Snyder v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Jill L Snyder, recommending to affirm the Commissioner's determination. Objections to R&R due by 6/8/2017. Signed by Chief Magistrate Judge CJ Williams on 5/25/2017. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
REPORT AND RECOMMENDATION
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
The plaintiff, Jill L. Snyder (claimant), seeks judicial review of a final decision of
the Commissioner of Social Security (Commissioner) denying claimant’s application for
disability insurance benefits (DIB) under Title II of the Social Security Act (Act), 42
U.S.C. § 401 et seq. For the reasons that follow, I recommend the District Court affirm
the Commissioner’s decision.
Claimant is a 56-year-old woman and was 52 years old at the time of the filing of
her application for disability benefits on June 23, 2013. (AR 160). Claimant’s alleged
disability onset date was November 13, 2009. (AR 160). Claimant met the qualifications
for insured status through March 31, 2015. (AR 181). The Commissioner denied
claimant’s application initially and upon reconsideration. (AR 103-06, 108-11). The
ALJ held a video hearing on February 3, 2015. (AR 34). The ALJ issued her decision
finding claimant not disabled on March 27, 2015. (AR 26). The appeals council denied
review of the ALJ’s finding of not disabled on June 22, 2016, and the ALJ’s decision
became the final decision of the Commissioner. (AR 1).
On August 22, 2016, claimant filed a complaint in this Court. (Doc. 1). On
March 2, 2017, claimant filed her brief (Doc. 11), and on March 30, 2017, the
Commissioner filed her brief. (Doc. 14). On April 10, 2017, claimant also filed a reply
brief. (Doc. 15). On April 11, 2017, the Court deemed this case ready for a decision
and the Honorable Linda R. Reade, United States District Court Judge, referred this case
to me for a Report and Recommendation. (Doc. 13).
SUMMARY OF RELEVANT FACTS FROM THE RECORD
A state agency consultant, Stephen Elliot, Ph.D., reviewed claimant’s application
for disability at the initial level. (AR 86). At the initial level a consultative examination
(CE) was requested and psychologist Dr. Scott prepared a report pursuant to that CE.
Dr. Elliot found that the claimant had the following severe medically
determinable impairments: gastritis and duodenitis, anxiety disorders, and somatoform
disorders. (AR 78). Dr. Elliot found that these medically determinable disorders could
cause the claimant’s pain and other symptoms, but that the claimant’s statements about
the intensity, persistence, and functionally limiting effects of the symptoms were not
supported by the objective medical evidence. (AR 79).
Dr. Elliot found that claimant’s statements about her physical limitations were not
supported by her statements of her daily activities being significantly limited, but her
statements about her mental limitations were consistent with the medical record. (AR
80). Dr. Elliott determined that claimant’s history of osteoporosis was well documented
and that she had wedge deformities at several places in her spine and was recommended
therapy and Reclast.1 (AR 82). Dr. Elliott noted that at her GI exam in 2013, the doctor
Reclast is a medication indicated for treatment of osteoporosis in postmenopausal women.
noted “[n]o edema, muscle mass is preserved, muscle strength is also preserved, and gait
examined and was normal.” (AR 83). Dr. Elliot then noted claimant’s GI issues and
noted that claimant’s diarrhea had turned to constipation and that she had had less
problems with vomiting and that claimant followed a special diet for her gastrointestinal
issues. (AR 82). Dr. Elliott also noted that she had gained weight in 2012 and at her
last visits, “was described as stable and is doing well.” (AR 82). Dr. Elliott found little
objective medical evidence to support the claims of hyperparathyroidism, chronic
migraines, PRIM or aldosteronism.2 (AR 82). Dr. Elliott found that many of her
diagnoses were supported by objective medical evidence, but that claimant’s osteoporosis
would not cause the pain described by claimant. (AR 82). Dr. Elliott also determined
that claimant’s reports of her limitations were undercut by her described daily activities
of cooking, shopping, driving, walking, and caring for her grandchildren as well as third
party reports. (AR 82).
David Christiansen, Ph.D., performed a mental RFC evaluation at the initial level.
(AR 84). He found claimant did have memory limitations such that claimant’s ability to
understand and remember detailed instructions would be moderately limited as well as
sustained concentration limitations which would also limit her ability to carry out detailed
instructions and maintain attention. (AR 83). Dr. Christiansen also noted that claimant’s
ability to complete a normal workday and workweek without interruptions from
psychologically base symptoms and perform at a consistent pace without an unreasonable
number and length of rest periods would be moderately limited.
Christiansen found that claimant’s reported limitations were consistent with the file and
that claimant’s ability to carry out instructions, maintain attention, concentration, pace
and ability to remember and understand instructions were fair to good.
Aldosteronism is the excess production of the hormone aldosterone by the adrenal glands.
Additionally, Dr. Christiansen stated that claimant was able to interact appropriately with
supervisors and would be capable of doing simple and routine work-like activities. (AR
On reconsideration, the claimant was found to have the medically determinable
impairments of gastritis and duodenitis, anxiety disorder, and somatoform disorders.
Dr. Laura Griffith, D.O., considered the new evidence of a worsening
condition submitted by the claimant including that she had experienced severe diarrhea
and constipation due to her gastroparesis, which caused bloating and weight gain which
increased her chances of having another bone fracture and that because of her
osteoporosis she was limited to lifting only five pounds.
determined that this additional information did not significantly change the prior record
and that the prior determination was consistent with the record. (AR 98). Myrna
Tashner, Ed.D., evaluated claimant’s file upon reconsideration and found that claimant’s
additional alleged memory loss did not change the prior mental RFC determination. (AR
Dr. Victor Mujica, M.D., treated claimant in 2012 at the Covenant Clinic in
Waterloo, Iowa. (AR 274). Dr. Mujica provided a second opinion for claimant’s GI
issues due to her dissatisfaction with prior treatment for gastroparesis in September of
2012, and reported that she reported inability to tolerate a regular meal, nausea, vomiting
and unexpected weight change, but no major abdominal pain. (AR 282 & 286). In
August of 2012, Dr. Mujica noted that claimant had normal range of motion, though
claimant reported nausea, vomiting, abdominal pain, and constipation. (AR 303). At
the same visit Dr. Mujica noted that she was well oriented and had normal mood and
affect, her thought content was normal, though she did report anxiety. (AR 282). In
November of 2012, claimant again saw Dr. Mujica, where he stated, “[claimant] has
been following a puree diet as recommended with excellent tolerance. She has gained
some weight. She feel [sic] overall improved. She denies any major episode of nausea,
vomiting or abdominal pain.” (AR 284).
In November of 2012, claimant was seen at the Cedar Valley Bone Health Institute
to discuss treatment options for her osteoporosis.
At that visit it was
documented that she had lost 2.25 inches in height. (AR 292). Claimant was diagnosed
with severe osteoporosis and the report indicated vertebral fracture deformities in the
spine. (AR 298). Claimant was assessed to have a 23% risk of major osteoporotic
fracture and 11% risk of hip fracture in the next 10 years. (AR 313).
On the first of January, 2013, claimant was seen by Dr. Ravindra Mallavarapu,
M.D., at the Allen Memorial Hospital for upset stomach and nausea, with reported back
pain. (AR 334). At this visit she was noted as having a full range of motion with no
edema, or joint deformity. (AR 335).
Claimant saw Dr. Matthew Kettman, M.D., regularly and he was her primary
treating physician. On October 9, 2012, he saw claimant and she reported that she had
back and neck pain due to a fall, for a follow-up for her migraine headaches, a followup for her GI issues, and she also reported problems with insomnia and depression. (AR
444). At a follow-up visit to her hospital visit in January 2013, with Dr. Kettman,
claimant reported continuing abdominal pain and diarrhea and racing thought, inability
to sleep, anxiety, and depression. (AR 346). But claimant also reported “feel[ing]
better.” (Id.). Dr. Kettman noted that more than 50% of the 25-minute visit had been
discussing claimant’s depression. (AR 348). At a visit to Dr. Kettman in February,
2013, Dr. Kettman noted that claimant was bipolar and her condition was unstable, but
noted that she was doing well and did not “have any current symptoms associated with
the condition or current treatment regimen.” (AR 352). He also noted the claimant had
normal affect with no obvious cognitive defects in memory or recognition during speech.
(AR 354). Three weeks later on February 28, 2013, claimant visited Dr. Kettman for a
follow-up for her depression and reported that she felt more emotional and her mood was
not better and felt her condition had been worsening since beginning the new medication.
(AR 355). In June of 2013, claimant reported that she was doing well and had no active
complaints. (AR 362). At the same appointment claimant reported no nausea, good
intake, no vomiting, no abdominal pain, no diarrhea and no constipation. (AR 363).
On June 4, 2013, claimant visited Dr. Kettman complaining of constipation despite
taking her medications. (AR 426). Claimant had an appointment with Dr. Tarek Daoud,
M.D., on June 18, 2013, for a follow-up where she stated she was doing well and had
no active complaints. (AR 451).
On August 29, 2013, claimant visited the Mayo Clinic and during her appointment
Dr. Robert Kraichely, M.D., noted that claimant had been following a gastroparesis diet
and that she had “done reasonably well with this,” and she was not experiencing
vomiting. (AR 517). However, Dr. Kraichely went on to state that after “requiring
vancomycin due to contracting C. diff colitis” she had had trouble with her bowels. (AR
517). He went on to state:
She really tends towards significant constipation, sometimes going over a
week without a bowel movement. This is in spite of having fairly good oral
intake. She has required laxatives, typically stimulants . . .. These
[claimant’s prescription medication to regulate bowel movements] do not
seem to help. She will have liquid bowel movements, but it is very difficult
to initiate a bowel movement . . . and has required some significantly
increased time on the commode to have bowel movements. The
unpredictability of the effects of the laxatives has kept her pretty much in
the house for much of the last several months.
In July of 2013, claimant’s friend Ms. Deike, completed a function report for
claimant. (AR 180). She stated that at that time claimant cared for her grandchildren on
a regular basis, did not need reminders to take care of personal grooming, was able to
prepare her own meals, do light cleaning, and light loads of laundry. (AR 174-75). Ms.
Deike also indicated that the claimant drove and went to the grocery store by herself
weekly. (AR 176)3. Ms. Deike stated that claimant had no problem handling money.
(Id.). Ms. Deike stated that claimant had a limited ability to ingest regular foods, had
difficulty concentrating, and memory problems due to her migraines. (AR 175-77).
Claimant reportedly socialized on a weekly basis with friends, her daughters, and left her
home to go to church and the grocery store. (AR 177). Claimant’s socialization had
been hindered by her illness as she did not feel well enough to socialize and her bipolar
disorder would hinder her because she would have mood swings and become irritated
easily making it difficult for her to interact with others. (AR 178 & 180). Ms. Deike
also reported limitations regarding claimant’s ability to perform many tasks, such as
lifting, squatting, bending, standing, walking, kneeling, climbing stairs, her memory,
task completion, concentration and ability to get along with others. (AR 178). Ms.
Deike reported claimant could walk five or six blocks continuously without requiring a
break. (AR 178).4
In the fall of 2013, claimant visited the Mayo Clinic for osteoporosis and for
constipation (AR 548 & 523), saw Dr. Daoud for routine follow-ups (AR 552 & 575),
and was examined by state consultant Dr. Scott (whose findings are discussed at length
in the Section VII. A.). In February of 2014, claimant’s potassium levels were stable.
(AR 624). In December of 2014, claimant saw Dr. Kettman, who reported that despite
I note that this contradicts claimant’s personal testimony at the hearing before the ALJ, where
claimant testified that she only goes grocery shopping with her best friend, who then carries the
groceries for her. (AR 60).
Claimant testified she could walk one block before her hips hurt. (AR 56-57).
claimant reporting that she had severe symptoms, she was “[t]aking nothing as
medication” (AR 666) and visited the Mayo Clinic for her osteoporosis (AR 600-01).
In February of 2015, at the hearing before the ALJ, claimant testified to the
following: She suffers from past sexual abuse. (AR 51). Claimant testified that she
could only walk one block before her hips hurt. (AR 56-57). She testified that she could
not crawl, kneel, use ladders, bend over without pain, or twist. (AR 57). Claimant also
testified that she did not handle stress well as it triggered her bipolar moods, which in
difficult social situations caused her to be “upset” or “fly[ ] off the handle.” (AR 53).
She stated that her anxiety caused her to “excessively worry” and gave her “lots of
sleepless nights.” (Id.). She stated that she could not concentrate for more than five
minutes. She testified that she drove three times a week, and if she drove for longer than
12 minutes, then she needed frequent stops due to pain. (AR 58). She stated that she
could not babysit her grandchildren anymore, and the last time she did was the past
summer and she ended up “hurting too much.” (AR 59). Claimant also stated that she
washed dishes but with breaks, did her own laundry, went grocery shopping with a best
friend who carried the groceries for her, and sometimes attended church. (AR 60-62).
DISABILITY DETERMINTATIONS 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
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
Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007).
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
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education, and work experience.
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 his or 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
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
him or her to make the adjustment to other work, but also that other work exists in
significant numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004). 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 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).
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.
§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.
THE ALJ’S FINDINGS
At Step One, the ALJ found claimant had not engaged in substantial gainful activity
since November 13, 2009, the alleged disability onset date. (AR 14).
At Step Two, the ALJ found claimant had the severe impairments of osteoporosis,
gastroparesis, a history of Reynaud’s phenomenon, anxiety disorder with posttraumatic
stress disorder (PTSD), and bipolar disorder. (AR 14). The ALJ found that claimant
had the non-severe impairments of migraine headaches and hypokalemia. (AR 14-15).
At Step Three, the ALJ found claimant did not have an impairment or combination
of impairments that met or medically equaled the severity of one of the listed
At Step Four, the ALJ found claimant had the residual functional capacity to
perform light work, with a limitation to carrying 20 pounds occasionally and 10 pounds
frequently. The ALJ also found that she could stand or walk for six hours total of an
eight-hour workday, and she could sit for up to six hours of an eight hour workday. The
claimant could also climb, balance, stoop, kneel, crouch or crawl occasionally and could
only have occasional exposure to extremes of heat or cold and should have no exposure
to hazardous conditions such as working around heights or moving machinery.
Additionally, the ALJ found she could not climb ropes, ladders or scaffolds.
Lastly, the ALJ found claimant could only perform tasks learned in 30 days or less,
involving no more than simple work-related decisions requiring little to no judgment,
with only occasional workplace changes. The ALJ also determined claimant could not
perform any past relevant work as a dialysis technician. (AR 17, 185).
At Step Five, the ALJ found that given claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in significant
numbers in the national economy that she could perform. Based on the testimony of the
vocational expert, the ALJ determined claimant could perform the jobs of office helper,
pricer, or folder. (AR 25).
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. 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 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)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “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) (citation omitted) (“[A]n administrative decision is not subject to reversal
simply because some evidence may support the opposite conclusion.”).
Claimant alleges the ALJ erred in three ways:
1. The ALJ did not properly evaluate or incorporate the work-related limitations
from Dr. Scott into claimant’s RFC assessment.
2. The ALJ did not properly incorporate the work-related limitations of
claimant’s treating physician Dr. Kettman, into her RFC assessment.
3. The ALJ’s RFC is not supported by substantial evidence on the record.
Claimant argues the ALJ gave too great a weight to the opinion of Dr. Scott in
determining claimant’s RFC. Again, Dr. Scott conducted a CE of claimant on September
23, 2013. My understanding of claimant’s argument is that the ALJ should not have
accorded significant weight to the opinion of Dr. Scott, because his opinion about
claimant’s functional capacity was premised on the claimant’s receipt of accommodations
for her disabilities. (Doc. 11 at 17-18). Or alternatively, the ALJ should have subtracted
any mention of accommodation from Dr. Scott’s opinion and incorporated these more
severe limitations into the RFC. The Commissioner responds that the ALJ was allowed
to give the word “accommodation” in Dr. Scott’s report the common everyday meaning
of the word rather than its more specific and technical use under the Americans with
Disabilities Act (ADA). (Doc. 14, at 13). Further, the Commissioner argues that the
ALJ appropriately took into consideration Dr. Scott’s opinion of claimant’s need for
accommodations. (Doc. 14, at 13-14).
The parties are in agreement that the SSA’s disability determination does not take
into account the “ADA-style accommodations” that an employer may be willing to make
that would allow a claimant to perform that job. (Doc. 14, at 13). Claimant relies on
Eback v. Chater, 94 F.3d 410 (8th Cir. 1996), in arguing that the ALJ’s accord of
“significant weight” to the opinion of Dr. Scott was inappropriate given his statements
In Eback, the Eighth Circuit Court of Appeals found it
improper for an ALJ to rely on a vocational expert’s opinion that employers would make
ADA accommodations for the claimant and with those accommodations Eback could
perform other work. Eback, 94 F.3d at 412. In Eback, the vocational expert premised
his opinion of the ability of claimant to perform other work on the belief that employers
would provide accommodations to claimant under the ADA, where without the
accommodation the other work would be outside of Eback’s RFC. Id.; see also Sullivan
v. Halter, 135 F. Supp. 2d 985, 987-88 (S.D. Iowa 2001) (finding error where vocational
expert testified that claimant could do other work if, as the vocational expert believed she
would, claimant received a specific work accommodation. “Whether or how an employer
might be willing, or required, to alter job duties to suit the limitations of a specific
individual is not relevant because Social Security’s “assessment must be based on broad
vocational patterns . . . rather than on any individual employer’s practices.”).
Eback is distinguishable, however, from the case before the Court. Here, the
reference to “accommodations” by Dr. Scott in his opinion incorporated his belief that
due to claimant’s limitations she would be limited in the environments in which she could
work and may require “accommodations” for her mental abilities.
Additionally, in this case, unlike Eback, the ALJ weighed this medical opinion evidence
into her overall RFC assessment which was then correctly presented to the vocational
expert who testified based on the RFC alone, without assumptions of whether claimant
would receive any ADA accommodation, that claimant could perform other work. The
vocational expert’s determination that claimant could perform other work was not
contingent on the assumed receipt of accommodations like that in Eback and Halter.
Dr. Scott opined:
[T]his examiner believes that [claimant] would probably succeed in a
competitive work setting wherein accommodations are made for medical
issues as well as emotional reactivity and memory deficits under stress.
Following are estimates of Jill’s mental abilities in work-related activities:
Remember and understand instructions, procedures, and locations, fair to
good with accommodations; Carry out instructions and maintain attention,
concentration, and pace, fair with accommodations; Interact appropriately
with supervisors, good but with coworkers and the general public,
marginally fair with accommodations; Use good judgment and respond
appropriately to changes in the workplace, fair only with accommodations
focusing on stress reduction and limited work ambiguities.
(AR 530-31). I find the ALJ properly gave Dr. Scott’s opinion “significant weight.”
First, the ALJ weighed Dr. Scott’s opinion as “from an examining, non-treating medical
source.” (AR 22). Serving as the consultative examiner, Dr. Scott was qualified as a
licensed psychologist. 20 C.F.R. § 404.1513 (acceptable medical source); 20 C.F.R. §
404.1527 (weighing opinions). Second, the claimant alleges that Dr. Scott’s opinion is
flawed due to the uncertainty of whether he meant ADA-style accommodations or even
accommodations as used in an everyday meaning. (Docs. 1 & 15) (using Merriam
Webster Dictionary definition of accommodation for its everyday meaning). Claimant’s
main contention is that the need for accommodations “reflects an inability to perform
competitive employment” inapposite to the ALJ’s denial of disability and giving Dr. Scott
significant weight. Again, both parties agree that in a disability determination by the
SSA there is no consideration of ADA accommodations. Nonetheless, despite however
Dr. Scott intended the use of the word “accommodations,” I agree with the Commissioner
that the ALJ is free to give terms their everyday meaning in reviewing the evidence. See
Julin v. Colvin, 826 F.3d 1082 (8th Cir. 2016) (“The ALJ’s use of the term ‘occasional’
. . . there is no indication that the ALJ or the vocational expert understood the term to
carry more than its everyday meaning. Social Security Ruling 96-6p . . . cited by Julin,
involves a specialized meaning of ‘occasionally’ in the context of sedentary work.”).
Regardless of how Dr. Scott intended the use of the word “accommodations,” his
opinion was entitled to significant weight because, as the ALJ points out, it was generally
consistent with the treatment notes on record as well as with the state agency consultants
who gave Dr. Scott’s report great weight. Despite claimant’s severe mental impairments
of anxiety disorder with PTSD and bipolar disorder, the record reveals essentially
ordinary mental status findings and minimal mental health treatment.
incorporates mental limitations of performing tasks learned in 30 days or less, simple
work-related decision-making with little/no judgment, and occasional workplace change.
The ALJ’s RFC assessment therefore incorporated most of Dr. Scott’s opined
limitations, which is appropriate given the significant weight designation. Treatment
notes that reflect essentially normal mental status findings include: AR 336 (7/10/12,
claimant is alert and oriented); AR 303 (8/31/12, normal mood/affect, normal thought
content, oriented); AR 282 (9/30/12, oriented to person, place, time and alert, normal
thought content, and normal mood/affect); AR 284 (11/2/12, same); AR 286 (11/4/12,
same); AR 335 (12/31/12, affect normal, alert, oriented), AR 346-47 (1/17/13, despite
being anxious, claimant has “no mental health changes” and possesses appropriate affect,
intact judgment and insight); AR 353 (2/7/13, same); AR 365 (5/20/13, “appropriate
[psych], no evidence of depression, anxiety, agitation”); AR 424 (6/27/13, “appearance
no acute distress . . . no mental status changes”); AR 545 (10/7/13, “No anxiety; no
depression; no mania; no delusion; no hallucinations”); AR 619 (9/25/14, mental
“appropriate; no evidence of depression, anxiety or agitation”); and AR 601 (12/17/14,
“Mental: Examined and normal”). See AR 78-86 and AR 95-102 (state consultants
relying on Dr. Scott’s opinion).
Furthermore, the Commissioner accurately states that an ALJ is not required to
“explicitly accept or reject functional limitations on a line-by-line basis.” (Doc. 14, at
14 (citing Depover v. Barnhart, 349 F.3d 563, 567-68 (8th Cir. 2003) and Craig v. Apfel,
212 F.3d 433, 436 (8th Cir. 2000)). It is the ALJ’s role to assess the medical evidence
and resolve any inconsistencies between it to craft an RFC assessment. The ALJ did not
err in giving significant weight to Dr. Scott as his opinion was supported by substantial
evidence nor is there any indication that the ALJ improperly relied on ADA-style
accommodations to find claimant not disabled (unlike in Ebeck, there was no mention of
accommodations in the hypothetical question posed to vocational expert here).
Claimant argues that the ALJ did not properly evaluate the opinion of Dr. Kettman,
claimant’s treating source, as the ALJ should have given the opinion controlling weight
in her determination of claimant’s RFC. She claims statements in Dr. Kettman’s medical
source statement such that claimant would require a job that permitted ready access to a
restroom and that she would need unscheduled rest breaks four times during an eighthour work day, for at least 15 minutes, should have been afforded greater weight.
Specifically, the vocational expert testified that competitive employment would be
precluded if claimant required a 15-minute break every two hours outside of normal
breaks and meal periods or, in the alternative, required absences of four days per month
or more. (AR 69-71).
Dr. Kettman, a family practice physician, had treated claimant for “every three
months for three years.” (Doc. 10). As summarized in the joint statement of facts, Dr.
Kettman wrote in the medical source statement as follows:
[Claimant] needed a job that permitted ready access to a restroom.
[Claimant] needed unscheduled restroom breaks at least 6 times during an
eight hour workday. She needed unscheduled rest breaks four times during
an 8 hour work day, for at least 15 minutes. [Claimant] was to never lift
ten pounds. (TR 595). [Claimant] was able to use her hands to grasp, turn
or twist objects; her fingers for manipulation; and to reach for 10% of an 8
hour work day. [Claimant] would be off task 25% or more during a typical
workday due to her symptoms. She was incapable of even low stress work
due to her bipolar disorder. [Claimant]’s impairments produced [all] bad
days. Dr. Kettman anticipated [claimant] would be absent from work more
than four days a month due to her impairments or treatment. [Claimant]
would have environmental limitations of dust due to her asthma and cold
due to her Raynaud’s.
Doc. 10, at 17. Overall, Dr. Kettman opined a “poor” prognosis for claimant. (AR
Essentially claimant asks the court to re-weigh the evidence on the record to find
that the limitations opined by Dr. Kettman in the medical statement were supported by
substantial evidence. In her brief, claimant thoroughly highlights evidence regarding her
gastrointestinal issues and related sleeping problems and pain as well as osteoporosis.
(Doc. 11, at 7-14). On the other hand, the Commissioner contends that the ALJ was
proper in assigning Dr. Kettman’s opinion no probative values as it is inconsistent with
his own treatment notes and other treatment notes on the record.
Generally, it is for an ALJ to determine the weight to be afforded to the opinions of
medical professionals, and “to resolve disagreements among physicians.” Cline v. Colvin,
771 F.3d 1098, 1103 (8th Cir. 2014). An ALJ is required to give “controlling weight” to a
treating-source’s medical opinion if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence.” 20
C.F.R. § 404.1527(c)(2). See also Martise v. Astrue, 641 F.3d 909, 925 (8th Cir. 2011)
(holding that an ALJ must give “substantial weight” to a treating physician, but may discount
that weight if the opinion is inconsistent with other medical evidence). An ALJ is not,
however, required to explicitly discuss every factor in 20 C.F.R. § 404.1527. See Molnar
v. Colvin, No. 4:12-CV-1228-SPM, 2013 WL 3929645, at *2 (E.D. Mo. July 29, 2013)
(“[A]lthough the ALJ did not explicitly discuss every factor of 20 C.F.R. § 404.1527(c) in
evaluating the opinions of Plaintiff’s treating sources, the ALJ was not required to do so.”)
(unpublished) (citing Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 1998) (the ALJ does
not need to discuss every piece of evidence submitted, and the ALJ’s failure to discuss specific
evidence does not mean that it was not considered by the ALJ)).
Here the ALJ discounted Dr. Kettman’s medical source statement as the “checkliststyle form appears to have been completed as an accommodation to the claimant and, as noted
above, includes information filled in by the claimant. [The ALJ found] this evidence has no
probative value because it is not supported by any objective evidence.” (AR 23). It was
proper for the ALJ to assign Dr. Kettman’s opinion no probative weight. First, the medical
source statement was partially filled out by claimant. From my understanding of Dr.
Kettman’s handwriting, he twice remarks on the statement that the claimant responded or
answered the questions. See AR 593 (“P[atien]t filled out this section” likely referring to the
Mental Abilities and Aptitudes Needed to Do Unskilled Work/Semiskilled and Skilled
Work/Particular Types of Jobs consisting of 25 questions); AR 596 (responding to the
question to what degree can claimant tolerate work stress, the box for “incapable of ‘low
stress’ work” was checked and Dr. Kettman’s reason was: “Patient Response-Bipolar.”).
Thus it appears, at least in part, that claimant filled out portions of the statement for
Dr. Kettman and likely was present while he was completing the form to offer additional
help. Claimant contends that her completion of the mental abilities checklist does not call
into question the disabling physical limitations opined by Dr. Kettman. To the extent any of
Dr. Kettman’s physical limitations were influenced or answered by claimant, the ALJ
properly discounted them. As the ALJ found claimant incredible—a finding claimant does
not allege was in error—the ALJ was permitted to discount Dr. Kettman’s opinions to the
extent that it “relied” on her subjective complaints. Julin, 826 F.3d at1089 (“Because the
ALJ declined to credit Julin, the ALJ was entitled to discount Dr. Welsh’s opinions insofar
as they relied on Julin’s subjective complaints”) (citing Wildman v. Astrue, 596 F.3d 959,
967 (8th Cir. 2010) and Kirby, 500 F.3d at 709).
Claimant also argues that the ALJ improperly took issue with the fact that Dr. Kettman
completed the medical source statement as an accommodation to claimant. (Doc. 11, at 15
citing Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011) (ALJ cannot reject doctor’s opinion
merely because it was solicited by claimant or attorney)). The Commissioner essentially
The Commissioner contends that the ALJ’s comment referencing such an
“accommodation” referred to her observation that claimant completed in part the medical
source statement. I agree. Nonetheless, there is substantial evidence on the record that
allowed the ALJ to give Dr. Kettman’s opinion no controlling weight.
Second, the medical source statement consisted in part of checked boxes. The Eighth
Circuit Court of Appeals has “recognized that a conclusory checkbox form has little
evidentiary value when it ‘cites no medical evidence, and provides little to no
Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (quoting
Wildman, 596 F.3d at 964). The Anderson Court held that an ALJ did not err in
discounting a treating medical sources’ medical source statement relating to claimant’s
functional limitations, where the restrictions appeared nowhere else in the treatment
notes, were inconsistent with those notes, were not supported by objective testing, and
were not supported by the record as a whole. See also Hogan v. Apfel, 239 F.3d 958,
961 (8th Cir. 2001) (finding the ALJ “properly discounted the physician’s medical source
statement because the statement” stood alone and was not supported in treatment notes
or corroborated by objective evidence). Furthermore, as noted above, a majority of these
boxes were checked by claimant herself.
Third, the ALJ essentially noted that the medical source statement consisted in part of
non-medical opinion. The Commissioner points out that to the extent that Dr. Kettman opined
claimant was disabled or could not work, such was entitled to no deference. Determinations
of ability to work are solely within the discretion of the Commissioner. See SSR 96-5P, 1996
WL 374183, at *1-3 (July 2, 1996) (“treating source opinions on issues that are reserved
to the Commissioner are never entitled to controlling weight or special significance.”);
20 C.F.R. § 404.1527(d). Presumably, the argument could be made that where Dr. Kettman
(or the claimant, as she clearly gave the reason for the selection) checked the “incapable of
even low-stress work” box to imply that essentially claimant could do no work at all. To the
extent such an argument could be made, this is a non-medical opinion that infringes upon the
Commissioner’s discretion. While it must be considered, it deserves no special significance.
Fourth and last, Dr. Kettman’s opinion in the medical source statement was
inconsistent with his own treatment notes. The ALJ wrote that Dr. Kettman’s opinion lacked
support by any objective evidence. The Commissioner argues that such “objective” evidence
refers to Dr. Kettman’s own treatment notes and other treatment notes on the record. I find
this to be a reasonable and logical conclusion. Upon my own review of the medical records,
Dr. Kettman’s opinion is inconsistent with the substantial evidence. In 2013, Dr. Kettman’s
treatment notes reflect a healthier claimant than he opined to in his medical source statement.
See AR 346-48 (1/17/13, hospital follow-up, despite claimant having anxiety, some
depression, sleep issues, she “feels better”, good appetite, no fever, no night sweats, no
mental status changes, no motor weakness, no sensory changes, appropriate affect, intact
judgment and insight); AR 349 (1/24/13, well appearing, no acute distress, normal active
bowel movements, good appetite, no mental status changes); and AR 352-54 (2/7/13, same).
I recognize that Dr. Kettman’s treatment notes are from the beginning of 2013, while
his medical source statement was authored in December 2014. Yet, the other subsequent
treatment notes on the record also contradict the medical source statement. See treatment
notes from Dr. Daoud: AR 362-63 (6/18/13, follow-up appointment, claimant states she is
doing “well” and has “no active complaints,” stable weight, no anxiety/depression/
mania/delusion/hallucinations, no cognitive dysfunction, no apparent distress, appropriate
psych); AR 552-53 (9/26/13, routine follow-up, weight gain, no apparent distress, normal
bowel sounds, no tenderness, no nausea/vomiting, normal neuro examination, appropriate
psych); and AR 545-47 (10/10/13, despite low potassium, claimant has appropriate psych,
no depression/anxiety/agitation, no apparent distress, normal bowel sounds, no tenderness,
no nausea, no vomiting, no abdominal pain, no diarrhea). See also AR 529-31 (9/23/13, Dr.
Scott’s report opining on claimant’s mental limitations which are inconsistent with those
reflected in Dr. Kettman’s opinion); AR 522 (9/5/13, clinic note from Mayo Clinic authored
by J.P. Campana, MBBS, claimant appeared in no acute distress, muscle strength/mass
preserved); and AR 601-02 (12/17/14, clinic note from the Mayo Clinic authored by a
MBChB reads: physical examination (skin/heart/lungs/abdomen/mental/neuro) were all
“examined and normal”, the general examination “looks healthy” and the physical
examination of joints “examined and normal. No back tenderness”, and also “advised
[claimant] to avoid heavy lifting” but advised her to “continue exercising and stay active”).
Other evidence on the record inconsistent with Dr. Kettman’s opinion includes: AR 334-35
(1/1/13, Dr. Mallavarapu’s clinic note reflects that despite claimant feeling some abdominal
discomfort, she appeared in no acute distress, normal affect, alert and orientated, normal
bowel sounds, normal range of motion).
The Commissioner cites Dr. Jay Ginther’s plan recommendation as evidence that Dr.
Kettman’s opinion—that claimant could never lift ten pounds—is inconsistent. I am less
persuaded. Claimant expresses similar concern in her reply brief5. Recommending weight
exercise several times a week does not correspond to a claimant being able to lift weights
during employment. See AR 311 (11/27/12, Dr. Ginther’s clinic note reads: “All patients
In her reply brief, claimant also argues that the ALJ improperly relied on a psychologist’s
opinion that claimant had a “normal gait” to discredit Dr. Kettman’s opinion. This is an unfair
assessment. To the extent that it matters, there is substantial evidence in the record from various
medical professionals that claimant had a normal gait. For example, see AR 522 (“gait:
examined and normal”), AR 303 (normal range of motion).
should do weight bearing exercises most days of the weight.”). Nevertheless, there is still
substantial evidence on the record to support the ALJ’s decision to give Dr. Kettman’s opinion
no probative value.
RFC is not supported by substantial evidence
Claimant argues that Dr. Elliot and Dr. Griffith’s opinions as non-examining state
consultants given great weight by the ALJ, do not amount to substantial evidence under
Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000). Thus the improper RFC does not support
the ALJ’s finding of not disabled. Essentially, claimant asks the Court to again re-weigh
the evidence on the record. On the other hand, the Commissioner contends that the RFC
is supported by the state agency experts and the ALJ’s own independent review of the
As the Commissioner points out, an “ALJ need not tether the RFC assessment to
any particular medical opinion, [i]nstead, the ALJ may rely upon a constellation of
opinions, or even the medical records themselves.” (Doc. 14, at 16) (citing Hensley v.
Colvin, 829 F.3d 926 (8th Cir. 2016) and Julin, 826 F.3d at 1088).
Claimant cites Nevland, which the Commissioner fails to address. I find, however,
that Nevland is distinguishable. In that case, the court found that despite “the numerous
treatment notes discussed . . . not one of Nevland’s doctors was asked to comment on
his ability to function in the workplace,” and that the ALJ relying on the opinions of nonexamining, non-treating physicians reviewing the opinions of treating physicians to form
RFC opinions, did not constitute “medical evidence about how Nevland’s impairments
affect his ability to function now.” Id., at 858 (emphasis in original). The Eighth Circuit
Court of Appeals elaborated that “[i]n our opinion, the ALJ should have sought [opinions]
from Nevland’s treating physicians or, in the alternative, ordered consultative
examinations, including psychiatric and/or psychological evaluations to assess Nevland’s
mental and physical residual function capacity.” Id. Although, no examining physician
opined on claimant’s physical ability to function in the workplace, there was a
consultative examination conducted by a licensed psychologist who opined on claimant’s
mental ability to function in the workplace. (AR 530). Furthermore, the state agency
consultants’ opinions were consistent with findings by examining physicians on the
record, including but not limited to the consultants’ findings on claimant’s physical ability
to function in the workplace.
Claimant also argues that the opinions authored by Dr. Elliot and Dr. Griffith, the
state consultants, are “seriously flawed” for failing to consider claimant’s issues of
nausea, vomiting, back pain, and psychosomatic issues. Claimant further contends that
both the ALJ and the Commissioner failed to grasp the big picture relating to the
interconnectedness of claimant’s symptoms.
Claimant alleges that her nausea and
vomiting contributed to her low potassium levels, which in turn contributed to her
osteoporosis, which in turn contributed to her decrease in height, compression fractures,
and pain. (Doc. 15, at 2). The Commissioner contends that the record shows that despite
claimant’s symptom-fluctuations, medical providers where able to adequately control her
symptoms with medication adjustments. (Doc. 14, at 17-18). Claimant takes issue with
some of the Commissioner’s citations to the record.
(Doc. 15, at 2-3).
claimant’s attempts to have the Court re-weigh the evidence, I find that substantial
evidence exists to support the ALJ’s reliance on the state consultants and, overall, to
support her RFC assessment.
First, the record shows that in the fall of 2013 claimant had weight gain (AR 552)
and her potassium was no longer low (AR 572, potassium “elevated”), and she followed
a modified gastroparesis diet with reasonable success and no reported vomiting (AR 517).
In February of 2014, claimant’s potassium levels were stable. (AR 624). In December
of 2014, her constipation improved with medication.
If a claimant’s
symptoms are reasonably controllable by treatment and medication then they are not
disabling. Mabry v. Colvin, 815 F.3d 386, at 391-92 (8th Cir. 2016) (citing Brown v.
Astrue, 611 F.3d 941, 955 (8th Cir. 2010)).
Dr. Elliott opined that claimant could occasionally lift 20 pounds, frequently lift
10 pounds, stand/sit/walk for 6 hours with normal breaks during an 8-hour workday,
unlimited pulling/pushing, occasional climbing ropes/stairs, occasional balancing,
occasional kneeling/crouching/crawling/stooping, and unlimited exposure to fumes/
odors. (AR 80-81). For mental limitations, Dr. Elliott gave great weight to Dr. Scott’s
report. (AR 82-84). Overall, Dr. Elliott found that claimant’s reports of her limitations
were undercut by her described daily activities and third party reports.
reconsideration, Dr. Griffith considered the new evidence of claimant’s worsening
condition of severe diarrhea and constipation due to gastroparesis. Dr. Griffith cited
treatment notes (from 9/27/13 and 10/7/13) as well as Dr. Scott’s report. Dr. Griffith
affirmed the initial review by Dr. Elliott. (AR 100).
This is supported by substantial evidence on the record.
First, the mental
limitations, opined by both state consultants and Dr. Scott and Dr. Christiansen, are
supported by substantial evidence on the record. See Section VII.B. above. The physical
RFC assessment, which incorporated most of the state consultants’ opinions, is supported
by substantial evidence on the record. The physical RFC includes:
Light work with the following physical and mental impairments: lift and
carry 20 pounds occasionally; lift and carry 10 pounds frequently; stand or
walk 6 hours out of an 8-hour workday; sit 6 hours out of an 8-hour
workday; occasionally climb, balance, stoop, kneel, crouch, or crawl; only
occasional exposure to extreme heat or cold; no exposure to hazardous
conditions such as walking around heights or moving machinery; and
cannot climb ropes, ladders or scaffolds.
This is supported by findings of normal physical examinations, normal gait, normal
muscle mass, and Dr. Scott’s examination. (AR 83, 284, 303, 334-35, 362-63, 522,
529-31, 552-53, 601-02, and 668). Despite whether or not I would have assessed the
evidence in the same manner as the ALJ, she did not err in her RFC assessment as
substantial evidence exists to support the assessment.
For the reasons set forth herein, 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
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 25th day of May, 2017.
Chief United States Magistrate Judge
Northern District of Iowa
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?