Ward v. Commissioner of Social Security
MEMORANDUM Opinion and Order Accepting without modification 19 Report and Recommendations re 3 Complaint. The Commissioners disability determination is affirmed and Judgment shall enter against plaintiff and in favor of the Commissioner. Signed by Chief Judge Leonard T Strand on 9/15/2022. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
MEMORANDUM OPINION AND
ORDER ON REPORT AND
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
This case is before me on a Report and Recommendation (R&R) by the Honorable
Mark A. Roberts, United States Magistrate Judge.
See Doc. 19.
recommends that I affirm the decision by the Commissioner of Social Security (the
Commissioner) denying applications by plaintiff Melissa W. (the Claimant) for disability
insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434,
and supplemental security income (SSI) benefits under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381-85.1 The Claimant has filed timely objections (Doc. 20). The
Commissioner has not filed a response.
Judicial Review of the Commissioner’s Decision
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
In accordance with the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, I will refer to a Social Security
claimant by his or her first name and last initial due to significant privacy concerns.
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 1 of 17
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir.
2003). The Eighth Circuit explains the standard as “something less than the weight of
the evidence and [that] allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the [Commissioner] may decide to grant
or deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30
F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence that supports the Commissioner’s decision and evidence that detracts from
it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search the
record for evidence contradicting the [Commissioner’s] decision and give that evidence
appropriate weight when determining whether the overall evidence in support is
substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 2 of 17
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”).
Review of Report and Recommendation
A district judge reviews a magistrate judge’s R&R under the following standards:
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co.,
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 3 of 17
333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
The Claimant applied for DIB and SSI on May 9, 2019, based on spinal fusion,
neck pain, cardiovascular disease, COPD, GERD, melanoma screened yearly, bipolar
disorder, depression and anxiety. AR 211-12; 233. Judge Roberts considered whether
the ALJ committed reversible error by (A) rejecting claimant’s subjective allegations of
disability and making an inadequate credibility finding; (B) rejecting the opinions of
treating medical providers; and (C) making a flawed residual functional capacity (RFC)
determination and improperly relying on an incomplete hypothetical question to the
vocational expert (VE).
With regard to the Claimant’s subjective allegations, Judge Roberts concluded the
ALJ appropriately discounted her subjective allegations based on consideration of the
Polaski factors and inconsistencies in the evidence as a whole. Doc. 19 at 10-13. He
explained that the ALJ had thoroughly considered the Claimant’s medical history and
treatment concerning each of her impairments. While that information supported some
limitations, the ALJ found that more severe limitations, as alleged by the Claimant, were
not consistent with the evidence as a whole, including objective medical evidence and
conservative treatment. Id. at 11-12. The ALJ found that the Claimant’s daily activities
were inconsistent with complaints of disabling symptoms and limitations, noting that the
Claimant was able to shop online, manage money, prepare simple meals and
independently manage her personal hygiene.
Id. at 13.
Judge Roberts found that
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 4 of 17
substantial evidence supported the ALJ’s credibility determination, noting the court
cannot reweigh the evidence.
He recommends affirming this aspect of the ALJ’s
Next, Judge Roberts addressed the treating medical source opinions, noting that
the Claimant had not explained why the ALJ erred in evaluating these opinions. Judge
Roberts observed that the ALJ considered and addressed the opinion of Dr. Johnson, who
performed an impairment rating for purposes of a workers’ compensation claim. After
the Claimant’s January 2016 spine surgery, Dr. Johnson opined she “had nearly complete
resolution of numbness and tingling in the right arm, but still had some right arm pain.”
Doc. 19 at 15 (citing AR 161). Dr. Johnson found a slight deficit in muscle strength on
the Claimant’s right side. Id.
The ALJ observed a significant gap in the Claimant’s treatment for her cervical
spine or right arm conditions after she met with Dr. Johnson. The Claimant saw her
primary care provider approximately eight times from July 2017 through April 2019, but
did not make significant, ongoing complaints regarding her neck or upper extremities
during those appointments and the primary care provider did not document any
abnormalities related to these conditions. The ALJ also noted that the Claimant did not
make any complaints related to those conditions after she began seeing a new primary
care doctor in October 2019 through March 2020. While she did complain of neck pain
in April 2020 to her provider, the provider did not document any abnormalities upon
Judge Roberts found the ALJ adequately accounted for Claimant’s neck fusion
surgery in formulating the RFC, which limits her to light exertional work, occasional
overhead reaching with her right upper extremity and no climbing of ladders, ropes or
scaffolds. Judge Roberts determined that while the ALJ did not specifically address the
supportability and consistency factors as to Dr. Johnson’s opinions, it was clear from the
ALJ’s discussion that he found Dr. Johnson’s opinions supported by and consistent with
the record as a whole. As such, any error was harmless and did not necessitate remand.
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 5 of 17
Judge Roberts also considered Dr. Bansal’s opinion, which had been provided as
part of the Claimant’s workers’ compensation claim. Judge Roberts observed that like
Dr. Johnson’s opinion, disability determinations made by nongovernmental agencies for
purposes of workers’ compensation claims are not binding on the Social Security
Administration. See 20 C.F.R. §§ 404.1504, 416.904. Dr. Bansal’s opinion was added
to the record on appeal to the Appeals Council and thus was not before the ALJ. The
Appeals Council concluded it did not “show a reasonable probability that it would change
the outcome of the decision.” AR 2. Dr. Bansal had opined that the Claimant should be
limited to lifting no more than 10 pounds and no overhead lifting. Judge Roberts observed
this was not supported by Dr. Bansal’s own findings and was inconsistent with the record
as a whole. Dr. Bansal found the Claimant had full range of motion in her right shoulder
and 4/5 strength in her upper right extremity. In addition, no other medical source had
limited the Claimant to lifting up to 10 pounds. The ALJ’s RFC included a limitation of
lifting no more than 20 pounds and occasional overhead reaching with her right arm.
Judge Roberts concluded that Dr. Bansal’s opinion did not have any bearing on the ALJ’s
decision and did not necessitate remand.
Judge Roberts next considered the Claimant’s argument that Dr. Larson’s opinions
were consistent with treatment notes from Plains Area Mental Health Center. She noted
it was unclear how this consistency supported the Claimant’s argument that the ALJ
improperly evaluated the medical opinions. Dr. Larson had provided an opinion as part
of a psychological consultative examination. The ALJ summarized Dr. Larson’s findings
and found his opinion was generally persuasive and sufficiently accommodated by a
limitation to simple, routine, repetitive tasks with some limitation in social interactions.
Judge Roberts concluded the ALJ properly considered and weighed Dr. Larson’s opinion.
Finally, Judge Roberts considered findings related to the Claimant’s spine surgery
and her mental health impairments from Floyd Valley Clinics that the Claimant had
referenced in her brief. Again, the Claimant made no specific argument or explanation
as to why these findings demonstrated error by the ALJ. The first finding was made by
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Dr. Wolff, the Claimant’s primary care physician beginning in October 2019. Judge
Roberts summarized Dr. Wolff’s treatment notes, noting that in April 2020, the Claimant
complained of neck pain and numbness and tingling on her right side into her hand and
that these things had been bothering her for several years and had not improved after
surgery. Dr. Wolff did not document any abnormalities on examination and the ALJ
noted the Claimant had not reported such complaints to her primary providers or followed
up with orthopedic specialists in approximately three years. Judge Roberts found the
ALJ had taken the Claimant’s neck fusion surgery into consideration in limiting her to
light exertional work, occasional overhead reaching with her right upper extremity and
no climbing of ladders, ropes or scaffolds.
Judge Roberts also noted the ALJ had addressed Dr. Wolff’s findings related to
the Claimant’s mental impairments. The ALJ observed that the Claimant’s previous
primary care physician had not refilled medication due to missed appointments. Dr.
Wolff had observed no psychiatric abnormalities and found the Claimant had normal
mood and affect. She treated the Claimant with medication. In December 2019, she
adjusted the Claimant’s medication but found “no evidence of anxiety or depression” and
in March and April 2020, she did not document significant psychiatric abnormalities.
Judge Roberts found the ALJ sufficiently took the Claimant’s mental impairments into
consideration in formulating the RFC by limiting the Claimant to simple, routine and
repetitive tasks and occasional contact with the general public and coworkers. The ALJ
determined that additional limitations were not warranted based on the record including
limited abnormalities observed by treating providers, conservative treatment and lack of
emergent or psychiatric inpatient treatment during the relevant period.
Judge Roberts concluded the ALJ properly considered and weighed the opinion of
Dr. Wolff. While the ALJ did not specifically address supportability and consistency
with regard to this opinion, Judge Roberts reasoned it was clear the ALJ found Dr.
Wolff’s opinion was supported by and consistent with the record and thus, any error as
to this aspect of his decision was harmless and did not necessitate remand.
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 7 of 17
recommends affirming the ALJ’s decision with regard to evaluation of the medical
The Claimant’s final argument concerned whether the ALJ’s RFC assessment and
hypothetical question to the VE were incomplete because, according to the Claimant,
they did not properly account for all impairments and functional limitations. Judge
Roberts explained that the ALJ addressed and considered the Claimant’s medical history
and treatment for her complaints and considered the RFC supported by the objective
evidence, treatment providers’ observations, a conservative pattern of treatment and the
Claimant’s activities of daily life. The ALJ had also considered and discussed the
Claimant’s subjective allegations. Judge Roberts concluded that based upon his review
of the entire record, the ALJ properly considered the Claimant’s medical records,
observations of treating physicians and the Claimant’s own description of her limitations
in formulating the RFC. She found the ALJ’s decision was based on a fully and fairly
developed record. As to the hypothetical question to the VE, Judge Roberts noted this
was clearly based on the ALJ’s RFC assessment, which he found was supported by the
record as a whole. Therefore, she concluded the hypothetical question to the VE properly
included impairments that were substantially supported by the record as a whole and
captured the concrete consequences of the Claimant’s deficiencies.
recommends affirming this aspect of the ALJ’s decision as well.
The Claimant makes the following objections to the R&R:
The ALJ erred in rejecting the opinions of Drs. Johnson, Wolff and
Larson and not giving them controlling weight
The ALJ erred in deciding that claimant’s subjective complaints were
If the first two arguments are correct, then the ALJ also relied on a
defective hypothetical question to the VE
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 8 of 17
Doc. 20.2 Despite making three separate objections, the Claimant combines her argument
as to all three. As such, I will address them in a similar fashion.
With regard to her physical limitations, the Claimant argues the ALJ ignored the
10-pound lifting and overhead lifting restrictions imposed by Dr. Bansal. AR 17. Rather,
the ALJ found the Claimant could perform light work (lifting up to 20 pounds
occasionally) and that she could occasionally (up to one-third of the workday) reach 3
overhead with the right upper extremity. Id. at 19. The Claimant also cites Dr. Johnson’s
opinion that she had a 28 percent impairment as a whole with no permanent restrictions
being implemented. Id. at 574-75.
With regard to her mental limitations, the Claimant argues the ALJ overlooked
that she has difficulties leaving her house and that a 40-hour work week with occasional
contact with the public and coworkers is inconsistent with those difficulties. She cites
Dr. Larson’s opinion, in which he stated that “due to her symptoms of Agoraphobia, she
is likely to have problems leaving her home” and her own testimony and reports that she
has difficulties leaving her house. Id. at 195, 197.
The Claimant’s objections do not comply with Local Rule 72A or Federal Rule of Civil
Procedure 72(b)(2), which require a party who objects to a magistrate judge’s R&R to file
“specific written objections.” Throughout her objections, the Claimant does not explain why
the reasoning in the R&R was flawed or identify any factual or legal error by Judge Roberts.
Rather, she summarizes parts of the record and, at most, argues the ALJ ignored this evidence.
Similar arguments were made to Judge Roberts and addressed in the R&R. The Claimant’s
attorney has previously been warned that this type of conclusory objection does not comply with
the rules and is not entitled to de novo review. See Rose v. Kijakazi, No. 20-CV-4062 CJWMAR, 2022 WL 4009179, at *4-*5 (N.D. Iowa Sept. 2, 2022) (citing prior warnings that date
back to 2014 and advising that future conclusory objections will receive clear error, rather than
de novo, review). I join in this warning. Future conclusory objections submitted by this attorney
that do not comply with Local Rule 72A and Federal Rule of Civil Procedure 72(b)(2) will
receive clear error review.
Notably, Dr. Bansal stated the Claimant should avoid “overhead lifting” as opposed to overhead
reaching. AR 17.
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 9 of 17
The Claimant’s arguments concerning her physical limitations rely on the opinions
of Drs. Bansal and Johnson, both of whom provided opinions in connection with the
Claimant’s workers’ compensation claim.4 She does not make any argument as to how
the ALJ erred in evaluating these opinions beyond that the ALJ did not adopt the 10pound lifting and overhead lifting limitations found by Dr. Bansal and ignored her chronic
pain. Doc. 20 at 5. Of course, Dr. Bansal’s opinion was not in the record at the time of
the ALJ’s decision. When a claimant submits new evidence and “the Appeals Council
considers the new evidence but declines to review the case, [federal courts] review the
ALJ’s decision and determine whether there is substantial evidence in the administrative
record, which now includes the new evidence, to support the ALJ’s decision.” Nelson
v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992).
Dr. Bansal’s February 9, 2017, opinion is the only medical opinion in the record
providing a 10-pound lifting restriction. The state agency medical consultants, whose
opinions are dated two and three years after Dr. Bansal’s, found that the Claimant could
occasionally lift up to 20 pounds, which is consistent with light work as provided in the
RFC assessment. AR 216, 225, 236, 247. After her work injury (February 17, 2015)
and prior to her surgery (January 13, 2016), the Claimant was placed on a 10-pound
lifting restriction. See id. at 515, 587, 591. The ALJ took this into account:
I further notes [sic] that the claimant was provided various work restrictions
by Dr. Cassens in the weeks following her initial work injury (Ex. 1F/3441). These limitations generally included a 10-pound lifting limit with
limits on repetitive lifting, pushing, pulling, reaching with the right upper
extremity, as well as bending, squatting, and twisting (Ex. 1F). As noted,
these restrictions were provided in the weeks after the claimant sustained
her initial workplace injury, and there is no indication that these restrictions
were intended to be permanent. As such, these restrictions have little
As Judge Roberts noted, an ALJ “is not bound by the disability rating of another agency when
he is evaluating whether the claimant is disabled for purposes of social security benefits.” Doc.
19 at 15 (citing Pelkey v. Barnhart, 433 F.3d 575, 579 (8th Cir. 2006)).
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 10 of 17
Id. at 168. The ALJ’s other reasons for not including more restricted limitations were
that she had a significant gap in treatment for the neck and upper extremities from
approximately January 2017 until April 2020 and otherwise had conservative treatment
following surgery. Id. at 162. Having reviewed the record, I find the ALJ’s RFC
assessment with regard to the Claimant’s physical limitations is supported by substantial
evidence in the record as a whole, including evidence submitted to the Appeals Council.
With regard to the Claimant’s mental limitations, she focuses on her difficulties
leaving the house.
The ALJ considered the medical evidence and the Claimant’s
subjective complaints related to this limitation. See id. at 160 (“She stated that due to
her mental impairments, she has difficulty with focus and cannot leave her house.”); Id.
at 165 (“On February 13, 2020, the claimant reported complaints to Dr. Wolff of
depression and stated that she did not like leaving the house.”). At Step Three, the ALJ
found the Claimant was moderately limited in interacting with others based on the
The claimant testified that her mental condition has gotten to the point that
she cannot leave her home (Hearing Testimony). Recent treatment notes
from her primary care provider note that the claimant reported she does not
like to leave the house, but they are not consistent with the extreme
allegations claimant testified to at the hearing (see Ex 10F/5, 17). The
claimant also testified she has a friend who she talks with on the telephone
approximately every day (Hearing Testimony). At times the claimant was
observed to be irritable or agitated, which could cause some limitation in
her ability to interact appropriately with others (Ex. 4F). However, there
is no indication that she has had difficulty interacting with medical staff,
and to the contrary, she was observed to be cooperative and pleasant (Ex.
3F; 4F; 6F). The consultative examiner noted the claimant may have
problems leaving her home, but she would be able to interact appropriately
with supervisors, coworkers, and the public (Ex. 6F). The claimant is
therefore moderately limited in interacting with others.
Id. at 158.
The state agency consultants also found the Claimant had a moderate
limitation in interacting with others but that she retained the capacity to work in a setting
with limited public contact. Id. at 167. In assessing the RFC, the ALJ reasoned that the
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 11 of 17
Claimant’s “reports of agitation and irritability due to her mental impairments would
result in some difficulty interacting with others appropriately on a constant basis” and
limited her to no more than occasional contact with the general public and coworkers.
Id. at 165-66. I find the ALJ sufficiently considered the evidence that the Claimant has
difficulties leaving her house and interacting with the public and that substantial evidence
in the record as a whole supports the ALJ’s RFC limitation of occasional contact with the
general public and co-workers.
The Claimant also references Dr. Larson’s opinion, noting that it describes two
prior hospitalizations due to nervous breakdowns. 5 Id. at 730. Evidence of the overnight
hospitalization in 2016 was not before the ALJ but submitted on appeal to the Appeals
Council. The Appeals Council found the evidence did not show a reasonable probability
that it would change the outcome of the decision. Id. at 2. When “the Appeals Council
considers the new evidence but declines to review the case, [federal courts] review the
ALJ’s decision and determine whether there is substantial evidence in the administrative
record, which now includes the new evidence, to support the ALJ’s decision.” Nelson,
966 F.2d at 366. I have reviewed the evidence of the 2016 emergency room visit and
overnight hospitalization as well as other evidence submitted on appeal and find that the
ALJ’s decision remains supported by substantial evidence. While evidence of the 2016
hospitalization contradicts the ALJ’s remark that the Claimant had not required
emergency mental health treatment or inpatient psychiatric hospitalization during the
The record indicates that these hospitalizations took place when the Claimant was 25 and again
in 2016, when she was visiting Arizona. AR 19. Records from the 2016 hospitalization were
submitted on appeal to the Appeals Council. See AR 34-74. These records indicate that the
Claimant presented to the emergency room with depression, anxiety and confusion. AR 38. She
had been visiting her sister and before boarding her plane to return home, she called her sister
complaining of confusion, anxiety and depression and was unable to get on the plane due to her
symptoms. Id. Her sister reported that the Claimant had been missing her daughter back home
and that her mother died 10 months ago. Id. at 39. The emergency department ordered a head
CT scan and EKG that were unremarkable and also administered medication. AR 41-43. She
was discharged the next day. AR 66.
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 12 of 17
period under review, AR 158, this was only one of several reasons the ALJ found the
Claimant had mild and not marked or extreme limitations in the area of adapting or
managing oneself at Step Three.
At Step Three, the ALJ considered whether the Claimant’s impairments or
combination of impairments met or equaled the severity of a listed impairment in 20
C.F.R. Part 404, Subpart P, Appendix 1. To do so, the ALJ evaluated the “paragraph
B” criteria, which require the mental impairments to result in one extreme limitation or
two marked limitations in a broad area of functioning in order to meet a listed impairment.
The ALJ found the Claimant had moderate limitations in understanding, remembering or
applying information; in interacting with others; and in concentrating, persisting or
maintaining pace. AR 157-58. He concluded she had mild limitation in adapting or
managing oneself, citing the Claimant’s ability to independently manage her personal
care tasks and the consultative examiner’s findings that while symptoms may be
exacerbated by working in a high-stress environment, she would be able to use good
judgment and respond appropriately to changes. Id. at 158.
The ALJ also mentioned the lack of psychiatric hospitalization.
emergency room evidence submitted on appeal does not undermine the ALJ’s decision at
Step Three as it would have to demonstrate an extreme limitation in order to change the
ALJ’s analysis. See 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00F(2)(e) (noting
an extreme limitation occurs when the individual is not able to function independently,
appropriately, or effectively, and on a sustained basis.) Even if the ALJ found she was
markedly6 limited based on this evidence, this would be insufficient to change the
outcome because the paragraph B criteria require two marked limitations. See 20 C.F.R.
§§ 404.1520a; 416.920a. As noted above, the ALJ cited other reasons for concluding
the Claimant had mild limitation in adapting and managing oneself. That conclusion
Meaning the functioning “is seriously limited.” 20 C.F.R. Part 404, Subpart P, Appendix 1
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 13 of 17
continues to be supported by substantial evidence in the record, even when considering
the Claimant’s 2016 emergency room visit and overnight hospitalization.
The ALJ also cited the lack of emergent mental health treatment or inpatient
psychiatric care in evaluating the Claimant’s RFC. See AR 166. This was one reason,
out of several, for concluding that additional mental limitations, such as the ones alleged
by the Claimant, were not consistent with the record as a whole. The ALJ found they
were not supported by the objective medical evidence, including the limited abnormalities
observed by her primary care providers and by Dr. Larson at the consultative
examination. Id. He also noted she had conservative mental health treatment during the
relevant period that was treated with medication. Id. The ALJ observed that while the
Claimant purportedly saw a therapist once a week for three to four months, these
treatment notes were not part of the record.7 I find that the ALJ’s evaluation of the
Claimant’s mental limitations for purposes of the RFC remains supported by substantial
evidence when considering the 2016 emergency room records. He assigned moderate
mental limitations and provided multiple reasons, aside from a lack of emergent mental
health treatment, why the record did not support more restrictive limitations. The 2016
emergency room records do not undermine the ALJ’s other reasons for assigning
moderate mental limitations in the RFC and they do not support more restrictive
limitations. The 2016 emergency room records do not warrant remand.
The Claimant also points out that she attended over 30 sessions at Plains Area
Mental Health Center since March 11, 2020, which she argues confirms that she was
dealing with anxiety and depression. Id. at 19, 21, 26, 29. Again, the Claimant makes
no specific argument regarding the relevance of this evidence with respect to the R&R.
Dr. Larson at Plains Area Mental Health Center conducted the Claimant’s consultative
The ALJ noted that the record was left open after the hearing for the submission of additional
evidence, but the Claimant’s representative did not indicate that they were waiting on these
additional treatment notes. AR 166.
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 14 of 17
examination on July 22, 2019, and the ALJ found his opinion generally persuasive. Id.
at 167-68; 730-34. To the extent the Claimant argues that her treatment records from
Plains Area Mental Health Center beginning in March 2020 undermine the ALJ’s
decision, I disagree. Like the 2016 emergency room records, these were submitted on
appeal to the Appeals Council. See id. at 18-33. The records indicate that in March
2020, the Claimant reported that her anxiety was a 10 on a 1 to 10 scale with 10 being
the worst and 1 being no anxiety at all. She reported her depression at a 7 using the same
scale. She described symptoms of being jittery and on edge, irritable and agitated,
restless and fatigued and difficulties with concentrating or focusing for a long time. She
indicated her anxiety worsened when having to deal with the public. Id. at 19. The
provider made adjustments to her medications. Id. at 22. In May 2020, the Claimant’s
anxiety had decreased to a 6-7 on a 1 to 10 scale, but she exhibited the same symptoms
as before. The provider again adjusted her medication. Id. at 27. In June 2020, she
reported her depression was at an 8 on a scale of 1 to 10. The provider adjusted her
medication. Id. at 32. While the cover sheet for the records confirms that the Claimant
has attended 30 sessions, id. at 18, these notes (covering three appointments) are the only
treatment notes in the record from Plains Area Mental Health aside from the consultative
The ALJ found that the Claimant’s anxiety and depression were severe
Id. at 155.
The ALJ considered other medical evidence from Drs.
Schoenfelder and Wolff regarding these impairments from 2017 and 2018. Id. at 16465. He also considered Dr. Larson’s report and Dr. Wolff’s treatment notes in 2019 and
2020. Id. The ALJ concluded that the medical evidence supported a finding of some
moderate mental limitations and as such, limited her RFC to simple, routine and repetitive
tasks and instructions and no more than occasional contact with the general public and
coworkers. Id. at 165-66. The treatment notes from Plains Area Mental Health are
consistent with the other medical evidence in the record concerning the Claimant’s mental
impairments. While they continued working on medication adjustments, they do not
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 15 of 17
reflect a worsening of her condition that would call for additional limitations. The ALJ’s
consideration of the Claimant’s mental impairments continues to be supported by
substantial evidence even when considering the additional evidence from Plains Area
Finally, the Claimant describes her subjective allegations related to her mental
health, noting that she spends a lot of time in bed, in a jet tub or lying down. Id. at 197.
Her only activities around the house include watching TV. She will cry out of the blue,
four or five times a day, which can last up to 10 minutes. Id. at 199. She cannot focus
to read more than four to five pages of a book. Id. Again, she makes no argument as to
how this evidence undermines the ALJ’s decision or Judge Roberts’ R&R. The ALJ
considered these subjective allegations. See id. at 160 (“Regarding her mental symptoms,
she stated that she experiences depression and anxiety, that she is constantly crying, that
she has a hard time getting out of bed, and she self isolates . . . . She alleged issues with
memory, completing tasks, concentration, understanding, following instructions, and
getting along with others.”). The ALJ noted the Claimant testified that she has difficulty
with focus and cannot leave her house and that she stays in her bedroom or in the bathtub
all the time due to the combination of her physical and mental impairments. Id. The
ALJ found the record supported moderate limitations based on the Claimant’s mental
impairments and incorporated those into the RFC. He reasoned that additional limitations
alleged by the Claimant were not consistent with the evidence as a whole, including the
objective medical evidence, limited abnormalities observed by her primary care providers
and Dr. Larson, and conservative mental health treatment with prescribed medication.
Id. at 166.
The ALJ also remarked that the record did not reflect that the Claimant required
emergent mental health treatment or inpatient psychiatric care. As discussed above, the
Claimant did report to the emergency room in 2016 with acute anxiety and was admitted
overnight. Because this was not in the record before the ALJ, but submitted to the
Appeals Council, I have considered whether the ALJ’s decision is supported by
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 16 of 17
substantial evidence when considering this additional evidence. See Nelson, 966 F.2d at
366. I find that it is for the reasons discussed by Judge Roberts in the R&R, as the lack
of emergent mental health treatment was not the only reason the ALJ provided for
concluding that the Claimant’s limitations were not as severe as alleged. See Doc. 19 at
9-13. Because the Claimant provides no critique of the R&R in her objection beyond
disagreeing with its conclusion, I have no further analysis. Because I find no error with
regard to the Claimant’s first two objections, I need not review the third objection. In
any event, I find that the ALJ’s RFC assessment and hypothetical question to the VE
were supported by substantial evidence in the record as a whole for the reasons provided
by Judge Roberts. See Doc. 19 at 23-25.
For the reasons set forth herein:
Plaintiff’s objections (Doc. 20) to the Report and Recommendation (Doc.
19) are overruled.
I accept the Report and Recommendation without modification. See 28
U.S.C. § 636(b)(1).
Pursuant to Judge Roberts’ recommendation:
The Commissioner’s disability determination is affirmed; and
Judgment shall enter against plaintiff and in favor of the
IT IS SO ORDERED.
DATED this 15th day of September, 2022.
Leonard T. Strand, Chief Judge
Case 5:21-cv-04027-LTS-MAR Document 21 Filed 09/15/22 Page 17 of 17
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