George v. Commissioner of Social Security
REPORT AND RECOMMENDATION the District Court affirm the ALJs determination that claimant was not disabled, and enter judgment against claimant and in favor of the Commissioner re 3 Complaint filed by Shemika C George. Objections to R&R due by 9/22/2017. Signed by Chief Magistrate Judge CJ Williams on 09/08/2017. (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
SHEMIKA C. GEORGE,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
REPORT AND RECOMMENDATION
Claimant, Shemika C. George (claimant), seeks judicial review of a final decision
of the Commissioner of Social Security (the Commissioner) denying her application for
disability insurance benefits, under Title II of the Social Security Act, 42 U.S.C. § 401
et seq. (Act). Claimant also filed a Title XVI application for supplemental security
income which was also denied. Claimant contends that the Administrative Law Judge
(ALJ) erred in determining she was not disabled.
For the reasons that follow, I recommend the District Court affirm the
Claimant was born in 1984 and was 30 years old at the time of the ALJ’s decision
to deny benefits. (Doc. 13, at 2). Claimant completed an online associate’s degree for
medical administrative assistant. (AR 49).1 Claimant filed her application for Social
Security Disability Insurance and Supplemental Security Income benefits on May 30,
“AR” refers to Administrative Record.
2013. (AR 17, 226). Claimant asserted that her disability began December 15, 2012, at
age 28, for impairments that include schizoaffective disorder and bipolar type. (AR 265).
The Social Security Administration denied the claimant’s application initially and upon
reconsideration. (AR 153-61, 165-72). Claimant timely filed a Request for Hearing,
and a hearing was held on June 9, 2015, before Administrative Law Judge (ALJ) Jo Ann
L. Draper. On October 6, 2015, the ALJ determined that claimant was able to perform
past relevant work, such as laundry worker, marker, and cleaner. (AR 30). As a result,
the ALJ determined claimant was not disabled and was not entitled to benefits.
Claimant timely requested review of the ALJ’s decision by the Appeals Council.
The Appeals Council denied review on September 22, 2016. (AR 1). The ALJ’s
decision, thus, became the final decision of the Commissioner. 20 C.F.R. § 404.981.
On November 21, 2016, claimant filed a complaint in this court. (Doc. 3).
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A disability is defined as “the inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505.
An individual has a disability when, due to his/her physical or mental impairments, he/she
“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). If a 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 claimant not disabled.
20 C.F.R. §
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 404.1520; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir.
2007). First, the Commissioner will consider a claimant’s work activity. If claimant is
engaged in substantial gainful activity, then claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(i). “Substantial” work activity involves significant mental or physical
activities. 20 C.F.R. § 404.1572(a). “Gainful” activity is work done for pay or profit,
even if claimant does not ultimately receive pay or profit. 20 C.F.R. § 404.1572(b).
Second, if claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of claimant’s physical and medical impairments. If
the impairments are not severe, then claimant is not disabled.
20 C.F.R. §
404.1520(a)(4)(ii). An impairment is not severe if “it does not significantly limit your
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1521(a); see
also 20 C.F.R. § 404.1520(c); Kirby, 500 F.3d at 707.
The ability to do basic work activities means having “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. § 404.1521(b). These abilities and aptitudes
include: “(1) [p]hysical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) [c]apacities for seeing, hearing, and
speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions; (4)
[u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers, and usual
work situations; and (6) [d]ealing with changes in a routine work setting.” (Id.). §
404.1521(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
Third, if 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 claimant is considered
disabled regardless of age, education, and work experience.
20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.
Fourth, if claimant’s impairment is severe, but it does not meet or equal one of
the presumptively disabling impairments, then the Commissioner will assess claimant’s
residual functional capacity (RFC) and the demands of his/her past relevant work. If
claimant can still do his/her past relevant work, then he/she is considered not disabled.
20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4).
Past relevant work is any work
claimant has done within the past 15 years of his/her application that was substantial
gainful activity and lasted long enough for claimant to learn how to do it. 20 C.F.R. §
“RFC is a medical question defined wholly in terms of claimant’s
physical ability to perform exertional tasks or, in other words, what claimant can still do
despite his or her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646
(8th Cir. 2003) (internal quotation marks and citations omitted); see 20 C.F.R. §§
404.1545(a)(1), 416.945(a)(1). The RFC is based on all relevant medical and other
20 C.F.R. § 404.1545(a)(3).
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 claimant is not disabled. (Id.). §
Fifth, if claimant’s RFC, as determined in Step Four, will not allow claimant to
perform past relevant work, then the burden shifts to the Commissioner to show there is
other work claimant can do, given claimant’s RFC, age, education, and work experience.
See Bladow v. Apfel, 205 F.3d 356, 358 n.5 (8th Cir. 2000). The Commissioner must
show not only that 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); 20 C.F.R. §
404.1520(a)(4)(v). If claimant can make the adjustment, then the Commissioner will find
claimant is not disabled.
20 C.F.R. § 404.1520(a)(4)(v).
At Step Five, the
Commissioner has the responsibility of developing claimant’s complete medical history
before making a determination about the existence of a disability.
20 C.F.R. §
404.1545(a)(3). The burden of persuasion to prove disability remains on claimant.
Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
If after these five steps, the ALJ has determined claimant is disabled, but there is
medical evidence of substance use disorders, the ALJ must decide if that substance use
was a contributing factor material to the determination of disability.
42 U.S.C. §
423(d)(2)(C). The ALJ must then evaluate the extent of 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 claimant is not disabled. 20
C.F.R. § 404.1535.
THE ALJ’S FINDINGS
The ALJ engaged in the five-step sequential analysis outlined above, as reflected
in her written decision.
At Step 1, the ALJ found claimant had not engaged in substantial gainful activity
since December 15, 2012, the alleged date of disability onset. (AR 19).
At Step 2, the ALJ determined claimant had the following severe impairments:
schizoaffective disorder, anxiety disorder, obesity, and lumbar spine curvature. (Id.).
The ALJ acknowledged other impairments that were listed in the record, including
headaches, obstructive sleep apnea, mild early degenerative changes to the cervical spine
and subchondral cyst in the right acromioclavicular joint, but found they did not cause
significant limitation of functioning, or did not last for a continuous period of 12 months.
At Step 3, the ALJ determined claimant did not have a physical or mental
impairment or a combination of impairments that met or medically equaled the severity
of a listed impairment in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (AR 23-24). Because of
this determination, disability could not be established based on medical facts alone. (20
C.F.R. Pt. 404.1520(d) and 416.920(d)). The ALJ found claimant had the following
“paragraph B” criteria limitations: mild difficulties in activities of daily living; moderate
difficulties in social functioning; moderate difficulties with concentration, persistence of
pace, and no episodes of decompensation.
The ALJ did not find any
“paragraph C” criteria. (Id.).
At Step 4, the ALJ determined claimant’s residual functional capacity. The ALJ
found that “claimant has the residual functional capacity to perform medium work” with
the following restrictions:
[Claimant] could stand or walk for six hours in an eight-hour workday and
sit for six hours in an eight-hour workday. She would need to avoid
constant climbing, balancing, stooping, kneeling, crouching, and crawling.
She could never climb ladders, ropes, or scaffolds. She could perform
tasks learned in 30 days or less, involving no more than work-related
decisions, requiring little to no judgment, and only occasional workplace
changes. She should have no interaction with the public and only occasional
interaction with coworkers and supervisors. She could not work at a
Based on this residual functional capacity, the ALJ determined
claimant was not able to perform past relevant work. (AR 29).
At Step 5, based on expert testimony from a vocational expert, the ALJ determined
that claimant would be able to perform the following jobs: laundry worker, marker, and
cleaner. (AR 30). The ALJ found there were jobs that existed in significant numbers in
the national economy that claimant could perform. (Id.). The ALJ therefore found
claimant was not under a disability from December 15, 2012 through the date of the
decision. (AR 30).
THE SUBSTANTIAL EVIDENCE STANDARD
A court must affirm the Commissioner’s decision “‘if the ALJ’s decision is
supported by substantial evidence in the record as a whole.” Wright v. Colvin, 789 F.3d
847, 852 (8th Cir. 2015) (quoting Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008));
see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive . . ..”). “Substantial
evidence” is “less than a preponderance, but enough that a reasonable mind might accept
it as adequate to support a decision.” Wright, 542 F.3d at 852 (quoting Juszczyk, 542
F.3d at 631).
The Eighth Circuit Court of Appeals has explained the standard as
“something less than the weight of the evidence and allows for the possibility of drawing
two inconsistent conclusions, thus it embodies a zone of choice within which the
[Commissioner] may decide to grant or deny benefits without being subject to reversal
on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (internal quotation
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but we do not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (internal citation
omitted). 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.
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, 547 F.3d at 935). 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 “simply because some
evidence may support the opposite conclusion.” Perkins v. Astrue, 648 F.3d 892, 897
(8th Cir. 2011) (internal quotation marks and citation omitted).
See also Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative decision is not subject
to reversal simply because some evidence may support the opposite conclusion.” (Internal
MEDICAL RECORDS REVIEW
I adopt the facts as set forth in the parties’ Joint Statement of Facts and therefore
only summarize the pertinent medical facts here. (Doc. 13). Claimant had been treated
or evaluated by the following providers: Joan Schwinghammer, Advanced Registered
Nurse Practitioner (ARNP); Dr. Mark Thibault; Shelby Allen-Benitz, ARNP; Julianne
Klesel, LISW; Allison Fox, Licensed Master Social Worker (LMSW); Rachel Squier,
Doctor of Physical Therapy (DPT-); Carroll Roland, Ph.D.; Dr. Dennis Colby, DO; Dr.
Kersbergen, internal medicine; Dr. Mark E Lassisse, psychiatry; and Lisa Watkins,
Nurse Practitioner (NP). Claimant had been treated in the following medical facilities:
St. Cloud Hospital Behavioral; Wellsource (formerly Mental Health Center of North
Iowa); Mercy Medical Center–North Iowa; and the Iowa Specialty Hospital.
On December 17, 2012, Dr. Mark Thibault of Physician Neck and Back Clinic
evaluated claimant for spine pain associated with headaches and pain, weakness, and
sensory dysfunction in claimant’s extremities. (AR 375). Dr. Thibault’s examination
that day showed some decreased range of motion of claimant’s spine, but no motor
weakness or sensory loss. (AR 378). Claimant’s diagnosis was mechanical low back
pain, non-specific cervical spine pain, headache, non-specific thoracic pain, and
Dr. Thibault planned for claimant to participate in a
rehabilitation program and additional testing was to be considered. (AR 279.). Followup was on February 4, and April 3, 2013. Dr. Thibault documented that claimant was
making good progress, but did not finish the physical therapy program for her low back
pain, and attend only seven sessions. (AR 371).
Schwinghammer, ARNP for management of mental health issues on March 22, 2013.
Claimant complained of having “695 people in her head.” (AR 360). Claimant was
diagnosed with the following axis I disorders: anxiety disorder, psychosis, PTSD, rule
Claimant’s medication was modified to address her psychotic
symptoms. (AR 362).
Claimant was evaluated and treated by Shelby Allen-Benitz, ARNP and Julianne
Klesel, LISW at the Mental Health Center of North Iowa between May 23, 2013, and
November 13, 2013, with symptoms of auditory and visual hallucinations. (AR 383411). Ms. Allen-Benitz’s first evaluation, on May 30, 2013, stated “[t]o be honest,
[claimant] doesn’t strike me as someone with paranoid schizophrenia. She presents
herself well, is articulate, and appears to lack the cognitive deficits that most patients
with schizophrenia would display after years of treatment.” (AR 402). Claimant’s
symptoms were unchanged on June 17, 2013, and she reported increased anger outbursts
while visiting her family. (AR 404). On July 22, 2013, Ms. Allen-Benitz diagnosed
claimant with schizoaffective disorder bipolar type and also rule out malingering. (AR
Ms. Allen-Benitz documented that she was “highly suspicious, based on
[claimant’s] mannerisms and interactions during the interview, that she is malingering
with the secondary gain of not having to work and continuing to qualify for Title 19
[benefits].” (AR 410). Claimant was seen ten times between August 15, and November
7, 2013, all appointment goals were to stabilize her mental health and maximize her
medication. On November 14, 2013, claimant discussed that her husband was physically
abusive and claimant was having some suicidal ideation. (AR 449).
Claimant treated with Wellsource (formerly Mental Health Center of North Iowa)
from November 21, 2013, until June 5, 2015, for her emotional and psychiatric symptoms
for a total of 47 visits. She was seen by Allison Fox, LMSW, Julianne Klesel, and Ms.
Allen-Benitz. Claimant was generally in a good mood with normal affect, but continued
to complain of auditory and visual hallucinations and variable levels of anxiety. Claimant
was described as cooperative and interactive. (AR 469-519, 584-95).
On May 30, 2013, Ms. Allen-Benitz completed a Report on Incapacity that stated
claimant could not perform work of any kind due to intense anger outbursts and
socialization problems and, further, should not work until medical and psychotic
symptoms showed improvement. (AR 382). On March 14, 2014, Ms. Allen-Benitz
completed a Medical Source Statement that opined claimant would have marked
restrictions in many areas of social interaction. (AR 466-67). These restrictions included
marked limitations in claimant’s ability to understand and remember detailed instructions
and to carry out detailed instructions.
These restrictions were due to
claimant’s “level of anxiety and psychosis, depending on the severity, made it difficult
for her to comprehend and follow through.” (Id.). Ms. Allen-Benitz opined that claimant
would not be able to sustain a full-time work schedule because “she would likely become
easily overwhelmed, resulting in increased anxiety and psychosis.” (AR 466). Ms.
Allen-Benitz endorsed marked limitations in claimant’s ability to interact appropriately
with the public; interact appropriately with people in authority; respond appropriately to
pressures; and respond appropriately to changes. (AR 467). Ms. Allen-Benitz authored
a letter to Representative Services on June 10, 2015, in which she opined that claimant’s
malingering behavior was actually pathologic maladaptive coping skills. (AR 613).
Claimant was seen by Dennis Colby, D.O. and Ms. Fox in the Iowa Specialty
Hospital ten times between August 10, 2015, and December 15, 2015, where at all visits
claimant appeared to have a labile affect, was possibly delusional, and continued to
complain of hallucinations. (AR 625).
On August 24, 2013, Carroll Roland, Ph.D. performed a Consultative
Psychological Examination on claimant.
Dr. Roland concluded that claimant was
strongly suspected of malingering, but psychotic disorder and anxiety disorder could not
be completely ruled out. (AR 417-21). The diagnoses given with that evaluation were:
malingering strongly suspected, psychotic disorder, PTSD, anxiety disorder. (AR 421).
Rachel Squier, DPT of Accelerated Rehab performed a Consultative Physical
Therapy Examination on claimant on September 3, 2013, at the request of the State of
Iowa Disability Determination Services for claimant’s neck and back pain.
examination showed mild to moderate diffuse motor weakness, limitation of range of
motion around knee, normal sensation and gait abnormalities. (AR 423-24).
Claimant had lumbar X-rays on October 10, 2013, which showed questionable
slight curvature and minimal osteophytic lipping. (AR 430).
Claimant was treated at Mercy family clinic, Forest City between June 13, 2013,
and October 25, 2013, where she was seen five times for a variety of medical issues,
including her emotional and psychiatric issues. (AR 432-47).
Claimant was treated by Mercy Medical Center–North Iowa as an outpatient
between September 25, 2103, and March 19, 2015. Claimant was treated for numerous
medical issues non-related to this report. On March 6, 2015, Dr. Kersbergen noted that
the psychiatric medications “have been working for her.” (AR 520).
Claimant presented to the Emergency Room at Mercy Medical Center-North Iowa
on April 23, 2015, for homicidal ideation, she reported planning to kill her husband
because he was abusive to her. (AR 604). Claimant was admitted as a psychiatric
inpatient and evaluated by Mark E. Lassisse, M.D., who adjusted claimant’s medication
and discharged her April 27, 2015. (AR 596) During that hospitalization, claimant took
a Minnesota Multiphasic Personality Inventory (MMPI) with results consistent with
symptom magnification. (AR 600).
Claimant was evaluated by Lisa Watkins, NP at Unity Point Berry Hill Center
from October 19, 2015, to November 17, 2015, where claimant continued to describe
hearing voices and problems with interpersonal relationships. (AR 657-661).
Non-examining sources included: Scott Shafer, Ph.D.; Jan Hunter, D.O.; Myrna
Tashner, Ed.D.; and John May, M.D. Dr. Shafer concluded on September 4, 2013, that
the medical impairments caused only mild restriction of activities of daily living,
maintaining social function, difficulty in maintaining concentration, persistence or pace,
and there were no episodes of decompensation. (AR 96). Dr. Shafer also concluded that
claimant was not disabled on the basis of her mental impairments and also opined that
claimant’s accounts of limitations are not consistent with the record. (AR 102). Dr.
Hunter concluded that claimant reported that she was not able to grocery shop, stand
straight and was only able to walk fifteen steps, while at the same time claimant reported
she could take care of personal needs, prepared meals, and did laundry and household
chores. Dr. Hunter concluded that claimant’s credibility was significantly eroded. (AR
99). Further, claimant’s accounts of her limitations were not consistent with the records
of the provider who treated her spinal symptoms. (Id.). Dr. Tashner and Dr. May
confirmed these opinions on November 19, 2013.
Claimant argues the ALJ’s residual functional capacity assessment is flawed for
The Commissioner failed to evaluate properly claimant’s symptoms under
Social Security Ruling 16-3p. (Doc. 15, at 5).
The ALJ failed to give proper weight to the opinions of the examining
source Ms. Allen-Benitz. (Doc. 14, at 11).
I will address these arguments in turn below.
The Commissioner’s evaluation of claimant’s symptoms pursuant to
Social Security Ruling 16-3p.
Claimant argues that the Commissioner and ALJ erred in the ALJ’s evaluation of
claimant’s subjective symptoms. (Doc. 15, at 5). Claimant argues that the SSA Ruling
16-3p, issued on March 16, 2016, (effective March 28, 2016), should be retroactively
applied to the ALJ’s decision of October 6, 2015, and the Appeals Council review of
October 27, 2015. (Doc. 15). Claimant further argues that because the recent ruling
would affect the determination, SSR 16-3 supersedes SSR 96-7p, and the term credibility
should not be used or considered in the ALJ’s determinations, rather, claimant’s
symptoms should be determinative. SSR 16-3p, 81 FED. REG. 51, 14166 (Mar. 16,
2016). Claimant suggests that the fact pattern that was weighed by the Commissioner
and ALJ that resulted in the conclusion of eroded credibility should instead be weighed
as an independent psychiatric symptom in determination of overall disability. (Doc. 15,
At the time of the ALJ’s determination, SSR 96-7p was the applicable standard.
Consistent with SSR 69-7p, in evaluating a claimant’s credibility, an ALJ must consider
the entire record, including the medical records, statements by claimant and third parties,
and factors such as: (1) 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). In arriving at a credibility determination, an ALJ is
not required to discuss every piece of evidence submitted. Wildman v. Astrue, 596 F.3d
959, 966 (8th Cir. 2010). “[T]he duty of the court is to ascertain whether the ALJ
considered all of the evidence relevant to the [claimant’s] complaints . . . under the
Polaski standards and whether the evidence so contradicts the [claimant’s] subjective
complaints that the ALJ could discount his or her testimony as not credible.” Brown v.
Astrue, 4:08-CV-483 CAS, 2009 WL 88049, at *8 (E.D. Mo. Jan. 12, 2009) (quoting
Masterson v. Barnhart, 363 F.3d 731, 738-39 (8th Cir. 2004)).
The ALJ must
“specifically demonstrate in his decision that he considered all of the evidence.” (Id.
(citing Masterson, 363 F.3d at 738; Cline, 939 F.2d at 565)). In the end, however, “[t]he
determination of a claimant’s credibility is for the Commissioner, and not the Court, to
make.” (Id. (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005); Pearsall v.
Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001)). The ALJ appropriately applied this
standard in considering claimant’s credibility and concluded, based on claimant’s activity
of daily living and documented mental status examinations that claimant’s credibility was
eroded. (AR 28).
Here, the claimant’s credibility was not determinative in the final ruling of the
Commissioner or the ALJ. The ALJ appropriately considered the record as a whole in
her final determination; “[a]fter careful consideration of the evidence, the undersigned
finds that the claimant’s medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, the claimant’s statements concerning
the intensity, persistence, and limiting effects of these symptoms are not credible to the
extent they are inconsistent with the above [RFC] assessment.” (AR 27-28). Thus even
if credibility were not a factor, the ALJ sufficiently developed the record to conclude
that, based on the record as a whole, claimant’s symptoms were not disabling pursuant
to 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505, and that determination does not
conflict with SSR 16-3p. As SSR 16-3p states:
[i]n contrast, if an individual's statements about the intensity, persistence,
and limiting effects of symptoms are inconsistent with the objective medical
evidence and the other evidence, we will determine that the individual's
symptoms are less likely to reduce his or her capacities to perform workrelated activities or abilities to function independently, appropriately, and
effectively in an age-appropriate manner.
SSR 16-3p, 81 FED. REG. 51, 14166 (Mar. 16, 2016). Claimant has not met her burden
of showing that application of SSR 16-3p would reverse the final decision of the
Commissioner or ALJ.
Credibility issues aside, if claimant’s psychiatric illness causes the symptom of
symptom magnification then, by definition, claimant’s subjective symptoms have little
reliability in determining residual functional capacity and disability.
symptom magnification, as an independent symptom, does not substantially increase
work-related impairment. Here, the ALJ adequately developed claimant’s record and
identified that the record documents—episodes of good response to medication,
situational stressors magnifying claimant’s complaints, and repeated mental status
examinations—showed that claimant communicated and acted appropriately in all
documented encounters. (AR 22-28). Therefore, retroactive application of SSR 16-3p,
which was effective as of March 28, 2016, to the instant case is not appropriate. Van
Vickle v. Astrue, 539 F.3d 825, 829, n.3 (8th Cir. 2008) (the court refused to reconsider
a case based on a new ruling because the new ruling would not affect the final
The evaluation of the opinions of treating psychiatric provider Ms.
Claimant argues that the ALJ did not accord sufficient weight to Ms. AllenBenitz’s opinion, specifically the Medical Source Statement on March 14, 2014, which
stated claimant would not be able to sustain a full-time work schedule because “she would
become easily overwhelmed, resulting in increased anxiety and psychosis.” (AR 466).
Ms. Allen-Benitz endorsed marked limitations in claimant’s ability to interact
appropriately with the public; interact appropriately with people in authority; respond
appropriately to pressures; and respond appropriately to changes.
Additionally, on May 30, 2013, Ms. Allen-Benitz opined that claimant would not be able
to work due to intense anger outbursts and problems with socialization. (AR 382).
On June 10, 2015, Ms. Allen-Benitz asserted that claimant’s malingering behavior
was actually pathologic maladaptive coping skills, thus reversing Ms. Allen-Benitz’s
prior statements that claimant was likely malingering. (AR 613). Claimant asserts that
all other experts that concluded claimant was malingering hinged on the initial concern
of Ms. Allen-Benitz. (Doc. 15). Claimant argues that because Ms. Allen-Benitz changed
her opinion regarding the malingering, the opinions of the non-examining and
consultative sources, who did not have Ms. Allen-Benitz’s June 10, 2015, letter should
have been given little weight by the ALJ. Claimant proposes that the record needs to be
redeveloped in light of Ms. Allen-Benitz’s revised opinion. (Doc. 15, at 10-11).
I conclude the ALJ gave proper weight to the opinions and letter of Ms. AllenBenitz, because the ALJ identified that independent of Ms. Allen-Benitz’s initial
conclusions, the record supported a conclusion that claimant exhibited malingering
behaviors. (AR 28). The ALJ emphasized, that during claimant’s physical therapy
consultative evaluation of September 3, 2013, claimant reported an inability to stand up
straight, inability to walk long enough to complete grocery shopping, inability to lift any
weight heavier than her purse, exhibited diffuse deficits in muscle strength, and
ambulating with a wide based, forward-leaning gait, and had difficulty bending. (AR 2829, 423). Yet, during her examination with Dr. Roland just one month prior, claimant
cited no physical deficits whatsoever, and the objective medical evidence contains largely
no ongoing treatment for back pain or other musculoskeletal pain, save a few
rehabilitation sessions in late 2012 and early 2013. (AR 29, 417-418). The ALJ also
noted throughout her decision that treating providers found that the claimant had no
significant gait impairments, and that claimant cited no physical deficits during the
hearing. (AR 29). Therefore, independent of Ms. Allen-Benitz’s, opinions, the physical
consultative examination indicated symptom magnification, exaggeration, and/or
Ms. Allen-Benitz’s letter of June 10, 2015, in which she reversed her opinion of
claimant’s malingering, was written in response to an inquiry from claimant’s counsel,
and contradicts her prior medical records. As such, it is entitled to less weight compared
to treatment records. Martise v Astrue, 641 F.3d 909, 924 (8th Cir. 2011) (An ALJ may
justifiably discount a treating physician's opinion in a social security disability proceeding
when that opinion is inconsistent with the physician's clinical treatment notes.); see
Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001) (noting an ALJ may discount treating
physician's opinion if the physician has offered inconsistent opinions). See also Anderson
v. Astrue, 696 F.3d 790, 793-94 (8th Cir. 2012) (“[a] treating physician’s own
inconsistency may also undermine [her] opinion and diminish or eliminate the weight
given [her] opinions,” such as when the opinion is inconsistent with contemporaneous
treatment notes); Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (citation
omitted). Similarly, an ALJ may discount the weight given to a treating physician’s
opinion if the treatment notes simply do not support the limitations endorsed in the
opinion. See Cline v. Colvin, 771 F.3d 1098, 1104 (8th Cir. 2014) (holding that a treating
physician’s opinion is entitled to less weight if it is unsupported by the physician’s own
Although an ALJ must consider medical opinion evidence in formulating a
claimant’s residual functional capacity, the ALJ has a duty to formulate the RFC based
on all of the relevant and credible evidence of record. Cox v. Astrue, 495 F.3d 614, 619
(8th Cir. 2007); Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir. 2000) (per curiam). This
evidence includes a claimant’s daily activities. Owen v. Astrue, 551 F.3d 792, 799 (8th
Cir. 2008) (finding an ALJ properly discounted the opinions of a medical source because
claimant’s activities of daily living did not reflect the physical limitations found). Thus,
an “ALJ may reject the conclusions of any medical expert, whether hired by the claimant
or the government, if they are inconsistent with the record as a whole.” Wagner v.
Astrue, 499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall, 274 F.3d at 1219). When
determining the RFC, “‘[t]he opinion of a consulting physician who examines a claimant
once or not at all does not generally constitute substantial evidence.’” Singh v. Apfel,
222 F.3d 448, 452 (8th Cir. 2000) (quoting Kelley v. Callahan, 133 F.3d 583, 589 (8th
Cir. 1998)). Regardless of the source of the opinion, however, an ALJ must explain and
give good reasons for the weight accorded to the various opinions.
20 C.F.R. §
Ultimately, it is not for this Court to re-weigh the medical evidence or resolve
conflicts between medical professionals. So long as the ALJ’s analysis is reasonable, this
Court cannot reverse the Commissioner’s decision. See Haggard v. Apfel, 175 F.3d 591,
594 (8th Cir. 1999) (“We may not reverse the Commissioner’s decision merely because
substantial evidence exists in the record that would have supported a contrary outcome.”
(internal citation omitted)).
The ALJ assigned greater weight to the opinions of examining consultative
provider, Dr. Carroll Roland, as well as state non examining sources including Scott
Shafer, Ph.D.; Jan Hunter, D.O.; Myrna Tashner, Ed.D.; and John May, MD. As the
ALJ pointed out, these opinions are consistent with the record as a whole. (AR 24-28).
The opinions of non-examining state agency consulting physicians normally cannot
constitute “substantial evidence” in support of an ALJ’s decision when those opinions
directly conflict with the opinions of treating or examining sources. See, e.g., Shontos
v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003) (“The opinions of non-treating
practitioners who have attempted to evaluate claimant without examination do not
normally constitute substantial evidence on the record as a whole.” (citing Jenkins v.
Apfel, 196 F.3d 922, 925 (8th Cir. 1999)); Dixon v. Barnhart, 324 F.3d 997, 1002-03
(8th Cir. 2003) (holding that “[g]iven the contradicting recommendations in the record
and the insufficiently developed record surrounding Dixon’s cardiac problems, [the nonexamining consulting physician’s] opinion does not constitute substantial record evidence
that Dixon can perform medium work.” (citing Nevland v. Apfel, 204 F.3d 853, 858 (8th
When, however, assessments of state agency medical consultants are
consistent with other medical evidence in the record, those assessments can provide
substantial evidence supporting the ALJ’s RFC assessment.
See Stormo, 377 F.3d at
807-08. Indeed, an ALJ may rely on a state agency consulting physician’s opinion even
when that opinion conflicts with the opinion of a treating physician. See Ponder v.
Colvin, 770 F.3d 1190, 1194-95 (8th Cir. 2014) (concluding that three non-examining
consulting physician’s opinions trumped a treating physician’s opinion). An ALJ may
ultimately base an RFC assessment on medical evidence, even in the absence of any
medical opinion. Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2013). It is the ALJ’s
duty to weigh the medical evidence. Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
I find the ALJ properly acted within her zone of choice in weighing the workrelated limitations opined by Ms. Allen-Benitz. The ALJ conducted an adequate analysis
in the area of the residual functional capacity assessment even though the ALJ’s
conclusion did not conform to that of Ms. Allen-Benitz. (AR 25).
For the reasons set forth herein, I respectfully recommend the District Court
affirm the ALJ’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 8th day of September, 2017.
Chief United States Magistrate Judge
Northern District of Iowa
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