Stearns v. Commissioner of Social Security
Filing
27
MEMORANDUM, OPINION and ORDER: Accepting 17 Report and Recommendation: The Commissioner's determination that Plaintiff was not disabled is affirmed: Judgment shall entered against Plaintiff and in favor of the Defendant. Signed by Chief Judge Leonard T Strand on 09/14/18. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
AMANDA J. STEARNS,
Plaintiff,
No. C17-2031-LTS
vs.
NANCY A. BERRYHILL, Deputy
Commissioner of Operations,1
MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION
Defendant.
____________________
I.
INTRODUCTION
This case is before me on a Report & Recommendation (R&R) by the Honorable
C.J. Williams, Chief United States Magistrate Judge. Doc. No. 17. Judge Williams
recommends that I affirm the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Amanda J. Stearns’ application for disability insurance
benefits (DIB) under Title II of the Social Security Act. See 42 U.S.C. §§ 401-434.
Stearns filed timely objections (Doc. No. 20) to the R&R and sought leave (Doc.
No. 19) to file a supplemental brief addressing the application of Lucia v. S.E.C., 138 S.
Ct. 2044 (2018). The Commissioner did not resist. I granted leave and the parties filed
supplemental briefs, which I have considered. See Doc. Nos. 22, 23, 25, 26.2
1
On March 6, 2018, the Government Accountability Office stated that as of November 17, 2017,
Nancy Berryhill’s status as Acting Commissioner violated the Federal Vacancies Reform Act (5
U.S.C. § 3346(a)(1)), which limits the time a position can be filled by an acting official. As of
that date, therefore, she was not authorized to continue serving using the title of Acting
Commissioner. As of November 17, 2017, Berryhill has been leading the agency from her
position of record, Deputy Commissioner of Operations. For simplicity, I will continue to refer
to the defendant as “the Commissioner” throughout this order.
2
The Commissioner timely filed a supplemental response (Doc. No. 23), but it did not address
the issues raised in Stearns’ supplemental brief. She filed a second supplemental response (Doc.
II.
A.
APPLICABLE STANDARDS
Judicial Review of the Commissioner’s Decision
The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner . . . as to any fact,
if supported by substantial evidence, shall be conclusive . . . .”). “Substantial evidence
is less than a preponderance, but enough that a reasonable mind might accept as adequate
to support a conclusion.” Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003). The
Eighth Circuit explains the standard as “something less than the weight of the evidence
and [that] allows for the possibility of drawing two inconsistent conclusions, thus it
embodies a zone of choice within which the [Commissioner] may decide to grant or deny
benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30 F.3d
934, 939 (8th Cir. 1994).
To determine whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which supports the Commissioner’s decision and evidence that detracts
from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court “must search
the record for evidence contradicting the [Commissioner’s] decision and give that
evidence appropriate weight when determining whether the overall evidence in support
is substantial.”
Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citation
omitted).
No. 25) that did address those issues, but was one day late. Stearns then filed a reply (Doc. No.
26). Because this is a new issue before the court that could arise in other cases, I find it best to
consider both parties’ entire arguments in deciding whether remand is appropriate. Thus, I will
consider the Commissioner’s late second supplemental response (Doc. No. 25) and Stearns’ reply
(Doc. No. 26) in addressing the application of Lucia.
2
To evaluate the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citation
omitted), or “review the factual record de novo.” Roe v. Chater, 92 F.3d 672, 675 (8th
Cir. 1996) (citation omitted). Instead, if, after reviewing the evidence, the court “find[s]
it possible to draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, [the court] must affirm the [Commissioner’s]
denial of benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933,
935 (8th Cir. 2008)). This is true even if the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (citation omitted). The court may not reverse
the Commissioner’s decision “merely because substantial evidence would have supported
an opposite decision.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see also
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative decision is
not subject to reversal simply because some evidence may support the opposite
conclusion.”).
B.
Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following
standards:
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
3
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
III.
THE R&R
Stearns applied for DIB on July 18, 2013, alleging she became disabled on May
1, 2012, due to left knee pain and swelling with arthritis and cartilage issues, depression,
anxiety and bi-polar disorder.3 AR 345. After a hearing, an Administrative Law Judge
(ALJ) applied the familiar five-step evaluation and found at step five that there were jobs
in significant numbers in the national economy that Stearns could perform based on her
3
The ALJ summarized her severe impairments as major joint dysfunction, degenerative disc
disease, affective disorders, anxiety disorder and personality disorder. See AR 28.
4
residual functional capacity (RFC) and, therefore, she was not disabled as defined in the
Act. Stearns argues the ALJ erred in determining that she was not disabled because:
1.
The ALJ failed to properly evaluate the work-related limitations
from examining source Dr. Sunde Nesbit.
2.
The ALJ’s RFC is not supported by substantial medical evidence
from a treating or examining source.
3.
The ALJ improperly discounted Stearns’ subjective allegations
without identifying inconsistencies in the record as a whole.
See Doc. No. 13. Judge Williams addressed each argument in his R&R.
With regard to Dr. Nesbit’s opinion, Judge Williams first noted that he is an
examining source as opposed to a treating source. Doc. No. 17 at 8. Therefore, the ALJ
must evaluate his opinion according to a number of factors, such as consistency with the
medical record as a whole and the source’s familiarity with the case record. Id. Judge
Williams concluded the ALJ gave good reasons for discounting Dr. Nesbit’s opinions
based on inconsistencies with the record as a whole. Id. For instance, Dr. Nesbit noted
that Stearns struggled with her cashier job at Wal-Mart because she would shut down
when she was around people. Id. The ALJ reasoned this was inconsistent with the fact
that Stearns had worked her way up from cashier to customer service manager at WalMart. Id. Also, Stearns had left her job at Wal-Mart due to her knee injury rather than
any mental impairment. Id. In addition, the ALJ did not find Dr. Nesbit’s opinions
consistent with other mental treatment notes in the record. He stated that the clinical
findings of two other providers did not “comport with the significant limitations alleged
in Dr. Nesbit’s report.” Id. (citing AR 37).
Judge Williams next considered whether the ALJ’s RFC assessment was supported
by substantial medical evidence. Id. at 9. Stearns argues the fact that the ALJ gave “no
weight” to Dr. Nesbit’s opinion from 2016 and “some weight” to non-examining state
agency psychological consultants’ opinions means the ALJ’s RFC cannot be supported
5
by substantial evidence. Id. Stearns acknowledges that the ALJ did give “significant
weight” to the consultative examiner’s opinion, but argues that opinion was issued in
December 2012 and fails to account for Stearns’ deteriorating mental condition. Id.
Judge Williams reasoned that because the ALJ gave this opinion “significant weight” and
it was buttressed by the medical evidence, the ALJ’s RFC assessment was supported by
substantial medical evidence on the record as a whole for the time between Stearns’
alleged onset date and December 2012. Id. at 10. For the remainder of the time, Judge
Williams noted that the medical opinion evidence consisted of opinions from the state
agency consultative examiners (which the ALJ gave “some weight”) and the opinions of
Dr. Nesbit (which the ALJ gave “no weight”). Id. After summarizing Eighth Circuit
precedent, which does not require that an RFC be supported by a specific treating or
examining medical source opinion, Judge Williams concluded that the ALJ’s RFC
assessment was supported by medical evidence in the record as a whole. Id. at 11-12.
With regard to Stearns’ mental impairments, Judge Williams noted the RFC was
supported not only by the state agency consultant opinions, but also Stearns’ medical
records. Id. at 12. With regard to her physical impairments, Judge Williams reasoned
that although the state agency consultants did not take her second knee surgery into
account, Stearns did not present any evidence, or even argue, that her RFC would have
been different had the consultants considered this evidence. Id. at 12-13. Indeed, Judge
Williams noted the ALJ adopted several physical limitations in the RFC and Stearns failed
to point out any differences in her capabilities following the second knee surgery that
would call for a more restrictive RFC. Id. For these reasons, Judge Williams concluded
the ALJ’s overall RFC assessment was supported by substantial evidence in the record
as a whole, including substantial medical evidence.
Finally, Judge Williams addressed the ALJ’s consideration of Stearns’ subjective
allegations. Id. at 13. To the extent Stearns argues the ALJ improperly discounted Dr.
Nesbit’s opinions for relying on Stearns’ subjective allegations, Judge Williams
6
referenced his previous analysis. Id. He then went on to consider the ALJ’s analysis of
Stearns’ subjective allegations alone. Id. at 14. He noted the ALJ discussed the relevant
Polaski factors and discredited some of her subjective allegations based on lack of support
from the objective medical evidence and the fact that Stearns reported improved
functioning after her second knee surgery and had self-limited her performance in a
functional capacity evaluation in January 2016. Id. Judge Williams stated that, for the
most part, the ALJ adopted physical limitations consistent with Stearns’ subjective
allegations. Id. With regard to her mental impairments, Judge Williams noted the ALJ
relied on the medical evidence, workplace functioning, job history and daily activities to
find that her limitations were not as severe as alleged. He concluded the ALJ provided
good reasons for discounting Stearns’ subjective allegations and that the ALJ’s overall
credibility determination was supported by substantial evidence in the record as a whole.
Id. at 15-16.
IV.
ANALYSIS
Aside from the newly-raised issue regarding Lucia v. S.E.C., Stearns’ objections
mirror the arguments raised in her principal brief. Because Stearns challenges each
aspect of the R&R, I will review each issue de novo after considering the newly-raised
Lucia issue. See 28 U.S.C. § 636(b)(1).
A.
Application of Lucia v. S.E.C.
In Lucia, the Supreme Court held that ALJs of the Securities and Exchange
Commission are “Officers of the United States” within the meaning of the Appointments
Clause, meaning that the President, a court of law or department head must appoint them.
Lucia, 138 S. Ct. at 2049. Stearns argues ALJs in the Social Security Administration
are similar “Officers of the United States” and have not been properly appointed. See
Doc. No. 22. She seeks the same remedy granted in Lucia – “a new hearing before a
7
properly appointed official.” See Doc. No. 22 at 8; Lucia, 138 S. Ct. at 2055 (internal
quotations omitted). Stearns argues I may consider this issue even though it was not
raised below because there is no issue exhaustion requirement in Social Security appeals.
See Sims v. Apfel, 530 U.S. 103, 112 (2000) (“Claimants who exhaust administrative
remedies need not also exhaust issues in a request for review by the Appeals Council in
order to preserve judicial review of those issues.”).
The Commissioner argues that Stearns reads Sims too broadly. She contends that
while claimants are not required to raise issues for review by the Appeals Council, they
are required to raise them before the ALJ. See Doc. No. 25 at 5 (explaining that the
Sims court explicitly stated “[w]hether a claimant must exhaust issues before the ALJ is
not before us” and citing cases where courts have held issues not raised before the ALJ
are deemed waived); see also Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003)
(finding the claimant waived the issue of his obesity as an impairment because he never
alleged any limitation as a result of his obesity in his application for benefits or during
the hearing). The Commissioner argues this interpretation is also consistent with various
Social Security regulations. See 20 C.F.R. § 404.933(a)(2) (stating that in a request for
a hearing before an ALJ, the claimant should list the reasons he or she disagrees with the
previous determination or decision); § 404.939 (“If you object to the issues to be decided
at the hearing you must notify the administrative law judge in writing at the earliest
possible opportunity . . . .”); § 404.946(b) (describing process for raising new issues
before or at the hearing before the ALJ). Finally, the Commissioner argues this is
consistent with Lucia’s emphasis that only “one who makes a timely challenge” is entitled
to relief. Lucia, 138 S. Ct. at 2055.
In reply, Stearns argues that her Appointments Clause challenge should be heard
because it is a constitutional claim involving separation of powers and Social Security
disability proceedings are non-adversarial. See Doc. No. 26 at 3. As to the constitutional
nature of the claim, she points out that the Commissioner has released an emergency
8
message directing ALJs to note on the record whether an Appointments Clause challenge
is made at the administrative level, but “[b]ecause SSA lacks the authority to finally
decide constitutional issues such as these, ALJs will not discuss or make any findings
related to the Appointments Clause issue on the record.” Id. at 4 (citing EM-18003 REV,
effective June 25, 2018 at Doc. No. 26-2). She argues constitutional claims may be
raised for the first time in federal court based on the following:
The fact that Eldridge failed to raise with the Secretary his constitutional
claim to a pretermination hearing is not controlling. As construed in Salfi,
§ 405(g) requires only that there be a “final decision” by the Secretary with
respect to the claim of entitlement to benefits. Indeed, the named appellees
in Salfi did not present their constitutional claim to the Secretary.
Weinberger v. Salfi, O.T. 1974, No. 74-214, App. 11, 17-21. The situation
here is not identical to Salfi, for, while the Secretary had no power to amend
the statute alleged to be unconstitutional in that case, he does have authority
to determine the timing and content of the procedures challenged here. 42
U.S.C. § 405(a). We do not, however, regard this difference as significant.
It is unrealistic to expect that the Secretary would consider substantial
changes in the current administrative review system at the behest of a single
aid recipient raising a constitutional challenge in an adjudicatory context.
The Secretary would not be required even to consider such a challenge.
Mathews v. Eldridge, 424 U.S. 319, 329 (1976). See id. at 329, n. 10 (“If Eldridge had
exhausted the full set of available administrative review procedures, failure to have raised
his constitutional claim would not bar him from asserting it later in a district court.”).
With regard to the special, non-adversarial nature of Social Security disability
proceedings, Stearns relies on Harwood v. Apfel to argue that her failure to raise this
issue below does not result in it being forfeited.4 In that case, the Eighth Circuit stated
“it strikes us as odd that Harwood could ‘waive’ his argument that the ALJ should have
4
The issue would be forfeited rather than waived because forfeiture involves the “failure to make
the timely assertion of a right, whereas waiver is the “‘intentional relinquishment or
abandonment of a known right.’” See United States v. Olano, 507 U.S. 725, 733 (1993) (quoting
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). The “right” in this case was not known until
Lucia was decided on June 21, 2018.
9
acted sua sponte to develop the record more fully.” Harwood v. Apfel, 186 F.3d 1039,
1043 n.3 (8th Cir. 1999). The claimant in Harwood failed to raise two arguments in his
brief to the Appeals Council and the district court considered those issues waived.5 Id.
at 1041. On appeal, the Eighth Circuit disagreed and decided the case based on the
merits.
Id.
Stearns reconciles Anderson and Harwood by stating that Anderson
acknowledges it is difficult for a claimant to argue the ALJ should have developed the
record as to a certain impairment if that impairment was never brought to the ALJ’s
attention, but Harwood does not preclude a claimant from raising the issue under an
adversarial waiver theory. She contends this interpretation is consistent with other Eighth
Circuit cases discussing Sims. See Ballanger v. Johanns, 495 F.3d 866, 869 (8th Cir.
2007) (explaining that under Sims, the nature of the agency proceedings as adversarial or
non-adversarial determines whether issue exhaustion is a requirement absent any statute
or regulation requiring issue exhaustion).
The United States District Court for the Central District of California has
considered Lucia in the Social Security context, holding that claimants have forfeited the
Appointments Clause issue by failing to raise it during administrative proceedings. See
Trejo v. Berryhill, Case. No. EDCV 17-0879-JPR, 2018 WL 3602380, at *3 n.3 (C.D.
Cal. July 25, 2018). I find this holding to be consistent with Lucia, Sims, Anderson and
Harwood. Stearns’ argument that an issue need not be raised if the ALJ does not have
authority to decide it does not hold water under Lucia. Lucia made it clear that, with
regard to Appointments Clause challenges, only “one who makes a timely challenge” is
5
Notably, Harwood did not address whether failure to raise claims with the ALJ resulted in
waiver. See Harwood, 186 F.3d at 1043 n. 3 (stating “the only procedural default alleged by
the Commissioner and found by the district court is Harwood’s failure to bring two particular
issues to the Appeals Council’s attention. We need not decide whether Harwood’s apparent
failure to raise two of his issues before the ALJ is fatal to his claims, but it strikes us as odd that
Harwood could “waive” his argument that the ALJ should have acted sua sponte to develop the
record more fully.”).
10
entitled to relief. Lucia, 138 S. Ct. at 2055 (quoting Ryder, 515 U.S. at 182-83). In
Lucia, the Supreme Court acknowledged the challenge was timely because it was made
before the Commission. Id. In the context of Social Security disability proceedings, that
means the claimant must raise the issue before the ALJ’s decision becomes final.
Harwood is essentially no different than Sims in that it too recognizes a claimant need not
exhaust issues before the Appeals Council in order to raise them on judicial review.
Neither Sims nor Harwood addressed whether the issue had to be raised before the ALJ.
Lucia makes it clear that this particular issue must be raised at the administrative level.
Because Stearns did not raise an Appointments Clause issue before or during the
ALJ’s hearing, or at any time before the ALJ’s decision became final, I find that she has
forfeited the issue for consideration on judicial review. As such, her request for remand
on this basis is denied.
B.
Dr. Nesbit’s Opinion
Stearns relies solely on the arguments in her principal brief to challenge the weight
assigned to Dr. Nesbit’s opinion by the ALJ. She makes no argument as to how or why
the R&R did adequately address this issue. See Doc. No. 20 at 2. Stearns correctly
points out that Dr. Nesbit is an examining source and an acceptable medical source. She
contends his evaluation is supported by objective evidence including the Millon Clinical
Multiaxial Inventory-3rd Edition, the Rorschach Inkblot test and the Test of Memory
Malingering. See Doc. No. 13 at 5-6. She further argues that the medical evidence as a
whole supports the limitations identified by Dr. Nesbit. In particular, she references
medication changes and the time period after mid-2013, when she alleges her mental
abilities began deteriorating. Id. at 8-10. Finally, she argues that it was error for the
ALJ to give significant weight to Dr. Ekstrom’s opinion from 2012, in light of her alleged
deteriorating condition and Dr. Nesbit’s more recent opinion from 2016. Id. at 10.
11
The ALJ analyzed Dr. Nesbit’s opinion as follows:
Dr. Nesbit’s diagnostic impressions included borderline personality
disorder and major depressive disorder. Dr. Nesbit opined the claimant
could not function appropriately in the workplace, citing avoidance of social
situations. The undersigned finds this to be inconsistent with the claimant’s
demonstrated history, however, which had her working as [a] customer
service manager at Wal-Mart immediately before the alleged onset of
disability based on the claimant’s alleged knee injury. There is no evidence
in this case that the claimant has been limited in the workplace because of
psychological factors. Furthermore, Dr. Nesbit opined the claimant would
be expected to not finish work tasks because of impulsivity. Again, this is
inconsistent with the claimant’s recent work history, where she was
promoted from retail clerk to customer service manager. Typically, one
would not expect an employee to be promoted if that employee were not
completing job tasks. Again, because these opinions are wholly inconsistent
with the claimant’s demonstrated work history immediately prior to her
alleged onset of disability, I give them no weight.
The undersigned also considered that Dr. Nesbit’s assessment is
inconsistent with the claimant’s progress notes from Blackhawk-Grundy.
While her treatment there was consistent with her diagnoses, the clinical
findings documented by her therapist and nurse practitioner do not comport
with the significant limitations alleged in Dr. Nesbit’s report.
AR 37 (emphasis in original). Judge Williams noted that as an examining source, rather
than a treating source, the ALJ was required to evaluate Dr. Nesbit’s opinions based on
several factors, including consistency with the medical record as a whole and the
familiarity he had with the case record.
Doc. No. 17 at 8 (citing 20 C.F.R. §§
404.1527(c)(4); 404.1527(c)(6)). He concluded the ALJ provided good reasons for
discounting the weight given to Dr. Nesbit’s opinions.
It is not the court’s role “to reweigh the evidence or review the factual record de
novo.” Masterson v. Barnhardt, 363 F.3d 731, 736 (8th Cir. 2004). I must only
“determine whether the quantity and quality of evidence is enough so that a reasonable
mind might find it adequate to support the ALJ’s conclusion.” Id. I “may not reverse
the Commissioner’s decision merely because substantial evidence exists in the record that
12
would have supported a contrary outcome.” Young v. Apfel, 221 F.3d 1065, 1068 (8th
Cir. 2000). The ALJ is responsible for weighing conflicting evidence among medical
sources. See Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir. 2014). Inconsistencies with
other evidence in the record, including other doctors’ opinions is sufficient for
discounting a medical source opinion. Goff v. Barnhart, 421 F.3d 785, 790-91 (8th Cir.
2005).
Contrary to Stearns’ argument, the ALJ did not discount Dr. Nesbit’s opinion
based on the lack of supporting objective medical evidence. Rather, the ALJ focused on:
(1) the lack of support from other medical evidence in the record and (2) inconsistencies
between the severity of limitations identified by Dr. Nesbit, and other evidence in the
record, including Stearns’ work history. In other words, the ALJ did not dispute that
Stearns had these impairments (as confirmed by objective medical evidence) only the
degree to which these impairments resulted in extreme work-related limitations. I find
the ALJ’s reasons are supported by substantial evidence in the record as a whole.
With regard to the timing of medical opinions and Stearns’ allegation that her
mental condition began deteriorating around mid-2013, the ALJ considered medical
evidence during this time period. See AR 34-35. While Dr. Ekstrom’s examination was
performed in December 2012, the ALJ considered and incorporated evidence far beyond
that. For instance, he noted that in addition to regular outpatient treatment, Stearns
sought emergency psychological treatment at least once during the relevant period,
referencing an emergency visit in August 2014. Id. at 35. He noted her mental status
examination was normal at this time and she was released home. Id. The ALJ also
included additional limitations not identified by the state agency psychological consultants
“in deference to evidence developed at the hearing level, including her hearing
testimony.” Id. Finally, the ALJ considered Stearns’ progress notes from BlackhawkGrundy, dating from March 24, 2011, to November 17, 2015, in concluding that these
notes did not comport with the significant limitations alleged in Dr. Nesbit’s report. See
13
AR 602-635; 763-866; 934-973. While these notes do contain some medication changes,
the reasons for those changes is not clear and could be related to adverse side effects
rather than a worsening of symptoms. Having reviewed these notes and all other evidence
in the record, I find that the ALJ’s reasons for discounting the weight assigned to Dr.
Nesbit’s opinion are supported by substantial evidence in the record as a whole.
C.
Substantial Evidence
Stearns relies mainly on the arguments raised in her principal brief as to this
objection, but specifically challenges Judge Williams’ analysis with regard to the extent
of medical evidence and medical opinion evidence that must support the RFC
determination. She contends the court’s reliance on Eichelberger v. Barnhart, 390 F.3d
584, 591 (8th Cir. 2004), is incorrect because Eichelberger involved a Step Four
determination, whereas Stearns’ case was resolved at Step Five. She argues the ALJ’s
RFC determination requires a supportive medical opinion. Without such an opinion, she
contends the ALJ is “playing doctor” and relying on his own inferences.
With regard to Stearns’ mental limitations, Judge Williams noted that Stearns does
not challenge the sufficiency of the evidence from December 2012 through early 2013,
which was supported by the opinion of the consultative examiner, Dr. Ekstrom. Doc.
No. 17 at 9. She also does not argue that the ALJ should have further developed the
record with regard to Stearns’ mental condition after mid-2013. Id. Based on Eighth
Circuit law, Judge Williams noted that an ALJ’s RFC determination could be supported
by substantial evidence in the record without a specific medical opinion supporting a
specific RFC finding. Id. at 11 (citing Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir.
2016)).
Judge Williams pointed out that in determining Stearns’ mental RFC, the ALJ
highlighted inconsistencies between Stearns’ subjective allegations and the non-medical
evidence of record. Id. The ALJ then calculated mental RFC limitations giving “some
14
weight” to the opinions of the state agency psychologists and “no weight” to Dr. Nesbit’s
opinion. Id. at 12. He also considered Stearns’ progress notes from Blackhawk Grundy
Mental Health Center (AR 37; 453-73, 603-35, 763-866, 934-73) and the state agency
consultants’ opinions in making his RFC finding. Id. Both the progress notes and
opinions reference work-related functions such as attention/concentration, organization
and following instructions. See AR 116-27; 129-41; 143-57; 602-35; 763-866; 934-73.
The ALJ assigned greater limitations than those identified by the consultants based on
Stearns’ testimony at the hearing. He concluded she was “capable of understanding,
remembering, and carrying out simple instructions and tasks at a SVP 2 level” and “could
have occasional contact with co-workers, supervisors, and the general public.” AR 3435.
Judge Williams concluded that the mental RFC assessment was supported by
substantial evidence in the record as a whole. Id.
With regard to Stearns’ physical RFC, Judge Williams acknowledged Stearns’
argument that the state agency consultants rendered their opinions in 2013, and therefore,
had not considered Stearns’ second knee surgery in 2014. Id. Judge Williams explained,
however, that Stearns did not point to any evidence in the record that would have changed
the opinions after her second knee surgery. Id. at 12-13. Judge Williams noted the ALJ
included several limitations related to Stearns’ ability to ambulate and other lower body
functions. Id. at 13. Citing Eichelberger, he noted it is the claimant’s burden to prove
her RFC and that Stearns had failed to present any evidence, or even allege, that her RFC
would have been different had the ALJ considered opinions obtained after the second
knee surgery. Id.
Stearns reads too much into Judge Williams’ citation of Eichelberger. Judge
Williams cited that case for the proposition that it is claimant’s burden to prove her RFC.
Id. He did not cite it for the proposition that “no further medical opinions were needed,”
as Stearns argues. See Doc. No. 20 at 3. To the extent Eichelberger could be read as
not supporting this proposition under the circumstances present here, more recent Eighth
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Circuit law does. See Hensley, 829 F.3d at 932 (“there is no requirement that an RFC
finding be supported by a specific medical opinion”). Judge Williams simply explained,
correctly, that if Stearns intends to argue that the medical opinions in the record are
insufficient, it is her responsibility to argue the ALJ should have further developed the
record and provide reasons why additional medical opinions are necessary. Stearns did
not do so. She pointed to no evidence of record after her second knee surgery to suggest
that the opinions from the state agency consultants were no longer reliable. For instance,
she did not reference any medical records indicating her physical abilities had drastically
decreased following the surgery or that she was somehow worse off following the
surgery.
Based on my de novo review, I agree with Judge Williams’ assessment of the
ALJ’s RFC determination and with his conclusion that it is supported by substantial
evidence in the record as a whole with regard to both physical and mental limitations.
The ALJ considered the opinions of Dr. Ekstrom (a consultative examiner), Dr. Nesbit
(an examining source), state agency consultants (non-examining sources) and numerous
medical records from Stearns’ treating sources. In comparison, the medical opinion
evidence in Combs, a case Stearns cites, consisted only of opinions from state agency
consultants. See Combs v. Berryhill, 878 F.3d 642, 644-45 (8th Cir. 2017). “In the
absence of medical opinion evidence, ‘medical records prepared by the most relevant
treating physicians [can] provide affirmative medical evidence supporting the ALJ’s
residual functional capacity findings.’” Hensley, 829 F.3d at 932 (citing Johnson v.
Astrue, 628 F.3d 991, 995 (8th Cir. 2011)). Again, “there is no requirement that an
RFC finding be supported by a specific medical opinion.” Id. The ALJ had sufficient
medical evidence to consult in making his RFC determination and his RFC accurately
reflects that medical evidence. Because the ALJ’s RFC is supported by substantial
evidence in the record as a whole, including “some medical evidence of the claimant’s
ability to function in the workplace,” I find no error. Hensley, 829 F.3d at 932 (“Because
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a claimant’s RFC is a medical question, an ALJ’s assessment of it must be supported by
some medical evidence of the claimant’s ability to function in the workplace”).
D.
Stearns’ Subjective Allegations
With regard to this objection, Stearns specifically challenges Judge Williams’
analysis of the ALJ’s treatment of her daily activities. She otherwise relies on the
arguments raised in her principal brief. See Doc. No. 20 at 4. With regard to her daily
activities, the ALJ stated:
The claimant has described daily activities that are not limited to the
extent one would expect given the complaints of disabling symptoms and
limitations. The claimant admits the ability to independently perform
personal care tasks such as bathing, dressing, personal hygiene, feeding and
toileting – albeit with some occasional help with dressing (Exhibit 13E).
The claimant admits the ability to cook simple meals, shop and drive
(Exhibit 13E). In terms of household tasks, the claimant admits the ability
to wash laundry and care for a dog (Exhibit 13E).
While the claimant’s ability to engage in these ordinary life activities
is not itself conclusive proof that the claimant is also able to engage in
substantial gainful activity, the claimant’s capacity to perform these tasks
independently is a strong indication that the claimant retains the capacity to
perform the requisite physical and mental tasks that are part of everyday
basic work activity. That indication is further supported by the objective
medical signs and findings discussed in more detail below. All of these
factors, considered together, constitute sufficient evidence of the claimant’s
ability to engage in full-time, competitive work within the parameters of
the above residual functional capacity.
AR 31. After discussing the Polaski factors, Judge Williams noted that the ALJ discussed
Stearns’ daily activities; the location, duration, frequency, and intensity of her pain; and
effectiveness of medication, physical therapy and other treatment modalities in evaluating
her credibility. Doc. No. 17 at 13-14. He concluded the ALJ gave good reasons for
discounting Stearns’ subjective allegations, which were supported by substantial evidence
in the record as a whole.
Id. at 15-16.
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As mentioned above, Stearns takes issue with the ALJ’s finding that her daily
activities suggest her limitations are not as serious as alleged. She argues that circuit
precedent seems to have shifted from the position that a claimant need not be bedridden
to be found disabled to a requirement that a claimant must be bedridden to be found
disabled. Doc. No. 20 at 4. She contends that merely because a particular activity is not
compatible with disability does not mean that engaging in the activity should diminish the
claimant’s overall credibility. Instead, she argues that the ALJ must evaluate whether
the particular activity is inconsistent with the claimant’s subjective limitations, and if so,
then the ALJ may rely on that activity to discount the claimant’s credibility.
The ALJ acknowledged that “the claimant’s ability to engage in these ordinary life
activities is not itself conclusive proof that the claimant is also able to engage in substantial
gainful activity.” AR 31. Indeed, the ALJ provided several other reasons for finding
the alleged severity of Stearns’ limitations not fully credible. First, the ALJ noted that
the objective medical signs and findings supported a finding that Stearns was able to
perform the requisite physical and mental tasks for everyday work activity. AR 31.
Second, he noted there was no treatment order for an assistive device, even though
Stearns claimed she needed to use one. Id. at 32. Third, Stearns met all of her recovery
goals after 15 sessions of physical therapy following her knee surgery and was discharged
with a home exercise program. When physical therapy was later recommended following
further complaints of pain, Stearns failed to participate after only three attempts. Id. at
32-33. Fourth, the ALJ noted she self-limited her performance during a functional
capacity evaluation in January 2016. Id. at 33. Fifth, based on her work history of
nominal earnings with sporadic wages well below the substantial gainful activity level,
her lack of employment seemed to be related more to a lack of motivation or desire to
work rather than the alleged limiting symptoms. Id. at 34.
All of these are good reasons for concluding that a claimant’s allegations of
disability may not be as severe as alleged. Based on my de novo review of the evidence,
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I agree with Judge Williams that the ALJ’s analysis of Stearns’ credibility is supported
by substantial evidence in the record as a whole.
V.
CONCLUSION
For the reasons set forth herein:
1.
Stearns’ objections (Doc. No. 20) to the Report and Recommendation (Doc.
No. 17) are overruled.
2.
I accept the Report and Recommendation (Doc. No. 17) without
modification. See 28 U.S.C. § 636(b)(1).
3.
Pursuant to Judge Williams’ recommendation:
a.
The Commissioner’s determination that Stearns was not disabled is
affirmed; and
b.
Judgment shall enter against Stearns and in favor of the
Commissioner.
IT IS SO ORDERED.
DATED this 14th day of September, 2018.
__________________________
Leonard T. Strand, Chief Judge
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