Bohr v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS recommending the District Court affirm the Commissioner's decision re 3 Complaint filed by Gerald G Bohr. Objections to R&R due by 9/21/2017. Signed by Chief Magistrate Judge CJ Williams on 9/7/2017. (pac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
GERALD G. BOHR,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
REPORT AND RECOMMENDATION
The claimant, Gerald G. Bohr (Claimant), seeks judicial review of a final decision
of the Commissioner of Social Security (the Commissioner) denying his application for
disability and disability insurance benefits (DIB), under Title II of the Social Security
Act, 42 U.S.C. § 401 et seq. (Act). Claimant contends that the Administrative Law
Judge (ALJ) erred in determining that he was not disabled.
For the reasons that follow, I recommend the District Court affirm the
I adopt the facts as set forth in the parties’ Joint Statement of Facts and therefore
only summarize the pertinent facts here. (Doc. 11). Claimant was born in August 1968
and was therefore 46 years old at the time of the ALJ’s decision. (AR 11, 218).1
Claimant has a high school education and attended college for three years. (AR 27, 243).
The ALJ concluded that Claimant is unable to perform past relevant work. (AR 26).
On July 8, 2013, Claimant protectively filed an application for disability and
disability insurance benefits alleging a disability onset date of August 1, 2010. (AR 11).
“AR” refers to the administrative record below.
The ALJ found Claimant was disabled due to degenerative disc bilateral knees, statuspost total knee replacement; osteoarthritis; obesity; and depression. (AR 13).
The Social Security Administration denied Claimant’s disability application
initially and on reconsideration. (AR 11). On June 26, 2015, ALJ Julie K. Bruntz found
Claimant was not disabled. (AR 28). Claimant requested timely review of the ALJ’s
decision and the Appeals Council denied review on July 28, 2016. (AR 1-3, 5). The
ALJ’s decision, thus, became the final decision of the Commissioner. 20 C.F.R. §
On September 20, 2016, Claimant filed a complaint in this Court. (Doc. 3).
Between March and April 2017, the parties briefed the issues. (Docs. 12, 13). On April
18, 2017, this Court deemed this case fully submitted and ready for decision. (Doc. 14).
On the same day, the Honorable Leonard T. Strand, Chief United States District Court
Judge, referred this case to United States Magistrate Judge Kelly Mahoney; on June 22,
2017, this case was reassigned to the undersigned, Chief United States Magistrate Judge
C.J. Williams for a Report and Recommendation.
DISABILITY DETERMINATIONS AND 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 fifteen years prior to
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 [ ] 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 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).
Where a claimant has been found to be disabled by a different administrative
agency, the ALJ considering the claimant’s application for benefits from the Social
Security Administration should consider the other agency’s finding of disability, but is
not bound by the findings of another agency. 20 C.F.R. § 1504; Pelkey v. Barnhart, 433
F.3d 575, 579 (8th Cir. 2006); Jenkins v. Chater, 76 F.3d 231, 233 (8th Cir. 1996)
(“This court has held that a disability determination by the Veterans Administration is
not binding on the ALJ.” (internal citations omitted)). The ALJ should, however, give
the VA’s finding “explicit attention.” Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir.
1998). Furthermore, the disability standards set forth by the Department of Veterans
Affairs and by the Social Security Administration are not identical. Jenkins, 76 F.3d at
233 (“Notwithstanding the finding of disability by another agency, the ALJ’s
determination that [Claimant] is not disabled under the regulations set forth by the Social
Security Administration is supported by strong evidence in the record as a whole.”).
THE ALJ’S FINDINGS
The ALJ made the following findings at each step:
At Step One, the ALJ found Claimant had not engaged in substantial gainful
activity since August 1, 2010, the alleged onset date. (AR 13).
At Step Two, the ALJ found Claimant had the severe impairments of
“degenerative disc disease bilateral knees, status post-total knee replacement;
osteoarthritis; obesity; and depression.” (AR 13).
At Step Three, the ALJ found that none of Claimant’s impairments equaled a
presumptively disabling impairment listed in the relevant regulations. (AR 14).
At Step Four, the ALJ found Claimant had the residual functional capacity to
perform sedentary work, with the following additional functional limitations:
[C]laimant could occasionally lift and carry twenty pounds and could
frequently lift and carry ten pounds. . . . could stand and walk for two
hours in an eight-hour day, and sit for six hours in an eight-hour day.
[Claimant’s] ability to push and pull, including the operation of hand and
foot controls, would be unlimited within those weights. [Claimant] could
occasionally climb ramps and stairs but never climb ladders, ropes or
scaffolds, occasionally balance, stoop, kneel and crouch, but never crawl.
[Claimant] would be limited to short-lived, superficial contact with the
public, co-workers and supervisors. . . . [C]laimant would need to be able
to alternate between sitting and standing at will but would be able to remain
on task while doing so.
(AR 15). Also at Step Four, the ALJ determined Claimant was unable to perform any
past relevant work. (AR 26).
At Step Five, the ALJ determined that there are jobs that exist in significant
numbers in the national economy that Claimant can perform. (AR 27). As a result, the
ALJ determined that Claimant was not disabled. (AR 28).
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, 433 F.3d at 577; see 42 U.S.C. § 405(g)
(“The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . ..”). “Substantial evidence is less than a
preponderance, but enough that a reasonable mind might accept as adequate to support a
conclusion.” Lewis, 353 F.3d at 645 (citations and internal quotation marks omitted).
The Eighth Circuit Court of Appeals explains the standard as “something less than the
weight of the evidence and [that] allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the [Commissioner] may
decide to grant or deny benefits without being subject to reversal on appeal.” Culbertson
v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citations and internal quotation marks
In determining whether the Commissioner’s decision meets this standard, a 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). A
court considers both evidence that supports the Commissioner’s decision and evidence
that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The Court
must “search the record for evidence contradicting the [Commissioner’s] decision and
give that evidence appropriate weight when determining whether the overall evidence in
support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing
Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the Court must
apply a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health
& Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The Court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (quoting Naber v. Shalala, 22 F.3d 186,
188 (8th Cir. 1994)).
Instead, if, after reviewing the evidence, the Court finds it
“possible to draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, [the Court] must affirm the [Commissioner’s]
denial of benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933,
935 (8th Cir. 2008)). This is true even in cases where the Court “might have weighed
the evidence differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan,
958 F.2d 817, 822 (8th Cir. 1992)). The Court may not reverse the Commissioner’s
decision “merely because substantial evidence would have supported an opposite
decision.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart,
421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative decision is not subject to reversal
simply because some evidence may support the opposite conclusion” (citation omitted).).
Claimant argues that the ALJ’s residual functional capacity assessment at Step
Four was flawed because: (1) the ALJ failed to evaluate properly the work-related
limitations from examining physician Dr. Noli Mendoza (Doc. 12, at 3-7); (2) the ALJ
failed to give good reasons for discounting the Department of Veterans Affairs’ finding
of one hundred percent disability and “individual unemployability” (Doc. 12, at 7-9); (3)
the ALJ’s residual functional capacity assessment was not supported by substantial
medical evidence from a treating or examining source (Doc. 12, at 9-11); and (4) the
ALJ discounted Claimant’s subjective allegations without identifying inconsistencies in
the record as a whole (Doc. 12, at 11-16). I will address each issue in turn.
The ALJ’s Evaluation of Examining Physician’s Opinion
Claimant argues the ALJ erred in failing to give the opinions of examining
physician Dr. Noli Mendoza, D.O., sufficient weight and that the ALJ improperly
discounted Dr. Mendoza’s opinion as being internally inconsistent. (Doc. 12, at 3-7).
Specifically, Claimant argues that the medical evidence Dr. Mendoza gathered—and that
the ALJ accepted—was wholly consistent with Dr. Mendoza’s ultimate opinion. (Id.).
Key to Claimant’s argument is the proposition that the ALJ “failed to cite the opinion of
any examining or non-examining physician that conflicted with Dr. Mendoza’s
conclusions,” which led to the ALJ “playing doctor” and thus overstepping her authority.
(Id., at 6-7).
Dr. Mendoza performed compensation and pension evaluations on Claimant in
February and September 2012.
Although Dr. Mendoza was a treating
physician and did opine that Claimant could not perform sedentary or light work, could
not sit for extended periods greater than fifteen minutes, and could not walk more than a
few yards, Dr. Mendoza also found that Claimant could lift, carry, push, and pull up to
twenty pounds. (AR 404-05). Notably, Dr. Mendoza offered no support for his findings
that Claimant was limited in sitting, standing, and walking greater than a few yards.
(Id.). Absent substantiation for the assertion that Claimant was limited in these activities,
coupled with Dr. Mendoza’s finding that Claimant could handle upwards of twenty
pounds, the ALJ found that Dr. Mendoza’s opinions were internally inconsistent. (Id.).
The ALJ further found that prior to Dr. Mendoza’s evaluations, Claimant
reportedly had no issues with daily activities, “could walk and climb stairs okay,” and
had reported only “mild to moderate functional impairment during flare-ups, but . . . this
was ‘annoying mostly.’” (AR 23). Subsequent to Dr. Mendoza’s evaluations, Claimant
reported in May 2013 that he was able to walk up to three miles, assisted with Memorial
Day celebrations, went camping, horseback riding, and served as a volunteer football
coach for his son’s team.
Finally, following knee surgery, Claimant’s
condition improved and was progressing as expected. (AR 24). In December 2014,
Claimant walked up to one mile twice per week and was assessed no walking restrictions.
As Claimant’s “admissions and reported activities appeared considerably
inconsistent with the opinions of Dr. Mendoza,” the ALJ afforded Dr. Mendoza’s
opinions little weight. (Id.). An ALJ must determine a claimant’s residual functional
capacity based on “all of the relevant evidence, including the medical records,
observations of treating physicians and others, and an individual’s own description of
[his] limitations,” but “there is no requirement that an RFC finding be supported by a
specific medical opinion.” Hensley v. Colvin, 829 F.3d 926, 931-32 (8th Cir. 2016)
(alterations in original) (citation and internal quotation marks omitted).
physician’s medical opinions are given controlling weight if they are “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and [are] not
inconsistent with the other substantial evidence.” See Choate v. Barnhart, 457 F.3d 865,
869 (8th Cir. 2006) (internal citation and quotation marks omitted).
physician’s opinion may be disregarded if it is unsupported by clinical or other data or is
contrary to the weight of the remaining evidence in the record. See Myers v. Colvin, 721
F.3d 521, 525 (8th Cir. 2013) (“We conclude that substantial evidence supports the ALJ’s
determination that [the doctor’s] opinion was inconsistent with the treatment record and
thus not entitled to controlling weight.”); Anderson v. Astrue, 696 F.3d 790, 793-94 (8th
Cir. 2012) (same). Similarly, an ALJ may discount the weight given to a treating
physician’s opinion if the treatment notes simply do not support the limitations endorsed
in the opinion. See Cline v. Colvin, 771 F.3d 1098, 1104 (8th Cir. 2014) (holding that
a treating physician’s opinion is entitled to less weight if it is unsupported by the
physician’s own records).
In the instant case, the ALJ correctly found that the treating doctor’s records did
not support the limitations imposed and that substantial evidence on the record as a whole
was inconsistent with Dr. Mendoza’s opinion such that Dr. Mendoza’s opinion should
not be given controlling weight. Rather, Dr. Mendoza’s opinions consisted of conclusory
assertions that lacked medical support. See Strongson v. Barnhart, 361 F.3d 1066, 1070
(8th Cir. 2004) (“It is appropriate . . . to disregard statements of opinion by a treating
physician that consist[ ] of nothing more than vague, conclusory statements.”) (internal
quotation marks and citation omitted). Although the lack of support in Dr. Mendoza’s
records makes it difficult to assess any claim of internal inconsistency, that same lack of
support provides a basis upon which the ALJ could properly discount Dr. Mendoza’s
opinion. See Strongson, 361 F.3d at 1070 (holding that medical opinions lacking support
may be disregarded); Cline, 771 F.3d at 1104 (holding that unsupported medical opinions
may be given less weight).
Furthermore, the ALJ properly turned to the remaining substantial evidence in the
record in denying Claimant’s claim. Myers, 721 F.3d 521; Anderson, 696 F.3d at 79394; Choate, 457 F.3d at 869. Claimant’s own assertions regarding his daily activities
and occasional physical activities contradicted Dr. Mendoza’s opinion; as a result, the
ALJ could properly afford Dr. Mendoza’s opinion less weight. (Id.). Significantly, the
ALJ relied on Claimant’s own admission, made in June 2013, that with some assistance
from the VA, “there are a lot of jobs I could do.” (AR 21, 512). Although the ALJ
noted that Claimant’s father provided a report and testimony that did support Claimant’s
allegations, the ALJ also found that this evidence did not establish that Claimant was
disabled. (AR 26). As this Court does not re-weigh the evidence, I find that the ALJ
made a valid determination as to the weight to be afforded to Dr. Mendoza’s opinion.
Vester, 416 at 889.
Therefore, I find that there is substantial evidence in the record as a whole to
support giving Dr. Mendoza’s opinion less weight in the ALJ’s assessment of Claimant’s
residual functional capacity.
The ALJ’s Evaluation of the Department of Veterans Affairs’ finding of
Claimant agrees that another agency’s disability determination is not binding on
the ALJ; however, Claimant goes on to argue that the ALJ was required to consider the
VA’s disability determination and, because the ALJ’s conclusion was inconsistent with
that of the VA, the ALJ was required to explain the rationale behind rejecting the VA’s
finding of disability. Additionally, Claimant asserts that there is little, if any, difference
between the VA’s definition of disability and the Social Security Act’s definition of
disability, which further warrants an explanation for the denial of benefits.
Contrary to Claimant’s assertions, the ALJ did fully consider the evidence
underlying the VA’s disability determination. In addition to noting that Claimant had
only a seventy percent service connected disability and was paid at one hundred percent
due to a finding of unemployability (AR 16, 23, 44), the ALJ went on to address the
evidence underlying the VA’s decision. Notably, the ALJ determined that Dr. Paul
Pellett, M.D., who treated Claimant in connection with his VA claim, made findings that
were inconsistent with both his own treatment notes and with the substantial evidence in
the record as a whole. (AR 22-23). The Eighth Circuit Court of Appeals has repeatedly
held that where an ALJ considers the evidence underlying another agency’s finding of
disability, this consideration is sufficient to satisfy the demand to give such a finding
explicit attention. Baker v. Colvin, 620 F. App’x 550, 555 (8th Cir. 2015); Pelkey, 433
F.3d at 579 (“[T]he ALJ did not err because he fully considered the evidence underlying
the VA’s final conclusion that [Claimant] was 60 percent disabled.”). Thus, although
the ALJ did not explicitly reference the VA’s determination throughout her own decision,
the ALJ’s thorough assessment of the evidence used in the VA’s determination shows
that the ALJ did, in fact, give explicit attention to the VA’s finding. The ALJ was not
bound by the VA’s finding and thus was fully entitled to find that Claimant was not
entitled to disability benefits following a consideration of the VA’s finding. 20 C.F.R.
§ 1504; Pelkey, 433 F.3d at 579; Jenkins, 76 F.3d at 233.
Claimant’s argument that the similarities in the definitions of “disability” used by
the VA and by the Social Security Administration warrant that the ALJ give greater
consideration to the VA’s finding is without merit. Although the definitions may bear
some similarities to one another, each agency is governed by different case law in making
its determinations and, as previously stated, the ALJ was not bound by the decision of
the VA. Thus, even if the definitions were identical in every way, the ALJ could still
properly find differently than the VA. See Jenkins, 76 F.3d at 233 (holding that the
definitions governing the VA and the Social Security Administration are not identical).
Therefore, I find the ALJ did fully consider the evidence underlying the VA’s
finding of disability and the ALJ did properly decline to adopt the VA’s determination as
her own. The ALJ did not err with respect to her analysis of the VA’s finding.
The ALJ’s Use of Substantial Medical Evidence in the RFC Assessment
Claimant next argues that the ALJ’s residual functional capacity assessment is
flawed because it is not supported by substantial medical evidence from a treating or
It is well established that this Court must consider whether the ALJ’s decision is
supported by substantial evidence in the record as a whole. Casey v. Astrue, 503 F.3d
687, 691 (8th Cir. 2007). “Substantial evidence is evidence that a reasonable mind would
find adequate to support the ALJ’s conclusion. . . . An ALJ’s decision is not outside the
‘zone of choice’ simply because we might have reached a different conclusion had we
been the initial finder of fact.” Id. (quotation marks and internal citations omitted).
Further, “[i]t is appropriate . . . to disregard statements of opinion by a treating physician
that consist[ ] of nothing more than vague, conclusory statements. In addition, the ALJ
need not give controlling weight to a physician’s RFC assessment that is inconsistent with
other substantial evidence in the record.” Strongson, 361 F.3d at 1070.
In Strongson v. Barnhart, as in this case, the ALJ gave little probative value to a
treating physician’s opinion when that opinion was internally inconsistent; the Eighth
Circuit Court of Appeals upheld this conclusion. (Id.). Here, the ALJ found that Dr.
Mendoza’s opinions were conclusory and did not provide any support for the findings
that Claimant could not sit for extended periods of time and could not walk more than a
Furthermore, as discussed extensively above, Claimant’s
admissions regarding his physical activities, capabilities, and potential ability to work
with some assistance from the VA provided an adequate basis upon which the ALJ could
find conflict with Dr. Mendoza’s opinion and therefore not accord Dr. Mendoza’s opinion
controlling weight. Note that while the ALJ did not wholly disregard Dr. Mendoza’s
opinion—rather, the ALJ “afforded [Dr. Mendoza’s] opinions little weight (AR 24)—an
ALJ has the discretion to disregard such conclusory statements as those rendered by Dr.
Mendoza, contrary to what Claimant may argue. Finally, while affording little weight
to Dr. Pellett’s ultimate conclusion of Claimant’s inability to work, the ALJ spent a
significant amount of time discussing the medical evidence provided by Dr. Pellett in
evaluating Claimant’s disability status. As the ALJ clearly did rely on Dr. Pellett’s
underlying medical opinions, and only refused reliance on those findings that were within
the ALJ’s prerogative, the ALJ’s ultimate denial of disability benefits was supported by
medical evidence. (AR 22).
Finally, the substantial evidence in the record as a whole convinces me that a
reasonable mind could agree with the ALJ and, thus, the ALJ was within her zone of
choice in issuing the denial of benefits. The Court will not overturn an ALJ’s decision
simply because another fact finder could have reached an alternative conclusion. Casey,
503 F.3d at 691. In addition to the medically inconsistent findings and Claimant’s selfreported statements regarding work capabilities and physical activities, the ALJ found it
persuasive that Claimant sought limited treatment for his alleged disabling impairments
and subsequently purchased a home and lived independently. (AR 25). In addition,
Claimant was able to walk significant distances, climb stairs, and eventually enjoyed no
walking restrictions. (AR 25-26). The substantial evidence presented shows that a
reasonable mind could have found as the ALJ did. As such, this Court will not overturn
the ALJ’s decision for lack of substantial evidence.
I find the ALJ properly assessed the medical evidence presented and that the ALJ’s
decision was supported by substantial evidence in the record as a whole. As such, I
recommend the Court decline to overturn the ALJ’s decision on this basis.
The ALJ’s Evaluation of Claimant’s Subjective Allegations
Claimant’s final argument is that the ALJ erroneously discredited Claimant’s
subjective complaints of pain, misconstrued Claimant’s reports of his physical activities,
and applied the wrong legal standard in determining that Claimant was capable of
As discussed above, the ALJ properly found that Claimant’s subjective complaints
were not supported by the objective medical evidence presented. Claimant testified to
experiencing back and knee pain when sitting or standing for too long, difficulty sleeping,
issues with his timing being off, and taking more baths due to the pain. (AR 16, 53-57).
However, Claimant had no difficulties with personal care tasks, was able to drive to
appointments, shop, mow the lawn, and help coach football. (AR 16, 62-63). Further,
the ALJ found that Claimant’s medical records revealed Claimant had full range of motion
in his left knee, no instability, and showed normal progression following surgery on his
left knee. (AR 18-19). Significantly, during a pre-operative appointment before his left
knee arthroplasty in February 2014, Claimant informed the physician that he could
perform activities of daily living without a problem, could walk and climb stairs okay,
and denied back pain, weakness, and paresthesias. 2 (AR 18-19). The physician noted
unremarkable physical examination findings. (Id.).
In August 2014, Claimant reported painless range of motion in his left knee, 5/5
strength, and intact sensation. He reported that his most significant pain was with
kneeling and, in December 2014, Claimant reported that he was unable to kneel due to
The ALJ, however, found these statements inconsistent with
Claimant’s testimony. (Id.). Furthermore, Claimant was walking up to one mile twice
per week in December 2014 and walked to visit his neighbor daily; the physician even
recommended that Claimant increase his physical activity by walking for ten minutes
three times per day and gradually increasing. (Id.).
Paresthesias is an abnormal sensation of tingling, numbness, or burning.
Although Claimant reported limitations due to his degenerative disc disease, he
sought limited treatment for his back pain, which was controlled and manageable on
medications (AR 25, 523, 525, 730), and which improved with chiropractic treatment
(AR 527). Additionally, Claimant was referred to physical therapy for his back issues,
however, as of March 2011, his treatment was terminated due to Claimant’s repeated
failure to show up for several scheduled appointments. (AR 17, 452-53). As a result of
the conflicting evidence presented, the ALJ found that Claimant’s reported activities and
treatment history were inconsistent with Claimant’s subjective complaints of pain.
A court reviews an ALJ’s credibility determination through an examination of the
Polaski factors and the mandates of SSR 96-7p. Under the Polaski factors, an ALJ must
consider the “claimant’s prior work record, and observations by third parties and treating
and examining physicians relating to such matters as: (1) the claimant’s daily activities;
(2) the duration, frequency and intensity of the pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness and side effects of medication; [and] (5) functional
restrictions.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). “If an ALJ
explicitly discredits the claimant’s testimony and gives good reason for doing so, [the
Court] will normally defer to the ALJ’s credibility determination.” Gregg v. Barnhart,
354 F.3d 710, 714 (8th Cir. 2003).
In Lowe, the Eighth Circuit Court of Appeals stated, “[t]he ALJ was not required
to discuss methodically each Polaski consideration, so long as he acknowledged and
examined those considerations before discounting [claimant’s] subjective complaints.”
Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (internal citation omitted). If the ALJ
gives a good reason for discrediting a claimant’s credibility, then the court will defer to
the ALJ’s judgment “even if every factor is not discussed in depth.” Dunahoo v. Apfel,
241 F.3d 1033, 1038 (8th Cir. 2001) (internal citation omitted). “Although the ALJ may
disbelieve a claimant’s allegations of pain, credibility determinations must be supported
by substantial evidence.” Jeffery v. Sec’y of Health & Human Servs., 849 F.2d 1129,
1132 (8th Cir. 1988) (internal citation omitted). “Moreover, the ALJ must make express
credibility determinations and set forth the inconsistencies in the record that lead him to
reject the claimant’s complaints.” (Id.). “Where objective evidence does not fully
support the degree of severity in a claimant’s subjective complaints of pain, the ALJ must
consider all evidence relevant to those complaints.” Holmstrom v. Massanari, 270 F.3d
715, 721 (8th Cir. 2001) (internal citation omitted).
Here, the ALJ found Claimant’s testimony regarding his subjective complaints of
pain were inconsistent with the medical records and his self-reported physical activities.
An ALJ may properly discount subjective complaints if inconsistencies exist in the record
as a whole. Polaski, 739 F.2d at 1322; Gonzales v. Barnhart, 465 F.3d 890, 895 (8th
Cir. 2006); Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). Upon my own
review of the record, I find that the ALJ’s finding is well supported and adequately
detailed in the decision.
As an initial matter, the ALJ’s Polaski analysis is not tainted by a flawed evaluation
of Dr. Mendoza’s opinion, as Claimant asserts. (Doc. 12, at 12). Rather, I have already
determined the ALJ afforded Dr. Mendoza’s opinion sufficient weight and, even if the
ALJ did err in this respect, the remaining evidence in the record supports the ALJ’s
determination that Claimant’s credibility should be discounted.
The ALJ did not disregard Claimant’s allegations of pain, as the ALJ incorporated
into her residual functional capacity assessment limitations on how much weight Claimant
could lift and carry, restrictions on his ability to sit, stand, walk, kneel, and crouch, and
determined that Claimant could never crawl. (AR 15). Further, Claimant’s back pain
was well controlled and manageable with medication, and he progressed in the normal
fashion following knee surgery.
Significantly, Claimant’s statements to medical
providers regarding his physical abilities and activities, as well as his complaints of pain,
show wide variances from the allegations Claimant testified to.
The case law is clear that an ALJ may consider noncompliance with medical
treatment as detracting from a claimant’s credibility. See, e.g., Wright v. Colvin, 789
F.3d 847, 854 (8th Cir. 2015) (holding that a claimant’s failure to comply with medical
treatment diminished the claimant’s credibility); Wildman v. Astrue, 596 F.3d 959, 966
(8th Cir. 2010) (same); Holley v. Massanari, 253 F.3d 1088, 1091-92 (8th Cir. 2001)
Here, Claimant’s own failure to attend several scheduled physical therapy
appointments resulted in his being prevented from pursuing future treatment through that
provider; this failure to keep physical therapy appointments is not indicative of an
individual suffering from physical pain to the extent Claimant alleges.
Claimant correctly asserts that an applicant need not be bedridden to lack the
capacity to work. Wagner v. Astrue, 499 F.3d 842, 851-52 (8th Cir. 2007) (noting that
although a claimant need not be bedridden to be disabled, an ALJ may take into account
the degree to which a claimant’s daily activities are inconsistent with the alleged severity
of impairments). However, the ALJ’s determination rested on far more substantial
evidence than Claimant suggests. Although Claimant’s daily and occasional activities
(e.g., acting as a football coach, participating in Memorial Day celebrations as part of
the honor guard, and assisting with mowing the lawn) evidenced remarkable
inconsistencies with Claimant’s allegations, the ALJ considered not only Claimant’s
significant daily activities in making her determination, but also considered the medical
evidence and Claimant’s ability to manage his pain. As a result, the ALJ’s consideration
of Claimant’s activities in her residual functional capacity analysis was sufficient.
Finally, Claimant argues the ALJ applied the wrong legal standard in determining
that Claimant was not entitled to disability benefits, in part, because he could work with
the appropriate accommodations. Specifically, Claimant argues the ALJ improperly
relied on Claimant’s admission that Claimant could work with some assistance from the
VA. (Doc. 12, at 15). Claimant correctly asserts that disability benefits may not be
denied if a claimant would be able to work only if an employer would be willing to make
accommodations under the Americans with Disabilities Act. Eback v. Chater, 94 F.3d
410, 412 (8th Cir. 1996). However, the record is inconclusive as to exactly what kind
of assistance Claimant was referring to when he stated that “There are a lot of jobs I
could do!” with some assistance from the VA healthcare system. (AR 512). It is certainly
not clear that Claimant was referring to an employer’s willingness to make
accommodations for Claimant’s physical impairments. Furthermore, even if the ALJ did
erroneously rely on this statement, which I am not convinced is the case, the ALJ
provided adequate alternative support for her determination that Claimant’s subjective
allegations could be discounted.
The ALJ’s basis for discounting Claimant’s credibility was detailed and specific,
with references throughout to the record. Although the Court could reach a different
credibility finding, I find there is substantial evidence in the record as a whole to support
the ALJ’s credibility findings in this case.
Where an ALJ gives good reason for
discrediting a claimant’s testimony, a reviewing court should defer to the ALJ’s
Halverson v. Astrue, 600 F.3d 922, 931-33 (8th Cir. 2010).
Accordingly, I recommend the Court find the ALJ did not err in her credibility findings.
For the reasons set forth herein, I find the ALJ acted well within the zone of choice
within which the Commissioner may act. Culbertson, 30 F.3d at 939. Therefore, I
respectfully recommend the District Court affirm the Commissioner’s determination that
Claimant was not disabled, and enter judgment against Claimant and in favor of the
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 7th day of September, 2017.
Chief United States Magistrate Judge
Northern District of Iowa
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