Carman v. Commissioner of Social Security
Filing
16
MEMORANDUM OPINION AND ORDER - The court affirms the decision of the ALJ. Judgment shall be entered in favor of the Commissioner and against claimant. Signed by Magistrate Judge CJ Williams on 8/4/16. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JOHN CARMAN,
Plaintiff,
No. C15-4059-CJW
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER
Defendant.
___________________________
Plaintiff, John Carman (claimant), seeks judicial review of a final decision of the
Commissioner of Social Security (Commissioner) denying claimant’s application for
disability insurance benefits (DIB) and supplemental security income (SSI) under Title II
and XVI of the Social Security Act (Act), 42 U.S.C. §§ 405(g), 423, 1383(c)(3). Plaintiff
contends the administrative record (AR) does not contain substantial evidence to support
the Commissioner’s decision.
For the reasons that follow, the court affirms the
Commissioner’s decision.
I.
BACKGROUND
Claimant was born in 1975, has completed the eleventh grade, and has past work
as a dish washer, car washer, and warehouse manager. AR 47, 48, 64 & 65. Claimant
identifies as a person of transgender status, and has indicated a wish to be addressed by
the name “Joshelyn.”1 AR 617. The court respectfully honors this request and from this
point forth will refer to claimant using only female pronouns.
Claimant filed applications for DIB and SSI on March 20, 2012, alleging a
disability onset date of February 1, 2010. AR 9 & 44. She contends she is disabled due
to the following impairments: degenerative disc of cervical spine; major depressive
disorder, severe without psychotic features; bipolar disorder; and schizoaffective
disorder. Doc. 13, at 4. Her claims were denied on July 23, 2012. AR 133–37.
Claimant requested reconsideration on October 22, 2012, which was denied on
November 5, 2012. AR 145–53. She then requested a hearing before an Administrative
Law Judge (ALJ) on December 10, 2012. AR 154–55. The ALJ conducted a video
hearing on October 16, 2013, at which claimant, her attorney, and a vocational expert
(VE) testified. AR 42–69. On January 3, 2014, the ALJ issued a decision denying
claimant’s claims. AR 18–29. On February 18, 2014, claimant sought review from the
Appeals Council, which denied her request on May 21, 2015. AR 13–14 & 1–5. The
ALJ’s decision, thus, became the final decision of the Commissioner. AR 1; 20 C.F.R.
§ 404.981.
Claimant filed a complaint (Doc. 4) in this court on July 2, 2015, seeking review
of the ALJ’s decision.2 On September 23, 2015, with the consent of the parties (Doc.
12), the Honorable Mark W. Bennett transferred this case to a United States magistrate
judge for final disposition and entry of judgment. The parties have briefed the issues,
and the matter is now fully submitted.
1
In the record, social worker Ivy Clausen spelled claimant’s chosen female name as both
“Joshelyn” and “Joshlyn.” See AR 586–617 & 620–52.
2
Initially claimant alleged Hepatitis C as an impairment, but the ALJ found there was no
supporting medical evidence of it (AR 20–21). The court agrees (see AR 426–30). Furthermore,
claimant has removed Hepatitis C from her list of impairments (see Doc. 13, at 4).
2
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
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. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705, 707–
08 (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. 20 C.F.R. § 404.1572(a). “Gainful” activity is work done
for pay or profit, even if the claimant does not ultimately receive pay or profit. 20 C.F.R.
§ 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 mental impairments.
3
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, coworkers, and usual work situations; and (6) dealing with changes in a routine work
setting.” 20 C.F.R. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert,
482 U.S. 137, 141 (1987).
Third, if the claimant has a severe impairment, then the Commissioner will
determine the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education, and work experience. 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see 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 her past relevant work.
If the claimant can still do her past relevant work then she is considered not 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 her
4
application that was substantial gainful activity and lasted long enough for the claimant
to learn how to do it. 20 C.F.R. § 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 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. 20 C.F.R. §§ 404.1545(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. 20 C.F.R. §§ 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. 20 C.F.R. §§ 416.912(f), 416.920(a)(4)(v). The Commissioner
must show not only that the claimant’s RFC will allow him or her to make the adjustment
to other work, but also 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 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. 20 C.F.R. §§ 404.1545(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).
5
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 March 31, 2015.
2.
The claimant has not engaged in substantial gainful activity since
February 1, 2010, the alleged onset date (20 C.F.R. §§ 404.1571 et
seq., and 416.971 et seq.).
3.
The claimant has the following severe impairments: degenerative
disc of the cervical spine; major depressive disorder, severe without
psychotic features; bipolar disorder; and, schizoaffective disorder
(20 C.F.R. §§ 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 C.F.R. Part 404, Subpart P, Appendix
1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
5.
The claimant has the residual functional capacity to perform a range
of medium work as defined in 20 C.F.R. §§ 404.1567(c) and
416.967(c) in that the claimant could lift and/or carry 50 pounds
occasionally and 25 pounds frequently, stand and/or walk (with
normal breaks) about 6 hours in an 8-hour workday and sit (with
normal breaks) about 6 hours in an 8-hour workday. The claimant
can occasionally climb ladders, ropes or scaffolds, and frequently
balance, stoop, kneel, crouch, crawl and climb ramps and stairs.
The claimant can perform simple tasks that are not performed as
integral part of a team, involving relatively few work place changes;
[s]he can occasionally interact with supervisors and coworkers but
must avoid interaction with the general public.
6.
The claimant is unable to perform any past relevant work (20 C.F.R.
§§ 404.1565 and 416.965).
7.
The claimant was born on March 31, 1975, and was 34 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 C.F.R. §§ 404.1563 and 416.963).
6
8.
The claimant has a limited education and is able to communicate in
English (20 C.F.R. §§ 404.1564 and 416.964).
9.
Transferability of job skills is not an issue in this case because the
claimant’s past relevant work is unskilled (20 C.F.R. §§ 404.1568
and 416.968).
10.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
C.F.R. §§ 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11.
The claimant has not been under a disability, as defined in the Social
Security Act, from February 1, 2010, through the date of this
decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)).
AR 18–29. To render his decision regarding claimant’s RFC, the ALJ relied on the
following opinions in the record: (a) substantial weight was given to the opinions of State
agency medical consultants John May, MD and Jan Hunter, DO; (b) substantial but
partial weight was given to State agency medical consultants Scott Shafer, PhD and
Myrna Tashner, EdD; (c) ALJ found claimant’s community support worker, Julie
Schaap, to be only partially credible. AR 27. From reviewing the record, the court
believes the State agency medical consultants to be nonexamining.3
Here, the court summarizes these opinions as well as the other evidence on the
record.4
Dr. John May, MD
Dr. May is a State agency medical consultant. On July 10, 2012, Dr. May found
claimant was not disabled. AR 93–94. Dr. May determined claimant could lift or carry
3
The court assumes the State agency consultants relied, at least in part, on the consultative
examination by nurse practitioner Amy J. Tegels, APRN. AR 535–40.
4
All of these professionals, with the exception of social worker Ivy Clausen, used male pronouns
in referring to claimant. The court has adjusted these references to reflect a female pronoun.
7
up to 50 pounds, frequently lift 25 pounds, stand for 6 hours in an 8-hour day, sit for 6
hours in an 8-hour day, use a push/pull motion for 6 hours in an 8-hour day, climb stairs
and ramps frequently, climb ladders/ropes/scaffolds occasionally, balance frequently,
stoop (includes bending at waist) frequently, kneel frequently, crouch frequently, and
crawl frequently. Dr. May stated that although claimant asserts involvement in a car
accident at thirteen years of age caused current neck and back pain, the medical evidence
does not support these pain allegations. Dr. May relied on claimant’s cervical spine xray, which showed moderate degenerative disc disease with “endplate spurring and slight
loss of disc space at C6-7 and mild degenerative facet arthrosis at C-4 and C4-5,” and
the finding that claimant’s ROM (range of motion), except for cervical spine, was normal.
Dr. May also noted that claimant’s credibility is eroded due to claimant’s claims of
experiencing pain whenever she bends or twists, yet the ROM showed no problems with
bending and twisting. Dr. May commented that claimant is not on any medication for
either cervical spine pain or headaches. Lastly, Dr. May found that due to claimant’s
mental conditions, claimant does not work well with people or authority figures. The
ALJ gave Dr. May’s medical opinion substantial weight. AR 27.
Jan Hunter, DO
Dr. Hunter is a State agency consultant. On October 31, 2012, Dr. Hunter
determined claimant was not disabled. AR 129. Dr. Hunter found that despite claimant’s
arthritis in her back and mental conditions, she still has good use of her arms, legs, and
hands, manages her own affairs, interacts appropriately, and takes care of her daily needs.
AR 129. Thus, claimant, even with her limitations due to her impairments, would be
capable of performing work similar to her past work as a dishwasher. AR 129. The
ALJ gave Dr. Hunter’s medical opinion substantial weight. AR 27.
8
Scott Shafer, PhD
Scott Shafer, PhD, is a State agency medical consultant. On June 6, 2012, Dr.
Shafer found claimant has a primary, severe impairment of affective disorders and a
secondary, severe impairment of fractures of upper extremities. AR 91. Dr. Shafer
found the presence of “A” and “B” criteria, but not “C” criteria, for 12.03Schizophrenic, Paranoid, and Other Psychotic Disorders and 12.04-Affective Disorders.
AR 91–92. Also, Dr. Shafer found claimant has a “mild” restriction of activities of daily
life, “moderate” difficulty in maintaining social functioning, “moderate” difficulty in
maintaining concentration, persistence or pace, and no periods of repeated
decompensation. AR 91. The ALJ gave Dr. Shafer’s medical opinion substantial but
partial weight. AR 27.
Myrna Tashner, EdD
Myrna Tashner, EdD (doctoral graduate in education) is a State agency medical
consultant. On November 5, 2012, Dr. Tashner found claimant had a primary, severe
impairment of affective disorders and a secondary, severe impairment of DDD (Disorder
of Back-Discogenic and Degenerative). AR 121. Dr. Tashner found the presence of
“A” and “B” criteria, but not “C” criteria, for 7240-DDD and 2960-Affective Disorders.
AR 121. Dr. Tashner also found claimant had a “mild” restriction of activities of daily
life, “moderate” difficulty in maintaining social functioning, “moderate” difficulty in
maintaining concentration, persistence or pace, and no periods of repeated
decompensation. AR 122. The ALJ gave Dr. Tashner’s medical opinion substantial but
partial weight. AR 27.
Julie Schaap
On April 10, 2012, Ms. Schaap, claimant’s community support worker, filled out
a “Function Report-Adult-Third Party.”
AR 274.
Ms. Schaap has an ongoing
relationship with claimant where they communicate at least once a month. Ms. Schaap
9
wrote that claimant performed the following activities: cleans her apartment, grocery
shops, ventures outside daily, spends some time with relatives. AR 274-79. Ms. Schaap
also noted that claimant has no income, cannot lift heavy objects, has difficulty
concentrating, has difficulty sleeping, has trouble controlling emotions, and frequently
gets into fights. AR 274–79. The ALJ assessed Ms. Schaap’s testimony to be based
only on claimant’s subjective complaints, as she never resided with claimant, so she was
only partially credible. AR 27.
Patel Reddy, PA and Dr. Ronald Brinck, MD
Patel Reddy, PA and Dr. Ronald Brinck, MD both are employed at Siouxland
Mental Health Center, and treated claimant from at least June 2011 to February 2012.
AR 446–508 (Physicians’ Assistant Reddy saw claimant on several occasions and the
treatment notes indicate that Dr. Brinck co-signed all of Reddy’s treatment notes). On
July 20, 2011, Reddy and Dr. Brinck prescribed claimant the following medication plan:
Zyprexa 10 mg to be taken in the evenings, Lexapro 10 mg to be taken during the day.
AR 506. On September 12, 2011, the current medication regime was continued with the
addition of a two-month trial of Hydroxyzine 50 mg BID. AR 483. On January 19,
2012, claimant’s medication plan was altered to increase Lexapro to 20 mg and decrease
Hydroxyzine to 25 mg BID, otherwise the plan was unchanged. AR 453. Although
claimant reported the medications were making her tired, she nonetheless said she was
regularly taking her medication. See AR 446–508. Also, Reddy and Dr. Brinck gave
claimant a Global Assessment of Functioning (GAF) score of 46-50 on July 20, 2011, a
subsequent score of 53 on September 12, 2011, and a score of 56 on January 19, 2012.5
5
A GAF score of 41-50 indicates “serious symptoms . . . or any serious impairment in social,
occupational, or school functioning . . . .” Nowling v. Colvin, 813 F.3d 1110, 1124 n. 3 (8th
Cir. 2016) (quoting Pate-Fires v. Astrue, 564 F.3d 935, 937–38 n.1–3 (8th Cir. 2009)). Scores
of 53 and 56 indicate moderate symptoms. Id. The trend noted by the Court of Appeals for the
10
AR 453, 483 & 506. The ALJ did not cite these medical professionals by name, but,
nonetheless, cited their opinions in his decision. AR 25 (citing to Exhibits 2F, 5F, 7F
for the findings that claimant was taking and tolerating her prescribed medications;
claimant’s initial GAF score was 46-50; subsequent scores of 53 and then later 56; topics
of claimant’s individual therapy sessions included dressing as a woman, wanting to be
acknowledged with chosen female name, experiencing improved sleep and other
improvements made through treatment).
Ivy Clausen, LISW
Ivy Clausen is an LISW (licensed independent social worker). Ms. Clausen
conducted therapy sessions with claimant at the Siouxland Mental Health Center. Ms.
Clausen’s first session with claimant was on June 9, 2011, and Ms. Clausen continued to
meet with claimant on a relatively stable, weekly-basis until at least August 2013 (the
record only provides evidence up to this date). AR 620–64. The ALJ did not cite Ms.
Clausen by name in his decision, but again, the ALJ’s decision cited the portions of the
record (Exhibits 2F, 5F, 7F, 11F) which include Ms. Clausen’s therapy session notes.
AR 25.
Siouxland Community Health Center
The record includes claimant’s several visits to the Siouxland Community Health
Center where claimant was treated by an array of medical professionals (Jacobs, ARNP;
Eighth Circuit is that GAF scores only have limited importance. Id. (citing Jones v. Astrue, 619
F.3d 963, 973–74 (8th Cir. 2010) (internal citations omitted) (“Moreover, the Commissioner
has declined to endorse the [GAF] score for use in the Social Security and [Supplemental Security
Income] disability programs and has indicated that [GAF] scores have no direct correlation to
the severity requirements of the mental disorders listings.”)). The court acknowledges that this
is the trend, yet still briefly mentions claimant’s GAF scores in its opinion here as the ALJ’s
decision mentioned such.
11
Heaton, MD; Swanson, MD; Wilkinson, PAC; and Guthmiller, ARNP). On June 22,
2011, claimant was treated by Christopher L. Jacobs, an Advanced Registered Nurse
Practitioner (ARNP) who prescribed claimant Debrox Soln (Carbamide Peroxide Soln)—
10 drops to both ears twice a day for 4 days. AR 440.
On February 14, 2012, claimant was treated by Dr. Julia S. Heaton, MD. AR
433. Siouxland Community Health Center labeled Dr. Heaton as claimant’s “primary
physician” as of April 5, 2012. AR 418. Dr. Heaton removed Debrox Soln from
claimant’s medication plan and added 20 mg of Lexapro (Escitalopram Oxalate) for
mood. AR 418 & 433. Furthermore, Dr. Heaton ordered Hepatitis C testing. Tests
were performed for “Hepatitis B Surface Antigen,” “Hepatitis B Core Antibody,”
“Hepatitis A IGM Antibody,” “Hepatitis C RNA (PCR),” “Hepatitis C Virus Genotype.”
AR 424–30. The tests all reported a result of “NOT DETECTED.” AR 424–30. The
ALJ did not mention Dr. Heaton in his decision but cited Exhibit 4F (Dr. Heaton’s
treatment notes) in his decision as support for his finding that claimant no longer had
hepatitis C as an impairment. AR 20–21.
On November 9, 2012, Dr. Thor D. Swanson, MD, treated claimant for a followup visit and dental pain. AR 685–91. Dr. Swanson entered scripts for the following
medications: Aspirin 81 mg (to protect the heart), Ibuprofen 800mg (for dental pain),
Penicillin V Potassium 500 mg (for dental infection), Pravachol 200 mg (for cholesterol),
Premarin .625 mg (estrogens), and Spironolactone 50 mg (to stop hair growth). AR 689–
90.
On January 14, 2013, claimant was treated by Cliff W. Wilkinson, Physician
Assistant, Certified (PAC), who prescribed claimant Augmentin 875-125 mg (penicillintype antibiotic) for 10 days. AR 684.
12
On March 6, 2013, claimant had a follow-up with Dr. Swanson. AR 680. At the
follow-up visit, Dr. Swanson modified claimant’s medications by adding Provera 2.5mg
daily and increasing Premarin to .9 mg daily. Id.
On July 22, 2013, Cynthia A. Guthmiller, ARNP, saw claimant for a follow-up
visit and small toe pain. AR 672. Guthmiller prescribed Cephalexin 500 mg for 10 days
(for infection). AR 674.
On September 16, 2013, Christopher Jacobs, ARNP, treated claimant on a walkin appointment. AR 668. Claimant reported being ill for one week. AR 669. Jacobs
prescribed Zithromax 250 mg (antibiotic). AR 671.
Overall, the AJL cited both Exhibits 4F and 12F in his decision (includes the
treatment notes from the above listed medical professionals at Siouxland Community
Health Center). AR 21, 24 & 25.
Mercy Medical Center in Sioux City
Claimant was treated by both Thomas Benzoni, DO and Joseph Liewer, MD on
separate occasions. First, Dr. Thomas Benzoni, employed at Mercy Medical Center in
Sioux City, treated claimant from July to August in 2009 for complications arising from
a small lesion on claimant’s left knee. AR 380–83. The ALJ did not cite Dr. Benzoni
in his decision, nor did the ALJ reference Exhibit 1F (Dr. Benzoni’s treatment notes).
Also, Dr. Joseph Liewer, employed at Mercy Medical Center in Sioux City, treated
claimant in September of 2009 for a right ankle sprain. AR 359. Dr. Liewer gave
claimant a shot of Torado and prescribed Lortab for discomfort. AR 359. The ALJ did
not cite Dr. Liewer in his decision, nor did the ALJ reference Exhibit 1F (Dr. Liewer’s
treatment notes).
13
IV.
SUPPLEMENTAL EVIDENCE SUBMITTED ON APPEAL
Claimant attached two post-hearing exhibits to her appeal (Exhibits 20E & 21E).
The court now examines this supplemental evidence.
A. Exhibit 20E: Brief and Argument
Here, claimant, through her attorney, argues the ALJ did not weigh the evidence
correctly in determining that claimant only had mild restrictions of daily activity,
moderate difficulties in social functioning, and moderate difficulties in concentration,
persistence, and pace. AR 9. Also, claimant argues the ALJ erred in finding claimant
did not take all of her medication regularly. AR 9. Claimant explains she cannot afford
the pain medication prescribed by Siouxland Community Health Center. Id.6 Also,
claimant alleges the ALJ erred in relying on an inaccurate hypothetical question to the
VE. AR 10. Lastly, claimant asserts the ALJ did not properly weigh the medical records
in Exhibits 2F and 3F (from Siouxland Mental Health Center). AR 11.
B. Exhibit 21E: Affidavit of John A. Carman
Claimant claims the ALJ was in “complete error” to find she did not take her
medication. AR 12. Further, she claims she takes her medication from Siouxland Mental
Health Center as it is provided to her for free, but she does not take the pain medication
for her back and neck from Siouxland Community Health Center because she cannot
6
The court is perplexed by claimant’s argument. After extensively reviewing all of claimant’s
medical records, the court notes that Dr. Thor D. Swanson, on 11/09/2012 at 1:58PM removed
the prescription script for “Gabapentin 300 mg caps . . . for neck pain, chronic pain, sleep.”
AR 688–91. Furthermore, the court found no other active script for pain medication prescribed
by any of the five treating sources at Siouxland Community Health Center or anywhere else.
Thus the claim made in February 2014, that claimant cannot afford her pain medication, is moot
as the record shows no active script for such medication since November 2012.
14
afford it. AR 12. There must be some confusion present here because the ALJ’s decision
held exactly what claimant is alleging to be true in her affidavit (that claimant regularly
takes her medication prescribed by Siouxland Mental Health Center, but did not take her
pain medication prescribed by Siouxland Community Health Center due to her inability
to afford it).
Specifically, the ALJ noted that claimant claimed she did not take
Gabapentin for her neck and back pain due to its cost, and that such prescription was
removed from claimant’s prescription plan in November 2012. AR 24–25; see supra
note 6. The court’s own review of the record fully supports this finding. Further, the
ALJ noted that claimant was taking medication prescribed by Siouxland Mental Health
Center “as prescribed” and was showing “continued improvement.” AR 25.
V.
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 Court of Appeals 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) (internal quotation omitted).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but we do not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (internal citation
15
omitted). The court considers both evidence which supports the Commissioner’s decision
and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir.
2010).
The court must “search the record for evidence contradicting the
[Commissioner’s] decision and give that evidence appropriate weight when determining
whether the overall evidence in support is substantial.” Baldwin v. Barnhart, 349 F.3d
549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (internal citation omitted) (“[A]n administrative decision is not subject to
reversal simply because some evidence may support the opposite conclusion.”).
16
VI.
DISCUSSION
Ultimately, the court finds the ALJ did not legally err and his decision was
supported by substantial evidence considering the record as a whole. The court now
turns to address claimant’s specific objections about the ALJ’s decision. Namely, the
claimant asserts the following two claims: (1) “[t]he ALJ made improper credibility
findings as to the mental health problems of Claimants [sic],” and (2) “[t]he ALJ asked
incomplete hypothetical question to the VE resulting in an incorrect finding that Claimant
could work.” Doc. 13, at 6.
A. Substantial Evidence Supported ALJ’s Finding That Claimant Was Less
Than Fully Credible
Claimant argues the ALJ failed to make a correct credibility determination in
regard to her subjective mental health complaints. Also, claimant argues the ALJ relied
too heavily on the State agency’s doctors rather than on treating physicians’ and medical
providers’ notes and cites Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990), for the
proposition that an ALJ may not substitute his own judgment over that of the physicians
in the guise of a credibility finding. Doc. 13, at 8. Lastly, claimant also argues that the
ALJ erred in finding that she did not take all of her medication on a regular basis and
claimant cites to her supplemental affidavit (AR 12). Id. at 9.
The court finds the ALJ correctly considered the relevant Polaski factors in
determining claimant’s credibility. Under the Polaski factors, an ALJ must consider the
“claimant’s prior work record, and observations by third parties and treating and
examining physicians relating to such matters as: (1) claimant’s daily activities; (2)
duration, frequency and intensity of the pain; (3) precipitating and aggravating factors;
(4) dosage, effectiveness and side effects of medication; and (5) functional restrictions.”
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). In Lowe, the Eighth Circuit
17
Court of Appeals stated, “[t]he ALJ was not required to discuss methodically each Polaski
consideration, so long as he acknowledged and examined those considerations before
discounting [claimant’s] subjective complaints.” Lowe v. Apfel, 226 F.3d 969, 972 (8th
Cir. 2000) (internal citation omitted). If the ALJ gives a good reason for discrediting a
claimant’s credibility, then the court will defer to the ALJ’s judgment “even if every
factor is not discussed in depth.” Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir.
2001).
The court also notes that “[a]lthough the ALJ may disbelieve a claimant’s
allegations of pain, credibility determinations must be supported by substantial evidence.”
Jeffery v. Sec’y of Health & Human Servs., 849 F.2d 1129, 1132 (8th Cir. 1988) (internal
citation omitted). “Moreover, the ALJ must make express credibility determinations and
set forth the inconsistencies in the record that lead him to reject the claimant’s
complaints.” Id. “Where objective evidence does not fully support the degree of severity
in a claimant’s subjective complaints of pain, the ALJ must consider all evidence relevant
to those complaints.” Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001)
(internal citation omitted). In evaluating a claimant’s subjective complaints of pain, an
ALJ may rely on a combination of his personal observations and a review of the record
to reject such complaints. Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008). However,
the ALJ may not solely rely on his personal observations to reject such claims. Id. Thus,
“[s]ubjective complaints can be discounted [by the ALJ], however, where inconsistencies
appear in the record as a whole.” Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir.
2003) (citing Polaski).
In plaintiff’s brief (Doc. 13), claimant alleges the ALJ erred in finding she had
mild restrictions in daily living, moderate difficulties in social functioning, and moderate
difficulties in concentration, persistence, and pace. Doc. 13, at 8. Specifically, claimant
argues she testified that: she cannot leave her apartment for two to three days out of the
18
week at least three times a month; experiences pain while sitting, standing, and lying
down; is unable to control her anger and emotions (which is supported by community
social worker’s testimony); is unable to get along with others; has major depressive
disorder, schizoaffective disorder, bipolar disorder and gender disorder; and has an
impaired ability to concentrate and follow instructions. Doc. 13, at 7–8, see also AR
49–63.
Here, the ALJ first determined “claimant’s history of gonorrhea, methicillinresistant staphylococcus aureus infection, alcohol and drug abuse, in reported remission
and gender identity disorder are not severe.” AR 21. The court finds Exhibits 4F, 8F
(medical tests showing claimant’s ROM is normal), and 9F support this finding.
Then the ALJ determined the claimant had mild restrictions in her daily living
activities. AR 22. The ALJ stated that claimant is “able to perform personal care,
dishes, sweeping, cleaning and laundry. The claimant buys food items and can feed
[her]self.” AR 22. On claimant’s Function Report, claimant answered that she prepares
her own meals, washes dishes, mops her floors, sweeps, cleans, launders clothes, shops
for groceries and personal items, ventures outside twice a day, and visits the library,
convenience stores, and the mental health center on a regular basis. AR 287–88.
The ALJ also determined that claimant had moderate difficulties in social
functioning. AR 22. The ALJ’s decision reads: “[t]he evidence of record documents
some occasional fluctuations in mood episodes and less paranoia. The claimant reports
that [s]he does not get along well with authority figures; however, [her] providers
describe [her] behavior as cooperative and pleasant with good eye contact (exhibits 7F
and 1l F).” AR 22. Ultimately, the ALJ found that claimant “can occasionally interact
with supervisors and coworkers but must avoid interaction with the general public.” AR
23. Claimant testified at the hearing that “I do not socialize with people because I get
mad real easy, and my temper flies.” AR 49. Yet, social worker Ivy Clausen’s therapy
19
session notes describe claimant as being neatly groomed, casually dressed, exhibiting
cooperative behavior, and maintaining good eye contact during sessions. AR 620–53.7
In these sessions, claimant admitted to feeling comfortable in her weekly support group.
AR 529. Furthermore, claimant testified to her friendship with Vicki. AR 603.
Regarding concentration, persistence, or pace, the ALJ found claimant had
moderate difficulties. AR 22. The ALJ found that “[a]lthough the claimant alleges issues
with concentration and handling stress and changes in routine, [s]he is able to use public
transportation, shop for groceries and pay [her] bills. [She]reports that [s]he finishes
what [s]he starts and has no problems with following written and spoken instructions
(exhibit 7E).” AR 22. Further, the ALJ notes that “[i]n treatment records, the claimant
describes [her] concentration as fair.
[Her] mental health providers note some
complaints of weird thoughts in [her] mind and paranoia that are improved with
medication (exhibits 7F, 1OF and 1l F), which could cause some problems with sustained
attention with complex instructions.” AR 22. Ultimately, the ALJ determined claimant
can perform simple tasks. AR 23. Julie Schaap, claimant’s community support worker,
stated: “John is unable to concentrate + has difficulty controlling [her] emotions.” AR
274. The ALJ determined Ms. Schaap based her testimony only on claimant’s subjective
complaints, as Ms. Schaap has not resided with claimant at any point, thus, Ms. Schaap’s
testimony was only partially credible. AR 27. Therapy session notes taken by Ms.
Clausen indicate that claimant testified to her concentration being fair. See AR 446–96
7
Ms. Clausen, LISW, is not an “acceptable medical source” under the Social Security
Administration’s regulations. 20 C.F.R. § 404.1513(a). But, the regulations state “[i]n addition
to evidence from the acceptable medical sources listed in paragraph (a) of this section, we may
also use evidence from other sources to show the severity of your impairment(s) and how it
affects your ability to work. Other sources include . . . [p]ublic and private social welfare
agency personnel.” 20 C.F.R. § 404.1513(d)(3). Thus, the ALJ may consider Ms. Clausen’s
session notes.
20
& 620–664 (session notes from June 2011 to August 2013). Also on the Function Report,
claimant wrote that she has “no problem” following written instruction, has “no problem”
following verbal instruction, can pay attention for “10 minutes,” and finishes things (e.g.,
a conversation) that she starts. AR 290.
From the court’s best understanding of plaintiff’s brief (Doc. 13), claimant is only
appealing the ALJ’s credibility determination regarding her mental impairments. Yet,
claimant also briefly mentions her alleged pain and physical limitations stemming from a
childhood car accident. Doc. 13, at 7. Despite claimant’s assertion that she suffers
constant neck and back pain, the State agency consultant—Dr. May—found such claims
of subjective pain unsubstantiated from claimant’s spinal x-ray and claimant’s, relatively
normal, ROM testing results. AR 93–94. The ALJ properly found the medical evidence
in the record supported a finding that claimant had both normal alignment and mobility
of her head, spine, ribs, neck, upper extremities, and pelvis. AR 24.
Within claimant’s credibility argument, she asserts the ALJ relied too heavily on
the State agency’s doctors rather than on treating physicians’ and medical providers’
notes. Doc. 13, at 9. Claimant cites Ness v. Sullivan, 904 F.2d at 435 as support that
an ALJ may not substitute his own judgment over that of the physicians in the guise of a
credibility finding. Doc. 13, at 8. The court finds claimant’s reliance on the Ness case
misplaced. In Ness, the ALJ ignored a treating source’s opinion regarding the dangers
associated with the claimant’s combined impairments of depression and heart problems,
and concluded from his personal observation, at the hearing, that claimant appeared
healthy. Ness, 904 F.2d at 435. Such is not the case here. The ALJ did not substitute
his own judgment over those of a treating source; rather, the ALJ only relied on the
medical evidence present on the record and did not rely solely on his personal
observations from the hearing. Thus, the court agrees with the Commissioner that
claimant fails “to point out exactly” how the ALJ erred and that there “is absolutely no
21
indication that he [the ALJ] relied more on their [State agency consultants] opinions rather
than those of the treating providers.” Doc. 14, at 9. A treating source is “defined as a
‘physician, psychologist, or other acceptable medical source’ who treats the claimant.”
Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (citing 20 C.F.R. §§ 404.1502,
416.902). Ideally, the ALJ should have identified and listed the treating sources in his
decision. The ALJ, at least, did reference the relevant treating medical sources (by
exhibit numbers) in his decision. From the court’s own review of the record, the court
believes the claimant’s treating sources include: Dr. Ronald Brinck, MD (from the
Siouxland Mental Health Center), Dr. Julia S. Heaton, MD (Siouxland Community
Health Center), Dr. Thor D. Swanson (Siouxland Community Health Center), Dr. Joseph
Liewer, MD (Mercy Medical Center), and Dr. Thomas Benzoni, DO (Mercy Medical
Center). See 20 C.F.R. § 404.1513 (defining acceptable medical source). Some of these
treating sources had brief treatment encounters with claimant while others had much
lengthier treatment relationships with claimant. The ALJ cited Dr. Brinck (Exhibits
5F/10F), Dr. Heaton (Exhibit 4F), and Dr. Swanson (Exhibit 12F) in his decision. See
AR 21–26. The court notes that the ALJ did not directly cite to Dr. Liewer and Dr.
Benzoni—treated claimant in 2009 for an ankle sprain and knee lesion—(Exhibit 1F) in
his decision. Even with such omission (which does not, in fact, imply the ALJ failed to
review and consider the opinions of Dr. Liewer and Dr. Benzoni), the court concludes
from its extensive review of the record that the weight of the medical evidence is
consistent, and the ALJ’s credibility determination is supported by substantial evidence.
Lastly, claimant asserts the ALJ erred in finding she does not regularly take all of
her medication. Claimant asserts in her post-hearing brief (AR 9–11) and affidavit (AR
12) that she regularly takes her medication prescribed by Siouxland Mental Health Center
as it is free, but cannot afford (and so does not take) her pain medication prescribed by
Siouxland Community Health Center. See supra Section IV(A, B) (discussing claimant’s
22
post-hearing brief and affidavit). The court finds claimant’s argument meritless. What
the claimant alleges as true is exactly what the ALJ found. AR 24–25. The ALJ wrote
in his decision:
Ongoing treatment records show that it was not until June 28, 2012, when
the claimant presented to [her] provider with complaints of neck pain and
was prescribed Gabapentin. However, when seen in follow-up on August
22, 2012, [s]he reported that [s]he had not been taking Gabapentin for [her]
neck pain because [s]he could not afford it at the time. There were no
new pain complaints . . . . On November 9, 2012, medication for neck
pain was removed from the claimant's medication list (exhibit 12F). The
claimant alleges that [s]he is also disabled by mental impairments, but the
evidence supports a conclusion that the claimant has shown some
improvement with medication and that [her] moods have reportedly
stabilized (exhibits 2F-3F, 5F, 7Fand l0F-1 l F) . . . .
Treatment
records show that the claimant followed medication management [ f o r
m e n t a l i m p a i r m e n t s ] . . . . At a medication visit on January 19, 2012,
the claimant replied that [s]he was taking [her] medication as prescribed .
. . . The evidence shows that the claimant has continued to be compliant
with attending therapy and medication checks on a regular basis.
Id. Thus, the ALJ did, indeed, determine that claimant complied with her prescribed
medication plan from Siouxland Mental Health Center, and that claimant did not take her
pain medication (Gabapentin) prescribed by Siouxland Community Health Center due to
her inability to afford it. The court agrees with the Commissioner. Doc. 14, at 8
(“Inexplicably, plaintiff argues that the ALJ erred in finding that she did not take all of
her medications on a regular basis . . . plaintiff fails to cite where the ALJ made such a
statement in his decision.”). An impairment that can be controlled by medication or
treatment is not a disabling impairment. Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir.
2004) (quoting Roth v. Shalala, 45 F.3d 279, 282 (8th Cir.1995)). Also the “[f]ailure to
follow a prescribed course of remedial treatment without good reason is grounds for
denying an application for benefits.” Brown, 390 F.3d at 540 (quoting Roth, 45 F.3d at
23
282). A court may find a claimant’s inability to afford his or her prescribed medication
may be a justifiable excuse, and thus, would not bar a finding of disability. See Brown,
390 F.3d at 540 (quoting Tome v. Schweiker, 724 F.2d 711, 714 (8th Cir. 1984)) (“This
court has held that ‘a lack of sufficient financial resources to follow prescribed treatment
to remedy a disabling impairment may be…an independent basis for finding justifiable
cause for noncompliance [with prescribed treatment].’”). Yet, such is not the case here.
See supra note 6 (explaining the court has searched the record and found no active
prescription script for pain medication since the script for Gabapentin was removed in
November 2012 by Dr. Swanson, AR 688-91). Claimant’s argument now that she cannot
afford her pain medication is moot given that she has not had an active script for such
medication since late 2012.
From the court’s review, the ALJ properly assessed claimant’s credibility using
the Polaski factors. Overall, the court finds that the ALJ’s credibility determination that
claimant is less than fully credible is supported by the evidence on the record as a whole.
B. The ALJ’s Hypothetical Question to the VE
The VE found that an individual with claimant’s age, education, work experience,
and RFC could perform the jobs of (1) janitor, (2) warehouse worker, and (3) hand
packer. AR 28. Claimant argues that the ALJ erred in relying on the VE’s response to
an incomplete hypothetical question. Doc. 13, at 10.
The ALJ asked the following hypothetical question:
Assume an individual the claimant’s age, education, training and work
history who can perform a medium range of work, as that term is defined
under the regulations. Can occasionally climb ladders, ropes and
scaffolds. Can frequently balance, stoop, kneel, crouch, crawl and climb
ramps and stairs. This person can perform simple tasks that are not
performed as an integral part of a team and which involves relatively few
work place changes. [She] can occasionally interact with supervisors and
24
coworkers, but must avoid interaction with the general public. Could this
person perform any of the claimant’s past work? . . . If a person, because
of mental health symptoms, isolates to the point that they don’t even go
into work on a particular day, how many days can they miss before there
are no jobs? [VE answered up to two days a month] . . . . What if intrusive
thoughts, whether they’re hallucinations or otherwise, occurred during the
workday to the point where the person’s not concentrating on the task they
are hired to perform? How much off task time will be tolerated before
there are no jobs? [VE answered up to ten percent] . . . . Are these people
allowed or these employees allowed to take unscheduled breaks to deal
with mental health symptoms? [VE answered no] . . . . And you said
basically they could be off task up to ten percent, but if they’re off task
more than that, then they’re not able to keep that type of job? [VE
answered yes] . . . . And for example, with the janitorial job, you’d have
certain tasks that would be expected to be completed within a certain time
frame? [VE answered yes]
AR 64–67. Claimant asserts that the hypothetical question did not accurately describe
the restrictions of her mental impairments. Doc. 13, at 10. Claimant argues “the ALJ
ignored the mental health conditions [in his hypothetical] and only put restriction upon
[her] in dealing with the general public, not with staying on task and not with work
attendance.” Doc. 13, at 12. Basically, claimant asserts that given her history of not
leaving her apartment for numerous days per month, and her bouts of severe depression
and hallucinations, she cannot perform the jobs of janitor, warehouse worker, and hand
packer. In other words, claimant argues that she will need to miss more than 2 days a
month of work and that she cannot stay on task for 90% of the workday.
As the Eighth Circuit Court of Appeals succinctly stated in Hillier v. Social
Security Administration,
Testimony based on hypothetical questions that do not encompass all
relevant impairments cannot constitute substantial evidence to support the
ALJ’s decision.” Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)
(quotation omitted).
Hypothetical questions should “set[ ] forth
impairments supported by substantial evidence [on] the record and accepted
25
as true,” Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005) (quotation
omitted), and “capture the ‘concrete consequences’ of those impairments,”
Lacroix, 465 F.3d at 889 (quoting Roe v. Chater, 92 F.3d 672, 676–77 (8th
Cir. 1996)).
Hillier v. Soc. Sec. Admin., 486 F.3d 359, 365 (8th Cir. 2007). Also, the ALJ’s
hypothetical question to the VE “needs to include only those impairments that the ALJ
finds are substantially supported by the record as a whole.” Renstrom v. Astrue, 680
F.3d 1057, 1067 (8th Cir. 2012) (internal quotation and citation omitted). In other words,
the ALJ is “not obligated to include limitations [in the hypothetical question] from
opinions he properly disregarded.” Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir.
2010) (internal citation omitted). See also Pearsall v. Massanari, 274 F.3d 1211, 1220
(8th Cir. 2001) (internal citation omitted) (“The ALJ’s hypothetical properly included all
impairments that were accepted by the ALJ as true and excluded other alleged
impairments that the ALJ had reason to discredit.”).
Through careful review of the record, the court finds the ALJ properly included
only those impairments of claimant that he found to be supported by substantial evidence
on the record as a whole. See supra Section V(A) (discussing the court’s finding that the
ALJ’s credibility determination was supported by the weight of the medical evidence and
also finding that the evidence on the record supported the ALJ’s finding that claimant had
mild restrictions in daily life, moderate difficulties in social functioning, and moderate
difficulties in concentration, persistence and pace). The record supports the ALJ’s
finding that claimant could miss only up to two days a month and that she could
concentrate for at least 90% of the workday.
See Exhibits 2F, 3F, 7F (showing
improvements in claimant’s mood through regularly taken prescription medication);
Exhibit 5F (claimant describing her concentration as being “fair”); Exhibit 10F (claimant
receives an increased GAF score of 56, which is indicative of only moderate symptoms);
26
Exhibit 11F (recent therapy session notes report claimant as having good concentration,
pleasant mood, no hallucinations or delusions, no sleep problems, taking medication as
prescribed). Thus, the ALJ’s hypothetical question to the VE was proper. And the ALJ’s
reliance on the VE’s response to the hypothetical question was proper also.
VII. CONCLUSION
The court sympathizes with claimant for the hardships and difficulties associated
with being a person of transgender status. Yet, the court’s task is to act in a deferential
capacity and to affirm the ALJ’s decision if such decision is supported by substantial
evidence on the record as a whole. After a thorough review of the entire record, the
court concludes that the ALJ’s decision to deny claimant’s disability benefits is indeed
supported by such evidence. Accordingly, the court affirms the decision of the ALJ.
Judgment shall be entered in favor of the Commissioner and against claimant.
IT IS SO ORDERED this 4th day of August, 2016.
__________________________________
C.J. Williams
United States Magistrate Judge
Northern District of Iowa
27
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?