Johnson v. Commissioner of Social Security

Filing 22

REPORT AND RECOMMENDATIONS re 3 Complaint recommending the District Court affirm the Commissioner's determination that claimant was not disabled. Objections to R&R due by 7/31/2017. Signed by Chief Magistrate Judge CJ Williams on 7/17/2017. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
MARY F. JOHNSON,
Plaintiff,

No. 16-CV-2026-LTS

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

REPORT AND RECOMMENDATION

Defendant.
___________________________
The claimant, Mary F. Johnson (claimant), seeks judicial review of a final decision
of the Commissioner of Social Security (the Commissioner) denying her application for
disability insurance benefits (DIB) and Supplemental Security Income (SSI), under Titles
II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Claimant contends
the Administrative Law Judge (ALJ) erred in determining that she was not disabled.
For the reasons that follow, I recommend the District Court affirm the
Commissioner’s decision.
I.

BACKGROUND

I adopt the facts as set forth in the parties’ Joint Statement of Facts and therefore
only summarize the pertinent facts here. (Doc. 15). Claimant was born in June 1962
and therefore was 49 years old on the date of the alleged onset of disability and 52 years
old at the time of the ALJ’s decision. (AR 154-55).1 Claimant has a high school
education, attended college, and obtained an associate’s degree. (AR 156-57, 594).
Claimant has past relevant work as a home health aide, a housing counselor, an
employment clerk, and as a child care provider. (AR 136, 155).

1

“AR” refers to the administrative record below.

On August 7, 2012, claimant protectively filed an application for disability benefits
alleging a disability onset date of May 20, 2011. (AR 126, 311, 519). Claimant asserted
she was disabled due to degenerative disc disease, obesity, kidney disease, diabetes and
high blood pressure. (AR 129).
The Social Security Administration denied claimant’s disability application
initially and on reconsideration. (AR 284-85, 306-07). On February 6, 2014, an ALJ
found claimant was not disabled. (AR 308). On April 15, 2014, the Appeals Council
remanded the case, directing the ALJ to hold a new hearing and to take further action to
complete the administrative record. (AR 330-32). On September 11, 2014, ALJ Julie
K. Bruntz held a second hearing at which claimant and a vocational expert testified. (AR
149-86). On October 20, 2014, the ALJ found claimant was not disabled. (AR 126-37).
On February 9, 2016, the Appeals Council affirmed the ALJ’s finding. (AR 1-5). The
ALJ’s decision, thus, became the final decision of the Commissioner.

20 C.F.R.

§ 404.981.
On April 14, 2016, claimant filed a complaint in this Court. (Doc. 3). Between
February and April 2017, the parties briefed the issues. (Docs. 16, 19, & 20). On April
4, 2017, the Court deemed this case fully submitted and ready for decision. (Doc. 21).
On the same day, the Honorable Leonard T. Strand, Chief United States District Court
Judge, referred this case to a United States Magistrate Judge for a Report and
Recommendation.
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
only unable to do his previous work but cannot, considering his age, education, and work
2

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. “Gainful” activity is work done for pay or profit,
even if the claimant did not ultimately receive pay or profit.
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and mental 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 the ability and aptitude necessary to
perform most jobs. These include: (1) physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for
seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work
setting. Bowen v. Yuckert, 482 U.S. 137, 141 (1987); 20 C.F.R. § 404.1521(b).
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
3

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 performed within the past fifteen 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 [ ] her physical or mental limitations.” Lewis v. Barnhart,
353 F.3d 642, 646 (8th Cir. 2003) (citations and internal quotation marks omitted). The
RFC is based on all relevant medical and other evidence. 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.
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. The Commissioner must show not only that the claimant’s RFC will allow
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). If the claimant can make the adjustment, then the Commissioner will find
the claimant not disabled. At Step Five, the Commissioner has the responsibility of
developing the claimant’s complete medical history before making a determination about

4

the existence of a disability. The burden of persuasion to prove disability remains on the
claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
III.

THE ALJ’S FINDINGS

The ALJ made the following findings at each step.
At Step One, the ALJ found that claimant had not engaged in substantial gainful
activity since May 20, 2011, the alleged onset date. (AR 129).
At Step Two, the ALJ found that claimant had the severe impairments of
“degenerative disc disease; obesity; kidney disease; diabetes; and high blood pressure.”
(Id.).
At Step Three, the ALJ found that none of claimant’s impairments equaled a
presumptively disabling impairment listed in the relevant regulations. (AR 130).
At Step Four, the ALJ found claimant had residual functional capacity to perform
sedentary work, with following additional functional limitations that claimant:
can occasionally climb ramps/stairs but never climb ropes, ladders or
scaffolds. She can occasionally balance, stoop, kneel, crouch and crawl
and can occasionally reach overhead with the right upper extremity.
(Id.). Also at Step Four, the ALJ determined that claimant was able to perform past
relevant work as a home health aide, a housing counselor, an employment clerk, and as
a child care provider. (AR 136). Therefore, the ALJ did not proceed to Step Five, and
found claimant was not disabled. (AR 137).
IV.

THE SUBSTANTIAL EVIDENCE STANDARD

The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . ..”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis, 353 F.3d at 645 (citations and internal
5

quotation marks omitted). The Eighth Circuit Court of Appeals explains the standard as
“something less than the weight of the evidence and [that] allows for the possibility of
drawing two inconsistent conclusions, thus it embodies a zone of choice within which the
[Commissioner] may decide to grant or deny benefits without being subject to reversal
on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citations and
internal quotation marks 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) (citation omitted).
The court considers both evidence that supports the Commissioner’s decision and
evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010).
The court must “search the record for evidence contradicting the [Commissioner’s]
decision and give that evidence appropriate weight when determining whether the overall
evidence in support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir.
2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (quoting 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,
6

822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion” (citation omitted).).
V.

DISCUSSION

Claimant argues that the ALJ’s residual functional capacity determination at Step
Four was flawed because: (1) the ALJ failed to evaluate properly the work-related
limitations from treating physician Dr. Gennero Sagliocca (Doc. 16, at 5-14); (2) the ALJ
failed to evaluate properly the work-related limitations from examining psychologist Dr.
Ann Jacobs (Doc. 16, at 15-19); and (3) the ALJ improperly discounted claimant’s
subjective allegations without identifying inconsistencies in the record as a whole. (Doc.
16, at 19-22). I will address each of these issues in turn.
A.

The ALJ’s Evaluation of Treating Physician’s Opinion

Claimant argues the ALJ erred in failing to give the opinions of treating
nephrologist Dr. Gennero Sagliocca sufficient weight. (Doc. 16, at 5-14). Claimant
argues the work-related limitations that Dr. Sagliocca identified were materially different
from those the ALJ incorporated into claimant’s residual functional capacity assessment,
that the record supports those limitations, and that the ALJ failed to provide adequate
reasons to reject Dr. Sagliocca’s opinion. (Id.). Claimant argues the Court should
reverse the ALJ’s decision and remand the case for further consideration of Dr.
Sagliocca’s opinions and a new assessment of claimant’s residual functional capacity.
(Doc. 16, at 14).
Dr. Sagliocca is a kidney specialist and saw claimant on only three occasions in
the course of fewer than six months, between October 2012 and March 2013. (AR 101319, 1097-98). Dr. Sagliocca’s records, including laboratory reports, consist of nine
pages. Dr. Sagliocca diagnosed claimant as having renal kidney disease. (AR 1015,
7

1097, 1099). On her last visit to Dr. Sagliocca on March 28, 2013, Dr. Sagliocca noted
that claimant was “doing fairly well” and had “no other complaints,” although she did
“complain of some back pain.” (AR 1097). During the same visit, claimant asked Dr.
Sagliocca “to fill out some disability papers.” (Id.). Dr. Sagliocca filled out a disability
questionnaire form, populated by checkboxes, supplied by claimant’s attorney.

In

response to question 3, asking Dr. Sagliocca to describe claimant’s symptoms, it appears
that he wrote “back pain” and an indecipherable word. (AR 1099). Dr. Sagliocca did
not answer the question: “Have the patient’s impairments lasted or can they be expected
to last at least twelve months?” (AR 1100). Dr. Sagliocca then checked a number of
boxes assessing claimant with the following limitations:
Sit and stand continuously
45 minutes
Stand
15 minutes
In an 8 hour day the patient can:
sit 2 hours;
stand 45 minutes, and,
walk 30 minutes or less
Needs periods of walking in an 8 hour work day
Needs to shift positions at will from sitting, standing and walking
Cannot get through an 8 hours working day without lying down
While sitting, needs to elevate legs
Should never lift or carry any weight
Can only occasionally grasp, turn, and twist objects, engage in fine
manipulation, and reach.
(AR 1100-01). When instructed to explain these answers, Dr. Sagliocca left the space
blank. (AR 1101). Dr. Sagliocca went on to check boxes indicating claimant could only
occasionally bend and twist at the waist and would have “difficulty squatting & stooping.”
(AR 1102). Finally, Dr. Sagliocca checked the box indicating that claimant would be
absent “[m]ore than twice a month” due to her impairments or treatment. (Id.).
In considering Dr. Sagliocca’s opinion, the ALJ “accorded [it] little evidentiary
weight.” (AR 135). The ALJ explained the basis for the weight she accorded the
opinion. The ALJ noted that Dr. Sagliocca treated claimant for her chronic kidney
8

disease, which Dr. Sagliocca’s records showed was stable over the course of the three
appointments between October 2012 and March 2013. (Id.). The ALJ noted that Dr.
Sagliocca’s records showed that claimant was “neurologically intact and not endorsing
symptoms related to her kidney disease but more attributable to back pain and diabetic
neuropathy.” (Id.). The ALJ noted that during the last visit, Dr. Sagliocca documented
that claimant was “doing fairly well.” (Id.). The ALJ further noted that Dr. Sagliocca’s
opinion does not “specify which diagnosis/symptoms correspond to specific limitations
in functioning.”

(Id.).

Ultimately, the ALJ found Dr. Sagliocca’s opinion “quite

conclusory, providing very little explanation of the evidence relied on in forming that
opinion,” and that it was inconsistent with claimant’s own statements about what she
could do. (Id.). In contrast, the ALJ gave substantial weight to the opinions of state
consulting physicians because the limitations they identified were “well supported with
specific references to medical evidence,” and were “internally consistent as well as
consistent with the evidence as a whole.” (AR 136).
An ALJ must determine a claimant’s residual functional capacity based on “all of
the relevant evidence, including the medical records, observations of treating physicians
and others, and an individual’s own description of [his] limitations,” but “there is no
requirement that an RFC finding be supported by a specific medical opinion.” Hensley
v. Colvin, 829 F.3d 926, 931-32 (8th Cir. 2016) (alterations in original) (citation and
internal quotation marks omitted).

In determining a claimant’s residual functional

capacity, it is the ALJ’s function to weigh conflicting evidence and to resolve
disagreements among physicians. See Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
2002). A treating physician’s medical opinions are given controlling weight if they are
“well-supported by medically acceptable clinical and laboratory diagnostic techniques
and [are] not inconsistent with the other substantial evidence.” See Choate v. Barnhart,
457 F.3d 865, 869 (8th Cir. 2006) (internal citation and quotation marks omitted). A
treating physician’s opinion may be disregarded if it is unsupported by clinical or other
9

data or is contrary to the weight of the remaining evidence in the record. See Myers v.
Colvin, 721 F.3d 521, 525 (8th Cir. 2013) (“We conclude that substantial evidence
supports the ALJ’s determination that [the doctor’s] opinion was inconsistent with the
treatment record and thus not entitled to controlling weight.”); Anderson v. Astrue, 696
F.3d 790, 793-94 (8th Cir. 2012).

In addition, “[a] treating physician’s own

inconsistency may also undermine his opinion and diminish or eliminate the weight given
his opinions,” such as when the opinion is inconsistent with contemporaneous treatment
notes.

Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (citation omitted).

Similarly, an ALJ may discount the weight given to a treating physician’s opinion if the
treatment notes simply do not support the limitations endorsed in the opinion. See Cline
v. Colvin, 771 F.3d 1098, 1104 (8th Cir. 2014) (holding that a treating physician’s
opinion is entitled to less weight if it is unsupported by the physician’s own records).
In this case, the ALJ correctly found the treating doctor’s medical records simply
did not support the limitations he imposed on the checklist form.

Dr. Sagliocca’s

treatment notes provide absolutely no basis to support the extreme limitations he endorsed
on the checkbox form. They consisted of nothing more than conclusory assertions. See
Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004) (“It is appropriate . . . to
disregard statements of opinion by a treating physician that consist[ ] of nothing more
than vague, conclusory statements.”) (internal quotation marks and citation omitted). In
assessing the weight to be given to Dr. Sagliocca’s opinion, the ALJ also properly
considered that Dr. Sagliocca saw claimant only three times during a period of fewer
than six months. See Whitman v. Colvin, 762 F.3d 701, 706 (8th Cir. 2014) (“In
considering how much weight to give a treating physician’s opinion, an ALJ must also
consider the length of the treatment relationship and the frequency of examinations.”
(internal citation and quotation marks omitted)). Dr. Sagliocca’s opinion is further
entitled to less weight because it was conclusory and was provided by checking boxes on
a form; Dr. Sagliocca failed to provide explanations on the form for the limitations he
10

found, even when asked to provide such explanations. He also failed to indicate that any
of the conditions had lasted or would last for at least one year.2 See, e.g., Gregor v.
Colvin, 628 Fed. App’x 462, 463 (8th Cir. 2016) (finding the ALJ could discount a
treating physician’s opinion “because it was a conclusory checkbox form that cited no
medical evidence; provided little to no elaboration; and expressed limitations that were
not reflected in treatment notes or medical records”) (citing Anderson, 696 F.3d at 793–
94 (holding conclusory checkbox form had little evidentiary value when it provided little
or no elaboration and cited no medical evidence)).
Claimant argues that the medical records support the limitations endorsed by Dr.
Sagliocca, citing to a number of visits and notes by Drs. Louis Butera, D.O. and Charles
Theofilos, both of whom treated claimant for her degenerative disc disease. (Doc. 16,
at 9-12). This does not support claimant’s argument. Indeed, neither of these doctors
provided opinions suggesting claimant was as limited as Dr. Sagliocca claimed she was,
and Drs. Butera and Theofilos were in a much better position to render an opinion on
these matters, as Dr. Sagliocca was a kidney specialist.
Claimant argues the ALJ failed to properly consider the impact of claimant’s
obesity, which claimant urges “provides further support for Dr. Sagliocca’s opinions.”
(Doc. 16, at 13). This argument has no merit for two reasons. First, one of the primary
reasons for discounting Dr. Sagliocca’s opinions was that he provided no explanation for
the limitations he endorsed. Claimant here is simply attempting to provide post hoc
support for an opinion that had no support when rendered. Second, the ALJ’s decision
shows that the ALJ did consider claimant’s obesity. The ALJ found that claimant’s
obesity was a severe impairment. (AR 129). The ALJ further stated that she considered
2

Although the ALJ did not explicitly identify all of the defects of Dr. Sagliocca’s form opinion
that I have identified, the Court may consider them in determining whether the ALJ’s decision
was consistent with other parts of the record. See Blackburn v. Colvin, 761 F.3d 853, 858 (8th
Cir. 2014) (holding that a reviewing court may consider the record as a whole in determining
whether the ALJ’s decision was consistent with the record).

11

the effect of claimant’s obesity in determining claimant’s limitations. (AR 134-35). The
Eighth Circuit Court of Appeals has repeatedly held that an ALJ sufficiently considered
a claimant’s obesity where the ALJ specifically referred to the claimant’s obesity in the
decision. Wright v. Colvin, 789 F.3d 847, 855 (8th Cir. 2015); Heino v. Astrue, 578
F.3d 873, 881–882 (8th Cir. 2009).
In summary, I find there is substantial evidence in the record as a whole for the
ALJ to have afforded Dr. Sagliocca’s opinion little evidentiary weight. Therefore, I find
the ALJ did not err when she declined to include Dr. Sagliocca’s work-related limitations
in claimant’s residual functional capacity assessment.
B.

The ALJ’s Evaluation of Examining Psychologist’s Opinion

Claimant argues that the ALJ’s residual functional capacity assessment was flawed
because it did not incorporate limitations found by examining psychologist Dr. Ann
Jacobs. (Doc. 16, at 15-19). Claimant argues the medical records support the limitations
Dr. Jacobs found and that the ALJ failed to provide an adequate explanation for
discounting those limitations. (Id.).
Dr. Ann Jacobs was a consulting examining source who saw claimant on one
occasion in April 2011.3 (AR 971-78). Dr. Jacobs noted that claimant had “no history
of mental health services.” (AR 975). During the examination, claimant stated that she
did not want to be on medications while she was going to school, and did not want
counseling because she did not want it “on [her] record.” (Id.). Claimant described her
daily activities, which included attending school, performing household chores, engaging
in crafts and hobbies, and participating in a variety of social activities. (AR 976). Dr.
Jacobs diagnosed claimant as having Major Depression, Recurrent Moderate; Panic
Disorder without Agoraphobia; and Anxiety Disorder NOS. (AR 977). Dr. Jacobs based

3

Dr. Jacobs provided her opinion in relation to claimant’s unsuccessful 2011 application for
disability benefits. The ALJ nevertheless considered the opinion as part of the record for the
current application without reopening the prior determination. (AR 126).

12

the diagnosis on the single examination, based on the interview and observations, without
performing any tests. In a summary, Dr. Jacob stated that claimant “has numerous
physical health problems that have impaired her ability to work,” but in relation to her
mental health Dr. Jacobs stated that claimant “is able to manage her household,”
“performs most housekeeping chores,” “attend[s] school,” and “is capable of following
simple rote instructions.” (AR 978). Dr. Jacobs also opined that claimant’s memory
was “poor relative to her cognitive skills,” her “stress tolerance is low,” and she
“experienc[es] some difficulties with social interaction.”

(Id.). Dr. Jacobs did not

indicate, however, that any of claimant’s mental health issues were severe or that they
would impair her ability to work. The only arguably work-related limitation stated was
that claimant was capable of following simple rote instructions, implying she may not be
able to perform jobs requiring higher cognition.
The ALJ summarized Dr. Jacobs’ examination and findings in some detail. (AR
133). The ALJ afforded minimal weight to Dr. Jacobs’ opinion, however, because the
ALJ found that “claimant’s limitations on memory are inconsistent with the claimant
successfully attending college and her ability to run a household, care for a grandchild,
use the computer, and perform all activities of daily living.” (Id.). The ALJ also noted
that the records in the “case reveal[ ] no mental health restrictions recommended by a
treating doctor.” (AR 135).
Although an ALJ must consider medical opinion evidence in formulating a
claimant’s residual functional capacity, the ALJ has a duty to formulate the RFC based
on all of the relevant, credible evidence of record. Cox v. Astrue, 495 F.3d 614, 619
(8th Cir. 2007); Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir. 2000) (per curiam). This
includes a claimant’s daily activities. Owen v. Astrue, 551 F.3d 792, 799 (8th Cir. 2008)
(finding an ALJ properly discounted the opinions of a medical source because claimant’s
activities of daily living did not reflect the physical limitations found). Thus, an “ALJ
may reject the conclusions of any medical expert, whether hired by the claimant or the
13

government, if they are inconsistent with the record as a whole.’” Wagner v. Astrue,
499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1219
(8th Cir. 2001)). When determining the RFC, “‘[t]he opinion of a consulting physician
who examines a claimant once or not at all does not generally constitute substantial
evidence.’” Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (quoting Kelley v.
Callahan, 133 F.3d 583, 589 (8th Cir. 1998)). Regardless of the source of the opinion,
however, an ALJ must explain and give good reasons for the weight accorded to the
various opinions. 20 C.F.R. § 404.1527(c)(2).
I find that substantial evidence supported the ALJ’s decision to afford Dr. Jacobs’
opinion minimal weight. Dr. Jacobs’ records show that as of April 2011, claimant had
no history of mental health services (AR 975) and claimant testified at the hearing in
September 2013 that she had not had any mental health treatment in the last “couple of
years” and was not then receiving any mental health treatment. (AR 162). In reaching
her opinion regarding claimant’s memory, Dr. Jacobs did not perform any testing of
claimant’s memory, but, rather, apparently relied solely on claimant’s self-report. Dr.
Jacobs’ opinion that claimant had a poor memory was inconsistent with testing performed
in September 2012. Dr. Louis Butera conducted a mental status examination and found
claimant scored 29 out of 30 on a test of her orientation, immediate and remote recall,
attention, calculation, and language, and scored 5 out of 5 on a clock-drawing task that
tested her cognitive ability. (AR 1026-27). Dr. Butera noted that, although claimant
presented with complaints of short-term memory loss, she performed well on cognitive
testing. (AR 1027). Dr. Butera ultimately concluded that claimant had some memory
loss. (AR 1027-29). A state agency psychologist reviewed the entire record, including
Dr. Butera’s records, and concluded that claimant did not have a severe mental
impairment. (AR 268-70, 277-79, 289-91, 299-301). Finally, the ALJ’s analysis of
claimant’s daily activities, particularly attending college, was inconsistent with severe
memory or mental impairments.
14

In summary, I find there is substantial evidence in the record as a whole for the
ALJ to have afforded Dr. Jacobs’ opinion minimal weight. Therefore, I find the ALJ
did not err when she declined to include Dr. Jacobs’ work-related limitations in claimant’s
residual functional capacity assessment.
C.

The ALJ’s Assessment of Claimant’s Credibility

Claimant argues that the ALJ erred in finding claimant’s subjective complaints
were not fully credible. (Doc. 16, at 19-22). Claimant argues first that the ALJ’s
assessment of claimant’s credibility was flawed because the ALJ’s evaluation of Dr.
Sagliocca’s opinions was flawed, an argument I have already rejected. (Doc. 16, at 20).
Claimant further asserts the ALJ’s credibility assessment was flawed because the ALJ (1)
failed to specifically identify discrepancies in the record; (2) asserted that claimant
engaged in full activities when she did not; (3) placed too much weight on claimant’s
dated noncompliance with treatment; and (4) improperly asserted claimant’s failure to
lose weight impaired her credibility. (Doc. 16, at 20-21).
Although the ALJ found claimant’s impairments to be severe, she found
“claimant’s statements concerning the intensity, persistence and limiting effects” of her
symptoms were not credible.

(AR 132).

In making this determination, the ALJ

specifically identified a number of discrepancies.

The ALJ noted that claimant’s

testimony about limited babysitting she performed was not consistent with her earnings.
(AR 131-32). Further, although claimant stated that her obesity caused her to feel tired
and out of breath, she attended college, performed household chores, and shopped. (AR
132). The ALJ found claimant’s statements about memory loss and difficulty with
remembering and concentrating inconsistent with her attending college and obtaining
passing grades. (Id.). The ALJ noted that claimant spent most of her days with her
mother, who has Alzheimer’s, and performed some tasks for her mother for which she
was compensated. (Id.). The ALJ also noted that claimant was noncompliant with
medications and treatment. For instance, the ALJ noted that in 2009, claimant did not
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check her blood pressure or blood sugars, did not fill prescriptions, and had a longstanding history of non-compliance for diabetes and hypertension. (Id.). From 2009
through 2010, claimant attended only a few physical therapy sessions because of a
vacation. (AR 132-33). In mid-2011, claimant told Dr. Jacobs that she did not take any
antidepressant medications because she was concerned the medications would affect her
college studies. (AR 133). In early 2013, claimant stated that she was “too busy” to
meet with an advisor regarding her blood sugars. (AR 134). Regarding claimant’s
reported mental health issues, the ALJ noted that claimant had no ongoing mental health
treatment. (Id.). The ALJ further noted that claimant’s “sporadic work history raises
some questions as to whether the current unemployment is truly the result of medical
problems.” (AR 135).
A court reviews an ALJ’s credibility determination through an examination of the
Polaski factors and the mandates of SSR 14-1p. Under the Polaski factors, an ALJ must
consider the “claimant’s prior work record, and observations by third parties and treating
and examining physicians relating to such matters as: (1) the claimant’s daily activities;
(2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness and side effects of medication; [and] (5) functional
restrictions.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). “If an ALJ
explicitly discredits the claimant’s testimony and gives good reason for doing so, [the
Court] will normally defer to the ALJ’s credibility determination.” Gregg v. Barnhart,
354 F.3d 710, 714 (8th Cir. 2003).
The Eighth Circuit Court of Appeals has explained that an ALJ is “not required to
discuss methodically each Polaski consideration, so long as he acknowledged and
examined those considerations before discounting [claimant’s] subjective complaints.”
Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (internal citation omitted). If the ALJ
gives a good reason for discrediting a claimant’s credibility, then the court will defer to
the ALJ’s judgment “even if every factor is not discussed in depth.” Dunahoo v. Apfel,
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241 F.3d 1033, 1038 (8th Cir. 2001) (internal citation omitted). “Although the ALJ may
disbelieve a claimant’s allegations of pain, credibility determinations must be supported
by substantial evidence.” Jeffery v. Sec’y of Health & Human Servs., 849 F.2d 1129,
1132 (8th Cir. 1988) (internal citation omitted). “Moreover, the ALJ must make express
credibility determinations and set forth the inconsistencies in the record that lead him to
reject the claimant’s complaints.” (Id.). “Where objective evidence does not fully
support the degree of severity in a claimant’s subjective complaints of pain, the ALJ must
consider all evidence relevant to those complaints.” Holmstrom v. Massanari, 270 F.3d
715, 721 (8th Cir. 2001) (internal citation omitted).
Here, the ALJ found that the medical records and claimant’s daily activities were
inconsistent with the degree of severity of limitations reported by claimant. An ALJ may
properly discount subjective complaints if inconsistencies exist in the record as a whole.
Polaski, 739 F.2d at 1322; Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006);
Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). Upon my own review of the
records, I find there is support for the ALJ’s conclusion. There is ample support in the
record that claimant was non-compliant with taking medications and pursuing treatment
not just in 2009, as claimant alleges, but throughout her medical history. The case law
is clear that an ALJ may consider noncompliance with medical treatment as detracting
from a claimant’s credibility.

See, e.g., Wright, 789 F.3d at 854 (holding that a

claimant’s failure to comply with medical treatment diminished the claimant’s
credibility); Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (same); Holley v.
Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (same). Moreover, nowhere in the
ALJ’s decision did the ALJ discount claimant’s credibility because claimant failed to lose
weight, as claimant alleges.

Finally, the ALJ properly considered claimant’s daily

activities for the purpose of assessing claimant’s credibility. Wagner, 499 F.3d at 85152 (noting that although a claimant need not be bedridden to be disabled, an ALJ may
take into account the degree to which a claimant’s daily activities are inconsistent with
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the alleged severity of impairments). There is ample support in the record for the ALJ
to have concluded that claimant’s daily activities were inconsistent with the physical and
mental limitations she claimed to have. Whether one describes claimant as engaging in
“full activities” or not, the fact is that claimant engaged in many activities that were
inconsistent with someone claiming total disability: claimant cared for her mother,
attended school, performed household chores, engaged in crafts and hobbies, and
participated in a variety of social activities. The only task she said she could not perform
was mopping.
In short, this is not a case where an ALJ made broad, vague, and conclusory
findings regarding a claimant’s credibility. The ALJ’s basis for discounting claimant’s
credibility was detailed and specific, with references to the record throughout. Although
the Court could reach a different credibility finding, I find there is substantial evidence
in the record as a whole to support the ALJ’s credibility findings in this case. Where an
ALJ gives good reason for discrediting a claimant’s testimony, a reviewing court should
defer to the ALJ’s credibility findings. Halverson v. Astrue, 600 F.3d 922, 931-33 (8th
Cir. 2010). Accordingly, I recommend the Court find the ALJ did not err in her
credibility findings.
VI.

CONCLUSION

For the reasons set forth herein, I find the ALJ acted well within the zone of choice
within which the Commissioner may act. Culbertson, 30 F.3d at 939. Therefore, I
respectfully recommend the District Court affirm the Commissioner’s determination that
claimant was not disabled, and enter judgment against claimant and in favor of the
Commissioner.
Parties must file objections to this Report and Recommendation within fourteen
(14) days of the service of a copy of this Report and Recommendation, in accordance
with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b). Objections must specify the parts
of the Report and Recommendation to which objections are made, as well as the parts of
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the record forming the basis for the objections. See FED. R. CIV. P. 72. Failure to object
to the Report and Recommendation waives the right to de novo review by the District
Court of any portion of the Report and Recommendation as well as the right to appeal
from the findings of fact contained therein. United States v. Wise, 588 F.3d 531, 537
n.5 (8th Cir. 2009).
IT IS SO ORDERED this 17th day of July, 2017.

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

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