Sterba v. Commissioner of Social Security

Filing 16

MEMORANDUM OPINION AND ORDER re 3 Complaint filed by Ryan J Sterba. The Court affirms the decision of the ALJ. Signed by Magistrate Judge CJ Williams on 03/08/2017. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
RYAN J. STERBA,
Plaintiff,

No. 16-CV-2001-CJW

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

MEMORANDUM OPINION AND
ORDER

Defendant.
___________________________
Claimant, Ryan J. Sterba (claimant), seeks judicial review of a final decision of
the Commissioner of Social Security (the Commissioner) denying his application for
disability insurance benefits, under Title II of the Social Security Act, 42 U.S.C. § 401
et seq. (Act). Claimant contended he became disabled on July 1, 2010, because of a
seizure disorder and migraine headaches. AR 233 & 237.1 The Administrative Law
Judge (ALJ) found claimant had severe impairments of migraine headaches and pervasive
developmental disorder, but found his seizure disorder was not severe because it was
controlled by medical treatment. AR 19. The ALJ found claimant had the residual
functional capacity to perform a full range of work at all exertional levels, but would be
limited to simple and routine tasks with very few workplace changes. AR 20. Claimant
argues the ALJ erred in determining his residual functional capacity.
For the reasons that follow, the Court affirms the Commissioner’s decision.

1

“AR” refers to the administrative record below.

I.

BACKGROUND

Claimant was born in 1976 and was 37 years old at the time of the ALJ’s decision.
AR 36, 233. Mr. Sterba obtained his high school diploma and attended special education.
AR 36, 238, 329, 401. Claimant had past relevant work as a cleaner, food preparation
worker, sandblasting operator, warehouse worker, and production worker. AR 24.
On August 3, 2012, claimant filed his application for disability insurance benefits.
AR 16, 163-69. On October 9, 2012, the Commissioner denied claimant’s application.
AR 83-86. On January 24, 2013, the Commissioner denied claimant’s request for
reconsideration. AR 89-92. On April 9, 2014, ALJ Eric S. Basse held a hearing at
which claimant, claimant’s mother, and a vocational expert testified. AR 33-70. On
June 11, 2014, the ALJ found claimant was not disabled. AR 16-25. On November 5,
2015, the Appeals Council affirmed the ALJ’s finding. AR 1-6. The ALJ’s decision
thus became the final decision of the Commissioner. 20 C.F.R. § 404.981.
On January 5, 2016, claimant filed a complaint in this court. Doc. 3. The parties
have briefed the issues and on August 3, 2016, this case was deemed fully submitted.
Doc. 14. On the same day, the Honorable Linda R. Reade, United States District Court
Judge, referred this case to me for a Report and Recommendation. On August 29, 2016,
with the consent of the parties, the Honorable Judge Linda R. Reade transferred this case
to a United States Magistrate Judge for final disposition and entry of judgment. Doc. 15.
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
period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An
individual has a disability when, due to his physical or mental impairments, he “is not
2

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.
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.

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. “Substantial” work activity
involves physical or mental activities. Id. “Gainful” activity is work done for pay or
profit, even if the claimant does not ultimately receive pay or profit. Id.
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. An impairment is
not severe if it does not significantly limit a claimant’s physical or mental ability to
perform basic work activities. Kirby, 500 F.3d at 707.
The ability to do basic work activities means having the ability and aptitude
necessary to perform most jobs. 20 C.F.R. § 404.1521(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
3

situations; and (6) dealing with changes in a routine work setting.” 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.

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 his past relevant work, then he is considered not disabled.
Past relevant work is any work the claimant has done within the past 15 years of his
application that was substantial gainful activity and lasted long enough for the claimant
to learn how to do it. “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 omitted). The RFC is based on all
relevant medical and other evidence. Id. 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.
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. 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,
4

591 (8th Cir. 2004). If the claimant can make the adjustment, then the Commissioner
will find the claimant is not disabled.

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. 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.
III.

THE ALJ’S FINDINGS

The ALJ engaged in the five-step sequential analysis outlined above, as reflected
in his written decision.
At step one, the ALJ found claimant had not continuously worked at a substantial
gainful activity level since July 1, 2010. AR 18.
At step two, the ALJ determined claimant had the following severe impairments:
“migraine headaches, and pervasive developmental disorder.” AR 18. The ALJ found
claimant had a seizure disorder, but found that it was not severe because it was controlled
by medical treatment. AR 19. Nevertheless, the ALJ stated he took this non-severe
impairment into account when assessing claimant’s residual functional capacity. Id.
At step three, the ALJ determined claimant did not have an impairment or a
combination of impairments which met or medically equaled the severity of a listed
impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1. AR 19. The ALJ specifically
5

considered listing 12.10 for mental impairment, but found it did not apply because
claimant had only mild restrictions on his daily living. Id.
At step four, the ALJ determined claimant’s RFC. The ALJ found:
[C]laimant has the residual functional capacity to perform a full range of
work at all exertional levels but with the following nonexertional
limitations: he would be limited to simple and routine tasks with very few
workplace changes. In other words, a job that is very repetitive, routine,
and simple with an SVP of 2. He could have occasional contact with the
public, co-workers, and supervisors. With respect to co-workers, he could
not work as part of a team or perform a job with any long-term teamwork,
but he could work together with someone to accomplish a task.
AR 20. Based on this RFC assessment, the ALJ determined claimant was capable of
performing past relevant work as a “Cleaner, Food Preparation Worker, Sandblasting
Operator, Warehouse Worker, and Production Worker.” AR 24. Accordingly, the ALJ
did not reach step five.
IV.

DISCUSSION

Claimant argues the ALJ’s residual functional capacity assessment was flawed for
four reasons:
1.

The ALJ failed to find claimant’s cognitive impairment was a severe
impairment. Doc. 12, at 3-6.

2.

The ALJ failed to make a function-by-function assessment of
claimant’s RFC. Doc. 12, at 6-9.

3.

The ALJ failed to fully and fairly develop the record regarding the
vocational significance of claimant’s cognitive impairment. Doc.
12, at 9-11.

4.

The RFC is not supported by substantial medical evidence where the
consultative examiner and state agency psychological consultants did
6

not review any evidence related to claimant’s cognitive impairment.
Doc. 12, at 11-13.
The Court will address these arguments separately below.
A. 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
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). A 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). A court must “search the record for evidence contradicting the [Commissioner’s]
decision and give that evidence appropriate weight when determining whether the overall
7

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). 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)). A 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).
B. Whether the ALJ erred in finding claimant’s cognitive impairment was not
severe
Claimant argues that the ALJ erred in failing to find that claimant’s cognitive
impairment was severe. Doc. 12, at 3-6. Claimant relies on an October 28, 2010,
cognitive assessment evaluation by Dr. Robert Jones. Id., at 4-5. Claimant notes that
the ALJ “briefly” discussed Dr. Jones’ report and “implicitly found [claimant’s]
8

cognitive impairment was not a severe impairment. Id., at 5-6. Claimant faults the ALJ
for not expressly indicating he considered Listing 12.02 (organic mental disorder).
Claimant’s argument is without merit. “At step two, the claimant bears the burden
of establishing that she has a severe impairment that significantly limits her physical or
mental ability to do basic work activities.” Nguyen v. Chater, 75 F.3d 429, 430-31 (8th
Cir. 1996). See Kirby, 500 F.3d at 707-08 (holding that it is a claimant’s burden to
show that impairment is severe; if impairment has no more than minimal effect on a
claimant’s ability to work, it does not qualify as severe). Other than reciting the medical
record and the ALJ’s finding in his brief, claimant failed to articulate what error he
alleges the ALJ made.

Rather, claimant’s brief does little more than assert his

disagreement with the ALJ’s decision.

Claimant generally refers to a “cognitive

impairment,” but claimant did not allege he was disabled because of a cognitive
impairment; rather, he alleged he was disabled because of a seizure disorder and migraine
headaches. AR 237. The ALJ found claimant’s seizures had been controlled through
surgery and medication, and claimant does not contest that finding. The legal authority
claimant cites is nothing more than a recitation of the legal standard, with no application
of that law to the facts of this case to show how the ALJ allegedly failed to comply with
the legal standard. Claimant’s brief fails to provide the Court with any guidance as to
what claimant believes the ALJ did wrong and what legal authority exists to support an
argument that the ALJ erred.
Setting aside the deficiencies in claimant’s brief, the Court’s own evaluation of the
record shows there is substantial evidence in the record as a whole to support the ALJ’s
conclusion that claimant had severe impairments of migraine headaches and pervasive
developmental disorder, but no other severe impairments. AR 18. The ALJ reviewed
the medical evidence, including Dr. Jones’ reports. AR 19-24. The ALJ analyzed
whether claimant’s mental impairment met or medically equaled the criteria of listing
9

12.10 for autistic disorder and other pervasive developmental disorders. AR 19-20. The
ALJ concluded that claimant did not meet the criteria in paragraph B of that listing. Id.
Listing 12.10 consists of “paragraph A criteria (a set of medical findings), and paragraph
B criteria (a set of impairment-related functional limitations),” as well as some
“additional functional criteria (paragraph C criteria).” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 12.00. As the ALJ explained:
To satisfy the “paragraph B” criteria, the mental impairment must result in
at least two of the following: marked restriction of activities of daily living;
marked difficulties in maintaining social functioning; marked difficulties in
maintaining concentration, persistence, or pace; or repeated episodes of
decompensation, each of extended duration.
AR 19. The ALJ concluded claimant did not meet the criteria set out in paragraph B.
Specifically, the ALJ found claimant had only mild restrictions in activities of daily
living. AR 19. The record supports this conclusion. Claimant lived on his own for
fifteen years. AR 49, 52. He performed yard work and repairs around the house, mowed
the yard, cleaned dishes and laundry, and performed other household chores. AR 50,
214-15. Although claimant implies he was not cleared to drive (Doc. 12, at 4), while
that was true for a time, it is no longer the case (AR 315, 435).
The ALJ found claimant had moderate difficulties in social functioning. AR 19.
Again, the record contains substantial evidence to support the ALJ’s findings. The ALJ
noted that during a consultative examination, it was noted that claimant was socially
inappropriate when he attempted to play with two small children. Id. The incident
occurred when claimant showed up early for the examination and got on the floor of the
waiting room to play with two small children even though he did not know them or their
parents. AR 328. The examiner noted that “[o]ffice staff observed this and said it
appeared to be quite inappropriate, although he didn’t do or say anything harmful.” Id.
The examiner concluded claimant had “poor social boundaries.” AR 329. In contrast to
10

that one incident, the ALJ found that claimant shopped in stores, engaged in social
activities, spent time with family and friends, and was involved in church and the Lions
Club. AR 19. The record supports these findings. AR 48-51; 216. Indeed, claimant
testified at the hearing that he had “[n]o problems at all” in “dealing with the people [at
his workplace] or getting along with anyone or anything like that.” AR 62. Claimant
testified that the only problems he had when working as a cashier was not in dealing with
customers, but in dealing with technical glitches in the cash register.

AR 62-63.

Claimant indicated that he got along “very well” with authority figures. AR 218. See
AR 333 (finding claimant scored “not significantly limited” or “moderately limited” on
all social interaction functions).
With regard to concentration, persistence and pace, the ALJ found claimant had
moderate difficulties. AR 19. The ALJ noted that claimant testified that his medications
affected his memory and ability to concentrate. Id. The ALJ noted, however, that
claimant stated he could follow both written and spoken instructions. Id. The record
supports this finding. Claimant indicated that he “never” had difficulty concentrating.
AR 394. Claimant indicated that he can pay attention for “quite a while,” finishes what
he starts, is “very good” at following written instructions, and “good” at following
spoken instructions. AR 217. Claimant also indicated that he is “good” at handling
stress and “pretty good” at handling changes in routine. AR 218. Further, although
claimant had some difficulty with memory while on high doses of a particular medication
(Tompomax), adjustment of his dosage eliminated that side effect. AR 310. Claimant
reported no mental disorder or poor memory. AR 313. Claimant indicated he was “not
at all bothered” by memory difficulties. AR 395. Claimant was found to be of average
intelligence and cleared to drive a vehicle. AR 314-15. The Court must treat claimant’s
description of his own abilities with some caution; at least one examiner opined that
claimant “seemed to grossly under-estimate any cognitive or emotional difficulties he is
11

having” and “had trouble with some of the tasks requiring concentration during the
evaluation.” AR 329-30. In the end, however, even this examiner concluded claimant
had “no significant impairment” in his “ability to understand instruction, procedures and
location,” and had only “some minor evidence of having concentration problems.” AR
330. See also AR 332 (finding claimant scored “not significantly limited” on seven
categories of memory, concentration and persistence factors, and “moderately limited”
on four of the categories).
The ALJ found there were no episodes of decompensation. AR 19. The Court’s
independent review of the entire record supports this conclusion, and claimant has not
pointed to any evidence to the contrary.
Claimant notes that the ALJ only expressly addressed Listing 12.10 and not Listing
12.02 relating to organic mental disorders. Doc. 12, at 6. Presumably, claimant is
arguing that was error, although, he does not explicitly say so.

Assuming that is

claimant’s argument, the Court finds no merit in it. When an ALJ fails to address a
specific listing, the failure to do so is harmless if the record supports the overall
conclusion. Pepper v. Barnhart, 342 F.3d 853, 855 (8th Cir. 2003). Listing 12.02
requires the same “paragraph B” criteria as does Listing 12.10. Accordingly, any error
arising from the ALJ’s failure to expressly refer to Listing 12.02 was harmless because
the ALJ had already determined claimant did not satisfy the “paragraph B” criteria of the
listings. Accordingly, the ALJ’s failure to specifically address Listing 12.02, even if in
error, was harmless. See Hanson v. Colvin, CV No. 14-2024, 2015 WL 773334, at *5
(W.D. Ark. Feb. 24, 2015) (finding failure to address listing harmless error where
claimant failed to meet the same paragraph B criteria of another listing); Lindberg v.
Comm’r of Soc. Sec., Civ. No. 11–2396 (PJS/JJG), 2012 WL 3288642, at *12 (D. Minn.
July 26, 2012) (same).
12

The Commissioner also points out that claimant failed to address the definition or
capsule requirement that claimants must meet (the “capsule requirement”) in addition to
the requirements of subsections A, B, or C. Doc. 13, at 7. The introductory or
definitional section of Listing 12.02 requires claimant demonstrate “the presence of a
specific organic factor judged to be etiologically related to the abnormal mental state and
loss of previously acquired functional abilities.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 §
12.02. The Commissioner identifies evidence that shows claimant could not meet this
capsule requirement. Doc. 13, at 7. An MRI of claimant’s brain showed no changes.
AR 402. Claimant’s only alleged symptoms of headaches and associated nausea, not loss
of functional abilities, were in connection with a head injury when he fell off a horse in
2009. Id. This, too, is evidence that if the ALJ erred in not explicitly addressing Listing
12.02, it was harmless.
Finally, the Court notes that the ALJ considered the functional effects of claimant’s
cognitive impairments, whether they were labeled “cognitive disorder” as claimant
describes them, or as “pervasive developmental disorder” as the ALJ labeled them. The
ALJ thoroughly considered and gave “great weight” to the results of the consultative
examination by Dr. Paul Conditt (AR 22, 327-31), and gave “some weight” to the opinion
of neuropsychological consultant, Dr. Robert D. Jones (AR 22, 401-403).

“[T]he

diagnosis has minor significance one way or the other . . . . [T]he dispositive question
remains whether [claimant’s] functioning in various areas is markedly impaired, not what
one doctor or another labels his disorder.” Collins ex rel. Williams v. Barnhart, 335
F.3d 726, 730-31 (8th Cir. 2003). In this case, the ALJ considered the functional
limitations resulting from claimant’s mental impairments. Substantial evidence in the
record as a whole supports the ALJ’s findings of claimant’s severe impairments and his
conclusion that claimant did not have additional severe impairments.
13

C. Whether the ALJ erred in failing to make a function-by-function assessment
of claimant’s RFC.
Claimant argues the ALJ erred by failing to translate “psychological test results
into vocational limitations and perform[ ] a function-by-function assessment” of
claimant’s residual functional capacity. Doc. 12, at 9. As a factual basis for this
argument, claimant relies entirely on an evaluation by Dr. Jones. Doc. 12, at 6-8.
When determining the RFC, an ALJ must perform a function-by-function analysis.
See SSR 96–8p, 1996 WL 374184 (July 2, 1996). An ALJ “must first identify the
individual’s functional limitations or restrictions and assess his or her work-related
abilities on a function-by-function basis, including the functions in paragraphs (b), (c),
and (d) of 20 CFR 404.1545 and 416.945.” Id. It is not, however, reversible error for
an ALJ not to mention all functional areas. See Depover v. Barnhart, 349 F.3d 563,
567–68 (8th Cir. 2003) (holding no violation of SSR 96–8p where ALJ made explicit
findings in the residual functional capacity assessment, despite not making explicit
findings with respect to sitting, standing and walking); see also Knox v. Astrue, 327 Fed.
App’x 652, 657 (7th Cir. 2009) (“Although the RFC assessment is a function-by-function
assessment, . . . the expression of a claimant’s RFC need not be articulated function-byfunction.”) (internal quotation marks omitted).
Although claimant argues the ALJ did not properly perform a function-by-function
assessment of claimant’s RFC, the ALJ considered the medical evidence, observations of
doctors, and claimant’s own testimony and description of his functional limitations in
determining claimant’s RFC. See Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001).
The ALJ conducted a detailed analysis of the record describing why claimant could
perform a full range of work with specific nonexertional limitations. This included a
review of the medical evidence, claimant’s testimony, statements of medical resources,
and all other evidence submitted. AR 20-24. See Garrison v. Astrue, No.4:11cv 1503
14

FRB, 2012 WL 4336202, at *15 (E.D. Mo. Sept. 21, 2012) (finding the ALJ conducted
the required function-by-function assessment). As discussed above, the medical evidence
supports the ALJ’s determination, and the ALJ thoroughly considered and discussed this
evidence in rendering his decision. The ALJ’s determination is both fully supported and
sufficiently explained. Thus, the Court finds the ALJ conducted a proper assessment of
claimant’s RFC.
Claimant’s reliance on a single examination by Dr. Jones is, in any event,
misplaced. Claimant points to tests Dr. Jones performed, the results of which showed
claimant was “impaired” or “borderline impaired” with regard to “[d]elayed recall for a
complex geometric figure,” “[c]opying of a complex geometric figure,” “[j]udgment of
spatial information and matching of variably oriented lines,” “[v]erbal abstract
reasoning,” “[n]aming to confrontation,” and “[a]ssociative verbal fluency.” AR 402.2
Claimant then relies on a handbook Dr. Jones never cited or relied on to convert Dr.
Jones’ findings into percentages of the population who allegedly possess these limitations.
Doc. 12, at 7-8. This is not evidence in the record. This Court is in no position to
determine the reliability of this extra-record authority, and claimant produced no evidence
establishing its reliability. Furthermore, the ALJ’s RFC assessment adequately addressed
the areas of impairment Dr. Jones identified. The ALJ limited claimant to “simple and
routine tasks with very few workplace changes.” AR 20. The ALJ found claimant could
perform a job that is “very repetitive, routine, and simple with an SVP of 2 . . . [with]
occasional contact with the public, co-workers, and supervisors.” Id.
Accordingly, the Court finds the ALJ did not err because he did perform a proper
function-by-function assessment of claimant’s RFC.

2

Claimant engages in hyperbole when he argues he had “limitations in a dozen areas.” Doc.
12, at 8-9. These number seven.

15

D. Whether the ALJ erred in failing to fully develop the record regarding the
vocational significance of claimant’s cognitive impairment
Claimant argues the ALJ erred in failing to fully develop the record of claimant’s
functional limitations. Doc. 12, at 9-11. Relying on Dr. Jones’ single examination, and
citing Wikipedia for authority, claimant argues “[t]he ALJ should have obtained medical
expert testimony to explain the complicated medical terminology and identify the practical
consequences of the psychological testing.” Doc. 12, at 10-11.
“Well-settled 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 [Commissioner] 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). 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). He “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, 749-50
(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 (internal
quotation marks and citations omitted)).
Claimant’s assertion that the record before the ALJ was inadequately developed
because it did not contain expert testimony to explain the practical consequences of Dr.
Jones’ examination is incorrect. An ALJ is not required to seek additional, independent
16

expert medical testimony if the record is sufficient. Wilson v. Apfel, 179 F.3d 1276,
1278 (11th Cir. 1999) (holding the record, including the opinion of several physicians,
was sufficient for the ALJ to arrive at an RFC assessment without additional medical
expert testimony). The record in this case contains assessments of state agency medical
consultants as to claimant’s limitations. AR 328-31, 401-403. An ALJ need not obtain
medical expert testimony where, as here, the record contains sufficient information for
an RFC assessment. See Martise v. Astrue, 641 F.3d 909, 926-27 (8th Cir. 2011) (the
ALJ is required to order further medical examinations only if the existing medical record
does not provide sufficient evidence to determine whether the claimant is disabled).
Accordingly, the Court rejects the contention that the ALJ failed to adequately
develop the record.
E. Whether the ALJ erred in assessing claimant’s RFC when he relied on
opinions of the consultative examiner and state agency psychological consultants
Claimant argues the ALJ erred in reaching claimant’s RFC assessment by relying
on the consultative examiner and the state agency psychological consultants. Doc. 12, at
11-13. This is, really, an extension of claimant’s last argument: he argues “[t]he ALJ’s
duty to fully develop the record includes the responsibility of ensuring that the record
includes evidence from a treating physician, or at least an examining physician,
addressing the particular impairments at issue.” Doc. 12, at 11. Claimant relies for
authority to support this proposition on Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.
2000), and Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir. 2004) (citing
Nevland).
As the Commissioner correctly pointed out in her brief, claimant’s argument is
misplaced. The ALJ denied claimant’s application at step four, and never reached step
five. The Eighth Circuit Court of Appeals has explained:
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But as we recognized in Eichelberger v. Barnhart [,390 F.3d 584 (8th Cir.
2004], Nevland addressed the evidence necessary to satisfy an ALJ’s burden
of proof at step five in the disability analysis; Nevland does not preclude
the ALJ’s reliance on a reviewing physician’s report at step four when the
burden is on the claimant to establish an inability to do past relevant work.
390 F.3d 584, 591 (8th Cir. 2004); see also Masterson [v. Barnhart], 363
F.3d [731,] 737–39 [(8th Cir. 2004)] (holding that the ALJ properly relied
on the assessments of a nonexamining physician, and not claimant’s treating
physicians, in determining the RFC at step four). “It is well settled that an
ALJ may consider the opinion of an independent medical advisor as one
factor in determining the nature and severity of a claimant’s impairment.”
Harris [v. Barnhart], 356 F.3d [926,] 931 [(8th Cir. 2004)].
Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007). The Commissioner also points out
that the Social Security Administration published a rule change that emphasized that “the
only burden shift that occurs at step 5 is that we are required to prove that there is other
work that you can do, given your RFC, age, education, and work experience. That shift
does not place on us the burden of proving RFC.” Clarification of Rules Involving
Residual Functional Capacity Assessments, 68 Fed. Reg. 51153-01, at *51155, 2003 WL
22001943 (Aug. 26, 2003).
The other authority claimant cites provides no firmer support. Claimant cites
Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995), for the proposition that “[i]f
there is no such evidence, the ALJ’s decision cannot be said to be supported by substantial
evidence.” Although those exact words do appear in the opinion, the Anderson case was,
unlike this one, decided at step five, where the burden shifts to the Commissioner.
Claimant asserts that “recently, this Court noted that ordinarily work-related limitations
from a treating or examining source was required.” Doc. 12, at 12 (emphasis claimant’s)
(citing Brewer-Kite v. Colvin, 959 F. Supp. 2d 1176, 1188 (S.D. Iowa 2013)). First,
that was not a decision of this Court.

Second, that decision does not support the

proposition for which claimant cites it. In Brewer-Kite, the Court found the ALJ erred
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because the ALJ ordinarily should give significant weight to a treating physician’s
opinion, which he did not do. 959 F. Supp. 2d at 1188-89. That case did not involve
the question here of whether an ALJ may rely on non-examining consultative opinions
and other medical evidence at step four to determine a claimant’s RFC.

Finally,

claimant’s citation of a decision by this Court, Mann v. Colvin, 100 F. Supp. 3d 710,
722 (N.D. Iowa 2015), while more on point, is not helpful because, again, that case was
decided at step five, not step four. In any event, as claimant notes, this Court held in
Mann that even at step five, an ALJ may determine a claimant’s ability to work in the
absence of evidence from a treating or examining physician so long as other medical
evidence in the record supports the finding.
The ALJ in this case reviewed and relied upon medical evidence from claimant’s
treating doctors (AR 21-22) and the consultative opinions of Drs. Jones and Conditt (AR
22). The ALJ considered, but gave little weight to, a November 2012 medical opinion
by Dr. Troy Buchholz (AR 22-23) because his opinion was inconsistent with the objective
medical evidence that demonstrated that medical treatment had adequately addressed
claimant’s seizures.3 AR 22-23. Similarly, the ALJ considered, but gave little weight
to, a medical source statement by Dr. Ameer Almullahassani, which was singularly
uninformative and, in any event, determined claimant’s headaches were not severe and
that claimant had a good prognosis. AR 23. The ALJ recognized that he was relying on
non-examining consultative physicians whose “opinions do not as a general matter
deserve as much weight as those of examining or treating physicians.” AR 23. He
concluded, however, that “their opinions do deserve significant weight in the current
instance, particularly because in a case like this there exist a number of other reasons to

3

Claimant does not contest the weight the ALJ afforded this opinion.
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reach similar conclusions.” Id. Principle among these is the fact that the evidence clearly
showed “claimant was able to maintain employment for fourteen consecutive years, live
alone, and independently perform all of his activities of daily living.” AR 22. For these
reasons, the Court finds that the ALJ’s reliance on the consultative physician’s opinions,
together with the rest of the evidence, fell within the acceptable zone of choice where
this Court will not disturb his conclusion upon review.
V. 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 8th day of March, 2017.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

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