Marquand v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER - The Court affirms the decision of the ALJ. Signed by Magistrate Judge CJ Williams on 1/26/17. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
SHASHONE M. MARQUAND,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND
Shashone M. Marquand (claimant) seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying her application for
supplemental security income (SSI) pursuant to Title XVI of the Social Security Act, 42
U.S.C. § 1381 et seq. (Act). Claimant alleged she became disabled in 2009 because of
seizures. AR 162.1 The Administrative Law Judge (ALJ) found claimant had severe
impairments of pseudo-seizures/seizures, marijuana abuse, and obesity. AR 16. The
ALJ found, however, that claimant was not disabled because, despite these limitations,
claimant could perform a range of work available in the economy. AR 17-21. Claimant
argues the ALJ erred in assessing the credibility of claimant’s subjective complaints, and
therefore, substantial evidence does not support the ALJ’s decision. For the reasons that
follow, the Court affirms the Commissioner’s decision.
“AR” refers to the administrative record below.
Claimant was born in 1992; she was 21 years old at the time of the hearing. AR
30-31, 159. Claimant obtained a General Education Development certificate (GED), but
apparently also returned to school after giving birth to her child and graduated with her
class from high school. AR 33, 163. Claimant’s only past work has been babysitting,
working in a fast food restaurant, and detasseling corn for a seed company. AR 18, 145,
Claimant alleged her disability began on December 1, 2009. AR 159. Claimant
did not apply for SSI benefits until July 25, 2012. AR 14, 48, 137-44. SSI benefits are
not payable for any period prior to the month after a claimant files an application for
benefits. 20 C.F.R. § 416.335. Accordingly, July 25, 2012, is the effective start date
of claimant’s alleged disability.
On October 10, 2012, the Commissioner denied claimant’s application. AR 7075. On January 7, 2013, the Commission denied reconsideration of the ruling. AR 8488. Claimant sought review by an ALJ. On March 11, 2014, ALJ John E. Sandbothe
conducted a hearing at which claimant and a vocational expert testified. AR 27-47. On
June 24, 2014, the ALJ denied claimant’s application. AR 14-22. On October 19, 2015,
the Appeals Council denied claimant’s requested review of the ALJ’s decision. AR 1-3.
On December 23, 2015, claimant filed a complaint in this Court seeking judicial
review. Doc. 3. The parties filed briefs and on July 19, 2016, the case was deemed
ready for decision. Doc. 13-15. On July 20, 2016, the District Court referred the case
to a United States Magistrate Judge for a Report and Recommendation. However, with
consent of the parties, on August 22, 2016, the Honorable Linda R. Reade, Chief United
States District Court Judge, transferred this case to a United States Magistrate Judge for
final disposition and entry of judgment. Doc. 16.
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
period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §
416.905. A claimant has a disability when, due to physical or mental impairments, the
claimant “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. § 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. § 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. § 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. §
416.920(a)(4)(i). “Substantial” work activity involves physical or mental activities. Id.
§ 416.972(a)(a). “Gainful” activity is work done for pay or profit, even if the claimant
does not ultimately receive pay or profit. Id. § 416.972(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. §
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. § 416.921(a); see also
20 C.F.R. § 416.920(c); 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. § 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. § 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. §§
416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.
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 the claimant’s past
relevant work. If the claimant can still do past relevant work, then the claimant is not
considered disabled. 20 C.F.R. §§ 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 the 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 v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks and citations omitted); see
20 C.F.R. § 416.945(a)(1). The RFC is based on all relevant medical and other
evidence. Id. § 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. § 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. § 416.920(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. § 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. § 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. § 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
contributing factor material to determining disability and the claimant is not disabled. 20
C.F.R. §§ 404.1535, 416.935.
THE ALJ’S FINDINGS
The ALJ followed the five-step process for determining whether claimant was
disabled. At step one, the ALJ found claimant had not engaged in substantial gainful
employment since July 25, 2012. AR 16. At step two, the ALJ found claimant had
severe impairments, including: pseudo-seizures/seizures, marijuana abuse, and obesity.
Id. At step three, the ALJ found claimant’s severe impairments did not rise to the level
of meeting or equaling a listed impairment that would make her disabled. AR 16-17. At
step four, the ALJ found claimant had “the residual functional capacity to perform a full
range of work at all exertional levels, but with the following nonexertional limitations:
she cannot perform around hazards or drive.” AR 17-20. The ALJ found claimant had
no past relevant work. AR 20. Finally, at step five, the ALJ found there were jobs that
exist in significant numbers in the national economy that claimant could perform,
including hand packager, sandwich maker, and housekeeper/cleaner. AR 20-21.
THE SUBSTANTIAL EVIDENCE STANDARD
This Court must affirm the Commissioner’s decision “‘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
it 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
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
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
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, a 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) (internal citations omitted). A 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 evidence 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).
Claimant argues the ALJ’s decision was flawed because the ALJ allegedly “failed
to adequately assess [claimant’s] credibility and her need for frequent absences.” Doc.
13, at 3. In particular, claimant argues that the ALJ failed to adequately describe the
basis for discounting claimant’s credibility, pursuant to Polaski v. Heckler, 751 F.2d 943
(8th Cir. 1984). Doc. 13, at 3-8. In other words, claimant argues that the ALJ’s decision
finding her not disabled is not supported by substantial evidence on the record as a whole.
The Commissioner, on the other hand, argues that the ALJ properly assessed and
supported his credibility findings and that substantial evidence supports the ALJ’s
decision. Doc. 14, at 5-10. The Court agrees with the Commissioner.
The ALJ’s Credibility Findings
The ALJ noted claimant’s assertion that she suffers from petite mal seizures twice
a week and one grand mal seizure twice a month. AR 18. The ALJ found that, although
there is evidence claimant has a severe impairment as a result of pseudo-seizures/seizures,
“claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible . . . .” Id. Whenever an ALJ discounts the weight
afforded a claimant’s subjective complaints, the ALJ must consider: (1) the claimant’s
daily activities; (2) the intensity, duration, and frequency of the claimant’s pain or other
symptoms; (3) any precipitating and aggravating factors; (4) the dosage, effectiveness,
and side effects of any medications; (5) the claimant’s functional restrictions; (6) the
claimant’s work history; and (7) the presence or absence of objective medical evidence
to support the claimant’s complaints. Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir.
2011) (citing Polaski, 739 F.2d at 1322); see 20 C.F.R. § 416.929(c)(3). As claimant
pointed out in her brief, making a credibility determination regarding those suffering
from pseudo-seizures is complicated because of the psychological source of the disorder.
The Eighth Circuit Court of Appeals recently expounded on this issue.
Before turning to the details of [claimant’s] medical and
administrative history, we describe briefly the phenomenon of conversion
disorder and the somatoform, non-epileptic “pseudo-seizures” that form the
core of [claimant’s] medical issues and alleged disability. Conversion
disorder is a phenomenon in which a person actually and subjectively
experiences symptoms without a known underlying medical cause. It is
believed the symptoms, such as non-epileptic seizures, result from an
unconscious, involuntary conversion of mental stress into a physiological
symptom. In prior opinions, we reviewed these or similar disorders and
noted the difficulty of assessing how such disorders limit a person’s
activities. In particular, we noted that a prime feature of conversion
disorder may be a disconnect between the actual severity of symptoms
demonstrated by clinical evidence and the way the applicant subjectively
perceives the symptoms. That is not to say this exaggerated experience of
symptoms amounts to malingering. Rather, the applicant actually believes
herself to be experiencing symptoms at a greater level of severity than
clinical evidence can support.
Given this disconnect, an obvious difficulty arises when it becomes
necessary to make credibility assessments in cases involving somatoform
phenomena. Subjective perceptions of somatoform effects may, in fact, be
debilitating even when clinical or diagnostic medical evidence does not fully
support the claimed symptoms. It nevertheless remains necessary to make
credibility assessments in these settings, and in cases involving somatoform
disorder an ALJ is not free to reject subjective experiences without an
express finding that the claimant’s testimony is not credible. Where such a
finding has been made, we will not disturb the decision of an ALJ who
considers, but for good cause expressly discredits, a claimant’s complaints
even in cases involving somatoform disorder.
Given the difficulty in this area, if an ALJ expressly accepts that a
claimant suffers from a somatoform disorder, but also finds the claimant at
least partially non-credible, the ALJ ideally should set forth the credibility
determination with sufficient detail to expressly inform the reviewing court
as to the factual details of the [claimant’s] limitations as accepted or believed
by the ALJ. And in this type of case, even more so than in other cases,
corroborating testimony from actual witnesses such as family members or
former employers regarding the nature of the symptoms may hold particular
value for a fact finder.
Nowling v. Colvin, 813 F.3d 1110, 1113-15 (8th Cir. 2016) (internal quotations,
citations, and footnote omitted).
In this case, the ALJ provided an adequate explanation for discounting claimant’s
subjective claims regarding her seizures. The ALJ discussed claimant’s daily activities
which did not demonstrate that her activities were limited other than with respect to her
ability to drive. Claimant took care of her minor child, used a checking account and paid
bills, read books, played computer games, completed crossword puzzles, visited with
other people, played cards, cooked meals, cleaned dishes, shopped in stores, and cleaned
laundry. AR 18. It was not unreasonable for the ALJ to view these daily activities as
inconsistent with someone who is disabled from any form of employment.
The ALJ also took into account claimant’s noncompliance with her doctor’s
prescriptions and directions in assessing her credibility. The medical records reflect that
claimant repeatedly either did not take the medication prescribed her, or consumed
marijuana against her doctors’ instructions, despite their explanations that marijuana use
was contributing to her seizures. See AR 18-19, 211, 255, 257, 259-61, 298, 301, 317,
377, 383, 387, 397, 411, and 417. An ALJ may properly consider noncompliance with
treatment and medications in assessing a claimant’s credibility. See, e.g., Holley v.
Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (finding ALJ properly considered
claimant’s noncompliance with her doctor’s instructions in assessing claimant’s
credibility); Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005) (“A failure to
follow a recommended course of treatment also weighs against a claimant’s credibility.”).
Although the ALJ did not specifically note it, the records reflect that claimant also
repeatedly denied drug use, despite repeatedly testing positive for controlled substances
(marijuana in particular). See, e.g., AR 260-61 (claimant “adamantly” denied using
marijuana, although tested positive for its use); AR 397 (claimant denied drug use, though
tested positive for marijuana). Claimant’s lack of candor with her treatment providers
about her drug use is a proper basis for discounting a claimant’s credibility. See George
v. Astrue, 301 Fed. App’x 581, 582 (8th Cir. 2008) (finding ALJ properly considered
“some discrepancy in [the claimant’s] reporting of her alcohol and drug use” in finding
claimant’s subjective claims were not credible).
The ALJ also considered the medical evidence in concluding that it was
inconsistent with claimant’s assertion as the frequency and severity of her seizures. The
ALJ properly gave “considerable weight” to opinions by claimant’s treating physician,
Dr. Ameer Almullahassani. AR 19. Dr. Almullahassani opined that claimant was
“[c]apable of moderate stress-normal work,” could frequently lift and carry up to 50
pounds, could sit for at least six hours and stand and walk for at least six hours in an
eight-hour day, and did not require additional unscheduled breaks during the workday.
AR 442-44. Nothing in Dr. Almullahassani’s records provide corroboration for the
frequency and severity of seizures claimant alleged.
Indeed, a contemporaneous
“work/school release” issued by Dr. Almullahassani on October 4, 2012, provided only
the following restrictions: “no driving 6 months after having a seizure, no operating
dangerous machinery, no climbing on ladders or high levels, no swimming alone, and no
flying a plane.” AR 354. These limitations are similar to those reflected in the ALJ’s
residual functional capacity assessment. See AR 17 (“she cannot perform around hazards
or drive”). In her brief, claimant argues that there is some inconsistency in the ALJ’s
reliance on Dr. Almullahassani’s work-related limitations and the ALJ’s conclusion that
his medical records did not support claimant’s subjective allegations. Doc. 13, at 6. The
Court sees no inconsistency.
Dr. Almullahassani suggested minimal work-related
limitations which were inconsistent with claimant’s allegations that she is disabled and
unable to work in any capacity.
The ALJ also afforded “significant weight” to the state agency consulting
Those physicians (Gary Cromer, M.D., and Laura
Griffith, D.O.) concluded claimant was not disabled. AR 48-67. They further opined
that claimant’s “[c]redibility is eroded by h/o [history of] noncompliance with prescribed
Keppra, and urine drug screen positive for THC [marijuana].” AR 55, 65. This is
consistent with the ALJ’s conclusion.
Claimant argues that the ALJ should have determined the frequency of claimant’s
seizures and hence how often during a month she would need to be absent from work.
Doc. 13, at 7-8. Claimant asserts “[t]he medical records show [claimant] averaged ten
to twelve seizures a month.” Doc. 13, at 7 (citing AR 450). This assertion is not
supported by independent medical evidence; rather, claimant’s citation to the medical
record here refers to a section of a report reflecting claimant’s subjective complaints.
This is similar to her testimony during the hearing, when she stated she averaged eight
petit mal seizures and two grand mal seizures per month. AR 35. The ALJ noted that
“there is a question as to the frequency of these seizures.” AR 20. Contrary to claimant’s
argument, it was not the ALJ’s responsibility to establish the frequency of the seizures.
See Baldwin, 349 F.3d at 556 (“It is the claimant’s burden, not the Social Security
Commissioner’s burden, to prove the claimant’s RFC.”).2
This requires medical
Claimant’s reliance (Doc. 13, at 7-8) on this Court’s opinions in Mann v. Colvin, 100 F. Supp.
3d 710, 723 (N.D. Iowa 2015) and Stewart v. Colvin, No. C13-2029, 2014 WL 1165870, at *13
evidence, not just claimant’s subjective allegations. 20 C.F.R. §§ 416.908, 416.912(c),
416.928(a). The ALJ recognized that based on the medical records, and in particular
claimant’s repeated use of marijuana which doctors told her increased her seizures, it was
not possible to determine how often claimant would have seizures were she to comply
with her doctor’s orders to stop using marijuana. AR 20. As noted in Nowling, claimant
may have attempted to bolster the credibility of her claims as to the frequency and severity
of her seizures by producing “corroborating testimony from actual witnesses such as
family members or former employers regarding the nature of the symptoms.” Nowling,
813 F.3d at 1115. Claimant did not do so in this case.
In summary, the ALJ explicitly stated that he discounted claimant’s credibility and
provided good cause for doing so. Therefore, this Court must “defer to the ALJ’s
credibility finding [when, as here,] the ALJ ‘explicitly discredits a claimant’s testimony
and gives a good reason for doing so.’” Buckner, 646 F.3d at 558 (quoting Wildman v.
Astrue, 596 F.3d 959, 968 (8th Cir. 2010)). See also Papesh v. Colvin, 786 F.3d 1126,
1134 (8th Cir. 2015) (holding that a court will defer to an ALJ’s credibility finding where
it is supported by substantial evidence and good reasons); McDade v. Astrue, 720 F.3d
994, 998 (8th Cir. 2013) (credibility findings are entitled to deference if supported by
good reasons and substantial evidence). This Court may not reverse an ALJ even if it
believed there was some evidence that would support an opposite conclusion about
claimant’s credibility. See Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015) (holding
(N.D. Iowa Mar. 21, 2014), is misplaced. Those cases involved arguments that the ALJ failed
to fully develop the record to determine the impact those claimants’ migraine headaches had on
their likely absences from work. Claimant did not allege in her brief that the ALJ erred by
failing to properly develop the record. In any event, neither of these cases stand for the
proposition that the ALJ had an obligation to determine how often the claimants were likely to
suffer from migraine headaches.
that a court may not reverse an ALJ’s decision simply because some evidence would
support an opposite conclusion).
After a thorough review of the entire record, the Court concludes there is
substantial evidence in the record to support the Commissioner’s decision. Accordingly,
the Court affirms the decision of the ALJ.
IT IS SO ORDERED this 26th day of January, 2017.
United States Magistrate Judge
Northern District of Iowa
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