Knibbe v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATIONS recommending the district court affirm the decision of the ALJ and dismiss Plaintiff's case with prejudice re 4 Complaint filed by Shawn Alan Knibbe. Objections to R&R due by 5/31/2019. Signed by Magistrate Judge Mark A Roberts on 5/16/2019. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SHAWN ALAN KNIBBE,
Claimant,

No. 18-CV-4043-LTS

vs.
REPORT AND
RECOMMENDATION

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

_________________
Shawn Alan Knibbe (“Claimant”), seeks judicial review of a final decision of the
Commissioner of Social Security (“the Commissioner”) denying his application for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under
Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34 of the Social Security
Act. Claimant contends that the Administrative Law Judge (“ALJ”) erred in determining
that he was not disabled. For the reasons that follow, I recommend that the District Court
affirm the Commissioner’s decision.
I.

BACKGROUND

I adopt the facts set forth in the Parties’ Joint Statement of Facts (Doc. 16) and
only summarize the pertinent facts here. This is an appeal from a denial of Claimant’s
request for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”).

1

Claimant was born on January 13, 1969. (AR 1 at 32.) Claimant has an associate
degree in automotive mechanics. (Id. at 51.) The ALJ found Claimant “has at least a
high school education and is able to communicate in English.” (Id. at 32.) Claimant
allegedly became disabled due to Parkinson’s disease, shoulder pain, and lack of strength.
(Id. at 303.) He was 48-years-old at the time of the ALJ’s original decision on October
13, 2017. (Id. at 21-33.) Claimant filed his initial claim on December 9, 2014. (Id. at
24.) Claimant was initially denied benefits on April 29, 2015. (Id. at 153-62.) Claimant
filed for reconsideration on May 12, 2015, and was again denied on August 10, 2015.
(Id. at 164-76.) Claimant filed a Request for Hearing on September 21, 2015. (Id. at
179.) A hearing was held on June 7, 2017 in Omaha, Nebraska 2 with Claimant; his thenattorney, Hannah M. Vellinga; vocational expert Holly Berquist Neal; and ALJ David
G. Buell present. (Id. at 39-90.) Claimant and the vocational expert both testified. (Id.
at 46-89.)
The ALJ issued his decision denying Claimant benefits on October 13, 2017. (Id.
at 21-33.) On November 27, 2017, Claimant filed a Request for the Appeals Council to
review the ALJ’s decision. (Id. at 259.) On May 18, 2018, the Appeals Council found
there was no basis to review the ALJ’s decision. (Id. at 1.) Accordingly, the ALJ’s
decision stands as the final administrative ruling in the matter and became the final
decision of the Commissioner. See 20 C.F.R. § 416.1481. On July 23, 2018, Claimant
timely filed a complaint in this Court. (Doc. 4.) On January 10, 2019, the Honorable
Leonard T. Strand, Chief United States District Court Judge, referred the case to me for
a Report and Recommendation.

1

AR citations refer to pages in the Administrative Record.
The hearing transcript says the hearing took place in West Des Moines, Iowa. (AR at 39.)
However, the ALJ’s decision (Id. at 24), the hearing notice (Id. at 254), and the Parties’
Stipulated Facts (Doc. 16) state that the hearing took place in Omaha.
2

2

II.

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A disability is 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). A claimant has
a disability when, due to physical or mental impairments, the claimant
is not only unable to do [the claimant’s] previous work but cannot,
considering [the claimant’s] 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.
Id. §§ 423(d)(2)(A), 1382c(a)(3)(B). A claimant is not disabled if he or she is able to do
work that exists in the national economy, but is unemployed due to an inability to find
work, lack of options in the local area, technological changes in a particular industry,
economic downturns, employer hiring practices, or other factors. Id. § 404.1566(c).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows the five-step sequential evaluation process
outlined in the regulations. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). At
steps one through four, the claimant has the burden to prove he or she is disabled; at step
five, the burden shifts to the Commissioner to prove there are jobs available in the
national economy. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009).
At step one, the ALJ will consider whether a claimant is engaged in “substantial
gainful activity.” Id. If so, the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
“Substantial activity is significant physical or mental work that is done on a full- or parttime basis. Gainful activity is simply work that is done for compensation.” Dukes v.
Barnhart, 436 F.3d 923, 927 (8th Cir. 2006) (citing Comstock v. Chater, 91 F.3d 1143,
1145 (8th Cir. 1996); 20 C.F.R. § 416.972(a),(b)).

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If the claimant is not engaged in substantial gainful activity, at step two, the ALJ
decides if the claimant’s impairments are severe. 20 C.F.R. § 416.920(a)(4)(ii). If the
impairments are not severe, then the claimant is not disabled. Id. An impairment is not
severe if it does not significantly limit a claimant’s “physical or mental ability to do basic
work activities.” Id. § 416.920(c). The ability to do basic work activities means the
ability and aptitude necessary to perform most jobs. These include
(1) physical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing,
and speaking; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with
changes in a routine work setting.
Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (quotation omitted) (numbers added; internal
brackets omitted).
If the claimant has a severe impairment, at step three, the ALJ will determine the
medical severity of the impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment
meets or equals one of the impairments listed in the regulations (“the listings”), then “the
claimant is presumptively disabled without regard to age, education, and work
experience.” Tate v. Apfel, 167 F.3d 1191, 1196 (8th Cir. 1999).
If the claimant’s impairment is severe, but it does not meet or equal an impairment
in the listings, at step four, the ALJ will assess the claimant’s residual functional capacity
(“RFC”) and the demands of the claimant’s past relevant work.

20 C.F.R. §

416.920(a)(4)(iv). RFC is what the claimant can still do despite his or her limitations.
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing 20 C.F.R. §§
404.1545(a), 416.945(a)). RFC is based on all relevant evidence and the claimant is
responsible for providing the evidence the Commissioner will use to determine the RFC.
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). “Past relevant work” is

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any work the claimant performed within the fifteen years prior to his or her 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). If a claimant retains enough RFC to perform past
relevant work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).
At step five, if the claimant’s RFC will not allow the claimant to perform past
relevant work, then the burden shifts to the Commissioner to show there is other work
the claimant can do, given the claimant’s RFC, age, education, and work experience.
Id. §§ 416.920(a)(4)(v), 416.960(c)(2). The ALJ must show not only that the claimant’s
RFC will allow the claimant to do other work, but also that other work exists in substantial
numbers in the national economy. Eichelberger, 390 F.3d at 591 (citation omitted).
A.

The ALJ’S Findings
The ALJ made the following findings at each step with regard to Claimant’s

disability status:
At step one, the ALJ found that Claimant had not engaged in substantial gainful
activity since his alleged onset date. (AR at 26.)
At step two, the ALJ found that Claimant suffered from the following severe
impairments: Parkinson’s disease, bilateral shoulder degenerative joint disease, and a
cardiac impairment. (Id.)
At step three, the ALJ found that none of Claimant’s impairments met or equaled
a presumptively disabling impairment listed in the regulations, specifically listings in 20
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1526,
416.920(d), 416.925 and 416.926). (Id. at 27.)
At step four, the ALJ found that Claimant had the following RFC:
Claimant has the residual functional capacity to perform sedentary work as
defined in 20 C.F.R. § 404.1567(a) and 416.967(a), except the following:
he remains unable to frequently push and pull, reach overhead, handle and
finger. He can occasionally stop, kneel, crouch, and crawl. He is unable

5

to climb ladders and he should avoid exposures to hazards such as
unprotected heights and the operation of motor vehicles. He cannot perform
work that requires exposure to sustained and concentrated extreme
temperatures or vibration.
(Id.) Based on this RFC, the ALJ found at step four that Claimant could not perform his
past relevant work as an automobile parts counter clerk, tractor trailer truck driver, or
automobile mechanic. (Id. at 31.)
At step five, the ALJ found that alternative work existed in significant numbers in
the national economy as a document preparer, telephone quote clerk, and addressing
clerk. (Id. at 32.) Therefore, the ALJ concluded that Claimant was not disabled. (Id.
at 33.)
B.

The Substantial Evidence Standard
The ALJ’s decision must be affirmed “if it is supported by substantial evidence on

the record as a whole.” Moore, 572 F.3d at 522. “Substantial evidence is less than a
preponderance, but enough that a reasonable mind might accept as adequate to support a
conclusion.” Id. (citation omitted). The court cannot disturb an ALJ’s decision unless
it falls outside this available “zone of choice” within which the ALJ can decide the
case. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (citation omitted). The
decision is not outside that zone of choice simply because the court might have reached
a different decision. Id. (citing Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir.
2001)); Moore, 572 F.3d at 522 (holding that the court cannot reverse an ALJ’s decision
merely because substantial evidence would have supported an opposite decision).
In determining whether an ALJ’s decision meets this standard, the court considers
all the evidence in the record, but does not reweigh the evidence. Vester v. Barnhart,
416 F.3d 886, 889 (8th Cir. 2005). A court considers both evidence that supports the
ALJ’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

6

[ALJ’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)).
C.

Duty to Develop the Record
The administrative hearing is a non-adversarial proceeding, and the ALJ has

a duty to “fully develop the record.” Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir.
2006) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). Because the ALJ
has no interest in denying Social Security benefits, the ALJ must act neutrally in
developing the record. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (citing
Richardson v. Perales, 402 U.S. 389, 410 (1971)); Battles v. Shalala, 36 F.3d 43, 44
(8th Cir. 1994) (opining that “[t]he goals of the [ALJ] and the advocates should be the
same: that deserving claimants who apply for benefits receive justice”) (quoting Sears v.
Bowen, 840 F.2d 394, 402 (7th Cir. 1988)) (bracketed information added).
III.

DISCUSSION

Claimant alleges that he is entitled to a reversal and an award of benefits, or in the
alternative to have his case remanded because (1) the ALJ improperly weighed the
medical evidence in the record, (2) the ALJ improperly considered Claimant’s subjective
complaints, and (3) the ALJ based his RFC on an improper hypothetical question posed
to the vocational expert during the hearing. I will address each of Claimant’s arguments,
in turn.
A.

The ALJ properly weighed the medical evidence.
Claimant argues that the ALJ improperly weighed the medical evidence in the

record. Specifically, Claimant asserts that the ALJ erred in “rejecting the opinions of
the treating physicians and relying upon the opinions of the non-examining doctors.”
(Doc. 17 at 3.) Claimant argues that the ALJ not only rejected the Claimant’s treating
physicians’ opinions that Claimant was disabled, but also rejected the state agency

7

reviewing physicians’ opinions that he could do light work in favor of the ALJ’s own
unsupported opinion that that Claimant could do sedentary work. (Id. at 5.) Claimant
also insists that his “testimony is consistent with limitations and symptoms contained in”
his medical records. (Id.) In his reply memorandum, Claimant also seems to assert for
the first time that the ALJ failed to mention the treatment notes of Dr. Bhatti, one of
Claimant’s physicians. (Doc. 19 at 1 ¶ 2.)
Dr. Case, Dr. Bertoni, and Dr. Bhatti are all “treating sources” because they all
have provided Claimant with “medical treatment or evaluation” and have had “an
ongoing treatment relationship” with Claimant. 3 See 20 C.F.R. § 404.1527(a)(2). An
ALJ’s RFC must ordinarily be supported by some medical evidence in the record. See
Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007). “It is the ALJ’s function to resolve
conflicts among the opinions of various treating and examining physicians. The ALJ may
reject the conclusions of any medical expert, whether hired by the claimant or the
government, if they are inconsistent with the record as a whole.” Wagner v. Astrue, 499
F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th
Cir. 2001)); Martin v. Berryhill, No. 1:18-CV-00004 JM/PSH, 2019 WL 138655, at *6
(E.D. Ark. Jan. 8, 2019) (explaining that “the ALJ must weigh the various medical
opinions in the record”) (citation omitted), R. & R. adopted, 2019 WL 334202 (E.D.
Ark. Jan. 25, 2019).

“Where an ALJ does not rely on opinions from treating or

examining sources, there must be some other medical evidence in the record for the ALJ’s
opinion to be supported by substantial medical evidence on the record.” Shuttleworth v.
Berryhill, No. 17-CV-34-LRR, 2017 WL 5483174, at *7 (N.D. Iowa Nov. 15, 2017)
(quoting Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004)), R. & R.
adopted, 2018 WL 1660084 (N.D. Iowa Apr. 5, 2018). As will be discussed below, I
3

As will be discussed below, Dr. Bertoni’s status as a treating physician is not documented in
the record, although Dr. Bertoni refers to a six-month treating relationship with Claimant.

8

find that the ALJ properly resolved the conflicts in the record and supported his
conclusions with citations to the record.
1.

Dr. James Case

Dr. Case is Claimant’s main treating physician. He referred Claimant to the
University of Nebraska Medical Center’s Movement Disorders Center (“the Movement
Disorders Center”) where Claimant was treated by the other physicians who wrote
opinions in this case. Dr. Case completed a check-list medical source opinion on April
9, 2015. (AR at 467-69.) Dr. Case opined Claimant could sit for eight hours in an eighthour workday and stand/walk for three hours in an eight-hour workday; he would need
to shift positions at will from sitting, standing, or walking; he could occasionally lift ten
pounds or less, could rarely lift 20 pounds, and could never lift 50 pounds; he could
occasionally twist and stoop, rarely crouch/squat and climb stairs, but never climb
ladders; and he would be able to use each of his hands to grasp, turn, and twist objects
50% of an eight-hour work day; use his fingers for fine manipulation 50% of an eighthour work day; and reach (including overhead reaching) 25% of an eight-hour work day.
(Id. at 468.) Dr. Case further opined that Claimant’s symptoms were rarely severe
enough to interfere with the attention and concentration needed to perform even simple
work tasks and that Claimant would be absent from work on average about three days
per month. (Id. at 469.)
The ALJ assigned Dr. Case’s opinion “little weight” because it was inconsistent
with the medical evidence in the record, Dr. Case did not include “any rationale for these
limitations,” and Dr. Case’s own treatment notes from April 9, 2015 were inconsistent
with the opinion. (Id. at 30.)

Specifically, the ALJ noted that on that day, Dr. Case

stated that Claimant did not exhibit upper extremity tremors, was able to twist, stoop
down, and bend at the waist; and that Claimant exhibited fine finger dexterity. (Id.)

9

Claimant argues that the ALJ “rejected” Dr. Case’s opinion, but makes no argument in
support of his position. (Doc. 17 at 5.)
I agree with the ALJ that Dr. Case’s own treatment notes do not provide a basis
for his opinion. “A treating physician’s own inconsistency may . . . undermine his
opinion and diminish or eliminate the weight given his opinions.” Hacker, 459 F.3d at
937 (citation omitted). In addition, the opinion consists of checklists, cites no medical
evidence, and gives no explanation for its conclusions. “‘The checklist format, generality,
and incompleteness of the assessments limit [an] assessment’s evidentiary value.’”
Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (quoting Holmstrom v.
Massanari, 270 F.3d 715, 721 (8th Cir. 2001) (internal brackets omitted); Piepgras v.
Chater, 76 F.3d 233, 236 (8th Cir.1996) (“A treating physician’s opinion deserves no
greater respect than any other physician’s opinion when the treating physician’s opinion
consists of nothing more than vague, conclusory statements.”). Therefore, a treating
source’s opinion can be given limited weight if it contains only conclusory statements or
inconsistent opinions “that undermine the credibility of such opinions.”

Papesh v.

Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015) (quotation omitted).
a.

Legal Standard

“‘A treating physician’s opinion is given controlling weight if it is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record as a whole.” 4 Halverson v.
Astrue, 600 F.3d 922, 929 (8th Cir. 2010) (quotation omitted). “Even if the treating
physician’s opinion is not entitled to controlling weight, it should not ordinarily be
disregarded and is entitled to substantial weight.” Papesh, 786 F.3d at 1132 (citation
Under current regulations, a treating physician’s opinion is entitled to no special deference.
See 20 C.F.R. § 404.1520c(c). These regulations were effective as of March 27, 2017. 20
C.F.R. § 404.1527. However, Claimant’s claim was filed on December 9, 2014, so the old
regulations apply. See id.
4

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and bracket omitted). However, a treating physician’s opinion can be given limited
weight if it contains only conclusory statements, contains inconsistent opinions “that
undermine the credibility of such opinions,” is inconsistent with the record, or if other
medical opinions are supported by “better or more thorough medical evidence.” Id.
(citations omitted). An ALJ must “give good reasons” for the weight given to a treating
physician’s opinion. 20 C.F.R. § 404.1527(c)(2); Walker v. Comm’r, Soc. Sec. Admin.,
911 F.3d 550, 554 (8th Cir. 2018) (remanding case to the ALJ for further proceedings
because ALJ “simply ignore[d]” treating physician’s opinion). A proper evaluation of a
physician’s opinion requires consideration of the following factors: (1) examining
relationship, (2) treatment relationship, (3) supportability, (4) consistency, (5)
specialization, and (6) other factors. 5 20 C.F.R. §§ 404.1527(c)(1)-(5), 416.927(c).
“[T]he regulations do not strictly require the ALJ to explicitly discuss each factor under
20 C.F.R. § 404.1527(c).” Kuikka v. Berryhill, No. 17-CV-374 (HB), 2018 WL
1342482, at *5 (D. Minn. Mar. 15, 2018) (quoting Mapson v. Colvin, No. 14–CV–1257
(SRN/BRT), 2015 WL 5313498, at *4 (D. Minn. Sept. 11, 2015) (noting internal
brackets omitted)).
b. Analysis
i.

Examining Relationship

“Generally, [ALJs] give more weight to the medical opinion of a source who has
examined [a claimant] than to the medical opinion of a medical source who has not
examined [a claimant].” 20 C.F.R. § 404.1527(c)(1). However, a treating source’s
5

“Other factors” can include information claimants or others bring to the Social Security
Administration’s (“SSA”) attention, or of which it is aware, which tend to support or contradict
a medical opinion. “For example, the amount of understanding of [SSA] disability programs and
their evidentiary requirements that a medical source has, regardless of the source of that
understanding, and the extent to which a medical source is familiar with the other information
in [a claimant’s] case record are relevant factors that [SSA] will consider in deciding the weight
to give to a medical opinion.” 20 C.F.R. § 404.1527(c)(6).

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opinion may be disregarded in favor of other opinions if it is not supported by substantial
evidence in the record. Casey, 503 F.3d at 692. Dr. Case is Claimant’s treating
neurologist and examined him seven times between December 2, 2013 and April 9, 2015
prior to writing his opinion. Therefore, his opinion should be given more weight unless
it is not supported by substantial evidence on the record as a whole. Although Dr. Case
is Claimant’s treating physician, as discussed below, I find that his opinion is not
supported by substantial evidence on the record as whole. At most, this factor is neutral.
ii.

Treatment Relationship

“Generally, [ALJs] give more weight to the medical opinions from [a claimant’s]
treating sources. . . . When the treating source has seen [the claimant] a number of times
and long enough to have obtained a longitudinal picture of [the claimant’s] impairment,
[the ALJ] will give the source’s opinion more weight than . . . if it were from a
nontreating source.” 20 C.F.R. at § 404.1527(c)(2)(i).

In addition, “the more

knowledge a treating source has about [a claimant’s] impairment(s), the more weight the
[ALJ] will give the source’s opinion.” Id. at § 404.1527(c)(2)(ii). As discussed, Dr.
Case is Claimant’s treating source and has treated him long enough to get a longitudinal
picture of Claimant’s impairments. In addition, Dr. Case has treated Claimant for his
Parkinson’s disease, Claimant’s main basis for claiming disability benefits, and therefore
Dr. Case’s opinion should generally be given increased weight. See Shontos v. Barnhart,
328 F.3d 418, 426-27 (8th Cir. 2003). This factor weighs in favor of giving Dr. Case’s
opinion increased weight.
iii.

Supportability

“The better an explanation a source provides for a medical opinion, the more
weight [the ALJ] will give that medical opinion.” 20 C.F.R. § 404.1527(c)(3). Dr.
Case stated that he based his opinion on “physical assessments, over time.” (AR at 469.)
This statement is somewhat more supportive than appears in the conclusions of some

12

checklist-type medical source opinions. However, without more, there is no way to judge
whether Dr. Case’s conclusions are supported or not. Dr. Case is a neurologist opining
on the physical limitations of a long-term patient. Consequently, even if one assumes he
conducted physical assessments of the patient, Dr. Case does not document the types of
deficiencies that he noticed, the tests he ran, and the interventions attempted to help
mediate Claimant’s symptoms.
The checklist format of Dr. Case’s opinion and the lack of support within the
opinion weigh against giving the opinion much weight. See Papesh, 786 F.3d at 1132.
In addition, I agree with the ALJ’s conclusion that Dr. Case did not “include any rationale
for [his] limitations” and that this fact should weigh against giving the opinion much
weight. (See AR at 30.)
The ALJ also found that Dr. Case’s opinion was not consistent with his own
treatment notes. (Id.) Specifically, the ALJ concluded that the ALJ’s conclusion that
Claimant would be absent from work an average of three days a week was not supported
because there was no documentation of missed appointments or other important events.
(Id.) My review of Dr. Case’s treatment notes confirmed this conclusion and did not
reveal any discussion of missed events in Claimant’s life in spite of the otherwise
comprehensive discussion of relevant topics noted during Dr. Case’s examinations of
Claimant. (Id. at 447-66, 480-85) (all treatment notes contain summaries of discussions
and notes for the following categories: General, Skin, HEENT (head, ears, eyes, nose,
throat), Respiratory, Breast, Cardiovascular, Gastrointestinal, Male Genitourinary,
Musculoskeletal, Neurological, Psychiatric, Endocrine, Hematology, Vital Signs (height,
weight, body surface area, BMI, pulse, BP), Physical Examination, Neurologic
Examination, Impression, Plan).
The ALJ also noted that Dr. Case’s treatment notes from the day he wrote his
opinion demonstrated that Claimant exhibited fine finger dexterity (citing Ex. 16F

13

wherein Dr. Case explains that Claimant could use a paper clip with both hands, although
slowly); that Claimant did not have tremors; and that he could twist, stoop, and bend at
the waist. (Id. at 30.) My review of the record supports these findings by the ALJ.
Moreover, although some of the limitations Dr. Case lists in his opinion are supported
by his own treatment notes, some are not. For example, Dr. Case indicated very specific
lifting limitations in his opinion. (Id. at 468.) However, there is nothing in Dr. Case’s
treatment notes stating that he ever tested Claimant’s lifting limits or that Claimant ever
told Dr. Case that he had trouble lifting anything specific that would allow Dr. Case to
estimate a lifting limit. The only mentions of anything close to lifting limitations in Dr.
Case’s treatment notes, other than Claimant’s overall diagnosis of generalized
bradykinesia, 6 are a March 31, 2014 note stating that Claimant’s strength was “normal”
and a June 20, 2014 treatment note documenting Claimant’s self-report that he “[felt]
weak and encumbered trying to work overhead.” (Id. at 454, 456.) No weights were
stated in either note. Accordingly, while there is some evidence in Dr. Case’s treatment
notes that supports the ALJ’s conclusion, there is also evidence in Dr. Case’s treatment
notes that does not support the ALJ’s conclusion, and therefore, this factor weighs in
favor of giving Dr. Case’s opinion limited weight. See Moore, 572 F.3d at 522 (holding
that the court cannot reverse an ALJ’s decision merely because substantial evidence
would have supported an opposite decision).
iv.

Consistency

“Generally, the more consistent a medical opinion is with the record as a whole,
the more weight [the ALJ] will give to that medical opinion.” 20 C.F.R. §
404.1527(c)(4). In support of his conclusion that Dr. Case’s opinion is not supported by

6

Bradykinesia is an “abnormal slowness of muscular movement.” Dorland’s Illustrated Medical
Dictionary 245 (32d ed. 2012).

14

other evidence in the record as a whole, the ALJ cited specific pages in the record that
documented that Claimant did not have the “debilitating tremors or severe range of
motion limitations” that Claimant testified to. (AR at 30.) After reviewing the record,
I agree with the ALJ that Dr. Case’s limitations are not supported by the record on the
whole. (Id. at 381, 564, 716, 751, 760, 767, 783, 793 (full range of motion in upper
extremities); Id. at 381, 751, 767, 784, 793 (hand tremors rated “slight and infrequent”
to “moderate” with action); 390 (full range of motion in neck); 448 (no discernable
obvious tremor, other than occasional flicker.)

Therefore, I find that the ALJ’s

conclusion that Dr. Case’s opinion is not consistent with the record as a whole is
supported, and therefore this factor weighs in favor of giving Dr. Case’s opinion limited
weight.
v.

Specialization

“[The ALJ will] generally give more weight to the medical opinion of a specialist
about medical issues related to his or her area of specialty than to the medical opinion of
a source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5). Dr. Case is a nuerologist
who gave an opinion in his area of expertise about a patient under his care. (AR at 46770.) Therefore, the ALJ was required to credit Dr. Case’s opinion, if it was supported
by the record. See Brown v. Astrue, 611 F.3d 941, 951, 954 (8th Cir. 2010) (affirming
ALJ’s decision to give greater weight to opinion of claimant’s treating psychiatrist than
to opinion of her family physician when claim was based on mental health issues).
Although Dr. Case’s opinion is not supported by the record as a whole, because he is a
neurologist, this factor weighs slightly in favor of giving the opinion more weight.
vi.

Other factors

Claimant argues in his reply brief that Dr. Case stated that Claimant “had an
inability to walk in excess of 200 feet without assistance on September 17, 2015, (AR

15

489) [sic] Thus, Dr. Case does give a specific limitation.” (Doc. 19 at 2 ¶ 3) (citation
in original).
I am not sure what this argument is in response to. The Commissioner does not
assert that the ALJ did not place restrictions on Claimant’s ability to walk and, indeed,
the ALJ assigned a sedentary RFC, which is consistent with a walking restriction. 7 In
her brief, the Commissioner noted only the following from treatment notes with respect
to walking: In November 2014, Claimant had “a normal gait, was able to walk on his
heels and toes” (AR at 382-83); in April 2015, Claimant had a slow gait (Id. at 466); and
in May 2017, Claimant had a normal gait (Id. at 651). None of these statements addresses
Claimant’s ability to walk more than 200 feet with or without assistance.
Dr. Case’s statement regarding Claimant’s walking limitation is contained in a
September 16, 2015 one-sentence letter addressed “To Whom May Concern,” stating the
above walking limitation, and concluding that this limitation means that Claimant “meets
the definition of ‘handicapped’ because of his inability to walk more than 200 feet without
assistance.” (Id. at 489.) I find that this opinion letter is not supported by Dr. Case’s
own treatment notes, none of which document distance limitations or difficulties after
walking, other than a “slow gait,” as mentioned above. Claimant did perform twentyfive-foot walking tests for Dr. Case, but there is no mention of the tests being fatiguing
or of Claimant needing any assistance with the tests or after completing the tests. (Id. at
457, 460, 463, 466.) The record does not contain documentation that Claimant ever took
a 200-foot walking test. The narrative sections of Dr. Case’s treatment notes do not
document walking difficulties that Claimant discussed with Dr. Case or that Claimant
discussed using a cane or another kind of assistive device when walking, although his
7

“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined
as one which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties.” 20 C.F.R. §§ 404.1567(a), 416.967(a).

16

walking was described as “quite slow for age with slow turns.”

(Id. at 463.)

Accordingly, I find Claimant’s argument that he has a documented 200-foot walking
distance limitation to be without merit because the Commissioner never argued Claimant
should not have any walking limitation; the pages of the record cited by the Commissioner
in her brief are not at odds with a walking distance limitation; and Dr. Case’s 200-foot
walking distance limitation is not supported by his own treatment notes, which never
mention Claimant’s need for assistance when walking more than 200 feet. In addition,
no other treatment notes in the record document a walking-distance limitation. Thus, the
record as a whole does not support Dr. Case’s 200-foot walking distance limitation.
c.

Conclusion

After a thorough review of the entire record, I find that Claimant’s contention that
the ALJ “rejected” Dr. Case’s opinion is without merit because the ALJ assigned Dr.
Case’s opinion “little weight,” rather than no weight. (Id. at 30.) In addition, I find that
the ALJ’s opinion regarding Dr. Case’s opinion is supported by substantial evidence on
the record as a whole and should not be disturbed. Accordingly, I recommend that the
ALJ’s decision on this issue be affirmed.
2. Dr. John Bertoni
On May 11, 2015 Dr. Bertoni completed a one-page, check box form at the request
of Claimant’s attorney. (AR at 470.) On this form, Dr. Bertoni stated that he began
treating Claimant for Parkinson’s disease in November 2014. (Id.) After that, the form
asked only two questions, the texts of which are reproduced below in their entirety, along
with Dr. Bertoni’s answers:
Please check any of the following which either accurately describe your
patient’s condition or are medically equivalent:
 Significant Rigidity
 Bradykinesia

17

Do the conditions listed above produce any of the following limitations?
 Sustained disturbance of gross and/or dexterous movement
 Sustained disturbance of gait and/or station
(Id.) Dr. Bertoni provided no support for his conclusions, no citations to medical records,
and no explanations for his answers. (Id.) The ALJ gave this opinion “little weight”
because Dr. Bertoni did not support his opinion with references to medical evidence and
because the record on the whole did not support Dr. Bertoni’s conclusions. (Id. at 30.)
b. Analysis
i.

Examining Relationship

“Generally, [ALJs] give more weight to the medical opinion of a source who has
examined [a claimant] than to the medical opinion of a medical source who has not
examined [a claimant].” 20 C.F.R. § 404.1527(c)(1). However, a treating source’s
opinion may be disregarded in favor of other opinions if it is not supported by substantial
evidence in the record. Casey, 503 F.3d at 692. Dr. Bertoni stated that he had been
treating Claimant for six months at the time that he filled out his check-blank opinion
form. (AR at 470.) However, I can find no treatment notes from Dr. Bertoni in the
record that document this treatment relationship and Claimant does not direct the Court
to any notes. As discussed below, I find that Dr. Bertoni’s opinion is not supported by
substantial evidence on the record as a whole, and therefore, his opinion is entitled to
little weight.
ii.

Treatment Relationship

“Generally, [ALJs] give more weight to the medical opinions from [a claimant’s]
treating sources. . . . When the treating source has seen [the claimant] a number of times
and long enough to have obtained a longitudinal picture of [the claimant’s] impairment,
[the ALJ] will give the source’s opinion more weight than . . . if it were from a
nontreating source.” 20 C.F.R. at § 404.1527(c)(2)(i).

18

In addition, “the more

knowledge a treating source has about [a claimant’s] impairment(s), the more weight the
[ALJ] will give the source’s opinion.” Id. at § 404.1527(c)(2)(ii). Dr. Bertoni is
supposedly Claimant’s treating source. However, the record does not show if Claimant
saw him once in the six months since they began their treatment relationship or if
Claimant saw Dr. Bertoni more often than that. It appears that Dr. Case, Claimant’s
primary neurologist, originally referred Claimant to Dr. Bertoni at the Movement
Disorders Center (AR at 460), but that Claimant actually saw Dr. Bhatti. Dr. Case only
mentioned Dr. Bhatti after Claimant started treatment at the Movement Disorders Center.
(See, e.g., at 463-65, 483.) Because there is no documentation of how many times
Claimant saw Dr. Bertoni, this factor is neutral.
iii.

Supportability

“The better an explanation a source provides for a medical opinion, the more
weight [the ALJ] will give that medical opinion.” 20 C.F.R. § 404.1527(c)(3). Dr.
Bertoni did not say what he based his opinions on, only giving the date that he started
treating Claimant as some clue to the depth of their doctor-patient relationship. (AR at
470.)

Dr. Bertoni has no treatment notes in the record. Accordingly, his opinion is

entirely unsupported on that basis. In addition, the check box format used for this opinion
is about as cursory and perfunctory as possible. The opinion also limits the author’s
choices and thus its value by only providing two options for each query. The options,
themselves, assume that the patient at issue is already experiencing “significant” or
“sustained” symptoms from his Parkinson’s disease, except for bradykinesia. Notably
missing is documentation of, or at least citation to, any tests Dr. Bertoni ran and the
results of those tests, any clinical observations, or any narration of impressions from time
spent with Claimant. (Id.)
As discussed above, a treating source’s opinion can be given limited weight if it
contains only conclusory statements or inconsistent opinions “that undermine the

19

credibility of such opinions.” Papesh, 786 F.3d at 1132. The cursory checklist format,
limited options, and total lack of support in the opinion lead me to agree with the ALJ’s
conclusion that Dr. Bertoni did not “include references to the medical evidence to support
these brief statements.” (AR at 30.) Therefore, this factor weighs in favor of giving the
opinion little weight.
iv.

Consistency

“Generally, the more consistent a medical opinion is with the record as a whole,
the more weight [the ALJ] will give to that medical opinion.”

20 C.F.R. §

404.1527(c)(4). In support of his conclusion that Dr. Bertoni’s opinion is not supported
by other evidence in the record as a whole, the ALJ cited specific pages in the record
that contradicted Dr. Bertoni’s conclusions. (Id. at 30.) After reviewing the record, I
agree with the ALJ that Dr. Bertoni’s limitations are not supported by the record on the
whole. Although there is support for some of Dr. Bertoni’s conclusions (i.e., some
rigidity and bradykinesia (Id. at 381, 448, 451, 456, 459, 463, 466, 474-75, 687, 722)),
there is also support for Claimant having full strength, which undermines a finding of
bradykinesia (Id. at 381, 751, 759, 783). In addition, I find there is no support for his
findings of sustained disturbance of gross and/or dexterous movement or sustained
disturbance of gait and/or station. (See id. at 390 (full range of motion in neck); 448 (no
discernable obvious tremor, other than occasional flicker); 564 (normal range of motion
in hands and arms); 381, 564, 716, 751, 760, 767, 783, 793 (full range of motion in
upper extremities); 381, 751, 767, 784, 793 (hand tremors rated “slight and infrequent”
to “moderate” with action); 454 (gait normal speed); 457, 460, 463, 466 (completed 25foot walking test with no reported anomalies, except slow rate for age); 382-83, 753,
761, 768, 786 (normal, if slow, gait); 466, 481, 627 (able to twist, stoop down, and
bend at waist and attach a paper clip with both hands).) Therefore, I agree with the ALJ’s
conclusion that Dr. Bertoni’s opinion is not consistent with the record as a whole. (See

20

id. at 30 (citing Id. at Ex. F at 66 [AR at 648-51]).) I further find that this factor weighs
in favor of giving Dr. Bertoni’s opinion little weight.
v.

Specialization

“[The ALJ will] generally give more weight to the medical opinion of a specialist
about medical issues related to his or her area of specialty than to the medical opinion of
a source who is not a specialist.” 20 C.F.R. § 404.1527(c)(5). Dr. Bertoni is a boardcertified neurologist who gave an opinion in his area of expertise about a patient under
his care. (AR at 470.) Therefore, the ALJ was required to credit Dr. Bertoni’s opinion,
if it was supported by the record. See Brown, 611 F.3d at 951, 954. As discussed above,
Dr. Bertoni’s opinion is not supported by the record, not even with his own treatment
notes. Therefore, this factor is neutral.
vi.

Conclusion

After a thorough review of the entire record, I find that the ALJ’s opinion
regarding Dr. Bertoni’s opinion is supported by substantial evidence on the record as a
whole and should not be disturbed. Accordingly, I recommend that the ALJ’s decision
on this issue be affirmed.
3.

Dr. Danish Bhatti

Claimant’s entire argument related to Dr. Bhatti follows:
The University of Nebraska Medical Center progress notes on the Plaintiff
are by Danish Bhatti, M.D., who is assistant professor at the Department
of Neurological Sciences and Director of the movement disorder program
at the University of Nebraska Medical Center. (AR 385, 797) Dr. Bhatti
has been involved throughout Plaintiff’s treatment at UNMC. Dr. Bhatti’s
findings are really not addressed in the ALJ’s opinion nor does it state what
weight is given to those records.
(Doc. 19 at 1 ¶ 2.) From this paragraph, I assume Claimant argues that the ALJ did not
properly consider Dr. Bhatti’s treatment notes. I find, however, that the ALJ clearly did
so. The ALJ’s five citations to Exhibit 17F are citations to Dr. Bhatti’s treatment notes.

21

(AR at 29.) In addition, the ALJ’s eight citations to Exhibit 1F pages 4 and 8 (AR at 2831), are citations to treatment notes from one of Claimant’s appointments with Dr. Bhatti.
AR 385, cited by Claimant, is the last page of treatment notes from that same appointment
and contains nothing substantive that I can discern. Page AR 385 merely contains a wrapup of Dr. Bhatti’s notes from a November 7, 2014 appointment wherein Dr. Bhatti
explains what he discussed with Claimant during the appointment. In addition, AR 797,
to which Claimant refers, is merely a reproduction of Exhibit 16F pages 67-68. The ALJ
cited Exhibit 16F page 67 three times in his decision. (AR 28-29.) The ALJ also cited
Dr. Bhatti’s treatment notes in other places throughout his decision. (See id. at 28-31
(citing Exs. 16F and 17F, which contain Dr. Bhatti’s treatment notes).) Therefore, I find
the ALJ thoughtfully considered Dr. Bhatti’s treatment notes and used them to support
his conclusions.
Finally, contrary to Claimant’s assertion, an ALJ is not required to “weigh”
findings, records, or treatment notes. The rules require ALJs to weigh physician’s
“opinions.” See 20 C.F.R. §§ 404.1520c, 404.1527. The record does not contain an
opinion written by Dr. Bhatti. To the extent Claimant interprets AR 385 and AR 797 as
opinions, as discussed above, AR 385 is merely the last page of treatment notes from the
initial examination Dr. Bhatti conducted of Claimant and it summarizes what Dr. Bhatti
and Claimant discussed during the examination. The ALJ actually cited other pages of
treatment notes from this examination to support his findings that Claimant was
encouraged to exercise, which contradicted Claimant’s claim that his condition was as
limiting as described (AR at 28 (citing Ex. 1F at 8 [AR 384]); that Claimant did not
exhibit severe cognitive limitations (Id. (citing Ex. 1F at 4 [AR 380]); and that Claimant
had a full range of motion (Id. at 30 (citing Ex. 1F at 4 [AR at 380]).
AR 797 is also a page of treatment notes, not an opinion. The ALJ also cited this
page to support his finding that Claimant was encouraged to exercise, which contradicted

22

Claimant’s claim that his condition was as limiting as described. (Id. at 28 (citing Ex.16F
at 67 [AR 797].) In addition, the ALJ cited this page to document Dr. Bhatti’s finding
that Claimant had myoclonic tremors in his hands and that he prescribed physical therapy
and told Claimant to increase his exercise time. (Id. at 29.) Accordingly, I find the ALJ
did not fail to weigh an “opinion” or to properly consider treatment notes written by Dr.
Bhatti. Therefore, I recommend the ALJ’s decision related to how he considered and
used Dr. Bhatti’s notes be affirmed.
4.

State Agency Physicians Matthew Byrnes, D.O. and John May, M.D.

On April 29, 2015, Dr. Matthew Byrnes reviewed the record for the state agency
and opined that Claimant could perform light work. (AR at 104.) Specifically, Dr.
Byrnes stated that Claimant could sit, stand, and/or walk, for a total of six hours in an
eight-hour workday; could occasionally lift and carry 20 pounds and frequently carry 10
pounds; could occasionally climb ramps and stairs, but never climb ladders, ropes, or
scaffolds; could occasionally balance, stoop, kneel, crouch, and crawl; could perform
limited overhead reaching, handling, and fingering bilaterally; and must avoid
concentrated exposure to extreme heat and cold, vibration, and workplace hazards, but
could handle unlimited exposure to wetness and noise. (Id. at 98-100.) On August 10,
2015, Dr. John May affirmed Dr. Byrnes’s opinion in conjunction with Claimant’s appeal
of the original denial of his benefits claim. (Id. at 131.) For his review, Dr. May
reviewed the entire record and considered new evidence consisting of Claimant’s thenmost current treatment notes from June 3, 2015 and Claimant’s statement that his
symptoms were getting worse. (Id.)
The ALJ gave these opinions “minimal weight” because Claimant’s Parkinson’s
disease and shoulder impingements precluded him from doing the weight lifting required
for “light exertional activities.” (Id. at 30.) The ALJ determined that Drs. Byrnes and
May did not adequately consider the combination of Claimant’s impairments and did not

23

have the benefit of examining the hearing evidence. (Id. at 30-31.)

Rather, the ALJ

determined that the medical evidence, which included evidence of “some tremors, a
slower gait,” and “constant medical examinations to measure the progression” of
[Claimant’s] Parkinson’s, supported a finding that Claimant was only capable of
performing work at a sedentary level. (Id. at 31) (citing multiple pages from the record
for support.)
Claimant’s entire argument related to the weight the ALJ assigned to these opinions
follows:
Given [Claimant’s] Parkinson’s and shoulder impingements in weight
lifting and his tremors[,] slower gait[,] and the progression of his
Parkinson’s, the ALJ believed that he could not perform light work. (AR
30-31)
In Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000), the Eighth Circuit stated
that the “opinions of doctors who have not examined the claimant ordinarily
do not constitute substantial evidence on the record as a whole.” Id. at 858.
The court held where there was no medical evidence about how the
claimant’s impairments affected his present ability to function, and where
the ALJ relied on the opinions of non-treating, non-examining physicians
who reviewed the reports of the treating physicians to form an opinion of
the claimant’s RFC, the ALJ did not satisfy his duty to fully and fairly
develop the record. Id.
Thus, the ALJ not only rejected the opinions of the treating doctors that he
was disabled, but also rejected the opinion of the state examining doctor
that he can do light work and selected on his own that [Claimant] could do
sedentary work when it is not supported by any of the medical evidence.
(Doc. 17 at 4.) Claimant’s argument is somewhat puzzling because a sedentary RFC is
more Claimant-friendly than a light-work RFC. 8 A Claimant should want the Court to
8

As the Commissioner asserts, “the ALJ essentially gave [Claimant] the benefit of the doubt and
provided him with additional limitations, beyond those the state agency physicians assessed, to
the extent consistent with the record as a whole.” (Doc. 18 at 10) (citing AR at 31.)

24

affirm this decision of the ALJ, at least as an alternative to finding Claimant disabled.
However, giving Claimant’s argument a generous read, he seems to be arguing that the
ALJ rejected all medical evidence and made up an RFC out of whole cloth. That, I find,
the ALJ did not do.
“Where an ALJ does not rely on opinions from treating or examining sources,
there must be some other medical evidence in the record for the ALJ’s opinion to be
supported by substantial medical evidence on the record.” Shuttleworth, 2017 WL
5483174, at *7 (citation omitted). “It is the ALJ’s function to resolve conflicts among
the opinions of various treating and examining physicians. The ALJ may reject the
conclusions of any medical expert, whether hired by the claimant or the government, if
they are inconsistent with the record as a whole.” Wagner, 499 F.3d at 848 (quotation
omitted).
I conclude that although the ALJ did not give any particular medical opinion
controlling weight, he did rely on supporting evidence from medical opinions in crafting
the RFC. See Shuttleworth, 2017 WL 5483174, at *7 (noting that the ALJ attributed
“little weight,” rather than “no weight” to opinion of treating physician). Specifically,
the ALJ considered the medical evidence in the record, and gave some weight to each of
the opinions in the record: little weight to Dr. Case’s and Dr. Bertoni’s opinions and
minimal weight to Dr. Byrnes’s and Dr. May’s opinions. The ALJ included limitations
from the various opinions contained in the record in his RFC. Again, the RFC provides:
Claimant has the residual functional capacity to perform sedentary work as
defined in 20 C.F.R. § 404.1567(a) and 416.967(a), except the following:
he remains unable to frequently push and pull, reach overhead, handle and
finger. He can occasionally stoop, kneel, crouch, and crawl. He is unable
to climb ladders and he should avoid exposures to hazards such as
unprotected heights and the operation of motor vehicles. He cannot perform
work that requires exposure to sustained and concentrated extreme
temperatures or vibration.

25

(AR at 27.)
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small
tools. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out
job duties.
20 C.F.R. §§ 404.1567(a), 416.967(a).
The RFC incorporates the following limitations from Dr. Case’s opinion: Claimant
can sit eight hours out of an eight-hour work day, can stoop occasionally, can occasionally
lift ten pounds or less, and is unable to climb ladders. The RFC incorporates bradykinesia
from Dr. Bertoni’s opinion by limiting the amount of weight Claimant can lift. The RFC
incorporates the opinions of Drs. Byrnes and May by limiting Claimant to kneeling,
crouching, and crawling occasionally; by not being exposed to extreme temperatures or
vibration; and by avoiding “exposures to hazards such as unprotected heights and the
operation of motor vehicles,” which Drs. Byrnes and May covered under the umbrella
of “workplace hazards.” (AR at 98-100.) I further find that the remaining limitations
in the RFC—the abilities to “frequently push and pull, reach overhead, handle and
finger”—are supported by substantial evidence on the record as a whole. (See, e.g. id.
at 381, 475, 481, 671, 751, 760, 793) (limitations supported in the record and no
healthcare provider mentioned any limits on pushing or pulling).
In conclusion, I find that the ALJ based his RFC on medical evidence in the record
and recommend that the ALJ’s decision on this issue be affirmed, including how he
weighed the opinions of the state agency physicians.
B.

The ALJ properly weighed Claimant’s subjective complaints.
When a claimant suffers from a severe impairment, but the impairment does not

meet or equal a disabling impairment listed in the regulations, the ALJ “will consider the
impact of [the claimant’s] impairment(s) and any related symptoms, including pain, on

26

[the claimant’s] residual functional capacity.”

20 C.F.R. § 404.1529(d)(4). This

determination involves a two-step process in which the ALJ (1) first decides whether the
claimant has a medically determinable impairment that could reasonably be expected to
produce the claimant’s symptoms and then (2) evaluates the intensity and persistence of
claimant’s symptoms. Id. § 404.1529(b),(c). When evaluating a claimant’s subjective
complaints during the second step, the ALJ considers the objective medical evidence, the
Claimant’s work history, and evidence relating to the following factors (“the Polaski
factors”): (1) the claimant’s daily activities; (2) the duration, frequency and intensity of
the symptoms; (3) precipitating and aggravating factors; (4) dosage, effectiveness and
side effects of medication; and (5) the claimant’s functional restrictions. Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); 20 C.F.R. § 404.1529(c)(3). 9 An ALJ
is not required to “methodically” discuss each Polaski factor as long as the ALJ
“acknowledge[es] and examin[es] those considerations before discounting [a claimant’s]
subjective complaints.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing Brown
v. Chater, 87 F.3d 963, 966 (8th Cir.1996)).
After considering the factors and evidence, the ALJ determines the extent to which
the claimant’s symptoms affect the claimant’s capacity to perform basic work activities.
20 C.F.R. § 404.1529(c)(4). The claimant’s “symptoms, including pain, will be
determined to diminish [the claimant’s] capacity for basic work activities to the extent
that [the claimant’s] alleged functional limitations and restrictions due to symptoms, such
as pain, can reasonably be accepted as consistent with the objective medical evidence and
other evidence.” Id.

The Code of Federal Regulations includes these additional factors: (1) other treatment
the claimant receives for pain relief; and (2) measures the claimant uses to relieve pain
“(e.g., lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a
board, etc.).” 20 C.F.R. § 404.1529(c)(3)(v), (vi).

9

27

In this case, the ALJ found at the first step that Claimant had medically
determinable impairments that could reasonably be expected to cause his alleged
symptoms. (AR at 28.) At the second step, the ALJ found that Claimant’s statements
concerning the intensity, persistence, and limiting effects of his symptoms were “not
entirely consistent” with the evidence in the record. (Id.) To support this determination,
the ALJ noted that in spite of his allegations that his Parkinson’s disease weakened his
grip; caused him difficulty squatting, bending, reaching, walking, kneeling, talking,
climbing stairs, balancing, and using his hands; and that he suffered from bilateral hand
tremors and decreased concentration (Id. at 28), Claimant could perform household
chores, maintain social relationships, complete shopping errands, drive, go fishing, and
use a computer. (Id.) The ALJ also stated that although the medical records did describe
some symptoms, they did not document symptoms at the level Claimant described. (Id.)
Specifically, the ALJ noted that Claimant’s physicians consistently encouraged him to
exercise and be active; that treatment notes do not disclose severe tremors, loss of grip
strength, an inability to write legibly, or severe cognitive limitations. (Id.) On the
contrary, the ALJ stated that physicians’ treatment notes indicated that Claimant had full
range of motion, intact neurological senses, and “normal strength throughout his
musculoskeletal systems.” (Id.) The ALJ provided extensive citations to the record to
support his conclusions. (See id.) The ALJ discussed particular evidence in the record
that contradicted Claimant’s subjective complaints. (Id. at 28-30.)
After conducting a review of the record, I agree that the record on the whole does
not support Claimant’s subjective complaints and find that the ALJ properly evaluated
the Polaski factors, even though he did not enumerate them or mention Polaski by name.
A factor-by-factor breakdown indicating where the ALJ discussed each of the Polaski
factors follows. I will address factors (2), (3), and (5) together because Claimant seems
to make the same argument related to those factors.

28

(1) Claimant’s daily activities. (Id.) (citing Exs. 5E and 17F at 43 and Claimant’s
Hr’ing Test.) (noting that Claimant drives three and one-half hours and drove one-hour
each way on a trip the day before the hearing in this case; performs household chores
such as simple meal preparation, loading and unloading dishwasher; maintains social
relationships; goes shopping; goes fishing on weekends; and uses a computer).
Claimant correctly asserts that being able to perform simple household chores is
not necessarily an indication that someone can work fulltime. The Eighth Circuit “has
repeatedly stated that a person’s ability to engage in personal activities such as cooking,
cleaning, and hobbies does not constitute substantial evidence that he or she has the
functional capacity to engage in substantial gainful activity.” Kelley v. Callahan, 133
F.3d 583, 589 (8th Cir. 2003); see also Leckenby v. Astrue, 487 F.3d 626, 634 (8th Cir.
2007) (holding that claimant’s ability to fold laundry, shop once a week, watch her
children at independent play, drive short distances about three times a month, and watch
television and listen to music before dozing off or losing concentration did not mean she
had the ability to work fulltime). In short, a claimant need not prove a disability renders
him “bedridden” or unable to engage in “all productive activity” before he qualifies for
benefits.

Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999).

This would be

problematic for the ALJ’s decision if the ALJ had relied solely on Claimant’s ability to
perform daily chores, drive, shop, and fish to conclude that Claimant was not disabled.
However, as demonstrated by the rest of the ALJ’s analysis and decision, the ALJ relied
on physician’s treatment notes, which contained the results of objective medical testing,
to support his decision in this case. Furthermore, that the ALJ mentioned these daily
activities was also not a problem because the ALJ was required to assess Claimant’s daily
activities as one the Polaski factors he must weigh when deciding a case in which
subjective complaints are at issue. Therefore, I find that Claimant’s argument related to
subjective complaints is without merit.

29

(2) The duration, frequency, and intensity of Claimant’s symptoms. (AR at
28-29) (citing Exs. 1F at 4, 8; 2F at 4; 4F at 5; 7F at 19-20; 15F at 15; 16F at 51, 6667, 131, 137; 10F at 7) (encouraging Claimant to participate in an exercise program and
to exercise daily, finding that examination results did not describe severe tremors, loss
of grip strength, hand impairment, an inability to write legibly, or severe cognitive
limitations; and concluding that Claimant’s symptoms are not as limiting as described,
but rather that examinations consistently showed full ranges of motion, in spite of varying
degrees of rigidity; intact neurological senses; the ability to use a paper clip; the ability
to rise normally from a chair and to walk on his heels and toes; normal gait; and normal
strength; no deterioration of symptoms; and no change in Parkinson’s symptoms);
(3) Precipitating and aggravating factors (Id. at 29) (citing Ex. 17F at 42)
(stating that Claimant’s “most bothersome symptoms were tremors at peak dose times
and if he does not take his medications, his symptoms increased” and noting that at this
examination, Claimant’s medication regimen was changed, and invasive tremors were
not noted as a problem in future treatment notes); and
(5) Claimant’s functional restrictions. (Id.) (citing Ex. 16F at 66-67, 17F at 50,
Claimant’s Hr’g Test.) (noting that in spite of having myoclonic tremors in his hands,
results of a May 2017 examination showed intact memory; full ranges of motion; full
muscle strength; normal gait; the ability to rise normally from a chair, to walk on his
toes and heels, and to walk in a tandem gait. 10 The ALJ also noted that the results of
“extensive ambulation testing” done less than one month before the hearing were normal
and discussed how Claimant’s testimony supports a conclusion that Claimant can perform
sedentary work.)

10

Tandem gait is “a gait used in neurologic assessments; the patient is told to walk in a straight
line and at the end of each step to touch the heel of the front foot to the toe of the foot behind.”
Dorland’s supra note 6, at 754.

30

Claimant argues that the ALJ failed to consider the progressive nature of
Parkinson’s disease and how his loss of strength and dexterity and other Parkinson’s
symptoms make it impossible for him to work. Claimant asserts that he “is not making
this up” and that he is credible. (Doc. 17 at 7.) Claimant cites a single treatment note
from his first appointment with Dr. Bhatti for support. In that November 7, 2014
treatment note, Dr. Bhatti begins the “Assessment” portion of his notes in the following
way: “Stage 2 Parkinsonism: 45 year old male with young onset parkinsonism starting
around age 43-44 with relatively rapid progression and decreased response to
medications.” (AR at 383, 753.)
While this treatment note acknowledges the rapid progression Claimant was
experiencing at the time, and the progressive nature of Parkinson’s disease, in general,
it does not account for the symptom improvement Claimant has experienced over the
years after trying new medication regimens. (See id. at 465 (Claimant reported “doing
fairly well”), 530 11 (“[patient] doing ok”) 719 (improved walking with medication), 797
(three weeks before hearing, medication improved dyskinesia, 12 although Claimant was
noticing increasing stiffness and rigidity and was having myoclonic tremors 13 on day of
examination).) In addition, Dr. Bhatti described Claimant’s tremors as “absent” or
“slight,” with occasional “mild” or “moderate” tremors (Id. at 381, 751, 767, 784, 793);
Dr. Case reported only slight tremors (Id. at 451 (subtle intermittent left hand tremor));
453 (minimal or no tremor); 454 (subtle intermittent left hand possible right hand tremor);

11

The ALJ cites to AR 528 (Ex. 15F at 15), which I believe was an inadvertent typographical
error. (AR 29.) The quoted “ok” appears at AR 530 (Ex. 15F at 17).
12
Dyskinesia is “distortion or impairment of voluntary movement, as in tic, spasm, or
myoclonus.” Dorland’s supra note 6, at 578.
13
Myoclonic tremors are “involuntary trembling or quivering” caused by “shocklike contractions
of a portion of muscle, an entire muscle, or a group of muscles.” Dorland’s supra note 6, at
1957, 1222.

31

457, 459, 463, 466 (no tremor)). Moreover, on the day before the hearing, Claimant
had a full day of activities that included driving one hour each way to visit someone.
Accordingly, I find that the ALJ properly evaluated the duration, frequency, and
intensity of Claimant’s symptoms; precipitating and aggravating factors; and Claimant’s
functional restrictions. The ALJ’s decisions related to these Polaski factors are supported
by substantial evidence in the record as a whole because, as discussed here and in Section
III.A., supra, Claimant has an intact memory and cognitive skills; full ranges of motion
(although sometimes with difficulty) and full muscle strength on objective medical tests;
and Claimant’s symptoms have been helped with medication.
(4) Dosage, effectiveness, and side effects of medication. (AR at 29.) As
discussed above, the ALJ noted that Claimant has experienced symptom relief as his
doctors changed his medications in response to side-effects or other issues. (AR at 719,
797.) As the ALJ also noted, Claimant’s physicians have also consistently prescribed
physical therapy and exercise. However, the record does not indicate that Claimant
attended physical therapy or that he did home exercises as prescribed. Dr. Bhatti even
twice suggested that Claimant ask his local gym for a scholarship if cost was a barrier to
membership (Id. at 788, 797), but, again, there is no indication Claimant followed
through with this suggestion. The record does not contain any physical therapy records
and it does not appear that Claimant discussed having done exercises with his health care
providers because his providers did not note such conversations. Claimant also did not
mention doing exercises when asked about his daily routine at the hearing. (Id. at 7173.) A claimant’s failure to follow a course of prescribed treatment undermines the
claimant’s disability claim. See Wagner, 499 F.3d at 851-52; Roth v. Shalala, 45 F.3d
279, 282 (8th Cir. 1995) (“Failure to follow a prescribed course of remedial
treatment without good reason is grounds for denying an application for benefits.”);
Holliman v. Colvin, No. 3:15-CV-00371 JTK, 2016 WL 6780305, at *2 (E.D. Ark. Nov.

32

15, 2016) (citing Roth and holding that when there was no record that claimant attended
prescribed physical therapy, claimant’s claims of pain were undermined).
Based on the above analysis, I find that the ALJ properly considered Claimant’s
subjective complaints, discussed all the Polaski factors, and supported his decision on
this issue by citing substantial evidence on the record as a whole.

Therefore, I

recommend that the District Court affirm the ALJ’s decision on this issue.
C.

The ALJ posited an appropriate hypothetical to the vocational expert.
“A vocational expert’s testimony based on a properly phrased hypothetical

question constitutes substantial evidence.” Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir.
2005) (quotation omitted). “A hypothetical question posed to the vocational expert is
sufficient if it sets forth impairments supported by substantial evidence in the record and
accepted as true.” Id. “The question “must capture the concrete consequences of the
claimant’s deficiencies” but “may exclude any alleged impairments that [the ALJ] has
properly rejected as untrue or unsubstantiated.” Perkins v. Astrue, 648 F.3d 892, 902
(8th Cir. 2011) (quotations omitted).
At the hearing, the ALJ posed hypothetical situations to the vocational expert Holly
Berquist Neal (“the VE”). The ALJ’s third hypothetical encompassed the RFC the ALJ
eventually adopted:
Claimant has the residual functional capacity to perform sedentary work as
defined in 20 C.F.R. § 404.1567(a) and 416.967(a), except the following:
he remains unable to frequently push and pull, reach overhead, handle and
finger. He can occasionally stop, kneel, crouch, and crawl. He is unable
to climb ladders and he should avoid exposures to hazards such as
unprotected heights and the operation of motor vehicles. He cannot perform
work that requires exposure to sustained and concentrated extreme
temperatures or vibration.
(AR at 27, 80-81.) The VE responded that an individual with these limitations could
work as a document preparer, telephone quotation clerk, or addressing clerk. (Id. at 82.)

33

In hypothetical four, the ALJ changed the ability to finger frequently to the ability to
finger occasionally. (Id.) The VE testified that changing the fingering ability would
eliminate all of the jobs she had previously identified, and that only one job would now
fulfill the requirements: callout operator. 14 (Id.) The VE further testified that a person
could still perform all of the above jobs if he had to stretch for a full minute out of every
hour to “increase his comfort.” (Id. at 83-84.)

The VE also testified that if the

hypothetical was changed so that the person could only occasionally reach and was limited
to infrequent handling and fingering, 93% of jobs are no longer available. (Id. at 87.)
Moreover, if someone had to miss work three days a month, that would exceed what an
employer would allow because most employers will only tolerate employees missing one
day of work a month. (Id. at 88.)
Claimant makes the following argument regarding the hypothetical:
The hypothetical of the ALJ as to the sedentary work that the ALJ relied
upon does not take into account the complete limitations of the Plaintiff.
Sedentary work is not supported by the medial record of the treating
physician. Dr. Case says he cannot work. The hypothetical does not include
the restrictions and limitations pointed out by the University of Nebraska
Medical regarding the tremors, his limitations in reaching, his problems
with his gait, problems remembering things and the problems he has in
being understood when he speaks. In addition as pointed out, he suffers
from fatigue and tiredness. All these limitations were ignored by the ALJ
in the hypothetical. Furthermore, the ALJ did not take into account the
statement of Dr. Case that suggests his inability to work.
14

A call-out operator “[c]ompiles credit information, such as status of credit accounts, personal
references, and bank accounts to fulfill subscribers’ requests, using telephone. Copies
information onto form to update information for credit record on file, or for computer input.
Telephones subscriber to relay requested information or submits data obtained for typewritten
report to subscriber.” United States Dept. of Labor, Office of Admin. Law Js. L. Libr.,
Dictionary of Occupational Titles (4th ed., rev. 1991), Occupational Group Arrangement,
https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT02B.HTM, 237.367-014 (listing
typical duties associated with each job title) (last visited April 18, 2019).

34

(Doc. 17 at 10-11.) Claimant also argues that the job of callout operator is inappropriate
for Claimant because he has “problems with his voice and being heard.” (Id. at 9.)
First, after reviewing Dr. Case’s opinion and “To Whom it May Concern” letter,
I find no place where Dr. Case states that Claimant cannot work. Although Dr. Case
states in his letter that Claimant is disabled, he does not say Claimant cannot work.
People with disabilities work every day. See, e.g., Americans With Disabilities Act of
1990, 42 U.S.C. § 12101 et seq.; Iowa Code § 216.6(1)(a):
It shall be an unfair or discriminatory practice for any [p]erson to refuse to
hire . . . or to otherwise discriminate in employment against any applicant
for employment or any employee because of the . . . disability of such
applicant or employee, unless based upon the nature of the occupation. If a
person with a disability is qualified to perform a particular occupation, by
reason of training or experience, the nature of that occupation shall not be
the basis for exception to the unfair or discriminatory practices prohibited
by this subsection.
In Dr. Case’s opinion, he checked the blank indicating that Claimant is capable of
working in a low stress job. (AR at 469.) Dr. Case had the option to check that Claimant
was incapable of working, but did not do so. (Id.) And, as discussed in Part III.A.i.,
supra, Dr. Case put limits for Claimant’s work capabilities, indicating that Claimant was,
indeed, able to engage in some kind of work. (Id. at 467-69.) Finally, even if Dr. Case
had opined that Claimant could not work, that opinion would have been disregarded
because the decision regarding whether a claimant can work is “reserved for the
Commissioner and therefore is not the type of ‘medical opinion’ to which the
Commissioner gives controlling weight.” See Ellis v. Barnhart, 392 F.3d 988, 994 (8th
Cir. 2005) (quoting Stormo, 377 F.3d at 806).
Second, when Claimant refers to “the University of Nebraska,” I assume he means
Dr. Bertoni and Dr. Bhatti because that is where these physicians work. However,
Claimant cites no specific records to support his argument and thus leaves the Court in

35

the position of guessing at his arguments, which is not the Court’s job. See Singer v.
Harris, 897 F.3d 970, 980 (8th Cir. 2018) (holding that when plaintiff did not direct the
court to a place in the record where it could find alleged errors, the court would only
consider the arguments that were supported by appropriate citations) (citing Manning v.
Jones, 875 F.3d 408, 410 (8th Cir. 2017)); see also ASARCO, LLC v. Union Pac. R.R.
Co., 762 F.3d 744, 753 (8th Cir. 2014) (“Judges are not like pigs, hunting
for truffles buried in briefs or the record.”) (noting internal quotation marks omitted);
Perrigo v. Colvin, No. 12-CV-4102-DEO, 2014 WL 1234479, at *7 n.3 (N.D. Iowa
Mar. 25, 2014) (same) (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991)). That being said, I have already found that the ALJ properly weighed Dr.
Bertoni’s opinion because Claimant often had full muscle strength; normal, although
slow, gait; and full range of motion.
Third, as discussed above, Dr. Bhatti did not write an opinion, and as a neutral
decision-maker, the Court cannot go “hunting for [Claimant’s arguments] buried in . . .
the record.” ASARCO, 762 F.3d at 753; Perrigo, 2014 WL 1234479, at *7 n.3. I have,
however, considered all the evidence in the record, see Vester, 416 F.3d at 889, including
Dr. Bhatti’s treatment notes that documented only slight to moderate tremors and strength
of 5/5. (AR at 381, 751, 767, 784, 793.) In addition, after “extensive ambulation
testing,” Dr. Bhatti consistently found Claimant’s gait to be normal, if slow. (Id. at 753,
761, 768, 776, 786, 796.) Claimant always got normal results on Dr. Bhatti’s cognitive
and mental examinations (Id. at 380, 750, 758, 773, 783, 792) and always had full range
of motion with his upper extremities, in spite of having varying degrees of rigidity on
any given day (Id. at 381, 751, 760, 767, 783, 793). Dr. Bhatti did diagnose Claimant

36

with hypophonia 15 and documented Claimant’s slurred and soft speech, but noted that
Claimant’s speech was understandable during all but his first examination in November
2014. (Id. at 381 (first exam—noting speech difficult to understand), 758, 759, 765,
766, 773, 774, 792, 793.) Moreover, at the hearing in this matter, except for two
instances where he had to ask Claimant to speak more loudly (Id. at 46, 77), the ALJ
never said he had difficulty understanding Claimant’s words and the transcript is very
clean, which indicates that the court reporter was also able to understand Claimant.
Claimant testified that the day before the hearing in this matter, he had a full day of
activities and did not mention the need to take a rest or a nap. (Id. at 72-73.) In addition,
the record does not indicate that Claimant needs to take prolonged rest breaks during the
day that cannot be accommodated in the workplace. Finally, the sedentary RFC is
designed to accommodate Claimant’s tendency to get fatigued.
Accordingly, I find Claimant’s arguments to be without merit. The ALJ included
in the hypothetical “all impairments that were accepted by the ALJ as true and excluded
other alleged impairments that the ALJ had reason to discredit.” Pearsall, 274 F.3d at
1220.

The hypothetical resulted in an RFC for sedentary work that encompassed

Claimant’s limitations that are documented in the medical records.

Therefore, I

recommend that the District Court affirm the ALJ’s decision on this issue.
IV.

CONCLUSION

For the foregoing reasons, I respectfully recommend that the District Court affirm
the decision of the ALJ and dismiss Plaintiff’s case with prejudice.
The parties must file objections to this Report and Recommendation within
fourteen (14) days of the service of a copy of this Report and Recommendation, in

15

Hypophonia is “a dysphonia [any impairment of voice; a speech disorder or other difficulty
speaking] in which there is decreased phonation, resulting in whispering.” Dorland’s supra note
6, at 579, 904.

37

accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). Objections must
specify the parts of the Report and Recommendation to which objections are made, as
well as the parts of the record forming the basis for the objections. See Fed. R. Civ. P.
P. 72. Failure to object to the Report and Recommendation waives the right to de
novo review by the District Court of any portion of the Report and Recommendation as
well as the right to appeal from the findings of fact contained therein. United States v.
Wise, 588 F.3d 531, 537 n.5 (8th Cir. 2009).
DONE AND ENTERED this 16th day of May, 2019.

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