Berke v. Commissioner of Social Security
ORDER re 3 Complaint filed by Carrie Agnes Berke: The decision of the ALJ is affirmed. Claimant's Complaint is dismissed with prejudice. Signed by Magistrate Judge Mark A Roberts on 11/20/2020. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CARRIE AGNES BERKE,
ANDREW W. SAUL,
Commissioner of Social Security,
TABLE OF CONTENTS
BACKGROUND ............................................................................. 3
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF ......... 4
The ALJ’S Findings................................................................ 7
The Substantial Evidence Standard ............................................. 8
Whether the Record as a Whole Supports the ALJ’s Finding that
Claimant’s Atrial Fibrillation, Headaches, and Asthma were Nonsevere
Atrial Fibrillation ..........................................................13
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Combination of Impairments............................................18
Whether the ALJ Correctly Considered Claimant’s Impairments Under
Listing 12.05(B) ....................................................................19
Claimant’s GAF Score of 47 ............................................21
Claimant’s Full-Scale I.Q. Score of 77 ...............................24
Other Support for the ALJ’s Contested Step Three Findings .....30
Limitations on Interacting with Others .......................32
Limitations in Understanding, Remembering, or Applying
Limitations on Concentrating, Persisting, or Maintaining
Whether the ALJ Provided Good Reasons for the Weight Afforded Dr.
Lukken’s Opinion .................................................................34
Legal Standard for Evaluating Dr. Lukken’s Opinion .............35
Length and Frequency of Treatment Relationship .........36
Nature and Extent of Treatment Relationship ...............36
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Whether the ALJ Proffered a Hypothetical to the VE that was Supported
by the Record .......................................................................48
Legal Standard for Evaluating the Hypothetical and Claimant’s
Evaluation of Claimant’s Testimony ..........................51
Evaluation of Ms. Matheny’s Testimony .....................59
Arguments Previously Addressed ..............................49
Effect of ALJ’s Decisions on Hypotheticals at Step
Plaintiff Carrie Agnes Berke (“Claimant”) seeks judicial review of a final decision
of the Commissioner of Social Security (“the Commissioner”) denying her application
for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42
U.S.C. Sections 401-34. Claimant contends that the Administrative Law Judge (“ALJ”)
erred in determining that she was not disabled.
For the reasons that follow, the
Commissioner’s decision is affirmed.
I adopt the facts set forth in the Parties’ Joint Statement of Facts (Doc. 14) and
only summarize the pertinent facts here. This is an appeal from a denial of DIB. Claimant
was born November 2, 1971. (AR1 at 218.) Claimant has a ninth-grade education and is
able to communicate in English. (Id. at 24, 218.) She allegedly became disabled due to
“AR” cites refer to pages in the Administrative Record.
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atrial fibrillation, morbid obesity, panic disorder, attention deficit hyperactivity disorder,
behavioral (non-epileptic) spells, anxiety disorder, PTSD, a learning disability, asthma,
and a thyroid disorder. (Id. at 231.) Claimant’s original onset of disability date was July
1, 2014, but was later amended to September 25, 2014. (Id. at 39, 218.) Claimant filed
an application for DIB on September 27, 2016. (Id.) Her claim was denied originally
and on reconsideration. (Id. at 145-48, 156-64.) A video hearing was held on September
25, 2018, with Claimant and her attorney, Jay E. Denne, in Sioux City, Iowa and ALJ
Matt Bring in Fargo, North Dakota.2 (Id. at 33-72.) Vocational Expert (“VE”) Tammie
C. Donaldson and Claimant’s daughter, Cheyanne Matheny also appeared. (Id. at 10.)
Claimant, the VE, and Ms. Matheny all testified. (Id. at 39-72.) The ALJ issued an
unfavorable decision on January 10, 2019. (Id. at 7-34.)
Claimant requested review and the Appeals Council denied review on April 30,
2019. (Id. at 1-4.) 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.
On July 12, 2019, Claimant timely filed her complaint in this Court. (Doc. 3.)
On September 23, 2019, the parties consented to proceed before a Magistrate Judge and
the Honorable Leonard T. Strand reassigned the case to me for final disposition. (Doc.
6.) All briefing was completed and the case was ready for decision on March 25, 2020.
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
The ALJ’s decision states that the ALJ presided over the hearing from Omaha, Nebraska. (AR
at 10.) The Court assumes this is a typographical error because the ALJ stated on the record
that he was “holding this hearing by video from Fargo, North Dakota.” (Id. at 35.)
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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.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). A claimant is not disabled if the claimant 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. 20 C.F.R. §
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)).
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
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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. Bowen v. Yuckert, 482 U.S. 137,
141 (1987) (quoting 20 C.F.R. §§ 404.1521(b), 416.921(b)). 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.
Id. (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) (quotation omitted).
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
any work the claimant performed within the fifteen years prior to his application that was
substantial gainful activity and lasted long enough for the claimant to learn how to do it.
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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 significant
numbers in the national economy. Eichelberger, 390 F.3d at 591 (citation omitted).
The ALJ’S Findings
As an initial finding, the ALJ found that Claimant last met the insured status
requirements of the Social Security Act on June 30, 2017. (AR at 12.) The ALJ then
made the following findings at each step of the five-step process regarding Claimant’s
At step one, the ALJ found that Claimant had not engaged in substantial gainful
activity from her alleged onset of disability date of September 25, 2014 through her last
date insured of June 30, 2017. (Id. at 12.)
At step two, the ALJ found that Claimant suffered from the following severe
impairments: lumbar degenerative disc disease; obesity; episodes of syncope; major
depressive disorder; anxiety; post-traumatic stress disorder; and borderline intellectual
functioning/learning disorder. (Id.)
The ALJ found Claimant’s atrial fibrillation,
headaches, and asthma to be nonsevere impairments. (Id. at 12-13.)
At step three, the ALJ found that Claimant did not have an impairment or
combination of impairments that met or equaled a presumptively disabling impairment
listed in the regulations, either when considered singly or in combination. (Id. at 13-14.)
The ALJ evaluated Claimant’s claims under listings 1.04 (disorders of the spine),
various 11.00 listings (various “neurological system disorders” as a proxy for syncope),
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12.04 (depressive, bipolar and related disorders), 12.05 (intellectual disorders), 12.06
(anxiety and obsessive compulsive disorders), and 12.11 (neurodevelopmental disorders).
(Id. at 14-17.) The ALJ considered the effect Claimant’s obesity would have on her
ability to work and those limitations were “reflected in [her] . . . residual functional
capacity.” (Id. at 14, 18.)
At step four, the ALJ found that through the last date insured, Claimant had the
[T]he claimant had the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) with the following additional limitations:
occasional climbing of ramps and stairs; no climbing of ladders, ropes and
scaffolds; occasional balancing, stooping, kneeling, crouching and
crawling; no exposure to unprotected heights or moving mechanical parts;
and no operation of a motor vehicle as part of her job duties. Mentally, the
claimant is limited to simple, routine tasks and simple work-related
decisions with only occasional changes, and occasional contact with the
public and coworkers.
(Id. at 17.) The ALJ also found that Claimant had no past relevant work. (Id. at 24.)
At step five, the ALJ found that during the relevant time period there were jobs
that existed in significant numbers in the national economy that Claimant could have
performed, including housekeeper cleaner, inspector packer, and garment bagger. (Id.
at 25.) Therefore, the ALJ concluded that Claimant was not disabled from September
25, 2014 through June 30, 2017. (Id.)
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. “The phrase ‘substantial evidence’ is
a ‘term of art’ used throughout administrative law. . . . [T]he threshold for such
evidentiary sufficiency is not high. . . . It means—and means only—such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek
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v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations and quotations 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 the Commissioner’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 [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.
Claimant alleges the ALJ committed reversible error by (A) failing to find
Claimant’s atrial fibrillation, headaches, and asthma were severe impairments; (B)
“failing to correctly consider her mental impairment when considering [listing] 12.05c”;
(C) failing to properly weigh the opinion of Dr. Wade Lukken; and (D) failing to “give
appropriate consideration” to Claimant’s impairments and other evidence in the record
(Doc. 15 at 13-14), which resulted in the ALJ crafting an inappropriate RFC and a faulty
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Whether the Record as a Whole Supports the ALJ’s Finding that Claimant’s
Atrial Fibrillation, Headaches, and Asthma were Nonsevere Impairments
As discussed above, 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. Bowen, 482 U.S. at 141 (quoting 20 C.F.R. §§ 404.1521(b), 416.921(b)).
Claimant argues that at step two of the analysis the ALJ should have found her
atrial fibrillation, headaches, and asthma to be severe impairments. (Doc. 15 at 5-6.)
Specifically, Claimant asserts that the ALJ failed to consider “how repeated
hospitalizations and treatment caused by these impairments would have a significant
impact on her ability to work [because] missing work and requiring additional breaks on
an unscheduled basis renders a person unemployable.” (Id. at 5.) She argues that having
a pacemaker and a history of emergency room visits for migraines requires remand for
further proceedings. (Doc. 17 at 1-2.) Finally, Claimant argues that the ALJ failed to
consider the combined effects of all of her conditions, which may not be “disabling in
and of themselves as the ALJ concluded, [but] are nevertheless severe impairments.”
(Doc. 15 at 6.) “[T]he failure to find a particular impairment severe at step two is not
reversible error as long as the ALJ finds that at least one other impairment is severe.”
Marion v. Saul, No. 19-CV-76-LRR, 2020 WL 2482124, at *22 (N.D. Iowa Apr. 21,
2020) (quoting Dray v. Astrue, 353 Fed. Appx. 147, 149 (10th Cir. 2009)), R. & R.
adopted sub nom. Marion v. Comm’r of Soc. Sec., 2020 WL 2475579 (N.D. Iowa May
13, 2020). This Court previously addressed this issue in Berry v. Colvin, which Claimant
cites. 74 F. Supp. 3d 994 (N.D. Iowa 2015). The following quotation addressed a
citation in the Commissioner’s brief in Berry.
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The Commissioner also argues that an ALJ’s failure to find a particular
impairment severe at Step Two is not reversible error if the ALJ finds at
least one other impairment to be severe. Doc. No. 13 at 6. This argument
is logical. The purpose of Step Two is “to weed out at an early stage of the
administrative process those individuals who cannot possibly meet the
statutory definition of disability.” Bowen v. Yuckert, 482 U.S. 137, 156,
107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987) (O’Connor, J., concurring). In
formulating a claimant’s RFC the ALJ must consider the combined effects
of all medically-determinable impairments, whether severe or non-severe.
Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008) (citing 20 C.F.R. §
404.1545(a)). Thus, so long as the ALJ does not terminate the sequential
evaluation process at Step Two, there is little basis to argue that the
characterization of one impairment as “non-severe” constitutes reversible
Id. at 1001 n.2; see also Hill v. Colvin, No. C14-4105-CJW, 2016 WL 1261099, at *5
(N.D. Iowa Mar. 30, 2016) (reaching the same conclusion regarding the alleged
combined effects of impairments). Therefore, even if the ALJ had erred in not finding
specific impairments severe, Claimant has not provided any evidence that the ALJ would
have decided differently if the errors had not occurred. See Byes v. Astrue, 687 F.3d
913, 917 (8th Cir. 2012); Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008). The
ALJ’s decision on this issue will be affirmed.
That being said, I will address each of Claimant’s arguments separately because
doing so will help the analyses of arguments that arise later in this order.
If [an] impairment would have no more than a minimal effect on the
claimant’s ability to work, it is not severe. [Page v. Astrue, 484 F.3d 1040,
1043 (8th Cir. 2007).] It is the claimant’s burden to establish that his or her
impairment or combination of impairments is severe. Mittlestedt v.
Apfel, 204 F.3d 847, 852 (8th Cir. 2000). “Severity is not an onerous
requirement for the claimant to meet, but it is also not a toothless standard.
. . .” [Kirby v. Astrue, 500 F.3d 705, 708 (8th Cir. 2007)]
(internal citation omitted). When a claimant has multiple impairments, “the
Social Security Act requires the Commissioner to consider the combined
effect of all impairments without regard to whether any such impairment,
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if considered separately, would be of sufficient medical severity to be
disabling.” Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000).
74 F. Supp. at 1000–01 (ellipses in original; paragraph break omitted).
Claimant argues that “although this is not a ‘toothless’ burden of proof, the
claimant’s burden is not an onerous one. . . . In essence it is a de minimis standard, as it
was noted that if the impairment would have no more than a minimal effect on the
claimant’s ability to work, it is not severe.” (Doc. 15 at 5.) I cannot agree with
Claimant’s characterization of her burden of proof as “de minimis.”
Dictionary defines de minimis as “1. Trifling; negligible. 2. (Of a fact or thing) so
insignificant that a court may overlook it in deciding an issue or case.” (11th ed. 2019).
Merriam-Webster defines toothless as “lacking in means of enforcement or coercion:
definition of de minimis is the very essence of “toothless.” Neither ALJs nor reviewing
courts consider the quality of evidence a claimant provides to substantiate claims to be
“so insignificant that [they] may overlook it in deciding the issue” of whether an
impairment is severe.
A “severe impairment is defined as one which ‘significantly limits [the
claimant’s] physical or mental ability to do basic work activities.’” Pelkey
v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006) (quoting 20 C.F.R. §
404.1520(c)). The impairment
must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable
clinical and laboratory diagnostic techniques. A physical or
mental impairment must be established by medical evidence
consisting of signs, symptoms, and laboratory findings, not
only by [the claimant’s] statement of symptoms (see [20
C.F.R.] § 404.1527).
20 C.F.R. § 404.1508.
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Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (brackets in original). A claimant
does not have a severe impairment when she does not provide adequate objective evidence
to substantiate her claims. See id. at 923-24. Therefore, the standard is not toothless. At
step two of the five step process, the ALJ separately discussed each of the impairments
Claimant now advances.
The ALJ acknowledged Claimant’s 2012 atrial fibrillation diagnosis, pacemaker,
and ongoing treatment for the condition, but found the condition was not disabling. (AR
at 13.) The ALJ noted that a March 2015 transthoracic echocardiography report found
some mild concentric left ventricular hypertrophy, 3 but generally normal size and
function with no significant valvular abnormality. (Id. (citing AR at 567).) He also
noted that a May 25, 2016 treatment note written by cardiologist Fayaz Hakim stated that
Propafenone and aspirin “helped with this condition.” (Id. (citing AR at 537 (“[T]he
burden of her atrial fibrillation was decreased after increasing the dose of Papfenone.”)).)
At that appointment, Dr. Hakim stated that Claimant’s pacemaker was functioning
normally, with atrial pacing 49-percent of the time. (Id.)
The ALJ also acknowledged that Claimant reported to the emergency room
(“E.R.”) for treatment of chest pain and a rapid heartbeat on August 1, 2016 and that she
had episodes of fibrillation on October 1 and October 25, 2016. (Id.) On October 27,
2016, Dr. Hakim performed an atrial fibrillation ablation. (Id.) The ALJ stated that Dr.
Hakim’s follow-up records indicated that Claimant did “very well” after the procedure
with no recurrences of atrial fibrillation. (Id. (citing AR 1427 (Dr. Hakim’s November
“Left ventricular hypertrophy is enlargement and thickening (hypertrophy) of the walls of [the]
heart’s main pumping chamber (left ventricle).” Mayo Clinic, Left ventricular hypertrophy,
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 13 of 62
21, 2016 treatment notes).) The ALJ also stated Claimant subsequently presented to the
E.R. in February 2017 for chest pain, but her pacemaker was functioning normally. (Id.
(citing AR at 1300-04).) At that visit, Claimant attributed her chest pain “to a bit of an
anxiety . . . that ensued after some argument with her daughter[;] she thinks the anxiety
brought this on. She took some alprazolam and that remedied quite a bit of her anxious
feelings but she just want[ed] to get her heart checked out.” (Id. at 1300.) Claimant was
released with a notation that her chest pain had resolved. (Id. at 1304.) Her EKG showed
“normal sinus rhythm without acute changes of concern.” (Id. at 1303.)
The ALJ concluded her step two analysis of Claimant’s atrial fibrillation by stating
that although the condition required regular treatment, including “one hospital
procedure,” the condition “did not cause more than minimal sustained limitations of a
period lasting at least 12 months, nor is it expected to do so. Therefore it is considered
nonsevere.” (Id. at 13.)
Claimant argues that “the existence of a pacemaker alone warrants reversal of the
decision for further proceedings.” (Doc. 17 at 1 (citing Covington v. Astrue, Civ. No.
11–2193, 2012 WL 4904386, at *3 (W.D. Ark. Oct. 15, 2012).) First, contrary to
Claimant’s allegation, courts affirm ALJ decisions to deny benefits when claimants have
pacemakers. See, e.g., Blakeman v. Astrue, 509 F.3d 878, 879, 883 (8th Cir. 2007);
Simmon v. Colvin, Civil No. 13–3136 (DWF/JSM), 2015 WL 144812, at ** 1, 21 (D.
Minn. Jan. 12, 2015). Second, the case at bar can be distinguished from Covington, in
which the 21-year-old claimant had pacemakers implanted, fail, replaced, and cause
problems since the age of three. 2012 WL 4904386, at *2. Covington contains no facts
about the claimant’s activities, quality of life, or other abilities. Id. at **2-3. Therefore,
there is little in the case that allows for a proper factual comparison. Covington remanded
the case to develop the record regarding work-related limitations the claimant experienced
due to her heart condition because the ALJ “failed to obtain medical testimony or advice,
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via a consultative exam or contact with Plaintiff's treating cardiologist, regarding any
limitations resulting from the fact that [the claimant had] a pacemaker.” Id. at *3.
Covington cited no precedent that stated the mere fact that a claimant has a pacemaker
means that the claimant has a severe impairment. Thus, it appears that the decision to
remand in Covington was limited to the unique facts of that case.4 On the contrary,
Claimant in the instant case provided the opinion of Dr. Lukken, who knew about her
pacemaker. (AR at 2215, 2647-50.) In addition, the state agency consulting physicians
understood that Claimant had a pacemaker when they rendered their opinions and
narrated her history of cardiac procedures. (Id. at 88-89, 113-14.) Thus, remand is not
required on that basis. Moreover, Claimant’s medical history, including cardiac history,
is well documented in the administrative record. However, it appears the claimant in
Covington rarely saw a physician, except for two E.R. visits, after she turned 18, due to
a lack of insurance. Id. at **2-3.
Claimant does not direct the Court to any specific medical evidence in the over
2600-page administrative record that demonstrates that the ALJ’s conclusions are not
supported by substantial evidence in the record as a whole. 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.
According to Westlaw, Covington has never been cited, which supports the theory that its
holding was limited to the facts of the case.
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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)).
I have reviewed the ALJ’s decision and the record and find the ALJ’s decision
supported by the record as a whole.
The ALJ also specifically analyzed Claimant’s headaches. “The claimant alleged
pain and fatigue due to headaches (Ex. B9E at 6). [She] did require E.R. treatment for
headaches and migraines at times during the period at issue. However, these usually
resolved quickly.” (AR at 13.) The ALJ cited treatment notes from a December 29, 2014
two-hour E.R. visit during for an “intermittent headache,” during which the headache
responded to medication and she was discharged. (AR at 594-95.) The ALJ also cited
another treatment note for an E.R. visit where Claimant complained of swelling and “just
feeling terrible . . . whatever you ask[,] I will have,” including a headache, but admitted
she had not taken analgesics for any of her pain. (Id. at 629.) Claimant was diagnosed
with fluid retention and was released with a prescription for Trazadone hydrochloride
tablets. (Id. at 630-31.) Claimant also went to the E.R. on December 30, 2016
complaining of a headache that was both 10/10 on the pain scale, but also “mild” in
severity. (Id. at 1155.) Once again, Claimant did not try analgesics before going to the
E.R. (Id.) Claimant was in no apparent distress, was noted to have low blood pressure,
and her headache resolved and her blood pressure came up after she received IV fluids.
(Id. at 1155-57.) Claimant again presented at the E.R. on January 1, 2017 with a mild
headache after not trying analgesics for the pain. (Id. at 1206.) Once again, Claimant’s
headache resolved while she was at the hospital and she was discharged with Tramadol
hydrochloride tablets. (Id. at 1207-08.)
Thus, Claimant’s headaches always resolved with medication or other treatment.
An impairment that is controlled with treatment or medication is not considered disabling.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 16 of 62
Brace v. Astrue, 578 F.3d. 882, 885 (8th Cir. 2009) (citations omitted). Moreover, as
indicated above, Claimant failed to treat her headaches at home before going to the E.R.
In addition, Claimant was advised to treat her headaches with over-the-counter
medications, such as Tylenol and Advil, which she testified work to resolve the
headaches. (AR at 45.) Although Claimant argues that her headaches “mandate closer
inspection than the ALJ performed in his analysis” (Doc. 17 at 2), she cites no evidence
that contradicts the ALJ’s findings. Therefore, the ALJ’s decision is supported by the
record as a whole.
The ALJ also acknowledged Claimant’s claim that she was disabled due to asthma.
(Id. at 13.) The ALJ noted that Claimant presented to the E.R. for shortness of breath
on February 10, 2015, which appeared secondary to bronchitis and an anxiety reaction
and that Claimant breathed better after becoming calm. (Id. (citing AR 633).) The ALJ
also stated that on March 19, 2017, Claimant had a pulse oximetry study that indicated
that she qualified for nocturnal oxygen, but that there was no evidence of a severe
cardiopulmonary impairment causing severe and/or persistent limitation even though
Claimant continued to smoke cigarettes throughout the period at issue. (Id. at 13; See
also AR 539, 1424, 2061 (treatment notes documenting Claimant’s smoking in May
2016, January 2017, and August 2017).) In addition, the Commissioner noted, and my
review of the records supports, Claimant did not seek any treatment for her asthma during
the relevant time period, although Claimant apparently reports asthma when giving her
health history to providers because it does appear in various “health condition” notations
in the record. Claimant did not counter this argument in her reply brief. (Doc. 17.) “A
lack of complaints to a treating physician detracts from a claimant’s allegations of a
disabling impairment.” Reece v. Colvin, 834 F.3d 904, 909 (8th Cir. 2016) (citing
Fredrickson v. Barnhart, 359 F.3d 972, 976 (8th Cir. 2004)).
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 17 of 62
Although Claimant also argues that her asthma “mandate[s] closer inspection than
the ALJ performed in his analysis” (Doc. 17 at 2), she cites no evidence that contradicts
the ALJ’s findings. Therefore, the ALJ’s decision on this issue is also supported by the
record as a whole.
Combination of Impairments
Claimant asserts the following argument:
[E]ven if the three conditions mentioned above are not severe impairments,
there is no dispute in the record that they would limit her ability to maintain
employment because they periodically require emergency treatment on an
unscheduled basis. As the VE testified, those kinds of absences affect the
ability to work. (R. 70). Therefore, reversal is warranted due to the ALJ’s
lack of consideration of these impairments in determining Plaintiff’s
residual functional capacity, regardless of whether or not they meet the
‘severe impairment’ guidelines.
(Doc. 17 at 2-3.)
First, there is little evidence that Claimant’s impairments required E.R. treatment.
Claimant chose to seek treatment at the E.R. It appears that Claimant never even tried
treating her headaches at home before making that choice and testified that over-thecounter medication resolves her migraines. Most employers allow employees to take
over-the-counter medication at work. Thus, this argument is without merit regarding her
headaches. Claimant does not direct the Court to E.R. records stating that Claimant
presented for atrial fibrillation that was not tied to anxiety and that was not resolved with
alprazolam prior to presenting in the E.R.
Moreover, the ALJ considered the combined effects of all of Claimant’s
impairments, including her nonsevere impairments, when crafting her RFC. (AR at 1112; See also 20 C.F.R. § 404.1545(a)(2).) Even if Claimant could prove the ALJ should
have considered these impairments severe, remand is not required unless Claimant can
also prove the ALJ’s finding that these impairments were not severe caused her harm.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 18 of 62
See Wolaridge v. Colvin, No. 2:14-CV-2074-MEF, 2015 WL 4073178, at *5 (W.D.
Ark. July 6, 2015) (“[I]n order for Plaintiff to be entitled to a remand, the Plaintiff must
not only prove that the ALJ should have considered other impairments as severe, rather
she must also prove that the ALJ’s failure to consider those impairments as severe
caused harm.”) (citing Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009)). Claimant
has failed to do so. Claimant does not indicate what limitations should have been added
to her RFC had these impairments been found severe. Therefore, since the ALJ discussed
each of these impairments separately and cited to the record to support his conclusions
and Claimant neither cites any evidence the ALJ failed to discuss nor explains how she
was prejudiced by the way the ALJ weighed the evidence, the ALJ’s decision on this
issue is affirmed.
Whether the ALJ Correctly Considered Claimant’s Impairments Under Listing
Claimant argues that the ALJ’s step three analysis, “focused on whether she had
‘marked’ limitations, and erred in finding that she suffered only moderate limitations with
regard to interacting with others, remembering and/or applying information, and
concentration, persistence, and pace.” (Doc. 15 at 7.) Claimant asserts that her lowest
Claimant argued that the ALJ “failed to correctly consider her mental impairment when
considering 12.05[(C)].” (Doc. 15 at 6.) Listing 12.05(C) was no longer in effect when the
ALJ decided Claimant’s case on January 10, 2019 because the listings for mental disorders
changed effective January 17, 2017. See 20 C.F.R. pt. 404, Subpt. P. appx. 1, § 12.00. The
version of the listing in effect at the time the ALJ rendered her decision governs the case. See
Burkhardt v. Berryhill, No. 16-CV-2093-LTS, 2017 WL 9470631, at **6-7 (N.D. Iowa Apr. 3,
2017) (applying version of listing in effect at time of ALJ’s decision), R. & R. adopted, 2017
WL 2829624 (N.D. Iowa June 30, 2017). Thus, the Commissioner submits that listing 12.05(B)
is the closest to the previous listing 12.00(C). (Doc. 16 at 14.) Claimant does not dispute this
assertion and has therefore waived any argument to the contrary. (Doc. 17 (Claimant’s reply
brief).) Therefore, I will analyze Claimant’s claims based on listing 12.05(B).
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 19 of 62
GAF score of 47 should have been weighted more heavily because “a score below 50 can
mean that the claimant has a disabling condition (and thus, has ‘marked’ limitations for
the purposed of the listing analysis).” (Id.) Claimant asserts that this low score resulted
from more thorough testing than the higher GAF scores contained in the record. (Id. at
Claimant also argues that the ALJ erred in his analysis of her I.Q. score of 77.
(Doc. 15 at 8.) Claimant relies, in part, on the SSA Program Operations Manual
(“POMS”), which Claimant argues is persuasive authority that must be followed unless
inconsistent with the relevant regulation or clearly erroneous, to support her arguments
related to this issue. (Id.; Doc. 17 at 4 (quoting Rhinehart v. Berryhill, 2019 WL
2403971, at *7 (D.S.D. June 7 2019)).) Claimant also argues that her I.Q. score may,
in fact, be as low as 73 based on the “confidence interval” used to interpret I.Q, test
results. (Id. at 9.)
The Commissioner responds that Claimant only meets some of the 12.05(B)
criteria, and therefore Claimant’s argument has no merit. (Doc. 16 at 14.)
A claimant has the burden of establishing a severe impairment at step three.
Moore, 572 F.3d at 523. Listing 12.05(B) requires a claimant to prove the following to
establish a severe impairment.
12.05 Intellectual disorder satisfied by A or B:
. . . .
Satisfied by 1, 2, and 3:
1. Significantly subaverage general intellectual functioning
evidenced by a or b:
a. A full scale (or comparable) IQ score of 70
or below on an individually administered
standardized test of general intelligence; or
b. A full scale (or comparable) IQ score of 71–
75 accompanied by a verbal or performance
IQ score (or comparable part score) of 70 or
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 20 of 62
below on an individually administered
standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently
manifested by extreme limitation of one, or marked
limitation of two, of the following areas of mental
b. Interact with others; or
c. Concentrate, persist, or maintain pace; or
d. Adapt or manage oneself; and
3. The evidence about your current intellectual and adaptive
functioning and about the history of your disorder
demonstrates or supports the conclusion that the disorder
began prior to your attainment of age 22.
20 C.F.R. § 404, subpt. P, app. 1 § 12.05 Intellectual disorder satisfied by A or B
(internal parenthetical cross-references omitted).
Claimant’s GAF Score of 47
Claimant relies heavily on the GAF score of 47 assigned to her by consulting
psychologist Denise Marandola, Ph.D., on December 17, 2014. (AR at 958.) Claimant
argues, “As noted in various cases analysis [sic] GAF scores, a score below 50 can mean
that the claimant has a disabling condition.” (Doc. 15 at 7.) Claimant, however, has not
cited cases to support this claim, instead citing only one nonbinding 2005 case from the
Eastern District of Michigan.6 This is not surprising because the latest version of
A bit later in the brief, Claimant cites Pate-Fires v. Astrue, 564 F3d 935 (8th Cir. 2009) for
the proposition that “the Eighth Circuit has noted the seriousness of a GAF score of 50.” (Doc.
15 at 7.) Juhl, also cited by Claimant, succinctly summarized the relevant provisions of PateFires:
The ALJ in that case discredited a treating physician’s opinion because a
consultative examiner had assessed the claimant with a GAF score of 58. The
court surveyed the GAF scores of record and observed that the ALJ had not
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 21 of 62
the Diagnostic and Statistical Manual of Mental Disorders has discontinued the use of
GAF scores because of “its conceptual lack of clarity . . . and questionable
psychometrics in routine practice.” Juhl v. Colvin, No. C15-3093-LTS, 2016 WL
447619, at *6 (N.D. Iowa Feb. 4, 2016) (finding no error in ALJ’s failure to take into
account GAF scores) (quoting American Psychiatric Ass’n, Diagnostic & Statistical
Manual of Mental Disorders 16 (5th ed. 2013) (“DSM-V”)) (ellipses in original). Juhl
also noted that “the Commissioner has declined to endorse GAF scores in disability
analysis and has determined that GAF scores have no ‘direct correlation’ to disability
adjudications.” Id. (citing 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000); Jones v.
Astrue, 619 F.3d 963, 973-74 (8th Cir. 2010)). Moreover, the Eighth Circuit has
declared, “GAF scores are of little value.” Nowling v. Colvin, 813 F.3d 1110, 1123 (8th
Cir. 2016). That being said, an ALJ should consider GAF scores along with all of the
other medical evidence in the record. Minney v. Berryhill, No. 16-CV-00175-LTS, 2017
WL 2110767, at *10 (N.D. Iowa May 15, 2017), R. &. R. adopted, 2018 WL 659860
(N.D. Iowa Feb. 1, 2018) (citing SSR: Global Assessment of Functioning [GAF]
Evidence in Adjudication, AM-13066-REV (Oct. 14, 2014) (title capitalization altered)).
On June 28, 2017, SSA issued a revised administrative message addressing, among
other things, the assessment of GAF evidence in disability adjudications.
discussed or considered the many GAF scores below 50. Indeed, the court noted
that the claimant’s GAF scores were above 50 only four out of twenty-one times
over a six-year period. . . . The Eighth Circuit has held that GAF scores from 52
to 60 are consistent with a finding of no disability. Wright v. Colvin, 789 F.3d
847, 855 (8th Cir. 2015) (quoting Halverson v. Astrue, 600 F.3d 922, 931 (8th
2016 WL 447619, at *6 n.2 (citations to the record omitted). The case at bar can be
distinguished from Pate-Fires because the record contains only one GAF score below 50,
rather than “many” scores below 50. Moreover, the low GAF score is an outlier.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 22 of 62
Supplemental ALJ Training 31, https://www.ssa.gov/foia/resources/proactivedisclosure
/2020/2017_Supplemental%20ALJ%20Training%20Notebook.pdf7. ALJs must still
consider GAF ratings as evidence, however, “a GAF rating alone is never dispositive of
impairment severity.” Id. at 35. In addition, an adjudicator can never
[e]quate any particular GAF rating with a listing-level limitation. The
adjudicator cannot use a GAF rating to determine whether a claimant’s
impairment meets the diagnostic criteria of intellectual disorder in listing
12.05, because the rating lacks specificity, may not reflect a claimant’s
functioning over time, and is not a standardized measure of anything,
including intelligence or adaptive behavior.
Id. at 36 (emphasis and internal numbering omitted). Thus, under both judicial precedent
and SSA guidance, adjudicators cannot rely on a single GAF score when deciding if a
claimant has a listed impairment.
Claimant was assigned three GAF scores of 62 by her therapist Katie Moir in
October and November 2014, in addition to the GAF score assigned during her
consultative examination. (AR at 506, 508, 510.) A treating therapist would normally
have a better idea of a claimant’s “functioning over time,” than a consulting psychiatrist,
even if, as in this case, the course of treatment lasted only a matter of months.
Moreover, the ALJ in the case at bar recited the above-quoted guidance on the use
of GAF scores, noting that “a GAF score is merely a snapshot of an individual’s
functioning at a particular point in time and therefore should not be solely relied upon to
determine the overall severity of an individual’s mental impairments. . . . [T]he
undersigned did not give any significant weight to the GAF scores included in the record.
. . .” (AR at 25 (stated while crafting Claimant’s RFC).)
This link does not directly lead to the referenced source for some reason. An internet search,
however, will lead to the source at this location.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 23 of 62
Finally, Claimant’s argument that a GAF score that is “the result of thorough
testing and backed up by documentation of limitations [such as Dr. Marandola’s], should
be given a higher value,” and the ALJ failed to give Dr. Marandola’s GAF score higher
weight than other GAF scores is without merit. (Doc. 17 at 3 (citing Drummond v. Astrue,
895 F. Supp. 2d 1117, 1131 (D. Kan. 2012)). Drummond evaluated GAF scores using
the fourth edition of the DSM, which still endorsed GAF scores. 895 F. Supp. 2d at
1123 n.1. As discussed above, the fifth edition of the DSM abandoned GAF scores
because of their lack of clarity. The ALJ was required to consider the GAF scores with
all the other evidence in the record. The ALJ properly did so. (AR at 24.) It is also
noteworthy that Dr. Marandola’s consultative examination was not focused on workrelated restrictions or activities, but rather resulted in therapeutic recommendations,
including medication changes, increased social interaction, and beginning cognitive
behavioral therapy. (Id. at 22, 959.)
Based on the above discussion, the ALJ properly explained his legitimate reasons
for not assigning greater weight to the GAF score of 47.
Claimant’s Full-Scale I.Q. Score of 77
Claimant also argues that the ALJ erred in his analysis of her I.Q. score. (Doc.
15 at 8-9.) As a result of her consulting examination, Dr. Marandola also assigned
Claimant a full scale I.Q. score of 77. (AR at 956.) Dr. Marandola stated,
This full scale IQ score[,] however, is not a good reflection of [Claimant’s]
overall ability as she demonstrated a significant difference between her
Perceptual Reasoning Index (PRI) score as compared to her Verbal
Comprehension (VCI) and Working Memory Index (WMI) scores. These
differences indicate that she is much more adept at tasks that require
perceptual reasoning and organization skills (Perceptual Reasoning) than
she is at tasks that require reasoning, comprehension and conceptualization
(Verbal Comprehension) and/or attention, concentration and working
memory (Working Memory). She demonstrated a personal strength in the
area of Visual Puzzles, suggesting very good nonverbal reasoning and the
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 24 of 62
ability to analyze and synthesize abstract visual stimuli. She demonstrated
a personal weakness in the area of Matrix Reasoning, suggesting poor fluid
intelligence, broad visual intelligence, classification and spatial ability,
knowledge of part-whole relationships, simultaneous processing and
Claimant asserts the ALJ should have “given more consideration to her borderline
intellectual functioning in the listing analysis.” (Id.) For support, Claimant cites POMS
for determining medical equivalence for listing 12.05(C). 8 (Doc. 15 at 8-9.) Claimant
was put on notice by the Commissioner’s resistance that she was applying the incorrect
listing in her arguments and chose not to adjust her arguments and base them on listing
12.05(B). In her reply brief, Claimant states that she relies on her opening brief in
support of her I.Q.-related arguments and cites precedent related to the use of the POMS,
in general, but does not offer an alternative POMS guideline related to listing 12.05(B)
or another POMS guideline she argues would support her position regarding the use of
her I.Q. test results. (Doc. 17 at 3-4.)
I will not apply POMS guidelines for listing 12.05(C) in this case because listing
12.05(C) was not in effect at the time the ALJ decided Claimant’s case. Therefore, it is
not a reasonable guideline against which to measure the ALJ’s decision. However, I will
POMs 12.05(C) provides the following:
Listing 12.05C is based on a combination of an IQ score with an additional and
significant mental or physical impairment. The criteria for this paragraph are such
that a medical equivalence determination would very rarely be required.
However, slightly higher IQ’s (e.g., 70-75) in the presence of other physical or
mental disorders that impose additional and significant work-related limitation of
function may support an equivalence determination. It should be noted that
generally the higher the IQ, the less likely medical equivalence in combination
with another physical or mental impairment(s) can be found.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 25 of 62
look at POMS 12.05(B) to see if it provides guidance. POMS 12.05(B) provides,
“Listing 12.05B introduces IQ scoring as a criterion and presents an impairment level in
which inability to work is presumed on the basis of IQ scores alone.”
Thus, while POMS 12.05(C) provides for determining medical equivalence by
balancing a range of I.Q. scores and a claimant’s other physical and mental disorders,
POMS 12.05(B) is clear that disability can be presumed on the basis of I.Q. scores alone,
assuming, of course, that the other criteria of 12.05(B) are satisfied. No provision is
made for determining medical equivalence (or I.Q. equivalence) by balancing higher or
lower I.Q. scores with other physical and mental disorders.
Thus, while the
appropriate POMS provide some guidance on the issue, the guidance is different from
the guidance provided in the 12.05(C) POMS.
Claimant next argues that the POMS are binding on the Court. (Doc. 17 at 4.)
The Commissioner responds that while the POMS must be considered, they are not
binding on the Commissioner. (Doc. 16 at 19.)
“As an interpretation of a regulation promulgated by the Commissioner, the POMS
control unless they are inconsistent with the regulation or plainly erroneous.” Rodysill
v. Colvin, 745 F.3d 947, 950 (8th Cir. 2014) (citations omitted). Although POMS
guidelines “do not have legal force, and do not bind the Commissioner, . . an ALJ should
consider the POMS guidelines.” Shontos v. Barnhart, 328 F.3d 418, 424 (8th Cir. 2003)
(citing Berger v. Apfel, 200 F.3d 1157, 1161 (8th Cir. 2000)); List v. Apfel, 169 F.3d
1148, 1150 (8th Cir. 1999)). In this case, it would be plainly erroneous to apply the
12.05(C) POMS and the ALJ did not do so. It is also apparent the ALJ applied POMS
guidance for 12.05(B), which is not inconsistent with listing 12.05(B), when he did not
presume Claimant met list 12.05(B) on the basis of Claimant’s I.Q. score, alone. (AR
at 16-17 (“[T]hese requirements were not met because the claimant’s full scale IQ of 77.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 26 of 62
. . is not low enough to fall within the criteria necessary to meet listing 12.05B.”).)
Moreover, since the POMS do not bind the Commissioner, the ALJ’s failure to cite them
was understandable. To the extent Claimant is arguing the ALJ should have cited the
POMS, “the ALJ’s arguable deficiency in opinion-writing technique [on this issue] had
no bearing on the outcome of [the] case and does not require remand.” Buckner v.
Astrue, 646 F.3d 549, 560 (8th Cir. 2011) (internal quotation omitted).
Claimant argues that the Commissioner “does not argue that the part of the POMS
. . . referenced by Plaintiff in her argument is either inconsistent with the regulation or
plainly erroneous, so it is controlling.” (Doc. 17 at 4.) Claimant misconstrues the
Commissioner’s argument that listing 12.05(C) was not in effect on January 10, 2019
because the Commissioner’s listings for mental disorders changed effective January 17,
2017. (Doc. 16 at 14 n.4, 19 n.6.) I interpret the Commissioner’s argument as an
argument that POMS 12.05(C) is irrelevant to, and inconsistent with, the relevant listing.
To the extent POMS 12.05(C) was consistent with listing 12.05(C), that issue is moot
because listing 12.05(C) does not apply to Claimant’s case.
Claimant’s main argument, however, is that her I.Q. score of 77 is “barely above
the 71-75 range discussed in the listing,” and “when the low end of [her] scores (the
confidence interval) is considered, there is a significant probability that her IQ is below
75.” (Doc. 15 at 8.) The “confidence interval” Claimant refers to is something Dr.
Marandola calculated in her report.
Verbal Comprehension Index Score = 76; Confidence Interval = 71-83
Perceptual Reasoning Index Score = 88; Confidence Interval = 82-95
Working Memory Index Score = 77; Confidence Interval = 72-85
Processing Speed Index Score = 84; Confidence Interval = 77-94
Full-Scale IQ Score = 77; Confidence Interval = 73-82
At the 95% Confidence Level
(AR at 956.)
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 27 of 62
A “confidence interval” is used to indicate the reliability of a point estimate
of a parameter. The confidence interval is a range of values above and
below a point estimate and within which the parameter is estimated to lie.
The confidence interval is qualified by a confidence level, generally
expressed as an estimate. A 95% confident interval means that the
investigator is 95% confident that the true estimate lies within
the confidence level. See Wikipedia,
National Library of Medicine – National Institutes of Health, National
Information Center on Health Services Research and Health Care
Technology, Health Technology Assessment101: Glossary, at
Evanoff v. Berryhill, No. 2:17 CV 41 JMB, 2018 WL 4489362, at *6 n.4 (E.D. Mo.
Sept. 19, 2018).
According to Claimant, her true full scale I.Q. could be as low as 73 and the ALJ’s
failure to consider POMS 12.05 should lead to reversal and remand because the record
does not support the ALJ’s conclusion that Claimant does not have marked limitations
caused by severe mental health impairments. (Doc. 15 at 9.) Claimant cites no treatment
notes or other records that the ALJ failed to discuss or that the ALJ failed to give proper
weight and cites no other evidence that supports her contentions.
The ALJ correctly found that Claimant’s full scale I.Q. score was not low enough
to fall within the criteria necessary to meet listing 12.05(B), which requires a “[a] full
scale (or comparable) IQ score of 71-75 accompanied by a verbal or performance IQ
score of 70 or below” and significant limitations in one or marked limitations in two area
of mental functioning. (AR at 16.) Moreover, the ALJ noted Dr. Marandola’s caveat
that the score was not a good reflection of Claimant’s overall functioning because her
other scores indicated that Claimant is much more adept at tasks requiring perceptual
reasoning and organizational skills than she is at tasks requiring reasoning,
comprehension, and conceptualization and/or attention, concentration and working
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 28 of 62
memory. (AR at 17.) Even if I were to accept 73 as Claimant’s I.Q. score, something
for which there is no support, the listing also requires that the score be “accompanied by
a verbal or performance IQ score (or comparable part score) of 70 or below on an
individually administered standardized test of general intelligence.” 20 C.F.R. § 404,
subpt. P, app. 1 § 12.05(B)(1)(b).
Claimant does not direct the Court to this score.
Claimant’s I.Q. verbal comprehension index score was 76, with a confidence interval of
71-83. (AR at 956.) All of the other individual index scores are higher. (Id.)
Beyond establishing her impairment equaled a listed impairment by looking at the
language of listing 12.05(B), Claimant seems to be arguing that her borderline intellectual
functioning/learning disorder is the “medical equivalent” of listing 12.05(B). There are
three ways a claimant can prove her impairment equals a listed impairment:
(1)(i) If [the claimant] ha[s] an impairment that is described
in [the listings], but—
(A) [The claimant] do[es] not exhibit one or
more of the findings specified in the
particular listing, or
(B) [The claimant] exhibit[s] all of the
findings, but one or more of the findings
is not as severe as specified in the
[The Social Security Administration] will find that [the
claimant’s] impairment is medically equivalent to that
listing if [the claimant] ha[s] other findings related to
[the] impairment that are at least of equal medical
significance to the required criteria.
If [the claimant] ha[s] an impairment(s) that is not
described in [the listings], [the Social Security
Administration] will compare [the claimant’s] findings
with those for closely analogous listed impairments. If
the findings related to [the claimant’s] impairment(s)
are at least of equal medical significance to those of a
listed impairment, [the Social Security Administration]
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 29 of 62
will find that [the claimant’s] impairment(s) is
medically equivalent to the analogous listing.
If [the claimant] ha[s] a combination of impairments,
no one of which meets a listing, [the Social Security
Administration] will compare [the claimant’s] findings
with those for closely analogous listed impairments. If
the findings related to [the claimant’s] impairments are
at least of equal medical significance to those of a listed
impairment, [the Social Security Administration] will
find that [the claimant’s] combination of impairments
is medically equivalent to that listing.
20 C.F.R. §§ 404.1526(b), 416.926(b). “To prove that an impairment or
combination of impairments equals a listing, a claimant ‘must present
medical findings equal in severity to all the criteria for the one most similar
listed impairment.’” KKC ex rel. Stoner v. Colvin, 818 F.3d 364, 370 (8th
Cir. 2016) (quoting Sullivan v. Zebley, 493 U.S. 521, 531 (1990)).
Allaire v. Comm’r of Soc. Sec., No. 18-CV-60-LRR-KEM, 2019 WL 5579549, at *3
(N.D. Iowa July 18, 2019) (alterations in original), R. & R. adopted as modified on other
grounds, 409 F. Supp. 3d 698 (N.D. Iowa 2019). Thus, SSA provides claimants several
paths for establishing medical equivalency. However, in all cases, claimants must still
support their claims with medical findings. As stated previously, Claimant provides no
citations to evidence in the record to support her arguments. Therefore, Claimant has
not “present[ed] medical findings equal in severity to all the criteria for the one most
similar listed impairment” and therefore has not satisfied her burden at step three.
Based on the above discussion, the ALJ properly explained his legitimate reasons
for finding that Claimant’s full scale I.Q. score of 77 did not meet the criteria necessary
to find Claimant disabled under listing 12.05(B).
Other Support for the ALJ’s Contested Step Three Findings
Although Claimant focuses on two pieces of evidence, substantial evidence in the
record as a whole supports the ALJ’s step three findings that Claimant had moderate
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 30 of 62
limitations in the areas of which Claimant now complains: (1) understanding,
remembering and applying information; (2) interacting with others; and (3)
concentrating, persisting, or maintaining pace.
(AR at 14-15.)
Claimant cites no
evidence that undermines these ALJ’s findings, stating only that the “ALJ’s analysis
focused on whether she had ‘marked’ limitations, and erred in finding that she suffered
only moderate limitations with regard to interacting with others, remembering and/or
applying information, and concentration, persistence, and pace.” (Doc. 15 at 7.) See
Singer, 897 F.3d at 980 (court would only consider arguments that were supported by
The ALJ found Claimant had moderate limitations in understanding, remembering,
or applying information. (AR at 14.) In addition to relying on Claimant’s I.Q. score and
Dr. Marandola’s explanation of the score, the ALJ also relied on Dr. Tony Larson’s
December 12, 2016 second consulting psychological examination of Claimant. (Id.
(citing AR at 969-75).) Claimant told Dr. Larson that she could drive, obtain her own
medical care, prepare meals as complex as lasagna, participate in housekeeping and
laundry chores, and groom herself to an adequate level. (Id. at 970.) In spite of Claimant
also saying she needed help taking medications and managing finances and that she cannot
help with child care, Dr. Larson found Claimant’s overall level of independent
functioning to be fair. (Id.) Claimant’s thoughts were lucid and goal-directed; her mood
and affect were appropriate; she was alert and oriented to time, place and situation; and
although her concentration and memory appeared somewhat impaired, she was able to
stay on topic. (Id.) Thus, while Dr. Larson noted that Claimant had several diagnoses,9
Dr. Larson diagnosed Claimant with the following impairments:
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 31 of 62
and stated that although Claimant’s anxiety and ADHD symptoms were the most-likely
of her diagnoses “to be problematic” in the workplace, he concluded that Claimant
“should be able to understand and carry out instructions, interact appropriately with
others, exercise proper judgment, and remain flexible in the workplace.” (Id. at 973.)
Thus, this conclusion is supported.
Limitations on Interacting with Others
The ALJ found Claimant had moderate limitations in interacting with others. (AR
The ALJ acknowledged that at her first consultative examination with Dr.
Marandola, Claimant alleged nightmares and flashbacks due to PTSD, “blackout anger,”
and threatening suicide. (Id. (citing AR at 953-59).) The ALJ noted that in spite of this,
Claimant was able to interact appropriately during that examination, appeared “friendly
and cooperative, and was appropriately groomed” for her second consultative
examination with Dr. Larson. (Id.; 955, 970.) Dr. Larson also noted that Claimant
would be able to interact with supervisors, coworkers, and the public. (Id. at 971.) This
conclusion was properly supported.
Major Depressive Disorder, Recurrent Episode, Moderate
• Panic Disorder
• Generalized Anxiety Disorder
• Posttraumatic Stress Disorder
• Specific Learning Disorder with Impairment in Reading (by client report)
• Specific Learning Disorder with Impairment in Written Expression (by client
• Specific Learning Disorder with Impairment in Mathematics (by client report)
• Other Specified Bipolar and Related Disorder
(AR at 973 (DSM diagnostic classification numbers omitted; bullet points added).)
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 32 of 62
Limitations on Concentrating, Persisting, or Maintaining Pace
The ALJ found Claimant had moderate limitations in concentrating, persisting, or
maintaining pace. (AR at 15.) The ALJ stated that in her application, Claimant alleged
disability based, in part, on ADHD and anxiety and stated that she was unable to handle
written or spoken instructions well. (Id. (citing AR at 231, 297).) The ALJ also noted
that although Claimant “displayed weakness in matrix reasoning, suggesting poor fluid
intelligence, broad visual intelligence, classification and spatial ability, knowledge of
part-whole relationships, simultaneous processing and perceptual organization” at her
first consultative examination, “she was generally able to complete all tasks asked of
her.” (Id. (citing AR at 953-59).) In addition, the ALJ stated that while Claimant’s
memory was “somewhat impaired” and she had “issues with attention and calculation”
during her second consultative examination, Claimant “was able to stay on topic and
there was no evidence of a severe cognitive impairment.” (Id. (citing AR 969-74).)
These conclusions are also supported by the conclusions of state agency consulting
psychologist Dee Wright, Ph.D., who opined on December 21, 2016 that while Claimant
would have “difficulty performing complex cognitive tasks that demanded prolonged
attention to minute complex details, rapid shifts in alternating attention, and high levels
of abstract reasoning,” Claimant “can sustain sufficient concentration/attention and
memory function to perform noncomplex, repetitive, and routine cognitive tasks
requiring one to two step instructions without significant limitations of function.” (Id. at
84.) On reconsideration, Aidaluz Tirado, Phys.D., affirmed Dr. Wright’s decision,
noting that Claimant rarely takes Alprazolam for anxiety and drives, shops in stores, and
pays bills. (Id. at 108.)
The ALJ properly considered Claimant’s impairments under listing 12.05(B) and
his decisions on these issues are affirmed.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 33 of 62
Whether the ALJ Provided Good Reasons for the Weight Afforded Dr. Lukken’s
Claimant takes issue with the weight the ALJ assigned to the opinion of her treating
physician, Dr. Wade Lukken.10 (Doc. 15 at 10.)
On May 16, 2018, Dr. Lukken answered four questions presented to him in a
letter from Claimant’s attorney. (AR at 2647-48.) The answers to these four questions
constitute Dr. Lukken’s opinion in this case.
1. What conditions have you treated Ms. Berke for? What is the prognosis
for these conditions?
Lumbar spondylosis and neurogenic claudication.11 These conditions
are chronic and have not responded to interventional treatment.
2. With her conditions, do you believe that it is likely that she would be
required to take frequent unscheduled breaks during a regular work day?
3. With her conditions, do you believe that it is likely that she would miss
more than two days of work per month on an unscheduled basis?
4. Do you believe that Ms. Berke is an appropriate candidate for social
security disability benefits?
Unfortunately, I do not have enough knowledge of the requirements of
Social Security disability benefits to give an opinion.
(Id. at 2647.)
Claimant relates this to the ALJ’s “Step Five Error” in presenting hypotheticals to the VE.
(Doc. 15 at 10-11.) However, because this is a potential threshold issue as to whether the ALJ’s
hypotheticals were appropriate, I am discussing it separately.
“Neurogenic claudication results from compression of the spinal nerves in the lumbar (lower)
spine. It is sometimes known as pseudoclaudication.” The Spine Hospital at the Neurological
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 34 of 62
The ALJ assigned “little weight” to Dr. Lukken’s opinion. (AR at 23-24.) The
ALJ reasoned that “[a]lthough the claimant has chronic lumbar issues, the evidence
summarized above, including radiological results and examinations, do support the
claimant’s ability to work at the light level.” (Id. at 24.)
Legal Standard for Evaluating Dr. Lukken’s Opinion
“It is the ALJ’s function to resolve conflicts among the opinions of various treating
and examining physicians.” Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007)
(quoting Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001) (noting internal
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). “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.12 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 v. Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015) (citation and brackets
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).
A treating physician’s opinion that is “not supported by diagnoses based on objective
evidence” will not support a finding of disability. Edwards v. Barnhart, 314 F.3d 964,
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. See 20
C.F.R. § 404.1527. However, Claimant’s claims were filed on September 27, 2016. Thus, the
old regulations apply. See id.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 35 of 62
967 (8th Cir. 2003) (citing Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)). If the
opinion is “inconsistent with or contrary to the medical evidence as a whole, the ALJ can
accord it less weight.” Id. (citation omitted).
When a treating physician’s medical opinion is not given controlling weight, the
following factors will be examined to determine the weight to give the opinion: (1) length
of the treatment relationship and the frequency of examination, (2) nature and extent of
the treatment relationship, (3) supportability, (4) consistency, (5) specialization, and
(6) other factors. 20 C.F.R. § 404.1527(c)(2).
Length and Frequency of Treatment Relationship
“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 medical source’s opinion more weight than . . . if it were from a nontreating
source.” 20 C.F.R. § 404.1527(c)(2)(i). In his opinion, Dr. Lukken does not say how
long he has treated Claimant. After a review of the record, it appears that Dr. Lukken
first treated Claimant on December 16, 2014 and treated her seven times between then
and the end of the relevant time period. (AR 518-34 (December 16, 30, and 31, 2014;
February 11, May 29, and July 8, 2015); 2151-54 (April 3, 2017).) Therefore, this factor
weighs in favor of giving the opinion more weight.
Nature and Extent of Treatment Relationship
“Generally, the more knowledge a treating source has about [a claimant’s]
impairment(s), the more weight [the ALJ] will give to the source’s medical opinion.” 20
C.F.R. § 404.1527(c)(2)(ii). Dr. Lukken treats Claimant for lumbar spondylosis and
neurogenic claudication that are relevant to the ALJ’s finding that Claimant’s lumbar
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 36 of 62
degenerative disc disease was a severe impairment.13 Therefore, this factor weighs in
favor of giving the opinion more weight.
“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). “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.
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.” Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir.1996); Thomas v. Berryhill,
881 F.3d 672, 675 (8th Cir. 2018) (“[Dr. Hollis’s] assessments, however, consist of
nothing more than vague, conclusory statements—checked boxes, circled answers, and
brief fill-in-the-blank responses. They cite no medical evidence and provide little to no
elaboration, and so they possess little evidentiary value. On that basis alone, the ALJ did
not err in giving Dr. Hollis’s RFC assessments little weight and relying more heavily on
other opinions in the record.”) (internal quotations and citations omitted). 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, 786 F.3d at 1132 (quotation omitted).
Claimant argues that Dr. Lukken does not have time to write a detailed opinion,
so his conclusions “should be judged on his treatment of [Claimant], not on the quality
of the [opinion] itself.” (Doc. 17 at 4.) Claimant further asserts that Dr. Lukken’s
opinions were not “vague (e.g., simply stating that the Plaintiff was ‘disabled’) but were
specific in terms of the responses provided to the questions asked [in the letter].” (Id. at
Claimant did not base her disability claim on back problems. (AR at 231.)
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 37 of 62
5.) She also argues that the VE testified that “either excessive absenteeism or frequent
breaks would render [Claimant] unemployable.” (Doc. 15 at 10.) Claimant cites no
treatment notes to support her request to base my judgement on Dr. Lukken’s “treatment
of Claimant” rather than his opinion. Thus, Claimant fails to identify what “treatment”
she wants me to focus upon.
I do not find Claimant’s attempt to downplay the barebones nature of Dr. Lukken’s
opinion to be persuasive.
Adjudicators are required to assess treating physician’s
opinions. 20 C.F.R. § 404.1527(c)(2); Wagner, 499 F.3d at 848; Piepgras, 76 F.3d at
236. Thus, I must evaluate the opinion Claimant presented to the Court. Claimant was
represented by counsel prior to her administrative hearing. Indeed, Claimant’s counsel
sent the letter/opinion in question to Dr. Lukken and could have sent the letter back
asking Dr. Lukken to expound on his answers. The instructions in the letter did not
confine Dr. Lukken to yes/no answers. Rather, the instructions told Dr. Lukken to
“address the following questions.” (AR at 2647.) At this juncture, however, I cannot
assume what Claimant implies Dr. Lukken wanted to say in his opinion.
That being said, I am required to determine if Dr. Lukken’s treatment notes
support the statements he made in his opinion. To the argument that the opinion is not
vague, I do not find the opinion vague. Rather, I find it cursory and unsupported by
citation to any treatment notes or by anecdotal evidence from Dr. Lukken’s own
experiences with Claimant.
On December 16, 2014, Claimant saw Dr. Lukken for the first time for bilateral
low back pain and “very fleeting” numbness in her legs. (AR at 518.) Although sacral
compression and sacral thrust tests were negative and musculoskeletal strength and
sensation in the lower extremities was grossly intact, examination elicited pain with
palpitation over her facet joints. (Id. at 519.) Therefore, Dr. Lukken decided to proceed
with lidocaine injections. (Id. at 519-22.) After injections, Claimant’s pre-existing pain
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 38 of 62
was reduced by 80-percent. (Id. at 524.) On December 31, 2014, Dr. Lukken performed
radiofrequency ablation of the medial branch nerves. (Id. at 525-26.) On February 11,
2015, Claimant reported to Dr. Lukken that per pain had not been improved by the
ablation, something Dr. Lukken said should have occurred by six weeks post-procedure.
(Id. at 527.) At this appointment, Claimant did not appear uncomfortable or in any acute
distress, although Dr. Lukken elicited “significant discomfort” with manipulation and
palpation and “loading” of the facet joints. (Id. at 528.) Dr. Lukken ordered a CT of
Claimant’s lumbar spine and added Melaxicam to her medication regime. (Id.) On May
29, 2015, Dr. Lukken noted that the CT scan revealed a bulging disc at L5-S1. (Id. at
529.) Dr. Lukken stated Claimant had “a fairly classic presentation of spinal stenosis[.
I]f she walks for any extended period or as soon as she stands she has significant bilateral
low back pain. As soon as she sits and rests the pain goes away. (Id.) Dr. Lukken
performed an epidural steroid injection and Claimant reported no pain after injection.
(Id. at 531-32.) On July 8, 2015, Claimant returned to Dr. Lukken complaining that she
did not have long-lasting relief from the May injection.
(Id. at 533.)
complained of increased weakness from prolonged walking, but that “her back pain and
leg pain . . . decreases significantly when she stops and rests.” (Id.) Claimant did not
appear uncomfortable and was not in any acute distress. (Id. at 534.) He diagnosed her
with lumbar radiculopathy.14 Dr. Lukken referred Claimant to Dr. Espiritu for a surgical
Claimant returned to Dr. Lukken in April 2017 for the first time in approximately
two-and-a-half-years on a referral from ARNP Kelly Bean “after a lumbar spine CT
indicated ‘no worrisome change’ compared to the prior study, with sclerotic facet joints
Radiculopathy is a “disorder of the spinal nerve roots.” Stedman’s Medical Dictionary 1622
(28th ed. 2006).
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 39 of 62
but otherwise normal findings.” (AR at 20, 1353, 2050.) Claimant told Dr. Lukken that
Dr. Espiritu found she was not a candidate for surgery. (AR at 2151.) Claimant
complained of chronic pain that was made worse by lying down, standing, sitting,
walking, exercising, coughing/sneezing, bending, lifting, arising from a chair, heat, ice,
movement, position changes, turning, and upright activity. (Id.) In spite of this, Dr.
Lukken’s objective examination revealed Claimant did not appear to be uncomfortable
during her appointment and was in no acute distress, although she claimed her pain was
currently 10/10. (Id. 2151, 2153.) Although Dr. Lukken found “what seemed to be
facet mediated pain and possibly some myofascial pain the lower lumbar facet area,”
Claimant’s cervical and lumbar spine both had normal motion and Claimant had normal
gait and stance with no antalgic gait. (Id. at 2153.) Dr. Lukken noted that Claimant had
not responded to radiofrequency ablation, prescribed morphine sulfate and hydrocodoneacetaminophen, and counseled Claimant on smoking cessation. (Id. at 2153-54.)
These treatment notes support the ALJ’s decision to give Dr. Lukken’s opinion
little weight. Although Dr. Lukken diagnosed Claimant with various lower back problems
throughout the years (lumbar radiculopathy, spinal stenosis, spondylosis and neurogenic
claudication), Claimant was never uncomfortable or in distress during her appointments
with him, in spite of stating at her April 2017 appointment that every possible physical
movement or position caused pain. Claimant had normal lumbar movement, gait, and
stance upon examination.
Dr. Lukken noted more than once that pain Claimant
experienced while walking was relieved when she sat or stopped walking. However, this
does not necessarily translate into a need for frequent breaks beyond those usually
scheduled in a work day. Dr. Lukken acknowledged this when he stated that he did not
know about the requirements for Social Security benefits. In addition, there is no support
in the treatment notes for the assertion the Claimant would miss two-or-more-days-ofwork-per-month. The treatment notes say nothing about Claimant missing appointments,
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 40 of 62
events, or even regular shopping trips due to her symptoms. Likewise, Dr. Lukken does
not provide any support for these statements (or “yes” answers) in his opinion and
therefore, the opinion cannot provide a basis for determining disability. See Teague v.
Astrue, 638 F.3d 611, 615 (8th Cir. 2011).
While the ALJ found Claimant’s degenerative disc disease to be a severe
impairment, Claimant’s RFC is what the claimant can still do despite her limitations.
Guilliams, 393 F.3d at 801. Likewise, while Dr. Lukken’s treatment notes show that
Claimant has back impairments, they also show she is capable of doing more than Dr.
Lukken states she is able to do in his opinion. This lack of corroboration from Claimant’s
back specialist is notable because Claimant did not apply for disability based on back
problems. Claimant’s lack of alleged disability based on back problems and pain is
“significant,” even if evidence of back problems was later developed in the record. See
Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001) (citing Smith v. Shalala, 987
F.2d 1371, 1375 (8th Cir. 1993)).
This factor weighs against giving the opinion more weight.
“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). The ALJ found that “the evidence summarized above, including the
radiological results and examinations, do support the claimant’s ability to work at the
light level.” (AR at 24.) The summarized evidence to which Claimant referred includes
Dr. Gregory Olson’s treatment notes, Dr. Lukken’s treatment notes, Dr. Michael T.
Espiritu’s treatment notes, Dr. Robert Wisco’s treatment notes, ARNP Kelly Bean’s
treatment notes, Claimant’s hearing testimony, Claimant’s daughter’s hearing testimony,
Claimant’s application materials, and the opinions of the state agency consulting
physicians. (Id. at 21-24.)
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 41 of 62
Claimant asserts that the ALJ “merely stated that the radiological examinations did
not support [Dr. Lukken’s] conclusions,” and that because the record establishes that Dr.
Lukken treated Claimant “for a long period of time, and thus had the firsthand
opportunity to observe [Claimant’s] pain and resulting limitations, the “the bare mention
of radiological examinations without more, did not satisfy the ALJ’s obligation to give
‘specific, legitimate reasons for disregarding a treating physician’s opinion.’” (Id. (citing
Lopez v. Astrue, 805 F. Supp. 2d 1081, 1086 (D. Colo. 2011).)
Claimant misreads the ALJ’s decision. The ALJ referred not only to “radiological
results and examinations,” but also to treatment notes and other evidence that took pages
to discuss. Therefore, this argument is without merit.
Claimant also argues that a treating physician’s opinion is entitled to great weight
because a treating physician has “the best opportunity to observe and evaluate a claimant’s
condition.” (Doc. 15 at 10 (citing Laver v. Apfel, 245 F.3d 700, 705 8th Cir. 2001;
Johnson v. Callahan, 968 F. Supp. 449, 460 (N.D. Iowa 1997)). Claimant cites a
Southern District of Ohio case for “a good illustration of the significance of a longtime
treating doctor’s report.” (Doc. 17 at 4-5.) The cited part of the case, Lewis-Money v.
Comm’r of Soc. Sec., merely states the same rules applied in the Eighth Circuit. 142 F.
Supp. 3d 631, 639 (S.D. Ohio 2015). The case explains why deference is given to
treating sources’ opinions that are well-supported by “medically acceptable evidence and
[that are] not inconsistent with other evidence in the record.” Id.
Under the rules that govern this case, a treating physician’s opinion is entitled to
great weight, but only if that opinion is well explained and well supported by medical
evidence. See Papesh, 786 F.3d at 1132 (emphasis added). A treating physician’s
opinion can be given limited weight if it contains only conclusory statements or if other
medical opinions are supported by “better or more thorough medical evidence.” Id. A
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 42 of 62
treating physician’s opinion that is “not supported by diagnoses based on objective
evidence” will not support a finding of disability. Edwards, 314 F.3d at 967.
Although Claimant does not take issue with any evidence cited by the ALJ, and
cites no evidence that contradicts the evidence cited by the ALJ, I will still analyze the
ALJ’s decision to determine if it is, indeed, supported by the record as a whole.
Claimant alleged disability based on a number of conditions, not including back
problems. (AR at 231.) However, the ALJ noted that in her first function report,
Claimant first described pain and pressure in her low back that could last for hours-a-day
or all day and that was relieved by rest and lying down. (Id. at 17, 265-66.) Claimant
stated she could only walk to her front door or vehicle. (Id. at 17, 256.) The ALJ also
cited Claimant’s second function report, in which Claimant stated she cooked simple
meals, sometimes on a daily basis. (Id. at 17, 267.) Claimant stated that she had to sit
while she cooked, and that was difficult because she is short. (Id.) Claimant stated that
back pain made it difficult to stand too long or bend over when she was getting dressed.
(Id. at 266.) However, she tried to help take care of her dogs and to do as much
housework as she could. (Id.) The ALJ also noted that Claimant drove and shopped for
necessities. (Id.) Claimant shopped every week for “an hour or so,” and used a
motorized scooter in the store. (Id. at 268.)
The ALJ stated that Claimant saw Gregory Olson, D.O., on September 26, 2014
for a backache she had had for two weeks. Claimant told Dr. Olson she had received
cortisone injections at the Mayo Clinic the previous year, but they did not help her pain
and was told if they did not work, Mayo doctors recommended a rhizotomy. (AR at 743,
747.) Dr. Olson discussed weight loss with Claimant, prescribed muscle relaxants, and
hydrocodone-acetaminophen. (Id. at 746.) Dr. Olson waited on further recommendations
until he could see records from the Mayo. (Id. at 747.)
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 43 of 62
Claimant saw Dr. Espiritu on July 14, 2015. (Id. at 815-18.) On examination,
Claimant’s gait was normal, she could stand on both her toes and her heels, 15 experienced
no pain with internal and external rotation, but had decreased lumbar flexion and
(Id. at 817.) Claimant had “some diffuse tenderness” to palpation of her
“paraspinal muscles, lumbar and thoracic, as well as into the buttock region, with no
tenderness over the greater trochanteric bursa.” (Id.) Claimant’s straight leg raise and
contralateral straight leg raise testing produced only some pulling in her back without any
true radicular symptoms. (Id.) Based on her examination, x-rays, and a CT scan, Dr.
Espiritu diagnosed Claimant with some degenerative changes, facet arthropathy at
multiple levels, and a disc bulge without any compressive lesion. (Id.) Dr. Espiritu did
not find any surgical indication, stating Claimant’s symptoms were “more consistent with
an inflammatory condition or a polymyalgia or possibly even fibromyalgia.” (Id.) He
referred Claimant to rheumatologist, Robert Wisco, M.D.
Claimant saw Dr. Wisco on November 9, 2015. (Id. at 839-41.) Dr. Wisco noted
that although the physicians at the Mayo Clinic encouraged Claimant to enroll in a pain
management program, she “could not perform.” (Id. at 839.) On examination, Claimant
had grossly normal curvatures in her thoracolumbar spine, trace tenderness “from about
L3 to S1,” and some tenderness over the sacroiliac regions. (Id. at 840.) Claimant’s
paraspinous muscles and super gluteal area had mild tenderness, her hips were nontender,
she had full range of motion in her hips, adequate muscle strength in all four extremities,
a grossly normal sensory examination to light touch, and a normal gait. (Id.) Dr. Wisco
diagnosed Claimant with chronic extreme lower back pain and superior gluteal
(Id. at 841.)
Dr. Wisco did not see any rheumatologic problem that
The ALJ’s decision contains a typographical error stating that Claimant could not stand on her
toes. (AR at 19.)
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 44 of 62
explained Claimant’s difficulty, wondered whether Claimant “might have some
component of sacroiliac joint irritation,” and recommended she return to Dr. Espiritu for
sacroiliac joint injections. (Id.)
The ALJ correctly noted that Claimant saw ARNP Kelly Bean for most of her
subsequent treatment. (Id. at 19.) Claimant saw Ms. Bean in December 2015 for a
wellness exam. (Id. at 845.) Ms. Bean noted that Claimant did not finish a physical
therapy program for back pain. (Id.) On examination, Ms. Bean noted moderate bilateral
flank pain upon inspection and palpation at the SI joints. (Id. at 848.) Ms. Bean also
noted that she had discussed with Claimant her “grave concerns with [Claimant’s]
lifestyle choices and the risks to her health . . . [of] combined inactivity, smoking and
poor diet[, which] are all causing significant health concerns.” (Id. at 850.) Claimant
returned to Ms. Bean in February 2016 complaining that muscle relaxants and Tramadol
were not helping her back pain. (Id. at 865.) Ms. Bean increased Claimant’s Tramadol
dosage, counseled Claimant on diet, and recommended a walking program. (Id.) Ms.
Bean “discussed with [Claimant] that weight loss and regular exercise is the only thing
that is going to reduce her pain; she has been working on this and has lost 4 [pounds] and
is trying to walk more. She refuses to go back to PT as it ‘makes it worse.’”16 (Id.)
See Kelley v. Barnhart, 372 F.3d 958, 961 (8th Cir. 2004) (“failure to follow prescribed
medical treatment without good cause is a basis for denying benefits”) (citing Roth v.
Shalala, 45 F.3d 279, 282 (8th Cir. 1995)).
Claimant admitted at the hearing that her weight contributes to her back problems:
[ALJ]: Do you feel like your weight contributes to an inability to work in any
[ALJ]: How so?
They say if I lose weight that I will feel a lot better and my back probably
(AR at 54.)
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 45 of 62
The ALJ acknowledged that Claimant testified that “her biggest problems were
not being able to walk long distances, bend, sit or stand.” (Id. at 18.) Claimant also
testified that injections did not help with the pain she experiences from bulging discs and
that oxycodone only provides slight relief. (Id.) At the hearing, Claimant estimated she
could sit for 20-to-25 minutes at a time, stand for 10-or-15 minutes at a time,” and lift
more than a gallon of milk. (Id. at 18, 44.)17 She also testified that she does some
vacuuming; cooking; and laundry, although her husband carries the full baskets down to
the basement for her. (Id. at 18, 56.) The ALJ gave Claimant’s hearing testimony
“careful consideration[,] but ultimately little weight.” (Id. at 22.) The ALJ reasoned
that while Claimant “did not appear to make any deliberately false or misleading
statements, . . . her subjective statements were at times inconsistent with the objective
medical evidence.” (Id.) The ALJ also considered the hearing testimony of Claimant’s
daughter, Cheyanne Matheny. (Id. at 18.) Ms. Matheny testified, in pertinent part, that
she lived with Claimant until one month prior to the hearing and helped Claimant with
housework because Claimant’s “back would give her some pain.” (Id. at 18, 63.)
Finally, the ALJ considered the opinions of state agency consulting physicians
Charles Korte, M.D. and Jan Hunter, D.O. (Id. at 23.) On January 10, 2017, Dr. Korte
limited Claimant to “light work with the following restrictions: standing and/or walking
for four hours in an eight-hour day; no climbing of ladders, ropes and scaffolds;
occasional climbing of ramps and stairs, as well as other postural activities; and avoiding
concentrated exposure to hazards due to nonepileptic spells.” (Id. (citing AR at 86-88).)
On June 20, 2017, “Dr. Hunter largely affirmed this analysis, albeit with different
standing and walking requirements.” (Id. (citing 111-13).) The “different standing and
Claimant testified that if she carries two gallons of milk at a time from the car after grocery
shopping, she has to sit down when she gets in the house. (Id. at 44.)
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 46 of 62
walking requirements” mentioned by the ALJ were that Claimant could stand and/or walk
six hours in and eight-hour day, rather than four-hours. (Id. at 111.) Both Dr. Korte
and Dr. Hunter provided long explanations for their conclusions (Id. at 88-89, 112-14.)
Dr. Hunter stated their conclusions most succinctly: “While the claimant has severe
impairments, her reported restrictions are not entirely supported with the clinical
evidence.” (Id. at 114.)
After the ALJ considered all this evidence, he concluded,
Overall, the undersigned finds that the claimant’s allegations concerning the
intensity, persistence and limiting effects of her symptoms are less than
fully consistent with the treatment records. The claimant alleged debilitating
back pain, but imaging studies revealed only mild findings. An orthopedic
surgeon did not identify her as a surgical candidate. Her medical
examinations displayed evidence of facet oriented back pain, but were
generally unremarkable otherwise. Despite a history of injections, most of
her treatment was medication-oriented. Significantly, Ms. Bean
recommended exercise, including a walking program, for weight loss,
suggesting that the claimant was capable of at least some exertional activity.
However, she would be limited to light work with only occasional postural
(Id. at 22.) Claimant’s conservative course of treatment can weigh against a claim of
disabling impairment. See Milam v. Colvin, 794 F.3d 978, 985 (8th Cir. 2015). In
addition, as the ALJ noted, a health care provider’s recommendation to engage in physical
activity is inconsistent with a finding of a finding of disability. Moore, 572 F.3d at 524.
This factor weighs against giving the opinion more weight.
“[G]enerally [the ALJ will 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. Lukken is a specialist
in pain management. This factor weighs in favor of giving the opinion more weight.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 47 of 62
After a thorough review of the entire record, I find that the ALJ’s opinion is
supported by substantial evidence on the record as a whole and should not be disturbed.
See Hacker, 459 F.3d at 937 (decision is not outside that zone of choice simply because
the court might have reached a different decision). The ALJ’s conclusion on this issue is
Whether the ALJ Proffered a Hypothetical to the VE that was Supported by the
At the hearing, the ALJ proffered two hypotheticals to the VE.
hypothetical described the following individual:
[A]ssume an individual with claimant’s same age, education and past work
experience. Exertionally let’s start at the light level, occasional ramps,
stars, no ladders, ropes or scaffolds, occasionally balance, stop, kneel,
crouch and crawl, no exposure to hazards such as unprotected heights,
moving mechanical parts, no operation of a motor vehicle as part of the job
duties, mentally limited to simple and routine tasks, simple work-related
decisions, occasional changes in job duties, occasional contact with the
public and coworkers. Are there jobs available in the national economy for
such a person?
(AR at 68-89.) The VE testified that a person with these limitations could perform the
jobs of housekeeper/cleaner, inspector/packer, and garment bagger. (Id. at 69.) For his
second hypothetical, the ALJ asked the VE to assume the same individual, but to change
the exertional level to sedentary. (Id.) The VE testified that the previously-mentioned
jobs would no longer be available, but that the jobs of final assembler, document
preparer, and table worker would be available to such a person. (Id.) The VE also
testified that generally speaking, most employers will tolerate no more than half-a-day of
missed work a month or an employee who is off-task more than ten-percent of the work
day. (Id. at 70.) The VE stated that in a competitive work environment, employers will
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 48 of 62
not tolerate unscheduled breaks that equate to more than ten-percent of the work day.
The ALJ’s first hypothetical and the VE’s answer to that hypothetical became the
RFC and the jobs the ALJ relied on at step 5. (Id. at 17, 25.)
Legal Standard for Evaluating the Hypothetical and Claimant’s
In order to constitute substantial evidence, a VE’s testimony must be based on a
hypothetical that captures the “concrete consequences” of the claimant’s deficiencies.
Scott v. Berryhill, 855 F.3d 853, 857 (8th Cir. 2017) (citing Lacroix v. Barnhart, 465
F.3d 881, 889 (8th Cir. 2006) (quotation omitted); Porch v. Chater, 115 F.3d 567, 572
(8th Cir. 1997)). The hypothetical must include only the impairments that are
substantially supported by the record as a whole. Lacroix, 465 F.3d at 889.
Claimant argues that “[b]ased on an erroneous RFC determination and resulting
hypotheticals to the Vocational Expert, the ALJ found that Berke could perform other
work.” (Doc. 15 at 9.) Claimant first argues that the hypotheticals were improper
because of the ALJ’s failure to find her atrial fibrillation, headaches, and asthma severe
impairments. (Id. at 9-10.) She next argues that the hypotheticals were improper because
the ALJ failed to “properly consider her low GAF and IQ scores regarding her mental
health and intellectual functioning.”
(Id. at 10.)
Claimant also asserts that the
hypotheticals were improper because the ALJ failed to give appropriate weight to Dr.
Lukken’s opinion and Claimant’s testimony and failed to analyze Ms. Matheny’s
testimony. (Id. at 10-13.)
Arguments Previously Addressed
The Commissioner argues,
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 49 of 62
[T]he Court need not address plaintiffs step five argument – that the ALJ’s
hypothetical was inadequate - because it is premised upon the Court finding
that the ALJ improperly evaluated plaintiff’s RFC finding. However, the
Commissioner notes that while plaintiff challenges the ALJ’s step two and
three findings, she did not challenge the RFC finding. Furthermore,
contrary to plaintiff’s argument, she has not met her burden of proving the
need for any additional limitations, nor has she suggested what additional
limitations the ALJ should have included in the RFC finding. See Buford v.
Colvin, 824 F.3d 793, 796 (8th Cir. 2016) (plaintiff’s burden to prove
RFC). Thus, plaintiff’s RFC argument is insufficiently developed to
preserve judicial review and is therefore waived. See Gregg v. Astrue, 615
F.3d 932, 938 (8th Cir. 2010); see also Aulston v. Astrue, 277 F. App’x
663, 664 (8th Cir. 2008) (unpublished) (undeveloped argument is waived).
Nevertheless, as discussed above, the ALJ clearly discussed all of plaintiff’s
impairments, including the nonsevere impairments, when he assessed the
RFC finding (Tr. 12-13). In fact, the ALJ specifically explained that he
must consider all of the claimant’s impairments, including impairments that
are not severe (Tr. 11-12). See 20 C.F.R, §§ 404,1520(e), 404,1545; SSR
96-8p. In addition, the ALJ considered plaintiff’s mental impairments at
step three, including her IQ scores (Tr. 14-17). As explained above, after
considering the record evidence, the ALJ ultimately found that there was
“no evidence of a disability-level intellectual disorder meeting or equaling
listing 12.05(B)[“] (Tr. 16-17). Thus, the ALJ properly considered
plaintiff’s physical and mental impairments and provided only limitations
in the RFC finding that the record as a whole supported. Therefore, plaintiff
has not established error.
(Doc. 16 at 21-22.)
As discussed above, the Commissioner is correct that the ALJ’s decisions related
to whether Claimant’s atrial fibrillation, headaches, asthma, and the severity of
Claimant’s intellectual impairments were supported by the record as a whole.
Accordingly, the ALJ properly considered these impairments when crafting Claimant’s
RFC. (AR 17 (ALJ considered “entire record” and “all symptoms and the extent to
which these symptoms can reasonably be accepted as consistent with the objective medical
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 50 of 62
evidence and other evidence” when crafting Claimant’s RFC).) In addition, I have also
found that the ALJ’s decision to give Dr. Lukken’s opinion little weight is supported by
the record as a whole. Therefore, the ALJ properly considered his opinion when crafting
However, the Commissioner is not correct that Claimant has not specifically
challenged the ALJ’s RFC finding. Although Claimant styles her argument as one about
“the ALJ’s error at step five of the analysis,” she begins her argument in the following
way: “Based on an erroneous RFC determination and resulting hypotheticals to the [VE],
the ALJ found that Berke could perform other work.” (Doc. 15 at 9.) In addition,
Claimant’s arguments challenge the consideration the ALJ gave to certain pieces of
evidence, rather than anything specific in the hypotheticals the ALJ posited to the VE.
(Id. at 10-14.) Therefore, although Claimant states she is challenging the hypotheticals,
what she actually challenges are the ALJ’s decisions upon which he based the RFC and
Evaluation of Claimant’s Testimony
Claimant asserts that the ALJ failed to give her testimony appropriate weight,
specifically the portion of her testimony where Claimant stated, she “can only sit in an
office style chair for about 20-25 minutes before she has to stand up, and then after 1015 minutes, she can sit back down.” (Doc. 15 at 11 (citing AR 43).) The ALJ found
that “the claimant’s medically determinable impairments could reasonably be expected to
cause some of her 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 in the record for the reasons explained in
this decision.” (AR at 18.) He also concluded that “the claimant’s hearing testimony
received careful consideration but ultimately little weight. She did not appear to make
any deliberately false or misleading statements, but her subjective statements were at
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 51 of 62
times inconsistent with the objective medical evidence.” (Id. at 22.) The ALJ noted that
imaging studies showed only mild findings and that Dr. Espiritu did not think Claimant
was a surgical candidate. (Id. at 22, 489-90, 817.) The ALJ also noted that while
Claimant’s examinations showed evidence of facet-based back pain, the examinations
were largely unremarkable. (Id. at 22.) The ALJ considered these findings when he
limited Claimant’s RFC to light work with additional limitations. (Id.) The ALJ also
noted that as of March 21, 2017, Claimant had not experienced a nonepileptic “spell” in
over two years. (Id. at 22, 285.) The ALJ acknowledged that while Claimant had been
treated at the Mayo Clinic for these spells in 2013, there is no evidence of a syncopal
episode prior to the date last insured and no reliable information as to the frequency or
severity of Claimant’s spells. (Id. at 22.) The ALJ noted that Claimant continues to
drive and hold a driver’s license. (Id. at 22.) Claimant testified that her doctor has to
complete paperwork from the Department of Transportation (“DOT”) “basically
explaining that, you know, [Claimant’s] been doing good so far, you know, no incidents.
. . . And then . . . . they extend my license longer.” (Id. at 51.) However, Claimant
testified that she has syncopal events “frequently. . . . two, three times a month. It can
happen every day of the week.” (Id. at 50.) Claimant is unconscious when she has one
of these events and it can take up to twenty minutes before Claimant can move or talk.
(Id.) Claimant testified that sometimes her daughter calls the ambulance when Claimant
has a spell and Claimant is taken to the hospital where physicians have to record the
incident and the incident “shows up when [her] doctor fills out the papers and has to
report.” (Id. at 51-52.) The ALJ found evidence that Claimant continued to drive and
hold a driver’s license was “evidence that the spells do not happen often enough to render
her disabled.” (Id. at 22.) The ALJ also found that if Claimant had been keeping her
doctors apprised of her spells, her doctors would have been required to report to them to
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 52 of 62
the DOT, which would likely interfere with Claimant’s ability to keep her driver’s
Claimant argues that the ALJ did not properly consider her testimony related to
her subjective allegations of pain. (Doc. 15 at 11-12.)
Specifically, Claimant argues
that “the analysis an ALJ must make is not only whether the Plaintiff’s subjective
complaints are supported by the medical record, but also whether Plaintiff believed her
medical and psychological problems and limitations were real.” (Doc. 17 at 5.) Claimant
also cites an Eastern District of California case that stands for the proposition that a
claimant’s ability to engage in limited daily activities does not necessarily demonstrate
that a claimant has the ability to work. (Id. at 6 (citing O’Bosky v. Astrue, 651 F. Supp.
2d 1147, 1164 (E.D. Cal. 2009).) I will address the parties’ arguments under the
appropriate Eighth Circuit Polaski analysis. Claimant’s arguments consist mostly of long
quotations from two cases.
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
[the claimant’s] residual functional capacity.”
20 C.F.R. § 404.1529(d)(4).
determination involves a two-step process in which the ALJ first decides whether the
claimant has a medically determinable impairment that could reasonably be expected to
produce the claimant’s symptoms and then evaluates the intensity and persistence of the
claimant’s symptoms. Id. § 404.1529(b),(c). When evaluating the 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 pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side
effects of medication; and (5) [the claimant’s] functional restrictions. Polaski v. Heckler,
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 53 of 62
739 F.2d 1320, 1322 (8th Cir. 1984); 20 C.F.R. § 404.1529(c)(3).18 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
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.
Id. § 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
In this case, the ALJ found that Claimant had medically determinable impairments
that could reasonably be expected to cause her alleged symptoms. (AR at 18.) The ALJ
also found that Claimant was able to perform work in the national economy. (Id. at 25.)
The ALJ stated the following regarding Claimant’s daily activities: that Claimant
was able to drive a car, was “mentally capable of most daily living activities,” could
participate in housework and laundry, and could groom herself at an adequate level. (AR
at 15, 21.)
While the Eighth Circuit, like the Eastern District of California, has repeatedly
held that a claimant’s ability to perform household chores does not necessarily mean the
claimant can perform gainful work activity outside the home, as discussed above, the
The Code of Federal Regulations includes the additional factors of: (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).
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 54 of 62
ALJ found that Claimant’s allegations regarding the intensity, persistence, and limiting
effects of her symptoms were not supported by the record. See Ford v. Astrue, 518 F.3d
979, 983 (8th Cir. 2008) (holding that daily activities of “washing a few dishes, ironing
one or two pieces of clothing, making three or four meals each week, and reading” were
not inconsistent with claimant’s claim of pain or with an inability to hold a fulltime job).
“[I]t is well-settled law that a claimant need not prove she [or he] is bedridden or
completely helpless to be found disabled.” Reed v. Barnhart, 399 F.3d 917, 923 (8th
Cir. 2005) (citations and internal quotation marks omitted). But see (AR at 22 (ALJ
noting that while physicians found facet-oriented pain, most examinations were
unremarkable, imaging showed only mild findings, Dr. Weis did not find Claimant a
candidate for surgery, and Ms. Bean recommended exercise, including a walking
program, which indicated that Claimant was capable of at least some exertional activity).)
Claimant asserts that the ALJ improperly weighed her ability to drive a car as
merely another “daily activity.” Claimant misunderstands the importance of her ability
to legally drive a car. Because Claimant’s physician must sign paperwork for the DOT
attesting that Claimant has not had any syncopal events in order for Claimant to keep her
driver’s license, Claimant’s ability to renew her license on a regular basis means more
than the ability to physically and mentally handle the rigors of driving. It also means that
Claimant has not had any incidents of syncope since the last time she renewed her driver’s
license, which, as previously discussed undermines Claimant’s testimony that she has
syncopal spells “two, three times a month. . . . [or] every day of the week.” (AR at 50.)
Claimant also argues that her case is analogous to Holmstrom v. Massanari, in
which the ALJ held that “[a]lthough the record credited by the ALJ . . . may not contain
sufficient objective medical evidence to support Holmstrom’s subjective complaints, the
record as a whole does support them.” 270 F.3d 715, 722 (8th Cir. 2001) (emphasis in
original). Holmstrom reversed an ALJ’s decision to deny benefits to a claimant, in part,
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 55 of 62
based on the testimony of the claimant and claimant’s sister-in-law, who testified about
the severity of Claimant’s back pain. Id. at 719, 722. The court also considered
corroborating medical evidence first presented to the Appeals Council. Id. at 717, 722.
Holmstrom held that the ALJ’s hypotheticals should have included a limitation that the
claimant had to lie down several times during the work day, something both the claimant
and his sister-in-law testified Claimant needed to do and that evidence first submitted to
the Appeals Council supported. Id. at 719, 722.
Claimant does not explain how her case is similar to Holmstrom other than to say
that she testified that she “can only sit in an office style chair for about 20-25 minutes
before she has to stand up, and then after 10-15 minutes, she can sit back down,” which
makes her case “very similar to” Holmstrom. (Doc. 15 at 11.) While it is true that the
claimants in both Holmstrom and the case at bar testified that they needed to change
positions often, the ALJ in Holmstrom correctly relied on the record as a whole, which
included both objective medical evidence and hearing testimony. 270 F.3d at 722.
However, in spite of the arguable similarities in hearing testimony, the claimant in
Holmstrom was much more limited in the rest of his daily activities than is Claimant in
the case at bar who drives; shops with a motorized cart; helps with household chores;
and takes care of her own grooming. “During a July 1998 interview, . . . Holmstrom
reported that his daily activities comprised: getting up and sitting around until his back
hurt, then lying down until it felt better, then repeating this pattern until he went to bed
at night.” Id. at 719 n.4. In addition, the objective medical evidence of severe back
problems in Holmstrom was much stronger than it is here, including evidence supporting
a need to lie down to alleviate pain and evidence that the claimant was in pain at doctors’
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 56 of 62
appointments.19 Id. at 718-19. Thus, Holmstrom merely stands for the proposition that
a court must evaluate an ALJ’s decision for supporting evidence in the record as a whole,
not for the proposition that a claimant’s hearing testimony is more important than all
other evidence. (See Doc. 15 at 12 (Claimant’s brief) (citing Carlson v. Astrue, 682 F.
Supp. 2d 1156, 1165 (D. Or. 2010), which states that “[o]nce a claimant establishes an
impairment that could reasonably cause the reported symptoms, the ALJ may not require
that medical evidence corroborates the degree of symptom testimony the claimant
However the ALJ may consider a claimant’s medical source record in
conjunction with other credibility factors, including a physician’s observations.”)
(internal citations omitted).)20
X-rays, CT scans and MRIs . . . show narrowed disc spaces, spur formation,
degenerative disc disease, and disc bulges or herniations in the lower lumbar and
upper sacral region of Holmstrom’s spine. X-rays from 1996 show a “complete
loss” of the disc space between two vertebrae in his lower back. Throughout his
time in California, Holmstrom took prescribed medications for his back,
including daily doses of muscle relaxants, 2400 milligrams of ibuprofen, and
painkillers containing codeine for “breakthrough pain.” In attempts to reduce his
back pain, Holmstrom underwent trigger point injections, physical therapy,
hypnosis, and use of a transcutaneous electrical nerve stimulator unit. The medical
records indicate that, on occasion, Holmstrom received temporary and partial pain
relief from these treatments.
. . .
After the ALJ issued her decision, the Appeals Council accepted into the record
additional medical evidence covering a period up to and including November 5,
1998. This additional evidence included records from office visits to Dr. Kopacz.
On August 20, Holmstrom reported that his pain decreased only when he laid
down flat, and Dr. Kopacz noted that Holmstrom was physically uncomfortable
and changed positions frequently in attempts to relieve his pain.
Holmstrom, 270 F.3d at 718-19.
I find that the ALJ properly “acknowledged and examined considerations” related to the other
Polaski factors. Lowe, 226 F.3d at 972.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 57 of 62
Claimant’s final argument related to her testimony is that the ALJ had to consider
whether Claimant “believed her medical and psychological problems and limitations were
real. . . . [and the failure to do so], constitutes error.” (Doc. 17 at 5.) For support,
Claimant cites the following passage from Bright-Jacobs v. Barnhart,
This Court agrees that the claimant’s testimony as to her medical conditions
generally contradicts the objective medical evidence as determined by her
treating physicians. Therefore, in the abstract, an ALJ could find that her
testimony is not credible. However, that is precisely the nature of her
disabling somatization disorder: the claimant actually believes that she is
suffering from disabling medical conditions even though such medical
conditions are illusory or less severe. Thus, in order to properly evaluate
the claimant’s credibility, the ALJ must determine whether the claimant
actually believes she suffers from the enumerated severe disabling medical
conditions. In assessing and rejecting the claimant’s credibility, here, the
ALJ rejected the claimant’s credibility because it was not supported by
objective medical findings. Tr. 501–19, 520–22, 524, 528, FOF 5. His
failure to ascertain whether the alleged medical problems were real to the
claimant constitute reversible error (i.e. a failure to properly evaluate the
386 F. Supp. 2d 1295, 1333 (N.D. Ga. 2004).
A “somatization disorder,” or “somatic symptom disorder” is
characterized by an extreme focus on physical symptoms — such as pain or
fatigue — that causes major emotional distress and problems functioning.
[People with this disorder] may or may not have another diagnosed medical
condition associated with these symptoms, but [their] reaction to the
symptoms is not normal.
[People with this disorder] often think the worst about [their] symptoms and
frequently seek medical care, continuing to search for an explanation even
when other serious conditions have been excluded. Health concerns may
become such a central focus of [their lives] that it’s hard to function,
sometimes leading to disability.
Mayo Clinic, Somatic symptom disorder, https://www.mayoclinic.org/diseasesconditions/somatic-symptom-disorder/symptoms-causes/syc-20377776#:~:text=
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 58 of 62
The case at bar is easily distinguished from Bright-Jacobs because there is no
allegation that Claimant has a somatization disorder. The holding in Bright-Jacobs was
limited to the unique facts of that case and has no bearing on Claimant’s case.
Therefore, although Claimant’s case may have supported a different outcome, “[i]f
substantial evidence supports the Commissioner’s decision, [I cannot] reverse even if [I]
might have decided the case differently.” Lawrence v. Saul, 970 F.3d 989, 996 (8th Cir.
2020) (quoting Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)). The ALJ’s
decision on this issue is affirmed. The ALJ properly weighed Claimant’s testimony when
crafting the RFC.
Evaluation of Ms. Matheny’s Testimony
Claimant argues that the ALJ “completely failed to analyze the testimony of
[Claimant’s] adult daughter, Cheyenne Matheny.” (Doc. 15 at 12.) In support of her
argument that this “complete failure . . . constitutes error,” Claimant cites cases from
the Northern District of Georgia and the Ninth Circuit that hold that family members can
be valuable sources of information about claimants’ impairments and that rejecting family
members’ testimony on the basis of familial bias is improper.21 (Id. at 12-13 (citations
omitted).) Claimant, however, does not explain how Ms. Matheny’s testimony provides
The Eighth Circuit does not allow an ALJ to dismiss a family member’s testimony “by
summarily stating that ‘individuals at hearings are more likely to present themselves, or their
loved ones, in the light most favorable to benefit awarding’” without sufficiently identifying
discrepancies in the testimony. Neely v. Shalala, 997 F.2d 437, 441 (8th Cir. 1993)
(quoting Ludden v. Bowen, 888 F.2d 1246, 1248 (8th Cir. 1989)). If, however, the testimony
merely corroborates the claimant’s testimony or conflicts with the medical evidence, an ALJ
may dismiss the testimony. Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir. 1996).
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 59 of 62
valuable insight into Claimant’s condition or how it is free from bias. Again, Claimant
merely summarizes Ms. Matheny’s testimony and then quotes almost a page-and-onehalf of block quotes from the cases without any legal analysis. (Id.)
Ms. Matheny testified that she helped her mother with housework because
Claimant’s back was in pain, Claimant “couldn’t really move,” and it was “hard for her
to go up and down the steps sometimes” because of pain, and testified about Claimant’s
“spells.” (Id. at 64-66.) Ms. Matheny testified that Claimant’s spells can last an hour
or two and happen once-or-twice-per-day and that Claimant mumbles or does not say
much when she has spells. (Id. at 64-65.) The ALJ summarized this testimony, but did
not assign it specific weight. (Id. at 18.)
[S]tatements of lay persons regarding a claimant’s condition must be
considered when an ALJ evaluates a claimant’s subjective complaints of
pain.” Willcockson v. Astrue, 540 F.3d 878, 880–81 (8th Cir. 2008)
(holding that ALJ’s failure to refer in his decision to lay testimony
416.929(c)(3). But see Buckner v. Astrue, 646 F.3d 549, 559–60 (8th Cir.
2011) (although ALJ did not expressly address claimant’s girlfriend’s
statement in decision, ALJ’s error did not require remand because evidence
that discredited claimant’s claims also discredited girlfriend’s claims; ALJ’s
“arguable deficiency in opinion-writing technique” had no bearing on
outcome of claimant’s case).
Dawdy v. Astrue, No. C10-4063-MWB, 2011 WL 5080146, at *23 (N.D. Iowa Oct. 25,
2011), R. & R. adopted, 2012 WL 176576 (N.D. Iowa Jan. 20, 2012).
In Buckner, the court declined to remand the case for reconsideration of the
claimant’s girlfriend’s statement that the ALJ did not mention in the decision. 646 F.3d
. . . [W]e cannot determine from the record whether the ALJ considered
her statements at all. At the same time, . . . the same evidence that the ALJ
referred to in discrediting Buckner’s claims also discredits the girlfriend’s
claims. Specifically, Buckner’s girlfriend stated that Buckner cannot watch
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 60 of 62
the children when she leaves the house. As noted above, the ALJ observed
that Buckner, in his disability questionnaire and his hearing testimony,
“stated that he was able to care for his son.” Buckner’s girlfriend also
claimed that Buckner could not work, would run out of breath easily, and
had no energy. Although the ALJ did not address all of these specific
claims, the ALJ did find that Buckner’s own statements and hearing
testimony “show that he engages in a range of daily activities inconsistent
with his allegation of disabling hypertension, headaches, back pain, hand
cramps, shortness [of] breath, chest pains, depression and anxiety.”
Finally, the decision here did not suffer from the other deficiencies . . .
most notably, as discussed supra, the ALJ here did sufficiently assess
Buckner’s credibility. Thus, we hold that the ALJ’s “arguable deficiency
in opinion-writing technique,” . . . had no bearing on the outcome of
Buckner’s case and does not require remand.
Id. at 560 (internal citations omitted; second set of brackets in original).
The ALJ properly considered Ms. Matheny’s testimony. That was all the ALJ
was required to do because an ALJ’s failure to mention specific evidence does not mean
he did not consider it—especially in this case where the ALJ mentioned the evidence.
See Wildman, 596 F.3d at 964. Moreover, ALJs are only required to assign weight to
opinions. See SSR 06-03p, 2006 WL 2329939, at **5-6 (discussing opinions from nonmedical sources).
Testimony is not an opinion.
Finally, for the most part, Ms.
Matheny’s testimony mostly corroborated Claimant’s testimony regarding her syncopal
events, which conflicted with the medical evidence that Claimant had not experienced a
syncopal event for years. See Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir. 1996);
See also (AR at 22, 285).
Here, it is obvious that the ALJ considered Ms. Matheny’s testimony because the
ALJ mentioned the testimony in his decision. (AR at 18.) In addition, to the extent the
ALJ should have discussed the testimony further, the same evidence the ALJ cited to
discount Claimant’s claims related to her syncopal events and back impairments would
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 61 of 62
also discount Ms. Matheny’s testimony. Therefore, further discussion was not required.
Accordingly, this part of the ALJ’s decision is affirmed.
Effect of ALJ’s Decisions on Hypotheticals at Step Five
I find that because the ALJ properly analyzed and weighed the evidence that
Claimant challenges, the ALJ’s RFC was not erroneous. Accordingly, the hypotheticals
the ALJ proffered to the VE were based on the impairments that are substantially
supported by the record as a whole.
For the foregoing reasons, the decision of the ALJ is affirmed. Claimant’s
Complaint (Doc. No. 3) is dismissed with prejudice.
IT IS SO ORDERED this 20th day of November, 2020.
Case 5:19-cv-04042-MAR Document 19 Filed 11/20/20 Page 62 of 62
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