Castillo v. Commissioner of Social Security
Filing
20
MEMORANDUM OPINION AND ORDER: Accepting 18 Report and Recommendation without modification: The 19 objections are overruled. The Commissioner's determination that Castillo was not disabled is affirmed. Judgment shall enter against Castillo and in favor of the Commissioner. Signed by Chief Judge Leonard T Strand on 2/14/2019. (mmc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BARBARA LYNN CASTILLO,
No. C17-4072
Plaintiff,
vs.
NANCY A. BERRYHILL, Deputy
Commissioner of Operations, 1
MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION
Defendant.
___________________________
I.
INTRODUCTION
This case is before me on a Report & Recommendation (R&R) by the Honorable
Kelly K.E. Mahoney, Chief United States Magistrate Judge. Doc. No. 18. Judge
Mahoney recommends that I affirm the decision of the Commissioner of Social Security
(the Commissioner) denying plaintiff Barbara Lynn Castillo’s application for
supplemental security income (SSI) benefits under Title XVI of the Social Security Act,
42 U.S.C. §§ 1381, et. seq. (Act). Castillo filed a timely objection on December 26,
2018. Doc. No. 19. The Commissioner has not responded and the deadline for a
response has expired.
1
On March 6, 2018, the Government Accountability Office stated that as of November 17, 2017,
Nancy Berryhill’s status as Acting Commissioner violated the Federal Vacancies Reform Act (5
U.S.C. § 3346(a)(1)), which limits the time a position can be filled by an acting official. As of
that date, therefore, she was not authorized to continue serving using the title of Acting
Commissioner. As of November 17, 2017, Berryhill has been leading the agency from her
position of record, Deputy Commissioner of Operations. For simplicity, I will continue to refer
to the defendant as “the Commissioner” throughout this order.
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 . . . as to any fact,
if supported by substantial evidence, shall be conclusive . . . .”). “Substantial evidence
is less than a preponderance, but enough that a reasonable mind might accept as adequate
to support a conclusion.” Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003). The
Eighth Circuit 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).
To determine 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.” Vester 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) (citation
omitted).
To evaluate 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 (citation
omitted), or “review the factual record de novo.” Roe v. Chater, 92 F.3d 672, 675 (8th
Cir. 1996) (citation omitted). Instead, if, after reviewing the evidence, the court “find[s]
2
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 (citation omitted). The court may not reverse
the Commissioner’s decision “merely because substantial evidence would have supported
an opposite decision.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see also
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative decision is
not subject to reversal simply because some evidence may support the opposite
conclusion.”).
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
3
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 (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).
III.
THE R&R
Castillo applied for SSI on July 31, 2014, alleging an onset date of July 14, 2014,
due to bipolar disorder, back problems, depression, anxiety, arthritis in her spine and
asthma.2 AR 12, 28. After a hearing, an Administrative Law Judge (ALJ) applied the
familiar five-step evaluation and found there were jobs in significant numbers in the
national economy that Castillo could perform based on her residual functional capacity
(RFC) and, therefore, she was not disabled as defined in the Act. AR 19–20. Castillo
argues the ALJ erred in determining that she was not disabled because:
1.
The ALJ failed to properly assess Castillo’s subjective complaints.
2.
The ALJ failed to properly weigh the medical opinions of Dr. Jessica
Luitjohan and Physical Therapist Brian Owens.
3.
The ALJ’s RFC is not supported by medical evidence or substantial
evidence in the record as a whole.
See Doc. No. 13 at 4. Judge Mahoney addressed each argument in her R&R.
2
Castillo originally filed for SSI benefits due only to bipolar disorder and back problems. She
later raised the additional impairments.
4
First, Judge Mahoney found that the ALJ could properly find Castillo’s reported
activities of daily living undermined her subjective complaints. Doc. No. 18 at 5–6. She
noted Castillo experienced pain in her hips and back that “is not constant, but rather
‘comes and goes’” and experiences pain if she sits or walks too long. Id. at 5. Judge
Mahoney also noted that Castillo prepared meals, mowed the lawn, played with her
grandchildren, attended school activities, shopped, performed household chores and
helped her boyfriend with activities. Id. at 6. Judge Mahoney also highlighted other
reasons the ALJ did not fully credit Castillo’s complaints, such as the frequency and
nature of treatments, “the conservative nature” of her mental-health treatments, Castillo’s
contradictory reports to her treatment providers and objective medical evidence. Id. at
7. Judge Mahoney found “[t]he ALJ gave multiple, good reasons for his determination
that Castillo’s statements about her impairments and their limiting effects were not
consistent with other evidence. Accordingly, the ALJ did not err in assessing Castillo’s
subjective complaints.” Id. at 8.
Judge Mahoney next addressed the ALJ’s assessment of medical opinions provided
by Dr. Luitjohan and physical therapist Owens. First, Judge Mahoney stated that the
ALJ discounted Dr. Luitjohan’s limitation on public interaction because it was based on
Castillo’s subjective complaints and Dr. Luitjohan had no first-hand knowledge of
Castillo’s abilities beyond a single clinical interview. Id. at 9. Judge Mahoney found
this was a “proper reason for not accepting this portion of Dr. Luitjohan’s opinion.” Id.
Additionally, Judge Mahoney stated:
The ALJ found Dr. Luitjohan’s other opinions were “generally consistent”
with Castillo’s other mental status examinations. AR 18. Overall, the ALJ
gave Dr. Luitjohan’s opinion “some weight.” Id. As discussed further
below, the ALJ incorporated appropriate mental limitations in determining
Castillo’s RFC, which were supported (at least in part) with Dr. Luitjohan’s
opinion. The ALJ thus gave a good reason for the weight given to Dr.
Luitjohan’s opinion.
Id.
5
As for physical therapist Owens, the ALJ’s reasons for giving limited weight to
his opinion were that Owens was not an acceptable medical source and his opinion was
inconsistent with physical examinations and Castillo’s daily activities. Id. at 10. Judge
Mahoney found these were good reasons:
The ALJ also noted (earlier in his opinion) that Therapist Owens found
“few abnormalities” during his physical examination of Castillo. AR 18
(only finding “tenderness to palpation and slight limitation in range of
motion,” while other records consistently showed normal gait, strength,
muscle tone, and sensation); see (Therapist Owens’s physical examination
notes). An ALJ may discount opinions of a consultative examiner that are
not supported by the physical examination record because “[a]n absence of
clinical findings supports the rejection of [an examiner’s] opinion as to
physical limitations.” Boyd v. Colvin, 831 F.3d 1015, 1020-21 (8th Cir.
2016) (examiner found reduced range of motion and tenderness, but no
issues with gait, muscle strength, or grip strength).
Overall, the ALJ provided good reasons for the weight given to
opinions from the consultative examiners. Even if the evidence could have
been weighed differently, under the deferential standard of review, this
court does not reweigh the evidence presented to the ALJ. Hensley v.
Colvin, 829 F.3d 926, 934 (8th Cir. 2016).
Id. at 10–11.
Finally, Judge Mahoney addressed the evidence supporting the ALJ’s RFC
assessment. She stated:
The ALJ determined Castillo has the physical RFC “to lift and/or carry 50
pounds occasionally and 25 pounds frequently,” and stand, walk, or sit
about six hours in an eight-hour work day with normal breaks. AR 16. This
RFC determination is supported by the opinions of Dr. Shumate (AR 64)
and Dr. Hunter (AR 79-80). The ALJ limited Castillo’s mental RFC “to
performing simple, routine, and repetitive tasks and . . . only occasional
interaction with the public and coworkers.” AR 16. This determination is
supported, at least partially, by Dr. Luitjohan’s opinion (which found
“some” issues with Castillo’s ability to maintain attention/concentration and
pace, and that she would “likely become anxious and withdraw[n,] . . .
defensive and verbally aggressive” in “a typical public situation” (AR
313)). In addition, it is supported by the opinions of Dr. Lark (AR 65-67)
and Dr. Tashner (AR 80-82). In addition to weighing the medical opinions,
6
the ALJ also considered the nature of Castillo’s overall treatment history
(both mental and physical), the objective medical evidence (medical
imaging, physical examinations, and mental status examinations), Castillo’s
subjective complaints, and her activities of daily living. See AR 17-19. As
discussed above, the ALJ provided good reasons for the weight given to the
consultative examiners’ opinions, and could thus rely on the opinions of the
state agency consultants.
Id. at 12. Judge Mahoney therefore found that the ALJ’s RFC determination is supported
by some medical evidence because it was based on an independent review of the evidence
and supporting state agency RFC opinions. Id. at 12–13.
IV.
ANALYSIS
Castillo asserts the following objections to the R&R: (1) “objective medical
evaluations” do not exist in the record to support the RFC; (2) Judge Mahoney applied
incorrect rules for evaluating medical opinions; (3) Judge Mahoney improperly relied on
Global Assessment of Functioning (GAF) scores; (4) either Owens’ opinion should have
been given more weight or the ALJ should have ordered another consultative examination
(CE); (5) substantial medical evidence does not support the ALJ’s physical RFC and (6)
her daily activities do not support the ALJ’s physical RFC. Doc. No. 19 at 1–5. I will
address each objection separately.
A.
Objective medical evaluation results
Castillo argues that the record does not contain any objective medical evaluation
results and that neither Judge Mahoney nor the ALJ identified any such evidence. Doc.
No. 19 at 1. Judge Mahoney stated in her R&R, “[i]n evaluating Castillo’s RFC, the
ALJ considered . . . objective medical evaluation results.” Doc. No. 18 at 3. She gave
examples of objective medical evidence such as “medical imaging, mental status
7
examinations, and GAF scores”3 as well as physical examinations. See Doc. No. 18 at
7, 12. The ALJ also gave examples of the objective medical evaluation results he
considered. See AR 18. The record contains evidence from the Siouxland Mental Health
Center and the Siouxland Community Health Center, including adult psychiatric “med
check” records (AR 265–73, 278–80, 285–87, 292–94, 316–30, 334–40, 343–48, 357–
59, 363–65, 372–74, 383–85, 395–97), therapy notes from various providers (AR 274,
276, 281, 283, 288, 290, 341, 349, 351, 355, 360, 361, 366, 368, 370, 375, 377, 386,
388, 393), social history assessments (AR 379–82, 390–92), a psychiatric medical
evaluation (AR 398–401), medication check-up records (AR 402, 404, 406, 408, 410,
412, 414), a radiology consultation report (AR 416–18), x-rays and lab reports of the
chest and spine/lumbar region (AR 248, 249, 419–23, 424-27), multiple office visit
reports (AR 428–62), patient information sheets (AR 245–47, 25–61) and notes of the
patient’s absences (AR 295–99), in addition to Owens’ examination (AR 303–08) and
Luitjohn’s examination (AR 311–14). Because the record does, in fact, contain objective
medical evidence, Castillo’s objection on this point is overruled.
B.
Rules for evaluating medical opinions
Castillo argues that Judge Mahoney ignored the substantive difference between the
“old rules” governing the weight ALJs should give to available medical opinions and the
“new rules” that apply to claims filed on or after March 27, 2017. Doc. No. 19 at 1–2.
Castillo argues that the new rules “effectively repeal decades of law . . . explaining the
importance of treating physicians and explaining the little value of the non-treating and
non-examining doctors.” Id. at 1. Castillo contends that the old rules are applicable to
this case and they require that the opinions of non-examining physicians be weighed less
3
I recognize the consideration of GAF scores is one of Castillo’s objections. I will address that
issue below.
8
than the opinions of those who have treated the patient. Id. Castillo contends that Judge
Mahoney erred by citing and relying on the new rules. Id.
Judge Mahoney quoted Eighth Circuit case law that explained, under the old rules,
the factors an ALJ must consider when determining the weight to assign a medical
opinion. Doc. No. 18 at 8 (quoting Owen v. Astrue, 551 F.3d 792, 800 (8th Cir. 2008).
As for the new rules, Judge Mahoney stated:
The Social Security Administration adopted new regulations for evaluating
medical opinions that went into effect on March 27, 2017. See Revisions to
Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844
(Jan. 18, 2017). Rather than stating that these rules are not retroactive (its
usual practice), the Social Security Administration issued two sets of new
regulations: one governing claims filed on or after March 27, 2017, and
one governing claims filed before that date, which are substantively the
same as the old rules. See, e.g., 20 C.F.R. §§ 416.927, 416.920c. The
Eighth Circuit has cited to both the old rules, see Gates v. Comm’r, Soc.
Sec. Admin., 721 F. App’x 575, 576 n.2 (8th Cir. 2018) (per curiam), and
the new rules, see Chesser v. Berryhill, 858 F.3d 1161, 1164 (8th Cir.
2017). As it makes no substantive difference, for ease, rather than citing to
both sets of rules, I cite only to the new regulations contained in the 2018
Code of Federal Regulations.
Id. at 8 n.8.
The regulations governing claims filed on or after March 27, 2017, (i.e., the new
rules) require that an ALJ consider the following factors when considering what weight
to give medical opinions: (1) supportability; (2) consistency; (3) relationship with the
claimant, which in turn includes factors such as length of the treatment relationship,
frequency of examinations, purpose of the treatment relationship, extent of the treatment
relationship and the existence of an examining relationship; (4) specialization and (5)
“other factors that tend to support or contradict a medical opinion or prior administrative
medical finding.” 20 C.F.R. § 416.920c(c). The new rules also state,
we will not defer or give any specific evidentiary weight, including
controlling weight, to any medical opinion(s) or prior administrative
medical finding(s), including those from your medical sources. When a
medical source provides one or more medical opinions or prior
9
administrative medical findings, we will consider those medical opinions or
prior administrative medical findings from that medical source together
using the factors listed in paragraphs (c)(1) through (c)(5) of this section.
20 C.F.R. § 416.920c(a).
The regulations governing claims filed before March 27, 2017, the “old rules,”
require ALJs use the following factors when deciding what weight to give to medical
opinions: (1) examining relationship; (2) treatment relationship, which includes factors
such as the length of the treatment relationship, the frequency of examination and the
nature and extent of the treatment relationship; (3) supportability; (4) consistency; (5)
specialization and (6) “any factors . . . which tend to support or contradict the medical
opinion.” 20 C.F.R. § 416.927(c).
The old rules also state:
How we weigh medical opinions. Regardless of its source, we will evaluate
every medical opinion we receive. Unless we give a treating source’s
medical opinion controlling weight under paragraph (c)(2) of this section,
we consider all of the following factors in deciding the weight we give to
any medical opinion.
20 C.F.R. § 416.927(c).
Because Castillo’s claim was filed before March 27, 2017, the old rules apply.
Judge Mahoney recognized this in the footnote quoted above. Moreover, she cited to the
old rules, as set forth in 20 C.F.R. § 416.927,4 and to case law applying the old rules,
during the course of her analysis. Doc. No. 18 at 9-10. Despite this, Castillo states that
“the Magistrate chose to take the easy way and use only the new rules, which are the
rules that try to elevate the views of the doctors who never examine or evaluate the
4
Section 416.927, which Judge Mahoney cited, is actually entitled “Evaluating opinion evidence
for claims filed before March 27, 2017.”
10
patient.” Doc. No. 19 at 1. That statement is both obnoxious and frivolous.5 Judge
Mahoney applied the appropriate rules. Based on my de novo review, I find no error in
her application of those rules to the medical opinions of record. Castillo’s objection on
this point is overruled.
C.
Global Assessment of Functioning (GAF) scores
Castillo argues that GAF scores have no direct correlation to the severity
requirements of mental disorders. Doc. No. 2 at 19. Therefore, she appears to contend
that because both Judge Mahoney and the ALJ referenced the GAF, the finding of “not
disabled” was improper. Id. In the R&R, Judge Mahoney noted that the ALJ found
Castillo’s subjective complaints were inconsistent with “(1) the frequency and nature of
treatment she sought for her physical impairments; (2) the conservative nature of her
mental-health treatment and her contradictory reports of symptoms to treatment
providers; and (3) the objective medical evidence (including medical imaging, mental
status examinations, and GAF scores).” Doc. No. 18 at 7. The ALJ gave the GAF
scores significant weight because they were “well-supported by and consistent with the
numerous clinical findings and observations contained in the claimant’s medical records.”
AR 19. Judge Mahoney pointed out in a footnote that “[a]lthough GAF scores standing
alone may not be sufficient reason to discount other evidence in the record, an ALJ may
consider a claimant’s overall GAF-score history in assessing other evidence.” Doc. No.
18 at 7 n.7.
Castillo cites Rayford v. Shinseki, No. 12-0042, 2013 WL 3153981, at *1 (Vet.
App. June 20, 2013) to argue that any consideration of GAF scores is improper. Doc.
5
Plaintiff’s objections contain several other flippant and disrespectful statements by counsel, all
of which are enhanced by counsel’s repeated use of the term “Magistrate” when referring to
Judge Mahoney. Since 1990, the position Judge Mahoney holds has had the title of “Magistrate
Judge.” See Judicial Improvements Act of 1990, 104 Stat. 5089 (Dec. 1, 1990). While I will
not hold her counsel’s behavior against Castillo, I do find it surprising that any attorney would
think that such conduct is actually helpful to his or her client.
11
No. 19 at 2. In that case, the court noted that the fifth edition of the Diagnostic and
Statistical Manual of Mental Disorders abandoned the use of GAF scores for “’it’s
conceptual lack of clarity’ and ‘questionable psychometrics in routine practice.’” Id.
(quoting Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013)). This
court has also noted the same development. See Hasley v. Colvin, No. C14-3064-LTS,
2016 WL 1069085, at *9 (N.D. Iowa Mar. 17, 2016). However, even if GAF scores
are not “essential to the accuracy of an RFC determination” they are still relevant and
should be considered. Id. (quoting Earnheart v. Astrue, 484 Fed. Appx. 73, 75 (8th Cir.
2012); see also King v. Colvin, No. C13-3039-LTS, 2014 WL 1344194, at *12 (N.D.
Iowa Apr. 4, 2014).
Here, it is clear that Castillo’s GAF scores were just one of many different factors
the ALJ considered when determining Castillo’s RFC. This was not error. Castillo’s
objection is overruled.
D.
Substantial evidence supporting the RFC
Castillo argues that the ALJ’s determination she can lift 50 pounds is not supported
by sufficient medical evidence.6 Doc. No. 19 at 2–3. She contends that progress notes
and state agency opinions are not sufficient medical evidence upon which to base an RFC
because the ALJ’s opinion contradicted the state agency opinions. Id. at 3. She also
argues that the ALJ could not discount Owens’ opinion and still have sufficient evidence
to support the RFC because the state doctors determined there was not enough evidence
in the record to determine disability without that opinion. Id. at 2–3. Instead, Castillo
argues that the ALJ should have ordered another consultative examination when Owens’
6
Castillo’s 4th, 5th and 6th objections all go to the weight of evidence supporting the RFC.
Thus, I will address the merits of those objections in this section. Additionally, these objections
focus on the physical limitations of the RFC, not the mental limitations. As such, I will focus on
the medical evidence only as it relates to Castillo’s physical limitations.
12
opinion was disregarded. Id. Finally, Castillo argues that her daily activities to do not
support the RFC limitations. Id. at 4.
1.
State agency opinions
Castillo argues that the state agency doctors found her “mostly credible” while the
ALJ found her not credible. Doc. No. 19 at 3. However, Russell Lark, Ph.D. stated
“the claimant’s statements regarding her functional limitations to her mental MDI’s are
mostly credible.” AR 67 (emphasis added). Here, Castillo is contesting the physical
limitations in her RFC. Additionally, the other state agency doctor, Donald Shumate,
D.O., wrote:
We recognize your conditions cause you pain and may limit your ability to
perform work activities that are strenuous in nature. However, there is no
evidence of nerve damage or muscle wasting. You are able to stand and
walk without assistance. You are able to use your arms and hands without
limitations. Records do not indicate that your physical condition would
prevent you from doing less strenuous activities.
AR 69. Dr. Shumate found that therapist Owens’ opinion that Castillo can only lift 10
pounds and push/pull no more than 25 pounds “is not consistent with the exam finding.”
AR 64. He stated, “[c]laimant indicates she has minor pain that is not present at the time
and has not sought any treatment in almost 3 years. ADLs indicate she is capable of a
wide range of activities. These factors erode the credibility of severity of the alleged
limitations.” AR 64–65. The state agency then issued an RFC indicating Castillo could
occasionally lift and/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand
and/or walk about 6 hours in an 8-hour workday, sit for 6 hours in an 8-hour workday
and push and/or pull without limitations. AR 64.
The ALJ found,
[Castillo] is able to lift and/or carry 50 pounds occasionally and 25 pounds
frequently. She can stand and/or walk about 6 hours in an 8-hour workday
(with normal breaks) and can sit for about 6 hours (with normal breaks).
She should avoid concentrated exposure to extreme heat. She is limited to
13
performing simple, routine, and repetitive tasks and can have only
occasional interaction with the public and coworkers.
AR 16. The ALJ also found “the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, the claimant’s
statements concerning the intensity, persistence and limiting effects of these symptoms
are not entirely consistent with the medical evidence and other evidence of record.” AR
16–18. Both the ALJ and the state agency doctors adopted the same RFC and indicated
that the severity of Castillo’s complaints were not entirely credible or consistent with
other evidence. Because the ALJ’s opinion is not inconsistent with the state agency
doctors’ opinions, Castillo’s objection on this point is overruled.
2.
Owens’ Opinion
Next, I will address whether there is some medical evidence on the record with
which to support the ALJ’s RFC determination, specifically as it relates to discounting
Owens’ opinion. “Ultimately, a claimant’s RFC is an issue reserved for the ALJ.”
Brown v. Berryhill, No. C16-0179-LTs, 2018 WL 1001022, at *13 (N.D. Iowa Feb. 21,
2018). A claimant’s RFC is a medical question and must be supported by some medical
evidence. Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). “However, there is
no requirement that an RFC finding be supported by a specific medical opinion.” Id.
There may still be sufficient evidence when the ALJ considers the limitations set forth in
medical opinions but properly discounted portions of the evidence that went to the extent
of the claimant’s limitations.
See Brown, 2018 WL 1001022, at *13; Williams v.
Berryhill, No. 16-CV-0128-LTS, 2017 WL 3503327, at *8 (N.D. Iowa Aug. 16, 2017).
Substantial medical evidence may exist where the ALJ considered the opinion of a
consulting physician and conducted an independent review of the medical evidence. See
Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir. 2002).
In Kamann v. Colvin, 721 F.3d 945 (8th Cir. 2013), the Eighth Circuit affirmed
the ALJ’s RFC finding even though the state agency psychologists concluded there was
14
insufficient information to diagnose the claimant and gave no weight to the consultative
psychologist’s opinion. Id. at 949-51. The ALJ gave no weight to the consultative
psychologist’s opinion because it was based on the claimant’s self-reports, which were
not credible. Id. The court noted that it is the claimant’s burden to prove disability and
provide medical evidence. Id. at 950.7 “[A]n ALJ is permitted to issue a decision without
obtaining additional medical evidence so long as other evidence in the record provides a
sufficient basis for the ALJ’s decision.” Id. (quoting Naber v. Shalala, 22 F.3d 186, 189
(8th Cir. 1994)). The Eighth Circuit found there was sufficient evidence to support the
RFC when the ALJ thoroughly reviewed the medical evidence and issued a finding
consistent with the state agency psychologist’s opinion. Id. at 951. “In the absence of
medical opinion evidence, ‘medical records prepared by the most relevant treating
physicians [can] provide affirmative medical evidence supporting the ALJ’s residual
functional capacity findings.’” Hensley, 829 F.3d at 923 (quoting Johnson v. Astrue,
6288 F.3d 991, 995 (8th Cir. 2011)). An ALJ has a duty to develop the record and order
a consultative examination “when such an evaluation is necessary for him to make an
informed decision.” Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001) (quoting
Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir. 1992)).
Castillo argues that because the state agency doctors found there was insufficient
evidence to determine an RFC without a consultative examination, there could not be
sufficient evidence once the ALJ discounted Owens’ opinion. Doc. No. 19 at 3. The
state agency initially determined that a consultative examination was required because the
7
Castillo objects to Judge Mahoney’s reliance on this case. Doc. No. 19 at 3. She argues that
Kamann “does not approve of mere progress notes from a doctors [sic] office combined with
DDS opinions as being sufficient.” Id. Judge Mahoney cited Kamann for the proposition that
“[a]n independent review of the evidence, combined with the supporting state agency RFC
opinions, may constitute some medical evidence for an ALJ’s RFC determination.” Doc. No.
18 at 12. Contrary to Castillo’s argument, and as itemized earlier in this opinion, there is more
medical evidence available in the record than “mere progress notes.” I agree with Judge
Mahoney’s application of Kamann.
15
evidence as a whole was not sufficient to support a decision, Castillo had not been seen
for back pain since 2011 and the mental treatment records were created by a therapist
and a PA, “neither of which are acceptable medical sources.” Id. AR 60. A treating
source did not perform the consultative examination because there was no treating source
available. Id.
Owens, the consultative examiner, stated in his opinion that Castillo had poor
squatting ability and could not carry more than 10 pounds or push/pull more than 25
pounds. AR 305. In addition to his conclusion, he included range of motion test results,
a sensation checklist, a muscle examination and a physical therapy evaluation form. AR
303–08. These showed that Castillo’s hand can be fully extended, she has fair grip
strength near-normal upper extremity strength (AR 303), she has limited reach, no
assistive devices were needed for ambulation, she has normal lower extremity muscle
strength (AR 304) and has normal sensation with slow gait pattern. AR 305.
The ALJ gave Owens’ opinion limited weight because he is not an acceptable
medical source and his limitations were inconsistent with the results of more recent
physical examinations and claimant’s daily activities. AR 19. Discounting Owens’
limitations, or giving his opinion only limited weight, does not mean there is no medical
evidence to support the RFC. Owens conducted his examination on September 22, 2014.
AR 303. The ALJ’s decision was dated February 23, 2017. AR 9. Therefore, the ALJ
had access to medical records generated after Owens’ examination, including the
Radiology Consultation Report (AR 416–18), chest and lumbar examinations (AR 419–
20) and multiple office visits dated from October 2014 to November 2016. (AR 428–
55).8
The results of these examinations include “minimal arthritic changes” (AR 416)
and “mild degenerative arthritic change.” AR 417. Office notes indicated Castillo had
8
The ALJ also had access to records from Siouxland Mental Health Center that were generated
between February 2015 and June 2016. See AR 334–82. However, as only the physical
limitations in the RFC are at issue here I will focus on the records from the Siouxland Community
Health Center.
16
numbness and tingling (AR 430) full range of motion, though her thigh area was tender
(AR 431) and normal gait and range of motion with minimal tenderness (AR 436, 440,
448).
I find the medical record was adequately developed due to the available medical
records at the time of the ALJ’s decision, the objective examination results from Owens
and the state agency doctors’ opinions. See Robertson v. Berryhill, No. 17-CV-87-LRR,
2018 WL 2424142, at *8 (N.D. Iowa May 10, 2018) (finding the record was sufficient
when the ALJ relied on evidence developed after the state agency doctors opined there
was not enough evidence); Williams, 2017 WL 3503327, at *8 (“The ALJ’s reliance on
the state agency consultants’ opinions provided substantial evidence for the ALJ’s RFC
assessment.”). The ALJ did not err by not ordering another consultative examination
after giving Owens’ opinion only limited weight. Castillo’s objection on this point is
overruled.
3.
Daily activities
Finally, Castillo argues that none of her alleged daily activities show she is capable
of lifting 50 pounds and, therefore, her daily activities do not support the RFC limitations.
Doc. No. 19 at 4. The RFC is based on “all of the relevant evidence, including the
medical records, observations of treating physicians and others, and an individual’s own
description of [his] limitations.” Hensley, 829 at 932 (quoting Myers v. Colvin, 721 F.3d
521, 527 (8th Cir. 2013)). The RFC is the most the claimant can do despite the claimant’s
limitations. 20 C.F.R. § 404.1545(a)(1). Courts defer to an ALJ’s credibility findings
regarding the claimant’s own description of her limitations if the ALJ “explicitly
discredits a claimant’s testimony and gives a good reason for doing so.” Id. at 934
(quoting Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007)). A claimant’s daily
activities can support the ALJ’s RFC finding and can support a finding that the claimant
is not credible. Id.; Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009) (“[A]cts such
as cooking, vacuuming, washing dishes, doing laundry, shopping, driving, and walking,
17
are inconsistent with subjective complaints of disabling pain.”). Evidence of daily living
activities can support an ability to work on a daily basis in the national economy. See
Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000).
Castillo indicated that she takes the dogs out, does dishes and walks up and down
stairs a lot. AR 173. A third party indicated that she helps him with daily activities,9
does laundry and mows the lawn. AR 176. At the disability hearing, Castillo indicated
that she cooks, helps around the house, plays with her grandchildren, goes to their school
functions, goes shopping even though it takes longer to do so, and can take care of her
personal needs. AR 40–48. The ALJ noted that her alleged daily activities do not,
themselves, “indicate an ability to perform full-time work, but [they] definitely suggest
that the claimant has the ability to perform work within the parameters of the above
residual functional capacity.” AR 17. Even when daily living activities alone would not
show an ability to work, they may be considered along with other evidence when
evaluating the claimant’s credibility. The ALJ based his credibility and RFC finding not
only on Castillo’s daily activities, but also on the rest of her medical record. See AR 17–
18.
If substantial evidence supports the Commissioner’s conclusions, a court should
not “reverse even if it would reach a different conclusion, or merely because substantial
evidence also supports the contrary outcome.” Travis v. Astrue, 477 F.3d 1037, 1040
(8th Cir. 2007). I find that there is substantial evidence on the record as a whole to
support the ALJ’s RFC determination. The ALJ conducted an independent review of the
medical evidence, which I detailed above, gave significant weight to the opinions of the
9
The ALJ stated that Castillo helps her boyfriend with “strenuous things.” AR 17. Her
boyfriend, Michael Jensen, wrote in the third-party questionnaire that “im [sic] limited to
strenuous things and lifting laundry baskets.” AR 175. It is not clear if he meant that he cannot
do strenuous things and so Castillo helps him, or that she only helps him when he does strenuous
things. What is clear that she helps him with activities that may be strenuous.
18
state agency doctors and considered Castillo’s daily activities in relation to the rest of the
record. Castillo’s objection on this point is overruled.
V.
CONCLUSION
For the reasons set forth herein:
1.
Castillo’s objections (Doc. No. 19) to the Report and Recommendation
(Doc. No. 18) are overruled.
2.
I accept the Report and Recommendation (Doc. No. 18) without
modification. See 28 U.S.C. § 636(b)(1).
3.
Pursuant to Judge Mahoney’s recommendation:
a.
The Commissioner’s determination that Castillo was not disabled is
affirmed; and
b.
Judgment shall enter against Castillo and in favor of the
Commissioner.
IT IS SO ORDERED.
DATED this 14th day of February, 2019.
__________________________
Leonard T. Strand, Chief Judge
19
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