendations: “Adapting to cognitive impairments can help
reduce frustrations, the following recommendations may be helpful.” AR 330. Among
the 13 recommendations were “When feeling anger, do some exercises,” “At night, take
some quiet time to ‘process’ the day,” and “Learn relaxation skills.” Id. It is obvious,
from both Dr. Meyers’ introductory statement and the contents of the list, that the
recommendations are not work restrictions. Instead, to quote Dr. Meyers, they are
suggestions to “help reduce frustrations” caused by Ricard’s cognitive impairments. The
ALJ did not err in failing to adopt Dr. Meyers’ “Behavioral Recommendations” as work
This conclusion is bolstered by the fact that Dr. Meyers’ report did not indicate
significant limitations. Dr. Meyers found that Ricard’s cognitive processing speed and
mental flexibility were average and within normal functioning limits. AR 329. He also
found that Ricard’s overall verbal reasoning was low average, but also generally within
normal functioning limits. Id. Ricard’s overall verbal reasoning was within normal
functioning limits, while her visual reasoning skills were mildly impaired. Id. Dr.
Meyers opined that Ricard’s ability to understand, remember and carry out very short
and simple, as well as detailed, instructions was within normal limits. Id. Her ability to
maintain attention and concentration for extended periods was normal, but her ability to
perform activities within a schedule, maintain regular attendance, and sustain an ordinary
routine without special supervision was mildly impaired. AR 328-30.
Dr. Meyers also found that Ricard’s ability to make simple work-related decisions,
interact appropriately with the general public, accept instructions, and respond
appropriately to criticism from supervisors was mildly to moderately impaired. AR 330.
He opined that Ricard’s ability to maintain socially-appropriate behavior and adhere to
basic standards of behavior was mildly impaired. Id. Finally, Dr. Meyers opined that
Ricard’s ability to maintain her own schedule and complete a work week without undue
interruptions from psychologically based symptoms was mildly impaired. Id. These
findings show, at most, mild to moderate impairments as to some cognitive functions.
They are not consistent with Ricard’s argument that Dr. Meyers’ “Behavior
Recommendations” were intended to serve as work restrictions.
Although the ALJ did not state the precise weight she afforded to Dr. Meyers’
opinion, I agree with Judge Williams that it is clear the ALJ did, in fact, consider the
opinion. See Black v. Apfel, 143 F.3d 383, 385-86 (8th Cir. 1998) (finding an ALJ's
specific references to a treating source opinion is sufficient to show the opinion was
considered). Moreover, the ALJ's RFC is consistent with Dr. Meyers’ findings. The
ALJ found that Ricard retained the RFC to complete simple three-to-four step tasks on a
sustained basis. AR 17. This is consistent with Dr. Meyers’ finding that Ricard’s
attention and working memory were in the high average range while her cognitive
processing speed and mental flexibility were average. AR 326. I find no error in the
ALJ’s evaluation of Dr. Meyers’ opinion.
In addition, I find that the ALJ’s RFC findings are supported by substantial
evidence. Twila L. Preston, Ph.D., performed a consultative psychological exam on
February 11, 2008, and found that Ricard was able to (a) sustain concentration and
attention to complete tasks, (b) understand and remember short and simple instructions
and (c) carry out short and simple instructions under ordinary supervision. AR 296. Dr.
Preston stated “clearly her memory is not a problem.” Id. Jennifer Wigton, Ph.D., a
state agency psychological consultant, reviewed the medical evidence and found that
Ricard had only mild difficulties in maintaining concentration, persistence or pace. AR
60. Dr. Wigton found that Ricard was not significantly limited with regard to maintaining
attention and concentration for extended periods, performing activities within a schedule,
maintaining regular attendance or making simple work-related decisions. AR 64.
Based on my de novo review of the record, I agree with Judge Williams that the
ALJ properly evaluated Dr. Meyers’ opinion and formulated an RFC that is supported
by substantial evidence. Ricard’s objection to this portion of the R&R is overruled.
The Hypothetical Questions
“A VE’s testimony constitutes substantial evidence when it is based on a
hypothetical that accounts for all of the claimant’s proven impairments.” Hulsey v.
Astrue, 622 F.3d 917, 922 (8th Cir. 2010) (citing Grissom v. Barnhart, 416 F.3d 834,
837 (8th Cir. 2005)). The hypothetical question must include “those impairments that
the ALJ finds are substantially supported by the record as a whole.” Pickney v. Chater,
96 F.3d 294, 296 (8th Cir. 1996). “[A]n ALJ may omit alleged impairments from a
hypothetical question posed to a vocational expert when ‘[t]here is no medical evidence
that those conditions impose any restrictions on [the claimant’s] functional capabilities.’”
Owen v. Astrue, 551 F.3d 792, 801-02 (8th Cir. 2008) (quoting Haynes v. Shalala, 26
F.3d 812, 815 (8th Cir. 1994)). Thus, an ALJ’s hypothetical question to the VE is proper
if it includes all the limitations that are included in a proper RFC assessment. Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006).
Ricard argues that the ALJ's hypothetical questions to the VE were improper
because they did not include the limitations suggested by Dr. Meyer. As such, Ricard
contends that the VE’s testimony in response to the hypothetical questions does not
constitute substantial evidence.
Here, the ALJ asked the VE about a hypothetical individual of Ricard’s age,
education and work experience who had limitations consistent with the ALJ’s RFC
findings. AR 48-50. The VE testified that the hypothetical person could perform jobs
such as a photocopy machine operator, sealing and canceling machine operator and
production work soldering. AR 50-51. The ALJ then amended the hypothetical question
to add that the person would need frequent unscheduled breaks and would miss more than
two days of work per month. AR 51. The VE testified that a person with these additional
limitations would not be able to work competitively. Id.
Ricard alleges that the hypothetical questions should have included the alleged
work restrictions imposed by Dr. Meyer. As discussed above, however, Dr. Meyers’
“Behavioral Recommendations” were not work restrictions. As such, the ALJ did not
err in excluding the “Behavioral Recommendations” from either the RFC or the
hypothetical questions to the VE. Instead, I find the hypothetical questions properly
included all limitations that are substantially supported by the record as a whole. Thus,
the VE's testimony in response to those questions constitutes substantial evidence
supporting the ALJ's finding that Ricard was capable of performing other work. See
Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001). Ricard’s objection to this
portion of the R&R is overruled.
For the reasons set forth herein:
Plaintiff Kari Sue Ricard’s objections (Doc. No. 15) to the magistrate
judge’s report and recommendation are overruled;
I accept United States Magistrate Judge C.J. Williams’ May 13, 2016,
report and recommendation (Doc. No. 14) without modification. See 28
U.S.C. § 636(b)(1).
Pursuant to Judge Williams’ recommendation:
The Commissioner's determination that Ricard was not disabled is
Judgment shall enter against Ricard and in favor of the
IT IS SO ORDERED.
DATED this 15th day of September, 2016.
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE
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