Harker v. Commissioner of Social Security
Filing
18
MEMORANDUM OPINION AND ORDER - After a thorough review of the entire record, the court concludes the ALJs decision to deny claimants disability benefits is supported by substantial evidence on the record as a whole. Accordingly, the court affirms the decision of the ALJ. Signed by Magistrate Judge CJ Williams on 6/20/16. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
WENDY SUE HARKER,
No. C15-2032-CJW
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER
Defendant.
___________________________
The claimant, Wendy Sue Harker (claimant), seeks judicial review of a final
decision of the Commissioner of Social Security (the Commissioner) denying her
application for Social Security disability insurance benefits (DIB) and Supplemental
Security Income benefits (SSI), under Titles II and XVI (respectively) of the Social
Security Act, 42 U.S.C. § 401 et seq. (Act). Claimant contends that the Administrative
Law Judge (ALJ) erred in determining her residual functional capacity. For the reasons
that follow, the court affirms the Commissioner’s decision.
I.
BACKGROUND
Claimant was born in 1964, had attended special education classes when she was
younger but not later in her schooling, and completed the twelfth grade. AR 58, 100.1
1
“AR” refers to the administrative record below.
Claimant worked as a commercial and industrial cleaner, telephone solicitor, bus driver,
cashier-checker, and a customer order clerk/personal shopper. AR 28. Claimant has a
history of alcohol abuse and dependence, as well as marijuana use, though she claimed
she has been sober since 2006. AR 21. Claimant alleged her disability began on
December 1, 2011, due to anxiety, depression, fibromyalgia, and “back.” AR 300, 308,
391.
On July 16, 2012, claimant protectively applied for DIB and SSI under Titles II
and XVI under the Act. AR 300-18, 387. The Commissioner denied the claims on
October 30, 2012, and denied reconsideration of the ruling on January 28, 2013. AR
169, 176. On March 19, 2013, claimant requested a hearing before an ALJ. AR 18.
On April 21, 2014, and November 5, 2014, ALJ Tom Andrews conducted hearings at
which claimant, John Harker, claimant’s husband, and Randall L. Harding, a vocational
expert, testified. AR 19, 39-98. On January 6, 2016, the ALJ issued a decision denying
claimant’s claim. AR 18-30. On March 13, 2015, the Appeals Council denied review.
AR 1. The ALJ’s decision, thus, became the final decision of the Commissioner. 20
C.F.R. § 404.981.
On May 7, 2015, claimant filed a complaint in this court. Doc. 3. On September
28, 2015, with the consent of the parties, the Honorable Chief Judge Linda R. Reade
transferred this case to a United States Magistrate Judge for final disposition and entry
of judgment. Doc. 14. The parties have briefed the issues, and the matter is now fully
submitted.
II.
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A disability is defined as “the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
2
period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505, 416.905. An individual has a disability when, due to his physical
or mental impairments, he “is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists . . . in significant numbers either in the region
where such individual lives or in several regions of the country.”
42 U.S.C. §§
423(d)(2)(A), 1382c(a)(3)(B). If the claimant is able to do work which exists in the
national economy but is unemployed because of inability to get work, lack of
opportunities in the local area, economic conditions, employer hiring practices, or other
factors, the ALJ will still find the claimant not disabled. 20 C.F.R. §§ 404.1566(c)(1)(8), 416.966(c)(1)-(8).
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations. Id. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705, 707–08 (8th
Cir. 2007). First, the Commissioner will consider a claimant’s work activity. If the
claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20
C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). “Substantial” work activity involves
physical or mental activities. Id. § 404.1572(a). “Gainful” activity is work done for pay
or profit, even if the claimant does not ultimately receive pay or profit.
Id. §
404.1572(b).
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and medical impairments.
If the impairments are not severe, then the claimant is not disabled. 20 C.F.R. §§
404.1520(a)(4)(ii), 416.920(a)(4)(ii).
An impairment is not severe if “it does not
significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R.
3
§ 404.1521(a); see also 20 C.F.R. §§ 404.1520(c), 416.920(c), 416.921(a); Kirby, 500
F.3d at 707.
The ability to do basic work activities means having “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and
aptitudes include: “(1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and
speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use
of judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work setting.”
Id. §§
404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
Third, if the claimant has a severe impairment, then the Commissioner will
determine the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education, and work experience. 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan,
133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) and the demands of his past relevant work.
If the claimant can still do her past relevant work, then she is considered not disabled.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). Past
relevant work is any work the claimant has done within the past 15 years of her
application that was substantial gainful activity and lasted long enough for the claimant
to learn how to do it. Id. § 416.960(b)(1). “RFC is a medical question defined wholly
in terms of the claimant’s physical ability to perform exertional tasks or, in other words,
what the claimant can still do despite his or her physical or mental limitations.” Lewis
4
v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation omitted); see 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC is based on all relevant medical and
other evidence. Id. §§ 404.1545(a)(3), 416.945(a)(3). The claimant is responsible for
providing the evidence the Commissioner will use to determine the RFC. Id. If a
claimant retains enough RFC to perform past relevant work, then the claimant is not
disabled. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC, as determined in Step Four, will not allow the
claimant to perform past relevant work, then the burden shifts to the Commissioner to
show there is other work the claimant can do, given the claimant’s RFC, age, education,
and work experience. Id. §§ 416.912(f), 416.920(a)(4)(v). The Commissioner must
show not only that the claimant’s RFC will allow him or her to make the adjustment to
other work, but also that other work exists in significant numbers in the national
economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§
404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make the adjustment, then the
Commissioner will find the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v). At Step Five, the Commissioner has the responsibility of developing
the claimant’s complete medical history before making a determination about the
existence of a disability. Id. §§ 404.1545(a)(3), 416.945(a)(3). The burden of persuasion
to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th
Cir. 2004).
If after these five steps, the ALJ has determined the claimant is disabled, but there
is medical evidence of substance use disorders, the ALJ must decide if that substance use
was a contributing factor material to the determination of disability.
42 U.S.C. §
423(d)(2)(C). The ALJ must then evaluate the extent of the claimant’s limitations without
the substance use. Id. If the limitations would not be disabling, then the disorder is a
5
contributing factor material to determining disability and the claimant is not disabled. 20
C.F.R. §§ 404.1535, 416.935.
III.
THE ALJ’S FINDINGS
The ALJ made the following findings:
(1)
The claimant meets the insured status requirements of
the Social Security Act through June 30, 2015.
(2)
The claimant has not engaged in substantial gainful
activity since December 1, 2011, the alleged onset date
(20 C.F.R. §§ 404.1571 et seq., and 416.971 et seq.).
(3)
The claimant has the following severe impairments:
degenerative disc disease of the cervical and lumbar
spine; osteoarthritis; obesity; fibromyalgia, by report;
mild COPD/emphysema; depressive disorder; anxiety
disorder; and history ADHD [Attention Deficit
Hyperactivity Disorder] (20 C.F.R. §§ 404.1520(c)
and 416.920(c)).
(4)
The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.925 and 416.926).
(5)
Claimant has the Residual Functional Capacity to
perform light work as defined in 20 C.F.R. §§
404.1567(a) and 416.976(b) with the following
additional limitations: need never climb ladders, ropes,
poles or scaffolds; need no more than occasionally
climb ramps and stairs, stoop, kneel, crouch or crawl;
need no more than frequently balance; need no more
than occasional exposures to extremes of cold or
excessive vibrations, vibrating tools, machinery or
hazards such as unprotected heights or elevations;
6
work of unskilled level, SVP of 1 or 2; work of no
more than a regular pace defined as no fast-paced or
strict quota-based or assembly line or production-type
work; no more than occasional changes in the work
setting.
(6)
The claimant is unable to perform any past relevant
work. (20 C.F.R. §§ 404.1565 and 416.965).
(7)
The claimant was born in March 1964 and was 47
years old, which is defined as a younger individual age
18-49, on the alleged disability onset date. The
claimant subsequently changed age category to closely
approaching advanced age. (20 C.F.R. §§ 404.1563
and 416.963).
(8)
The claimant has at least a high school education and
is able to communicate in English. (20 C.F.R. §§
404.1564 and 416.964).
(9)
Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the
claimant has transferable job skills. (See SSR 82-41;
20 C.F.R. Part 404, Subpart P, Appendix 2).
(10)
Considering the claimant’s age, education, work
experience, and Residual Functional Capacity, there
are jobs that exist in significant numbers in the national
economy that the claimant can perform. (20 C.F.R.
§§ 404.1569, 404.1569(a), 416.969, and 416.969(a)).
(11)
The claimant has not been under a disability, as defined
in the Social Security Act, from December 1, 2011,
through the date of this decision. (20 C.F.R. §§
404.1520(g) and 416.960(g)).
AR 20–30.
7
In arriving at his decision regarding claimant’s residual functional capacity, the
ALJ relied on the following medical opinions in the record by Dr. Kyle Christiason,
M.D.,2 Dr. Natasha Minnaert, D.O., and Dr. Seth A. Brown, Ph.D. AR 23-26.
Dr. Christiason
On February 22, 2011, Dr. Christiason performed a consultative examination of
claimant. AR 610-11. Claimant’s husband accompanied her and both of them provided
history to Dr. Christiason, which he found “disjointed and difficult to detail.” AR 610.
Claimant’s primary complaints were of back, abdominal, and leg pain. AR 610. Dr.
Christiason’s “opinions” consisted of a recitation of the following subjective statements
by claimant. Claimant stated she was limited to lifting ten pounds, or else she would feel
pain in her back, abdomen, and legs. AR 611. She further claimed that cold weather
worsened her pain diffusely. Id. She stated she typically was able to stand for a very
short duration, providing example of being unable to clean a sink full of dishes at one
time. Id. Claimant stated she “is able to walk up to two blocks[,] but has a lot of pain
doing so.” Id.
The ALJ gave Dr. Christiason’s opinion little weight (but not because of the
disjointed self-reported medical history). AR 23. Rather, the ALJ afforded little weight
to Dr. Christiason’s opinions because the limitations Dr. Christiason found “were largely
self-assessed and inconsistent with the limited findings on examination.” AR 28. For
example, Dr. Christiason found claimant’s motor strength, reflexes, and sensation were
intact. AR 23, 611. Dr. Christiason also observed claimant walks with a slow, but
unassisted gait and stand on her toes and heals. Id. Claimant was able to get on and off
the examination table with only “mild assistance.” Id.
2
The ALJ’s decision misspells this name as “Christiansen” (AR 23), but the medical records
reflect the more uncommon spelling “Christiason” (AR 611).
8
Dr. Minnaert
On October 19, 2012, Dr. Minnaert performed a consultative examination of
claimant. AR 716-18. Claimant told Dr. Minnaert that she was “applying for disability
for the second time . . . based on her depression/anxiety, back pain, and fibromyalgia.”
AR 716. Claimant reported a history of depression for “many years” and stated she had
“been evaluated by a psychiatrist in the past” and treated with prescription medication,
but “does not currently see a psychiatrist or counselor and does not take any
antidepressants at this time.” Id. She claimed she attempted suicide in 2006 and still has
suicidal ideations, but no current plans. Id. She reported her anxiety was diagnosed in
2009 and “is exacerbated by loud noises and gets better when in a calm environment.”
Id.
She stated this condition was likewise historically treated with prescription
medication, but she again stated she “does not currently see anyone or take any
medications for her anxiety.” Id. Claimant self-reported back pain “for her whole life”
and that she “currently suffers from sciatica.” Id. Claimant told Dr. Minnaert she has
a “back deformity” and “is going to be scheduled with a back surgeon for an evaluation
for back surgery.” Id. She had not participated in physical therapy recently or been to
see a pain specialist. Id.
Dr. Minnaert noted that, during her physical examination of claimant, claimant
exerted “fair” to “poor” effort. AR 717. Specifically, Dr. Minnaert found claimant had
4/5 strength in her upper extremities with “fair effort” and 3/5 strength in her lower
extremities with “poor effort.” Id. Claimant displayed normal gait, station, and back
conditions during the examination. Id.
Dr. Minnaert opined that claimant could lift ten pounds and stand, walk, move
about, and sit for short periods of time. AR 718. Dr. Minnaert further opined that
claimant would benefit from some physical activity. Id. Taking into account claimant’s
subjective complaints of pain when standing or sitting from long periods of time, Dr.
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Minnaert concluded that claimant “may be a candidate for employment in a position
where she could switch positions or move about somewhat freely.” Id. Finally, Dr.
Minnaert concluded that, without further medical treatment, claimant “would not be a
good candidate for positions where she is required to travel, stoop, kneel, or crawl.” Id.
The ALJ afforded little weight to Dr. Minnaert’s opinion. AR 28. The ALJ noted
that Dr. Minnaert’s strength findings, based on “fair” to “poor” effort by claimant during
the examination, were inconsistent with other examinations which showed normal
strength. AR 24, 606-07, 728, 954. The ALJ found Dr. Minnaert’s opinion inconsistent
with claimant’s normal gait, station and back movement during the examination. AR 24.
Dr. Brown
On October 10, 2012, Dr. Brown completed a psychological evaluation of
claimant. AR 707-10. Dr. Brown noted that claimant “appears to have some difficulty
sustaining attention as well as keeping up with the pace of work expected of her.” AR
709-10. Claimant reported to Dr. Brown that she had difficulty “adapting to some
changes in the work place.” AR 710. Dr. Brown found claimant was pleasant and
cooperative, had good eye contact, her speech was clear and articulate, and she had no
gross motor or sensory impairments. AR 707. He found her memory intact. AR 717,
742.
During testing, claimant did not consistently endorse psychiatric symptoms,
denying anxiety and depression. AR 757. Noting claimant’s reported history of ADHD,
Dr. Brown opined that it likely impacted her daily activities. AR 710. Otherwise, Dr.
Brown opined claimant’s mental status was relatively intact. Id. Although he noted that
claimant reported some symptoms resembling depression, he could not diagnose her with
that mental illness. Id.
The ALJ gave significant weight to Dr. Brown’s opinion that claimant had ADHD,
based on her reported history of the disease. AF 28. The ALJ noted that the lack of
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psychiatric symptoms continued in later visits in 2013-2014. AR 832, 834, 838, 855,
866, 877, 919.
IV.
THE SUBSTANTIAL EVIDENCE STANDARD
The Commissioner’s decision must be affirmed “‘if the ALJ’s decision is
supported by substantial evidence in the record as a whole.” Wright v. Colvin, 789 F.3d
847, 852 (8th Cir. 2015) (quoting Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008));
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 decision.” Wright, 542 F.3d at 852 (quotation and citation
omitted). The Eighth Circuit Court of Appeals has explained the standard as “something
less than the weight of the evidence and allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within which the
[Commissioner] may decide to grant or deny benefits without being subject to reversal
on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (internal quotation
omitted).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but we do not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (internal citation
omitted). The court considers both evidence which supports the Commissioner’s decision
and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir.
2010).
The court must “search the record for evidence contradicting the
[Commissioner’s] decision and give that evidence appropriate weight when determining
whether the overall evidence in support is substantial.” Baldwin v. Barnhart, 349 F.3d
549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
11
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “simply
because some evidenced may support the opposite conclusion.” Perkins v. Astrue, 648
F.3d 892, 897 (8th Cir. 2011). See also Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.
2005) (“[A]n administrative decision is not subject to reversal simply because some
evidence may support the opposite conclusion.”) (internal citation omitted).
V.
DISCUSSION
Claimant argues the ALJ’s decision is flawed for three reasons:
1.
The ALJ failed to properly evaluate the work-related limitations
identified by the three consultative examiners: Drs. Christiason,
Minnaert and Brown. Doc. 13, at 15-25
2.
The ALJ erred when he found claimant’s colitis and chronic
obstructive pulmonary diseases did not constitute “severe”
impairments. Doc. 13, 25-29.
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3.
The ALJ’s RFC assessment is not supported by substantial evidence
from a treating or examining source. Doc. 13, 29-31.
The court will address these arguments separately below.
A. RFC Determination - Applicable Standards
The claimant’s RFC is “what [the claimant] can still do” despite his or her
“physical or mental limitations.”
20 C.F.R. § 404.1545(a)(1).
“The ALJ must
determine a claimant’s RFC based on all of the relevant evidence.” Fredrickson v.
Barnhart, 359 F.3d 972, 976 (8th Cir. 2004). This includes “an individual’s own
description of [her] limitations.” McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir.
2003) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also Papesh
v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015) (an ALJ is required to “determine the
claimant’s FRC based on all relevant evidence, including medical records, observations
of treating physicians and others, and claimant’s own descriptions of [her] limitations.”).
The claimant’s RFC “is a medical question,” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001), and must be supported by “some medical evidence.” Dykes v. Apfel, 223 F.3d
865, 867 (8th Cir. 2000) (per curiam).
The medical evidence should address the
claimant’s “ability to function in the workplace.” Lewis, 353 F.3d at 646. At Step Four,
the claimant has the burden to prove his RFC and the ALJ determines the RFC based on
all relevant evidence. See Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004).
The ALJ is not required to mechanically list and reject every possible limitation.
McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011). Moreover, an “ALJ may reject
the conclusions of any medical expert, whether hired by a claimant or by the government,
if inconsistent with the medical record as a whole.” Bentley v. Shalala, 52 F.3d 784,
787 (8th Cir. 1995).
The RFC must only include those impairments which are
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substantially supported by the record as a whole. Goose v. Apfel, 238 F.3d 981, 985
(8th Cir. 2001); see also Forte v. Barnhart, 377 F.3d 892, 897 (8th Cir. 2004).
B. Whether The ALJ Properly Evaluated Opinions by Consultative Doctors in
Determining Claimant’s RFC
Claimant argues the ALJ failed to properly evaluate the medical doctor’s opinions,
and also argues the ALJ failed to properly evaluate the opinion of the psychologist. The
court finds the ALJ did not err in his evaluation.
1. Drs. Christiason & Minnaert
The court finds the ALJ considered the opinions of the consulting medical
personnel and finds there is substantial evidence in the record to support the ALJ’s
residual functional capacity determination. “Some medical evidence” must support the
ALJ’s residual functional capacity assessment.
Lauer, 245 F.3d at 704. Nevertheless,
a residual functional capacity determination is not a medical opinion, but is an
administrative assessment, based on all the evidence of record, of the extent that a
claimant’s impairments and related symptoms affect his capacity to perform work-related
activities on a regular and continuing basis.
20 C.F.R. § 404.1545; SSR 96-8p, 1996
WL 374184, at *2. Thus, it is the ALJ, not a physician, who has the sole responsibility
for determining the claimant’s residual functional capacity.
See Stormo, 377 F.3d at
807; 20 C.F.R. § 404.1527(e)(2); SSR 96-5p, 1996 WL 374183, at *2. A medical
consultant’s opinion is an expert opinion from a highly qualified source that the ALJ must
consider. See 20 C.F.R. § 404.1527(f)(2); see also SSR 96-6p, 1996 WL 374180 (July
2, 1996). When assessments of state agency medical consultants are consistent with other
medical evidence in the record, as is the case here, they can provide substantial evidence
14
supporting the ALJ’s residual functional capacity assessment.
See Stormo, 377 F.3d at
807-08.
The ALJ considered the opinions of Drs. Christiason and Minnaert, but afforded
them little weight. The ALJ was within his discretion in doing so. The ALJ gave little
weight to these opinions in part because they were based largely on claimant’s subjective
statements. See Kirby, 500 F.3d at 709 (an ALJ may find an opinion is based largely on
a claimant’s subjective complaints where there is little objective medical evidence to
support a physician’s opinion). Dr. Minnaert’s opinion was also based on a physical
examination where claimant did not exert full effort. AR 717. See Baker v. Barnhart,
457 F.3d 882, 892 (8th Cir. 2006) (“The ALJ was entitled to draw conclusions about
Baker’s credibility based on the FCE pain-replication and distraction analyses indicating
that Baker was exaggerating symptoms and giving less than his full effort.”). The ALJ
also afforded these doctors’ opinions little weight, explaining that their opinions as to
claimant’s physical limitations were inconsistent with the doctors’ own physical
examinations and other medical evidence in the record as a whole. AR 28. See, e.g.,
Michael v. Colvin, No. 14-3460, at 17 (8th Cir. Mar. 23, 2016 slip opinion) (finding
ALJ did not err in giving little weight to physician’s opinion when it was contradicted by
other acceptable medical sources in the record); Garza v. Barnhart, 397 F.3d 1087, 1089
(8th Cir. 2005) (holding that a physician’s opinion is entitled to less weight when it is
inconsistent with the physician’s own findings). Finally, the ALJ was entitled to consider
that claimant’s failure to pursue physical therapy or pain management (AR 717) as
evidence that her subjective complaints were inconsistent with her actual limitations. See,
e.g., Ostronski v. Chater, 94 F.3d 413, 318 (8th Cir. 1996) (holding that claimant’s use
of over the counter pain relievers showed her pain was not so severe as to preclude light
exertional work); Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (finding that
claimant’s failure to pursue treatment was inconsistent with claimed limitations).
15
Claimant argues that the ALJ “failed to recognize that the claimant was lying down
on the examining table when Dr. Christiason entered the examining room and she sat up
only when coaxed” and “needed assistance getting on and off the examining table.” Doc.
13, at 19. An ALJ is not required to discuss all submitted evidence and an ALJ’s failure
to cite to evidence does not mean the ALJ did not consider the evidence. Renstrom v.
Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012) (internal quotation and citation omitted).
See also Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (“An ALJ’s failure to
cite specific evidence does not indicate that such evidence was not considered.”) (quoting
Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). Finally, the record indicates claimant
needed only “mild” assistance getting on and off the examining table. AR 611.
Claimant argues that the ALJ should have disregarded her failure to seek medical
care because she had financial limitations. AR 13, at 19-20. There is no evidence in the
record, however, showing that medical providers declined treatment due to insufficient
funds or insurance. This court cannot find the ALJ erred when such evidence is lacking.
See Osborne v. Barnhart, 316 F.3d 809, 812 (8th Cir. 2003) (rejecting excuse that
claimant did not seek medical care because of financial difficulties when there was
nothing in the record to support the assertion). Although the record shows that at times
she did not have insurance (AR 779, 814, 848), it does not indicate why she did not have
insurance and whether she was unable to obtain insurance, or simply did not do so.
Moreover, the record does show plaintiff continued to use alcohol, tobacco, and
marijuana. AR 23, 26, 708, 726, 736, 743, 757, 832, 844, 884, 930. These expenditures
belie her claim that she was unable to afford treatment and medication. See, e.g., Brooks
v. Colvin, Case No. 2:14CV108 ACL, 2016 WL 931192, at *7 (E.D. Mo. Mar. 11,
2016) (finding the ALJ could properly reject claimant’s assertion of financial hardship
when the record showed that, despite some financial difficulty, claimant spent money on
16
cigarettes); Sisney v. Colvin, Case No. 3:15CV0001-BD, 2015 WL 4512264, at *3 (E.D.
Ark. July 24, 2015) (affirming ALJ’s finding that claimant’s assertion she could not
afford medication was inconsistent with her expensive one-pack a day cigarette habit);
Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (upholding ALJ’s decision where
claimant’s lack of funds to pay for treatment was inconsistent with expenditures of funds
for a three-pack a day smoking habit).
Claimant argues that medical evidence obtained after Drs. Christiason and
Minnaert examined her support their opinions (Doc. 13, at 20-23), while the
Commissioner points at the same records to reach the opposite conclusion (Doc. 16, at
10-12). The ALJ stated that he considered the entire record (AR 20, 22), and although
he does not cite specifically to all of the information claimant cites in her brief, it is clear
from the record that he thoroughly examined the later medical evidence.
Having
reviewed the records as a whole, the court concludes the additional medical evidence
does not undermine the ALJ’s decision. Some of the evidence could be seen as supporting
some of her complaints, but much of it further supports the reasonableness of the ALJ’s
conclusions. See Kluesner, 607 F.3d at 536 (holding that if 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.”).
Plaintiff also argues that the ALJ did not adequately consider the combined effects
of her physical impairments. Doc. 13, at 21-22. The ALJ did, however, conclude that
claimant’s impairments, “singly and in combination,” did not rise to the level of severity
of one of the listed impairments. AR 21. That is sufficient. See, e.g., Browning, 958
F.2d at 821 (finding ALJ’s statements that claimant’s “impairments do not prevent [her]
from performing her past relevant work” was sufficient to demonstrate the ALJ
17
considered the combination of impairments and “to require a more elaborate articulation
of the ALJ’s thought processes would not be reasonable.”); Priel v. Astrue, 453 Fed.
App’x 84, 87 (2nd Cir. 2011) (ALJ’s statement that he considered the impairments
“singly and in combination” was sufficient to demonstrate the ALJ considered the
combined effects of impairments); Kunik v. Colvin, 996 F. Supp. 2d 751, 761 (N.D.
Iowa 2014) (same).
2. Dr. Brown
Claimant argues that the ALJ erred in evaluating Dr. Brown’s opinion, asserting
she “endorsed a pattern of symptoms consistent with a diagnosis of depressive disorder”
and the record does not support the ALJ’s conclusion that her mental status was “largely
intact” and “largely preserved.” Doc. 13, at 24 (citing AR 25, 28). The ALJ did not
reject Dr. Brown’s opinion, however; the ALJ indicated he gave significant weight to
Dr. Browns’ opinion that claimant experienced attention deficits. AR 28. Further, Dr.
Brown noted that claimant had some symptoms “resembling” depression, but he declined
to diagnose her with that mental illness. AR 710. Contrary to claimant’s argument that
the record does not support the ALJ’s finding that claimant’s mental status was largely
intact or preserved, Dr. Brown did opine that claimant’s mental status was “relatively
intact.” AR 710. Moreover, the rest of the medical evidence supports this conclusion.
AR 717, 742, 757, 758, 770, 817, 832, 834, 836, 838, 855, 866, 877, 906, 910, 931,
949.
In sum, the court finds substantial evidence supports the ALJ’s conclusions
regarding claimant’s residual functional capacity.
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C. Whether The ALJ Erred in Finding Claimant’s Colitis and COPD did Not
Constitute “Severe” Impairments
Claimant argues the ALJ erred in finding that claimant’s colitis and COPD did not
constitute “severe” impairments. Doc. 13, at 25-29. The ALJ found claimant exhibited
a number of severe impairments, including degenerative disc disease, osteoarthritis,
obesity, and fibromyalgia.
AR 20.
The ALJ specifically included in this list
COPD/emphysema. AR 20-21. In this regard, claimant is simply mistaken when she
claims the ALJ failed to list it as a severe impairment.
The ALJ did not, however, find claimant’s colitis was a severe impairment. An
impairment is “severe” if it significantly limits a claimant’s physical or mental ability to
perform basic work activities. 20 C.F.R. §§404.1520(c) & 416.920(c). A claimant must
demonstrate more than a minimal effect on the ability to perform basic work activities.
Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007). Although “severity is not an
onerous requirement for the claimant to meet . . . it is also not a toothless standard . . .
.” Kirby, 500 F.3d at 708.
The ALJ considered claimant’s colitis, but found “the record failed to support the
degree of limitation or frequency of stooling alleged.” AR 27. The record failed to show
that claimant sought treatment for this condition between 2011 and 2012. AR 21, 27. A
lack of treatment is inconsistent with a severe impairment. Kirby, 500 F.3d at 709.
Although claimant again seeks to explain this away because of lack of funds, the court
has already found the ALJ did not err in rejecting that explanation when claimant was
able to spend funds on alcohol, tobacco, and marijuana. On the other hand, when
claimant did take medication, her condition improved (AR 21, 844), which means her
condition was not severe. Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996). Finally,
claimant did not suffer weight loss that would be consistent with the disease. AR 21,
757-58, 769, 902, 914, 936, 960. In fact, she gained weight. AR 807, 831, 930, 933.
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The ALJ properly took this into account. Thompson v. Colvin, Case No. CIV 13-2160,
2014 WL 2510567, at *6 (W.D. Ark. June 4, 2014) (ALJ properly considered the lack
of weight loss as inconsistent with a claim of disabling diarrhea). Considering the record
as a whole, and having the opportunity to see claimant testify, the ALJ found “claimant
less than fully credible.” AR 27.
Accordingly, the court finds there is substantial evidence to support the ALJ’s
assessment.
D. Whether Substantial Evidence Supported the ALJ’s RFC Determination
Claimant argues the ALJ’s RFC assessment was flawed. Doc. 13, at 29-31.
Claimant takes issue with the ALJ affording “great weight” to the opinions of the nonexamining state agency medical consultants, and argues the ALJ failed to fully develop
the record. Doc. 13, at 29. The ALJ did give great weight “to the State agency physical
and psychological assessments directing for a range of unskilled work within light of
physical demands” consistent with claimant’s limitations. AR 28. He was allowed to
do so. See Social Security Ruling 96-6p (“State agency medical and psychological
consultants are highly qualified physicians and psychologists who are experts in the
evaluation of the medical issues in disability claims under the Act.”). See also Casey v.
Astrue, 503 F.3d 687, 694 (8th Cir. 2007) (“The ALJ did not err in considering the
opinion of [the state agency medical consultant] along with the medical evidence as a
whole.”). But, the ALJ did not rely on their findings alone. Without a treating physician
upon which to rely, the ALJ took into consideration the opinions of Drs. Christiason,
Minnaert, and Brown (although he afforded them little weight) and the rest of the
objective and subjective evidence. Id.
20
Claimant argues that if the ALJ found the examining doctor’s opinions
insufficient, he had a duty to further develop the record. Doc. 13, at 30. Social security
disability hearings are non-adversarial proceedings. Stormo, 377 F.3d at 806. “Wellsettled precedent confirms that the ALJ bears a responsibility to develop the record fairly
and fully, independent of the claimant’s burden to press his case.” Snead v. Barnhart,
360 F.3d 834, 838 (8th Cir. 2004) (internal citation omitted). The ALJ’s duty exists
even when an attorney represents a claimant. Id. “There is no bright line test for
determining when the [Commisioner] has ... failed to develop the record.
The
determination in each case must be made on a case by case basis.” Battles v. Shalala,
36 F.3d 43, 45 (8th Cir. 1994). A claimant “bears a heavy burden in showing the record
has been inadequately developed.” Combs v. Astrue, 243 Fed. App’x 200, 204 (8th Cir.
2007). She “must show both a failure to develop necessary evidence and unfairness or
prejudice from that failure.” Id. See also Haley v. Massanari, 258 F.3d 742, 749–750
(8th Cir. 2001) (holding “reversal due to failure to develop the record is only warranted
where such failure is unfair or prejudicial”; ALJ may issue decision without obtaining
additional evidence if existing evidence provides sufficient basis for decision (quotations
and citations omitted)).
Here, the ALJ referenced the medical records, opinions, and testimony at length.
The ALJ was not required to further develop a record; the ALJ is only required to develop
the record if the information presented is insufficient. See McCoy, 648 F.3d at 612 (ALJ
has duty to develop record, but duty is not never-ending and ALJ is not required to
disprove every possible impairment; ALJ is required to order medical tests and
examinations only if medical records presented to him do not give sufficient medical
evidence to determine if claimant is disabled). Given the substantial evidence, the court
finds that there was no crucial issue left undeveloped, so the ALJ was not required to
seek additional clarifying statements. Indeed, this is not a case where the record was not
21
sufficiently developed; it is a case where the ALJ evaluated all the information in the
record. Claimant has not identified additional testing or evaluations that she claims the
ALJ should have ordered. Rather, she is simply unhappy with the conclusion the ALJ
reached from an evaluation of the record. Claimant has not carried her burden of showing
the record was inadequately developed.
Finally, claimant argues the alleged errors are not harmless, reasoning that the
limitation imposed—the inability to sustain attention and concentration—is inconsistent
with competitive employment. Doc. 13, at 32. She further argues that she is aging and
if limited to sedentary work, she is disabled. Id. The record shows that Dr. Brown
found only that claimant had some difficulty sustaining attention and keeping up with the
pace of work expected of her. AR 709-10. Moderate limitations in attention and
concentration like this are consistent with simple, routine, and repetitive tasks involved
with unskilled labor.
Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001).
Moreover, the ALJ did not find claimant was limited to sedentary work; rather, he found
she was limited to unskilled work. AR 22. The court has found substantial evidence to
support the ALJ’s decision to give little weight to the opinions of Drs. Christiason and
Minnaert suggesting claimant should be limited to sedentary work. AR 28. The record
provides substantial evidence to support the ALJ’s conclusion that claimant could perform
a range of light work. AR 22.
VI. CONCLUSION
After a thorough review of the entire record, the court concludes the ALJ’s
decision to deny claimant’s disability benefits is supported by substantial evidence on the
record as a whole.
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Accordingly, the court affirms the decision of the ALJ.
IT IS SO ORDERED this 20th day of June, 2016.
__________________________________
C.J. Williams
United States Magistrate Judge
Northern District of Iowa
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