Johnson v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER Accepting 22 Report and Recommendation without modification. The Commissioner's determination that Johnson was not disabled is affirmed. Judgment shall enter against Johnson and in favor of the Commissioner. Signed by Chief Judge Leonard T Strand on 9/8/2017. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
MARY F. JOHNSON,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER ON REPORT AND
This case is before me on a Report and Recommendation (R&R) by the Honorable
C.J. Williams, Chief United States Magistrate Judge. See Doc. No. 22. Judge Williams
recommends that I affirm the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Mary F. Johnson’s application for Social Security
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).
Johnson filed timely objections (Doc. No. 23) to the R&R, and the Commissioner
responded on August 22, 2017 (Doc. No. 25). The procedural history and relevant facts
are set forth in the R&R and are repeated herein only to the extent necessary.
Judicial Review of the Commissioner’s Decision
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
“Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept as adequate to support a conclusion.” Lewis v. Barnhart, 353 F.3d 642,
645 (8th Cir. 2003). The Eighth Circuit explains the standard as “something less than
the weight of the evidence and [that] allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the [Commissioner] may
decide to grant or deny benefits without being subject to reversal on appeal.” Culbertson
v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994).
To determine whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but [it does] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court “must search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
To evaluate 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, “do[es] 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 “find[s] 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
This is true “even if [the court] might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see also Goff v. Barnhart, 421 F.3d 785,
789 (8th Cir. 2005).
Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Johnson alleged disability due to degenerative disc disease, obesity, diabetes and
high blood pressure. AR 129. In support of her claim, Johnson submitted residual
functional capacity (RFC) opinions drafted by her treating physician, Gennaro Sagliocca,
M.D., and by an examining psychologist, Ann L. Jacobs, Ph.D. At issue are the ALJ’s
evaluation of those opinions, as well as whether ALJ erred in discounting Johnson’s
After setting forth the relevant facts, Judge Williams summarized the ALJ’s
assessment of Dr. Sagliocca’s opinion as follows:
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 1013-19, 1097-98). Dr. Sagliocca’s records,
including laboratory reports, consist of nine pages. Dr. Sagliocca
diagnosed claimant as having renal kidney disease. (AR 1015, 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
Sit and stand continuously
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 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.”
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).
Doc. No. 22 at 8-9. Judge Williams found that Dr. Sagliocca’s restrictions are not
supported by either his own medical records or by the remainder of Johnson’s medical
records. Id. at 10-11. As a result, Judge Williams determined that the ALJ gave good
reasons, supported by substantial evidence, for affording little weight to Dr. Sagliocca’s
opinions. Id. at 11.
Turning to Dr. Jacobs’ medical opinion, Judge Williams summarized the ALJ’s
analysis as follows:
Dr. Ann Jacobs was a consulting examining source who saw
claimant on one occasion in April 2011. (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 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).
Doc. No. 22 at 13-14.
Given Johnson’s lack of mental health treatment, the
inconsistencies between Johnson’s reported activities and Dr. Jacobs’ recommendation,
and the fact that Dr. Jacobs formed her opinions after just one interview with no objective
testing, Judge Williams found that the ALJ properly weighed Dr. Jacobs’ medical
opinion. Id. at 14-15. Judge Williams noted that the state agency medical consultants
evaluated each of the impairments that the ALJ found severe, along with extensive
medical records provided by multiple treating doctors. Judge Williams found that the
state agency RFC assessments were consistent with the ALJ’s. Id. at 11-12. As a result,
Judge Williams concluded that substantial medical evidence in the record as a whole
supported the ALJ’s RFC determination. Id. at 18.
Finally, Judge Williams considered the ALJ’s rejection of Johnson’s subjective
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 13132). 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 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).
Doc. No. 22 at 15-16. After examining the basis for the ALJ’s decision, Judge Williams
addressed the Polaski factors and considered whether the ALJ fully considered Johnson’s
subjective complaints. Id. at 16. Judge Williams found that the ALJ gave good reasons
for discounting Johnson’s subjective complaints, including inconsistencies between the
medical record and her report of daily activity and her noncompliance with her prescribed
course of treatment and her work history. As a result, Judge Williams found substantial
evidence in the record as a whole to support the ALJ’s findings. Id. at 18.
Johnson objects to Judge Williams’ findings that (1) the ALJ properly weighed the
medical opinions of Drs. Sagliocca and Jacobs, and (2) the ALJ properly discounted
I review those issues de novo.
Johnson argues that the ALJ failed to give proper weight to Dr. Sagliocca’s and
Dr. Jacobs’ medical opinions. She contends that both opinions were materially different
from those of the state agency consultants and consistent with the medical record as a
whole. Doc. No. 16 at 6.
An opinion by a treating physician must be given “controlling weight” if it “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence.” Papesh v. Colvin, 786 F.3d 1126,
1132 (8th Cir. 2015) (quoting Wagner v. Astrue, 499 F.3d 842, 848-49 (8th Cir. 2007));
see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). The ALJ must give “good reasons
. . . for the weight [the ALJ gives a] treating source’s medical opinion.” 20 C.F.R. §
404.1527(c)(2); see also Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). By contrast,
a consulting expert’s opinion is generally entitled to less weight. Normally, the opinion
of a one-time consulting examiner will not constitute substantial evidence, particularly
where the opinion is inconsistent with the record as a whole. Cantrell v. Apfel, 231 F.3d
1104, 1107 (8th Cir.2000); see also Cowles v. Colvin, 102 F. Supp. 3d 1042, 1055 (N.D.
It is the ALJ’s duty to assess all medical opinions and determine the weight to be
given these opinions. See Finch, 547 F.3d at 936 (“The ALJ is charged with the
responsibility of resolving conflicts among medical opinions.”); Estes v. Barnhart, 275
F.3d 722, 725 (8th Cir. 2002) (“It is the ALJ’s function to resolve conflicts among ‘the
various treating and examining physicians.’”) (citing Bentley v. Shalala, 52 F.3d 784,
785–87 (8th Cir. 1995)). However, any physician’s conclusion regarding a claimant’s
RFC addresses an issue that is reserved for the ALJ. Ellis v. Barnhart, 392 F.3d 988,
994 (8th Cir. 2005).
The ALJ’s RFC finding must be “based on all of the relevant evidence, including
the medical records, observations of treating physicians and others, and an individual’s
own description of limitations,” but “there is no requirement that an RFC finding be
supported by a specific medical opinion.” Hensley v. Colvin, 829 F.3d 926, 931-31 (8th
Cir. 2016). If the ALJ’s RFC is within the “zone of choice” permitted by the evidence,
the court must affirm. Culbertson, 30 F.3d at 939. Based on my de novo review, I find
no error in the ALJ’s treatment of Drs. Sagliocca and Jacobs’ medical opinions.
Dr. Sagliocca saw Johnson three times in 2013. AR 1100-02, 1015-16, 1097-98.
During the third visit, at Johnson’s request, Dr. Sagliocca filled out a prepared form
regarding Johnson’s limitations. AR 1100-02. The form is sparse and largely illegible.
Id. Dr. Sagliocca did not indicate whether Johnson’s symptoms had lasted more than 12
months and provided no explanation for the limitations that he checked on the form. Id.
It is difficult to understand how Dr. Sagliocca reached those opinions, as he saw Johnson
only three times, for the limited purpose of treating her diabetic nephropathy. There is
no evidence in the record to suggest that Dr. Sagliocca conducted any functional testing
of Johnson’s ability to sit, stand, or lift various weights. There is no explanation in the
record, from Dr. Sagliocca or any other source, to explain why Johnson would need to
sit with her feet elevated. Dr. Sagliocca’s records are sparse, and likely do not capture
the entirety of his interactions with Johnson, but there is nothing to suggest that he
recommended she limit her activities other than through this check-box form.
The ALJ afforded Dr. Sagliocca’s opinions “little evidentiary weight,” finding the
medical record and Johnson’s testimony do not support the work limitations he endorsed.
AR 135. Specifically, the ALJ stated that Dr. Sagliocca’s opinions were not supported
by his own treatment of Johnson: “Despite a fairly uneventful treating relationship, and
only three outpatient visits, Dr. [Sagliocca’s] opinion is so limiting that it basically
restricts the claimant to a state of doing virtually nothing all day.” Id. The ALJ also
noted that Johnson’s other treating physicians were either silent or less restrictive
regarding Johnson’s functional capacity. AR 132-35. Like Judge Williams, I find that
substantial evidence supports the ALJ’s decision to reject Dr. Sagliocca’s limitations.
Although there is some medical evidence to support exertional limitations, nothing
in the record suggests limitations as extensive as Dr. Sagliocca’s. Johnson argues that
Dr. Sagliocca’s limitations are supported by the treatment records of Dr. Charles S.
Theofilos, M.D. Doc. No. 23 at 4. Specifically, Johnson objects that “the Magistrate
Judge seems to believe support for Dr. Sagliocca’s opinions must be found within his
statement or his treatment records. On the contrary, the record must be evaluated as a
whole to determine whether the treating physician’s opinion should control.” Id. (citing
Tilley v. Astrue, 580 F.3d 675, 679-90 (8th Cir. 2009); Reed v. Barnhart, 399 F.3d 917,
920 (8th Cir. 2005)).
In my de novo review of the R&R, I do not find that Judge
Williams improperly limited his review to Dr. Sagliocca’s medical records.
Williams found, and I agree, that none of Johnson’s doctors suggested that she was as
limited as Dr. Sagliocca opines.
Objective evaluation of Johnson’s lumbar disc issues demonstrates that her range
of motion was only moderately impaired in May of 2011. AR 980-84, 987. Johnson
was diagnosed with degenerative disc disease in November 2012, after an MRI revealed
disc bulges at L4-L5 and L5-S1, along with facet joint arthritis throughout the lumbar
spine. AR 1082. Johnson went without treatment for her lower back pain until January
2013, when she sought treatment with Dr. Theofilos.
prescribed conservative treatment, including weight loss and physical therapy; however,
there are no records of physical therapy treatment in the administrative record for this
time period. By April of 2013, Dr. Theofilos was recommending surgery for Johnson’s
degenerative disc disease. AR 1105-06. Dr. Sagliocca had his final encounter with
Johnson at this time, and wrote the above-described opinion. AR 1088. However, after
moving to Iowa Johnson explained she declined surgery due to potential side effects. AR
She was referred to a pain clinic where further conservative treatment was
performed. AR 1167, 1172-76, 1193, 1244. A discography in May of 2014 was
negative. AR 1176. Throughout this period, Johnson’s gait and stance were normal, in
spite of pain. To date, it does not appear that Johnson has reconsidered or requested
Johnson also argues that her obesity supports Dr. Sagliocca’s opinions. Doc. No.
16 at 13; Doc. No. 23 at 5-6. It is certainly true that the effects of obesity may make an
otherwise mild condition severe. “It is one thing to have a bad knee; it is another thing
to have a bad knee supporting a body mass index in excess of 40.” Martinez v. Astrue,
630 F.3d 693, 698 (7th Cir. 2011); see also Webster v. Astrue, 628 F. Supp. 2d 1028,
1030-31 (S.D. Iowa 2009) (remanding where ALJ failed to consider “the effect obesity
has upon the individual's ability to perform routine movement and necessary physical
activity within the work environment” and the effect of obesity on other conditions in the
aggregate). Johnson was about 5’ 2.5” tall, and weighed about 258 pounds, putting her
Body Mass Index (BMI) at approximately 48.8. AR 1222. It seems obvious that
Johnson’s obesity would strain her lumbar spine, and that the pain in her lumbar spine
would in turn discourage her from exercising. Johnson testified to the same during the
September 11, 2014, hearing before the ALJ, stating that she would “lean forward” when
sitting or standing to keep weight off of her lower back. AR 164, 171. Johnson stated
that her weight affects her ability to walk, sit, stand and sleep. AR 170-71. However,
these symptoms, as reported by Johnson, do not provide support for Dr. Sagliocca’s
extreme limitations. Further, Johnson’s obesity is consistent with and supports the RFC
found by the ALJ.
As explained above, the matter of RFC is reserved to the ALJ. Here, the ALJ
found that Johnson had the RFC to perform “sedentary work” with some limitations.
The ALJ gave good reasons to discount Dr. Sagliocca’s opinions.
Sagliocca’s own treating records provide no support for the limitations that he endorsed
on the attorney-provided checklist form. Gregor v. Colvin, 628 F. App’x 462, 463 (8th
Cir. 2016) (ALJ may discount a treating physician’s vague, conclusory and unsupported
opinions which were provided on a checkbox form and inconsistent with the treatment
record); see also Anderson v. Astrue, 696 F.3d 790, 793-94 (8th Cir. 2012); Strongson
v. Barnhart, 361 F.3d 1066 1070 (8th Cir. 2004). Dr. Sagliocca saw Johnson only three
times during the six month period he was treating her. Whitman v. Colvin, 762 F.3d
701, 706 (8th Cir. 2014) (“[The] ALJ must consider the length of treatment relationship
and the frequency of examinations.”). Further, Dr. Sagliocca’s RFC opinion was outside
of his area of expertise (kidney disease), and based on conditions for which he was not
treating Johnson. Each of these factors is a “good reason” to discount Dr. Sagliocca’s
restrictive RFC. Further, the ALJ’s finding that Johnson had the RFC to perform
sedentary work is not entirely inconsistent with Dr. Sagliocca’s opinion, although the
ALJ imposed less restrictions overall. The finding that Johnson is restricted to sedentary
work is clearly supported by the evidence.
Finally, Johnson objects that Judge Williams “relies on grounds not given by the
ALJ to discount Dr. Sagliocca’s opinions” to find that the ALJ properly rejected Dr.
Sagliocca’s opinion. Doc. No. 23 at 4. “[A] reviewing court may not uphold an agency
decision based on reasons not articulated by the agency,” when “[the] agency fails to
make a necessary determination of fact or policy” upon which the court’s alternative basis
is premised. Healtheast Bethesda Lutheran Hosp. and Rehab. Ctr. v. Shalala, 164 F.3d
415, 418 (8th Cir.1998) (discussing the limitations on the rule made by the Supreme
Court in S.E.C. v. Chenery Corp., 318 U.S. 80 (1943)). However, this rule is tempered
by the requirement that a reviewing judge consider the record as a whole in determining
whether the ALJ’s decision was consistent with the record. Blackburn v. Colvin, 761
F.3d 853, 858 (8th Cir. 2014). When an ALJ’s opinion has the support of substantial
evidence on the record as a whole, a court may not overturn it. Baldwin, 349 F.3d at
555. Based on my review of the record, I find that Judge Williams did not go beyond
the ALJ’s reasoning, and that the ALJ’s decision to reject Dr. Sagliocca’s opinion was
supported by substantial evidence. Because I find no error with the ALJ’s decision,
Johnson’s objection is overruled.
Johnson argues that the ALJ failed to give proper weight to Dr. Jacobs’ medical
opinions. Doc. No. 16 at 15-17. Dr. Jacobs wrote that Johnson was “capable of
following simple rote instructions.” AR 978. This statement may imply she can do no
more than follow rote instructions, which would support a finding of “disabled” by
limiting Johnson to non-skilled work.1 AR 183, Doc. No. 16 at 16-17. Based on my de
novo review, I find no error with the ALJ’s decision to reject Dr. Jacobs’ opinions.
Dr. Jacobs examined Johnson on April 27, 2011, and is thus a one-time examining
source under the regulations. 20 C.F.R. § 404.1527(b)-(c). During this examination, it
was noted that Johnson’s primary care doctor had prescribed Citalopram, an
antidepressant, approximately four years previously, although Johnson had not received
ongoing counseling and had not been taking her medication. AR 975. Johnson stated
that she did not seek counseling as she did not want that “on [her] record,” and declined
medication because she believed it would interfere with her studies. Id. Dr. Jacobs
interviewed Johnson regarding her social history, her everyday activities and her health
problems. AR 975-76. Johnson informed Dr. Jacobs that she was enrolled in school
part-time but that her motivation and her grades were slipping. AR 975. Johnson was
recently divorced and had no insurance. Id. Regarding Johnson’s mental state, Dr.
Mary Johnson is alert and oriented to all spheres. Speech is soft in
volume but otherwise normal in form, pace and progress. Content is
relevant. She presents in depressed mood with restricted range of affect.
She is not anxious. Perceptual abnormalities are denied. Amount and rate
of thought production are average. There are no loose associations.
Johnson turned 51 while her case was pending, making her a person “closely approaching
advanced age.” 20 C.F.R. § 404.1563(d). During the September 11, 2014, hearing, the
vocational expert testified that if limited to unskilled jobs, Johnson would be unable to perform
past work. AR 183. If unable to perform past work and limited to unskilled jobs, Johnson is
disabled as of her 51st birthday. 20 C.F.R. Pt. 404, Subpt. P, App. 2.
There is no tangential thinking. There is no indication of severe
thinking impairment. . . . Mrs. Johnson demonstrates some weakness in
concentration. She is able to recall three of three objects immediately, one
of three after five minutes with interference. She can repeat four digits
forward and three backward. . . . Memory is weak relative to her overall
cognitive functioning. Energy level and speed of task performance are low
AR 977. Based on her evaluation of Johnson’s mental status and self-reported symptoms,
Dr. Jacobs diagnosed her with major depression, recurrent moderate panic disorder
without agoraphobia and anxiety disorder. AR 977. Dr. Jacobs also concluded that
Johnson’s memory is “poor relative to her cognitive skills” and that she is “capable of
following simple rote instructions.” AR 978. Dr. Jacobs opined that Johnson’s stress
tolerance was low and that she would benefit from counseling. Id.
The rest of the medical record is consistent with a diagnosis of at least mild
depression. Although the ALJ found that Johnson “has had no ongoing treatment for
mental health complaints” and therefore “any symptoms or issues she may or may not
have experienced in this regard have not been [so] significant to result in problems with
her daily functioning,” AR 134, the record suggests that she at least sought medicinal
assistance with her depression from her various treating doctors. In September 2012,
Johnson was examined by Luis Butera, D.O., who performed his own evaluation of her
cognitive abilities and mental state. AR 1026-27. Dr. Butera found that “[w]hile the
patient presents with concerns regarding short-term memory she did well on cognitive
testing today. My impression is that there is a strong element of depression which may
be impacting her cognitively.”
As a result, Dr. Butera prescribed
Nortriptyline, an anti-depressant. Id.
Once Johnson moved to Iowa and established treatment here, it is apparent
throughout the medical record that Johnson was compliant with continuing anti-depressant
medications (Sertraline) through 2014. AR 1104, 1109, 1112, 1118, 1141, 1145, 115052, 1193, 1206, 1235, 1241-43. Additionally, although Dr. Jacobs did not have access
to this information at the time of her opinion, there is objective medical evidence in the
record to account for Johnson’s memory issues. A brain MRI in October 2012 revealed
atrophy and microvascular ischemic changes. AR 1045.
The neurologist interpreting
these findings stated that the MRI was consistent with “chronic left anterior ganglionic
lacunar infarct.” Johnson had suffered a stroke2 and was receiving reduced blood flow
to portions of her brain. AR 1037. At the same time, Dr. Butera remarked that Johnson
was going untreated for sleep apnea, a condition which deprives the brain of oxygen
while the patient is sleeping. AR 1039.
The ALJ gave Dr. Jacobs’ opinions “minimal weight . . . in that the claimant’s
limitations in 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.” AR 133. The ALJ also noted that there were no mental
health restrictions recommended by a treating doctor, and that Johnson was not treated
by a mental health professional after 2012. AR 135. The ALJ imposed no mental health
restrictions in Johnson’s RFC. AR 130. As stated above, the RFC determination is
reserved to the ALJ, and it is the ALJ’s job to weigh conflicting evidence and resolve
inconsistencies between the various physicians in the record.
Johnson makes several arguments that the ALJ erred in discounting Dr. Jacobs’
First, Johnson disputes that her daily activities were inconsistent with Dr.
Jacobs’ conclusions. Johnson argues that Dr. Jacobs was aware of Johnson’s daily
activities in 2011 and reached her conclusions with this information in mind. Doc. No.
16 at 18-19. Johnson contends that second-guessing Dr. Jacobs’ conclusions, without
more, amounts to the ALJ “playing doctor.” Id. (citing Pate-Fires v. Astrue, 564 F.3d
935, 946-47 (8th Cir. 2009); Hartmann v. Astrue, 592 F. Supp. 2d 1100, 1104 (S.D.
There is no record of hospitalization for a stroke in the record; however, various providers
mentioned a history of stroke in 2011. AR 101, 1112, 1186.
Iowa 2009). Second, Johnson argues that the fact that she was not receiving counseling
should not count against her, as she had no insurance and would be required to pay out
of pocket for any counseling services. Finally, Johnson argues that the silence of her
other treating physicians on mental limitations is not substantial evidence in support of a
finding of “not disabled.” Doc. No. 23 at 8 (citing Johnson v. Astrue, 628 F.3d 991,
995 (8th Cir. 2011).
I agree with Judge Williams that there is substantial evidence in the record to
support the ALJ’s decision to omit mental health restrictions from the RFC. Throughout
the medical record, Dr. Jacobs – a one-time examiner – is the only physician to describe
Johnson’s depression as “major.” AR 977. Although Dr. Butera suggested that Johnson
would benefit from counseling, Johnson has received only medicinal treatment for her
depression. Further, although several of Johnson’s treating physicians have noted her
concerns about memory loss, no course of treatment or functional limitations on her dayto-day activities have been prescribed.
The silence of Johnson’s physicians regarding her mental health may not be
substantial evidence to support the rejection of Dr. Jacobs’ medical opinions, but the
conservative course of treatment for her depression and memory loss is.
Johnson’s daily activities at the time of Dr. Jacobs’ examination are inconsistent with
disabling conditions. Although some daily activities such as cooking, cleaning, watching
TV and shopping for groceries are “minimal daily activities” consistent with chronic
mental disability, Pates-Fries, 564 F.3d at 947, Johnson was also attending school during
this time. In 2013, Johnson graduated with an associates’ degree in business financing.
There is little in the record to indicate that Johnson’s mental health has
deteriorated further since Dr. Jacobs’ and Dr. Butera’s initial assessments.
There is substantial evidence in the record as a whole to support the ALJ’s
treatment of Dr. Jacobs’ opinions. The ALJ’s RFC determination is within the “zone of
choice” permitted by the evidence. Johnson’s objection on this issue is overruled.
Johnson’s final argument is that the ALJ erred in discounting her subjective
complaints of pain without adequately identifying inconsistencies within the record.
Doc. No. 16 at 19-22. If Johnson’s subjective complaints are taken as true, she argues,
her complaints support a finding of “disabled.” Id. at 22. Johnson further argues that
Judge Williams erred in finding substantial support of the evidence for the ALJ’s
credibility determination, stating that Judge Williams “failed to recognize the strength
of the objective evidence,” and overlooked the ALJ’s failure to identify inconsistencies
in the record as a whole. Doc. No. 23 at 9.
A court reviews an ALJ’s credibility determination through an examination of the
Polaski factors and the mandates of SSR 14-1p, 2014 WL 1371245 (Apr. 3, 2014).
Polaski requires the ALJ to 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).
Although the ALJ may not have addressed each of these factors by name, the
October 2014 hearing decision reflects that the ALJ fully considered the above factors.
Regarding Johnson’s prior work record, the ALJ found that Johnson’s work history was
“sporadic.” AR 135. Specifically, “[i]n only four years since 1997 has the claimant
made substantial gainful activity level earnings.” Id. The ALJ also found that Johnson
“worked after the alleged disability onset date,” although her earnings “did not rise to
the level of substantial gainful activity.” AR 129. Johnson’s earnings for that year
were not consistent with the reported work activity prior to the alleged onset of
disability. Id. The ALJ may consider these inconsistencies and the lack of consistent
work in deciding to reject Johnson’s subjective complaints. Hutton v. Apfel, 175 F.3d
651, 655 (8th Cir. 1999).
The ALJ expressly found that Johnson’s daily activities were inconsistent with
both her reported mental and physical limitations. As discussed above, the fact that a
claimant is capable of performing “minimal daily activities” is not inconsistent with
disability. However, Johnson attended school full time and part time during the period
for which she alleged disability. The ALJ found that she had “full activities . . . she
babysat her classmates’ children on a part time basis, and also cared for her mother
with Alzheimer’s disease. [Johnson] lived independently and was able to perform
household chores.” AR 135. The ALJ may properly consider these factors, as they
are consistent with sedentary work. Stewart v. Sec’y of Health & Human Servs., 957
F.2d 581 (8th Cir. 1992).
As to the duration, frequency and intensity of her pain, Johnson testified that her
obesity made her feel “tired and out of breath” and that she could only sit or stand for
30 minutes before she needed to shift positions to alleviate her pain. AR 132. Johnson’s
range of motion was only slightly limited and her pain was attributed to her degenerative
disc disease rather than to her herniated disc. AR 1169-70, 1257. Johnson also testified
to migraine headaches four days a week; however, she never reported migraine
headaches to any of her physicians. AR 168. These factors do not generally support
the presence of disabling limitations and the ALJ may properly consider them in
rejecting Johnson’s subjective complaints. See Armijo v. Astrue, 385 F. App’x. 789,
794-95 (10th Cir. 2010) (possible herniated disc, decreased range of motion, mild
radiculopathy and marked tenderness and spasms did not support disabling limitations).
The ALJ noted that at times, Johnson was not compliant with her diabetes and
hypertension treatments, and she failed to lose weight as recommended by her
physicians. AR 135, 215-16. Although the incidents of non-compliance are minor, and
attributable to a lack of insurance, the ALJ is permitted to consider these factors in
support of an adverse credibility finding. Clevenger v. Soc. Sec. Admin., 567 F.3d
971, 976 (8th Cir. 2009).
There is substantial evidence in support of the ALJ’s
Johnson further objects that the ALJ did not identify specific inconsistencies in
the record prior to evaluating her credibility. Doc. No. 16 at 20 (citing Ford v. Astrue,
518 F.3d 979, 982 (8th Cir. 2008); Lewis, 353 F.3d at 647. Where an ALJ discounts
a claimant’s subjective complaints, the ALJ must “detail the reasons for discrediting the
testimony and set forth the inconsistencies found.” Ford, 518 F.3d at 983 (citing Lewis,
353 F.3d at 647). Johnson specifically objects to Judge Williams’ statement:
[A]n 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. 200) (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.’ F.3d 1033, 1038 (8th Cir. 2001) (internal citation
Doc. No. 23 at 17. Johnson’s objection goes to the form of the ALJ’s opinion rather
than the substance. Although the vague reference to “some discrepancies” in the opinion
could lead to a finding that the ALJ failed to identify specific inconsistencies in the
record, this argument fails to consider the opinion as a whole. As discussed above, there
are discrepancies in Johnson’s reported limitations, work history and subjective
symptoms. The ALJ detailed each of these inconsistencies individually, apart from the
vague sentence that Johnson has focused in on. It appears that the vague sentence is a
reference to the inconsistencies specified elsewhere. Regardless, one vague sentence
does not negate the remainder of the ALJ opinion. I find no error in the R&R. Johnson’s
objection is overruled.
For the reasons set forth herein:
Plaintiff Mary Johnson’s objections (Doc. No. 23) to the Report and
Recommendation (Doc. No. 22) are overruled.
I accept Chief United States Magistrate Judge C.J. Williams’ Report and
Recommendation without modification. See 28 U.S.C. § 636(b)(1).
Pursuant to Judge Williams’ recommendation:
The Commissioner’s determination that Johnson was not disabled is
Judgment shall enter against Johnson and in favor of the
IT IS SO ORDERED.
DATED this 8th day of September, 2017.
Leonard T. Strand, Chief Judge
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