Vallecillo v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS recommending the District Court affirm the decision of the ALJ re 4 Complaint filed by Cristina Vallecillo. Objections to R&R due by 8/9/2019. Signed by Magistrate Judge Mark A Roberts on 7/25/2019. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
CRISTINA VALLECILLO,
Claimant,

No. 18-CV-2034-CJW

vs.
REPORT AND RECOMMENDATION

ANDREW M. SAUL,
Commissioner of Social Security, 1
Defendant.

___________________________
Plaintiff, Cristina Vallecillo (“Claimant”), seeks judicial review of a final decision
of the Commissioner of Social Security (“the Commissioner”) denying her application
for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42
U.S.C. §§ 401-34 and for Supplemental Security Income benefits (“SSI”) under Title
XVI of the Social Security Act. Claimant contends that the Administrative Law Judge
(“ALJ”) erred in determining that she was not disabled. For the reasons that follow, I
recommend that the District Court affirm the Commissioner’s decision.
I.

BACKGROUND

I adopt the facts set forth in the Parties’ Joint Statement of Facts (Doc. 12) and
only summarize the pertinent facts here. Claimant was born on December 14, 1955.
(AR 2 at 295.) Claimant is a high school graduate and attended two years of college. (Id.

1

After this case was filed, a new Commissioner of Social Security was confirmed. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul is substituted for Acting
Commissioner Nancy A. Berryhill as the defendant in this suit.
2
“AR” cites refer to pages in the Administrative Record.

1

at 327.) Claimant allegedly became disabled due to visual impairments, diabetes, arthritis
in her hands, and asthma. (Id. at 207.) Claimant’s alleged onset of disability date was
November 9, 2012. (Id. 295.) Claimant filed an application for Social Security disability
benefits on January 8, 2015. (Id.) She filed an application for supplemental security
income on January 5, 2015. (Id. at 242.)

Claimant was initially denied benefits on

February 5, 2015 and February 23, 2015. (Id. at 206-15, 242.) Reconsideration was
denied on July 22, 2015. (Id. at 134.) Claimant filed a Request for Hearing on August
13, 2015. (Id. at 240-41.) A telephonic hearing was held on May 23, 2017 with ALJ
Gerald Meyr and a vocational expert (“VE”) in Kansas City, Missouri and Claimant, her
counsel, and a hearing reporter in Waterloo, Iowa. (Id. at 173-205, 259.) Claimant and
the VE both testified. (Id. at 178-204.)
The ALJ entered an unfavorable decision on December 7, 2017. (Id. at 131-50.)
On January 18, 2018, Claimant filed a Request for the Appeals Council to review the
ALJ’s decision. (Id. at 292-94.) The Appeals Council found there was no basis to review
the ALJ’s decision on April 24, 2018. (Id. at 1-3.) Accordingly, the ALJ’s decision
stands as the final administrative ruling in the matter and became the final decision of the
Commissioner. See 20 C.F.R. § 416.1481.
On June 13, 2018, Claimant timely filed her complaint in this Court. (Doc. 4.)
All briefs were filed by January 23, 2019. On January 23, 2019, the Honorable Charles
J. Williams, United States District Court Judge, referred the case to me for a Report and
Recommendation.
II.

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

A disability is 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

2

not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant has
a disability when, due to physical or mental impairments, the claimant
is not only unable to do [the claimant’s] previous work but cannot,
considering [the claimant’s] 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). A claimant is not disabled if the claimant is
able to do work that exists in the national economy but is unemployed due to an inability
to find work, lack of options in the local area, technological changes in a particular
industry, economic downturns, employer hiring practices, or other factors. 20 C.F.R. §
404.1566(c).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows the five-step sequential evaluation process
outlined in the regulations. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). At
steps one through four, the claimant has the burden to prove he or she is disabled; at step
five, the burden shifts to the Commissioner to prove there are jobs available in the
national economy. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009).
At step one, the ALJ will consider whether a claimant is engaged in “substantial
gainful activity.” Id. If so, the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
“Substantial activity is significant physical or mental work that is done on a full- or parttime basis. Gainful activity is simply work that is done for compensation.” Dukes v.
Barnhart, 436 F.3d 923, 927 (8th Cir. 2006) (citing Comstock v. Chater, 91 F.3d 1143,
1145 (8th Cir. 1996)); 20 C.F.R. § 416.972(a),(b)).
If the claimant is not engaged in substantial gainful activity, at step two, the ALJ
decides if the claimant’s impairments are severe. 20 C.F.R. § 416.920(a)(4)(ii). If the
impairments are not severe, then the claimant is not disabled. Id. An impairment is not

3

severe if it does not significantly limit a claimant’s “physical or mental ability to do basic
work activities.” Id. § 416.920(c). 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, co-workers, and usual work situations; and (6) dealing with
changes in a routine work setting.
Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (quotation omitted) (numbers added; internal
brackets omitted).
If the claimant has a severe impairment, at step three, the ALJ will determine the
medical severity of the impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment
meets or equals one of the impairments listed in the regulations (“the listings”), then “the
claimant is presumptively disabled without regard to age, education, and work
experience.” Tate v. Apfel, 167 F.3d 1191, 1196 (8th Cir. 1999).
If the claimant’s impairment is severe, but it does not meet or equal an impairment
in the listings, at step four, the ALJ will assess the claimant’s residual functional capacity
(“RFC”) and the demands of the claimant’s past relevant work.

20 C.F.R. §

416.920(a)(4)(iv). RFC is what the claimant can still do despite his or her limitations.
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing 20 C.F.R. §§
404.1545(a), 416.945(a)). RFC is based on all relevant evidence and the claimant is
responsible for providing the evidence the Commissioner will use to determine the RFC.
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). “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.

4

20 C.F.R. § 416.960(b)(1). If a claimant retains enough RFC to perform past relevant
work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).
At step five, if the claimant’s RFC 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.
Id. §§ 416.920(a)(4)(v), 416.960(c)(2). The ALJ must show not only that the claimant’s
RFC will allow the claimant to do other work, but also that other work exists in significant
numbers in the national economy. Eichelberger, 390 F.3d at 591 (citation omitted).
A.

The ALJ’S Findings
The ALJ made the following findings at each step regarding Claimant’s disability

status.
At step one, the ALJ found that Claimant had not engaged in substantial gainful
activity since November 9, 2012, the alleged onset date. (AR at 136.)
At step two, the ALJ found that Claimant suffered from the following severe
impairments: obesity, retinopathy, uveitis, glaucoma, cataracts, retinal edema, and
osteoarthritis of both hands. 3 (Id.)
At step three, the ALJ found that Claimant did not have an impairment or
combination of impairments that met or equaled a presumptively disabling impairment
listed in the regulations. (Id. at 137.) Specifically, the ALJ considered the claimant’s
retinopathy under listing 2.02 for loss of central visual acuity and claimant’s joint
impairment (osteoarthritis) under listing 1.02 for major dysfunction of a joint. (Id. at
138.)
At step four, the ALJ found that Claimant had the RFC to perform medium work
with the following limitations:
The claimant can never climb ladders, ropes, or scaffolds. The claimant’s
3

Claimant’s various impairments will be elaborated upon as relevant to the discussion.

5

handling of objects, which is gross manipulation, is limited to frequently
with the bilateral upper extremities. The claimant’s fingering, which is fine
manipulation of objects no smaller than the size of a paper clip, is limited
to bilaterally and frequently with the upper extremities. The claimant’s
feeling is limited to bilaterally and frequently with the upper extremities.
The claimant should avoid any exposure to unshielded moving mechanical
parts, should have no operation of commercial vehicles and should have no
exposure to unprotected heights. The claimant should have no exposure to
chemicals. The claimant is limited to occupations that would require
occasional near and far acuity including depth perception.
(Id.) The ALJ noted that he was limiting Claimant’s RFC to the medium level base, in
part, because of “testimony about lifting putting pressure on [Claimant’s] eyes.” (Id. at
142.) The ALJ also found that Claimant was not capable of performing any of her past
relevant work. (Id. at 143.)
At step five, the ALJ found that there were jobs that existed in significant numbers
in the national economy that Claimant could perform, including counter supply worker,
linen room attendant, and change house attendant. (Id. at 144.) Therefore, the ALJ
concluded that Claimant was not disabled. (Id.)
B.

The Substantial Evidence Standard
The ALJ’s decision must be affirmed “if it is supported by substantial evidence on

the record as a whole.” Moore, 572 F.3d at 522. “Substantial evidence is less than a
preponderance, but enough that a reasonable mind might accept as adequate to support a
conclusion.” Id. (citation omitted). The court cannot disturb an ALJ’s decision unless
it falls outside this available “zone of choice” within which the ALJ can decide the case.
Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (citation omitted). The decision
is not outside that zone of choice simply because the court might have reached a different
decision. Id. (citing Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001)); Moore,
572 F.3d at 522 (holding that the court cannot reverse an ALJ’s decision merely because
substantial evidence would have supported an opposite decision).

6

In determining whether the Commissioner’s decision meets this standard, the court
considers all the evidence in the record, but does not reweigh the evidence. Vester v.
Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). A court considers both evidence that
supports the ALJ’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 [ALJ’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)).
C. Duty to Develop the Record
The administrative hearing is a non-adversarial proceeding, and the ALJ has
a duty to “fully develop the record.” Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir.
2006) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). Because the ALJ
has no interest in denying Social Security benefits, the ALJ must act neutrally in
developing the record. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (citing
Richardson v. Perales, 402 U.S. 389, 410 (1971)); Battles v. Shalala, 36 F.3d 43, 44
(8th Cir. 1994) (opining that “[t]he goals of the [ALJ] and the advocates should be the
same: that deserving claimants who apply for benefits receive justice”) (quoting Sears v.
Bowen, 840 F.2d 394, 402 (7th Cir. 1988)) (bracketed information added).
III.

DISCUSSION

Claimant (1) alleges the ALJ committed reversible error by failing to give good
reasons for assigning no weight to the bending and lifting restrictions in the opinion of
Claimant’s treating ophthalmologist and (2) challenges the validity of the ALJ’s decision
because she contends the ALJ was not properly appointed under Lucia v. SEC, 138 S.
Ct. 2044 (2018). (Doc. 13 at 1.)

7

A.

The ALJ properly explained his reasons for assigning no weight to the bending
and lifting restrictions in Dr. Folk’s opinion.
Claimant’s argument is a narrow one. Dr. Folk’s lifting and bending restrictions

comprise only part of his opinion. Claimant does not take issue with how the ALJ
weighed the rest of Dr. Folk’s opinion or with any other part of the ALJ’s RFC. The
following physicians provided medical opinions in this case.
1.

Dr. James Folk

Dr. James Folk is Claimant’s treating ophthalmologist. (Doc. 13 at 4.) Dr. Folk
began treating Claimant on November 9, 2012 and wrote his opinion on April 19, 2017.
In relevant part, Dr. Folk stated that Claimant was diagnosed with diabetic macular
edema in both eyes, that her prognosis was guarded, that her symptom was blurred vision,
and that the best visual acuity correction she achieved was 20/60 in her right eye and
20/100 in her left eye. 4 (AR at 834.) Dr. Folk opined that Claimant can occasionally
perform work activities involving “near [visual] acuity,” “far [visual] acuity,” and depth
perception. (Id. at 835.) Dr. Folk further opined that Claimant can never perform work
activities involving “[visual] accommodation.” 5 (Id.) Dr. Folk further opined that
Claimant was capable of avoiding ordinary work hazards, “such as boxes on the floor,
doors ajar, [and] approaching people or vehicles,” and that she could work with large
objects. (Id.) In addition, Dr. Folk opined that Claimant could lift and carry 20 pounds
in a competitive work situation, but did not fill out the portion of the form that asked him
to check how often she could do this (i.e., never, rarely, occasionally, or frequently).
(Id.) Dr. Folk stated that Claimant could occasionally stoop, bend, and crouch/squat.

4

“Acuity” is “clarity or clearness, especially of the vision.” Dorland’s Illustrated Medical
Dictionary 24 (32d ed. 2012). “Visual acuity” is “the ability to discriminate visually between
forms . . . .” Id.
5
“Accommodation” is “adjustment, especially that of the position and shape of the lens of the
eye for focusing at various distances.” Id. at 10.

8

(Id.) When asked to explain the medical basis for the restrictions he assigned and whether
they were related to Claimant’s eye problems, Dr. Folk said only, “Can’t see well.”
(Id.)
The ALJ gave the portion of Dr. Folk’s opinion related to Claimant’s visual
problems and functionality great weight because the opinion was consistent with
Claimant’s self-reports of activities involving near acuity, far acuity, and depth perception
such as yard work, personal hygiene, housework, meal preparation, “and other activities
in her life despite her visual difficulties.” (Id. at 141.) The ALJ found that Dr. Folk’s
opinion discredited some of Claimant’s alleged severe functional restrictions, specifically
Claimant’s testimony at the hearing on this matter that she is unable to navigate a room
or to avoid ordinary hazards such as things on the floor or approaching people. (Id. at
141-42, 189-90.)
The ALJ gave the portion of Dr. Folk’s opinion related to Claimant’s “other areas
of functionality such as lifting capacity, stooping and crouching” no weight because these
areas were “beyond Dr. Folk’s expertise.” (Id. at 142.)
2.

Dr. John J. Alpar

On July 14, 2017, Dr. John Alpar, M.D., an ophthalmologist who reviewed the
case at the request of ALJ Meyr, provided his medical expert opinions as to Claimant’s
restrictions. (Id. at 863, 880-81.) Dr. Alpar reviewed medical records and never
examined Claimant. (Id. at 877.)

His opinion is written on a form provided by the

Social Security Administration (“ the SSA”). Dr. Alpar “marked the limitations which
are based exclusively on [Claimant’s] eye condition” and found two things of note
regarding Claimant’s vision impairments: “I would like to call attention to VI of the work
related activities number 2 c large prints and large fonts. And on VII she can probably
operate a motor vehicle because her vision is sufficiently good, but she very likely will
get a restricted license.”

(Id. at 880.) Dr. Alpar also opined that Claimant could lift

9

and carry up to ten pounds occasionally. (Id. at 881.) The ALJ gave Dr. Alpar’s opinion
regarding Claimant’s visual restrictions partial weight because it was generally consistent
with Dr. Folk’s opinion. (Id. at 142.) However, the ALJ gave his opinion regarding
Claimant’s lifting and carrying restrictions no weight because those opinions were beyond
Dr. Alpar’s expertise and because Dr. Alpar specifically stated that he only “marked
limitations based on the claimant’s eye condition and [did] not consider other factors such
as obesity.” (Id.)
3.

Dr. John Anigbogu

On July 27, 2017, Dr. John Anigbogu, a physical medicine and rehabilitation
specialist who reviewed the case at the request of ALJ Meyr, provided an expert opinion
as to Claimant’s restrictions. (Id. at 850, 862, 882-91.) Dr. Anigbogu reviewed the
record and never examined Claimant. (Id. at 882.) His opinion is written on a form
provided by the SSA. Dr. Anigbogu diagnosed Claimant with diabetes mellitus with
retinopathy; history of retinal detachment; cataract; glaucoma; a history of a left wrist
ganglion cyst; low back pain; and obesity. (Id. at 882.) In relevant part, Dr. Anigbogu
opined Claimant could lift and carry up to ten pounds occasionally. (Id. at 886.) In
addition, Dr. Anigbogu found no reaching, handling, fingering, feeling or pushing and
pulling restrictions. (Id. at 888.) Dr. Anigbogu noted various environmental and postural
restrictions, but did not opine as to Claimant’s bending restrictions because the form did
not have a space for that. The reaching in all directions restrictions are the best substitute
for bending restrictions. (Id. at 889-90.) Dr. Anigbogu also opined as to Claimant’s
vision restrictions, stating that she could avoid ordinary hazards, read ordinary print,
view a computer screen, and determine differences in shape and color of small objects,
but that she could not read very small print. (Id. at 890.) The ALJ gave little weight to
Dr. Anigbogu’s opinion.

(Id. at 142.) First, the ALJ found that Dr. Anigbogu’s

opinions related to Claimant’s vision restrictions were outside his area of expertise. (Id.)

10

Second, the ALJ found that Dr. Anigbogu’s opinions related to Claimant’s physical
restrictions were not supported because Dr. Anigbogu did not specify which impairments
cause his recommended restrictions.

(Id.)

In addition, the ALJ found that Dr.

Anigbogu’s opinion was inconsistent with Claimant’s testimony that she is left-handed;
Dr. Anigbogu stated she was right-handed. (Id.)
4.

State Agency Medical Consultants Dennis Weis, M.D. and Jan Hunter,
D.O.

In relevant part, Dennis Weis, M.D., who reviewed the record for the state agency
on February 23, 2015, concluded that Claimant had the following visual impairments:
limited left eye near and far acuity and “some difficulty with fine detail with left eye near
and far.” (Id. at 211.) He supported these restrictions by stating that Claimant
indicated she was driving a car until few months previously. Due to vision
issues. She continues to shop and run errands. She states she can read
extra large print. . . . Her visual condition remains stable with visual
acuities between approximately 20/50 in the right eye and 20/70 in the left
eye. . . . Treating sources do not make specific recommendations regarding
residual function capacity.
(Id. at 212.) Regarding bending and lifting restrictions, Dr. Weis opined that Claimant
had no exertional restrictions. (Id. at 211.) On appeal, Jan Hunter, D.O., affirmed Dr.
Weis’s opinion. (Id. at 222.) The ALJ gave these opinions partial weight because neither
physician accounted for the effects of Claimant’s obesity on her conditions. (Id. at 142.)
The ALJ noted that Claimant has consistently been diagnosed with morbid obesity, and
the ALJ stated, “While there is very little if any direct evidence of functionality
limitations on the claimant due to morbid obesity, the undersigned has limited exertional
to medium to account for the claimant’s arthritis and testimony about lifting putting
pressure on her eyes.” (Id.)

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5.

Analysis

An ALJ’s RFC must ordinarily be supported by a treating or examining source
opinion to be supported by substantial evidence. See Casey v. Astrue, 503 F.3d 687, 697
(8th Cir. 2007); Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). “It is the ALJ’s
function to resolve conflicts among the opinions of various treating and examining
physicians.” Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001) (noting internal citations omitted)). An
ALJ must “give good reasons” for the weight given to a treating physician’s opinion. 20
C.F.R. § 404.1527(c)(2).
“A treating physician’s opinion is given controlling weight if it is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” in the record as a whole. 6 Halverson v.
Astrue, 600 F.3d 922, 929 (8th Cir. 2010) (quotation omitted). “Even if the treating
physician’s opinion is not entitled to controlling weight, it should not ordinarily be
disregarded and is entitled to substantial weight.” Papesh v. Colvin, 786 F.3d 1126,
1132 (8th Cir. 2015) (citation and brackets omitted). However, a treating physician’s
opinion can be given limited weight if it contains only conclusory statements, contains
inconsistent opinions “that undermine the credibility of such opinions,” is inconsistent
with the record, or if other medical opinions are supported by “better or more thorough
medical evidence.” Id. (citations omitted).
Claimant argues that the ALJ erred when he gave Dr. Folk’s opinion regarding
Claimant’s “lifting, stooping, and crouching” restrictions no weight because
“[g]enerally, an M.D., even one that chose to specialize as an ophthalmologist, is able
6

Under current regulations, a treating physician’s opinion is entitled to no special deference.
See 20 C.F.R. § 404.1520c(c). These regulations became effective on March 27, 2017. See 20
C.F.R. § 404.1527. However, Claimant’s claims were filed on January 5 and 8, 2015. Thus,
the old regulations apply. See id.

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to opine as to general physical restrictions—an ALJ may not assign no weight to nonvision related restrictions simply because the ophthalmologist specializes in eye-related
treatment.” (Doc. 13 at 5.) Claimant asserts that the Commissioner successfully made
this very argument when “defending her non-examining ophthalmologist medical
consultant opinions in a cardiac case in federal court” in Payne v. Berryhill, No. 6:17cv-67-Orl-DNF, 2018 WL 4520353 (M.D. Fla. Sept. 21, 2018). 7
Claimant argues that the ALJ erred by not giving at least “little weight” to Dr.
Folk’s opinions regarding Claimant’s physical restrictions. (Id.) Claimant relies on 20
C.F.R. § 404.1527(c)(2)(ii), which provides the following:
Generally, the more knowledge a treating source has about your
impairment(s) the more weight we will give to the source’s medical opinion.
We will look at the treatment the source has provided and at the kinds and
extent of examinations and testing the source has performed or ordered
from specialists and independent laboratories. For example, if your
ophthalmologist notices that you have complained of neck pain during your
eye examinations, we will consider his or her medical opinion with respect
to your neck pain, but we will give it less weight than that of another
physician who has treated you for the neck pain. When the treating source
has reasonable knowledge of your impairment(s), we will give the source’s
medical opinion more weight than we would give it if it were from a
nontreating source.
Based on this provision, Claimant asserts that Dr. Folk’s opinion regarding her
physical restrictions was entitled to more weight because Dr. Folk was Claimant’s

7

I find Payne distinguishable from the case at bar because the ophthalmologist’s opinion at issue
in that case was a state agency reviewing physician opinion to which the ALJ chose to assign
more weight than he chose to assign to the opinion of the claimant’s treating physician. 2018
WL 450353, at *5. The ALJ reasoned that although the state agency physician was an
ophthalmologist, “[s]tate agency consultants are highly qualified specialists who are experts in
Social Security disability programs, and their opinions may be entitled to great weight if the
evidence supports their opinions.” Id. (citing 20 C.F.R. § 404.927(e)(2)(i)). The
ophthalmologists in the case at bar are not “experts in Social Security disability programs.”
Therefore, this comparison is not apt.

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treating source who had “reasonable knowledge of [her] ‘Diabetic Macular Edema both
eyes’ and that impairment limited her to light exertional level work with bending or
stooping limitations.” (Doc. 13 at 5) (citing Dr. Folk’s opinion).
When a treating physician’s medical opinion is not given controlling weight, the
following factors will be applied to determine the weight to give the opinion: (1) length
of the treatment relationship and the frequency of examination, (2) nature and extent of
the treatment relationship, (3) supportability, (4) consistency, (5) specialization, and
(6) other factors. 20 C.F.R. § 404.1527(c)(2).
I find that the ALJ did not err in failing to give Dr. Folk’s opinion controlling
weight because it is “inconsistent with the other substantial evidence in [the] record.” 20
C.F.R. § 404.1527(c). The proper weight to give this non-controlling physician opinion
is determined through an analysis of the six factors listed above. No one takes issue with
how the ALJ weighed Dr. Folk’s opinion related to Claimant’s visual restrictions.
Therefore, this analysis will focus only on Dr. Folk’s opinion of Claimant’s exertional
restrictions. In addition, because there is a question about Dr. Folk’s qualifications as
both a medical doctor and an ophthalmologist, I will address the factors out of order
because that will assist me in resolving the issue before the Court.
a.

Length and Frequency of the Treatment Relationship

“When the treating source has seen [the claimant] a number of times and long
enough to have obtained a longitudinal picture of [the claimant’s] impairment, [the ALJ]
will give the medical source’s opinion more weight than . . . if it were from a nontreating
source.” 20 C.F.R. § 404.1527(c)(2)(i). One reason the ALJ assigned no weight to Dr.
Folk’s opinion regarding exertional restrictions was that Dr. Folk did not have a
longitudinal treating history with Claimant for anything other than eye problems. (AR at
141.) Although Dr. Folk often noted in his treatment notes that he “[e]ncouraged blood
glucose, blood pressure, and cholesterol control” (e.g., AR at 641), those notes seem

14

related to eye problems, and even if they were not related to eye problems, they are not
related to the exertional restrictions at issue.
Accordingly, I find this factor weighs in favor of affording Dr. Folk’s exertional
restrictions no weight.
b.

Nature and Extent of the Treatment Relationship

“The more knowledge a treating source has about [a claimant’s] impairment(s) the
more weight the [ALJ] will give the source’s opinion.” 20 C.F.R. § 404.1527(c)(2)(ii).
The ALJ “will look at the treatment the source has provided and at the kinds and extent
of examinations and testing the source has performed or ordered.” Id. Claimant saw
Dr. Folk for over four years for treatment of her eye problems. Claimant never saw Dr.
Folk for other problems. Claimant does not cite treatment notes wherein Dr. Folk
assigned Claimant exertional restrictions, tested Claimant for exertional restrictions,
discussed exertional restrictions, or ordered examinations or tests related to exertional
restrictions, and I did not find any during my review of Dr. Folk’s treatment notes.
Therefore, I find this factor weighs in favor of affording Dr. Folk’s exertional restrictions
no weight.
e.

Specialization

“[The ALJ will] generally give more weight to the medical opinion of a specialist
about medical issues related to his or her area of specialty than to the medical opinion of
a source who is not a specialist.”

20 C.F.R. § 404.1527(c)(5). Dr. Folk is an

ophthalmologist. According to the American Academy of Ophthalmologists,
An ophthalmologist is a medical or osteopathic doctor who specializes in
eye and vision care. Ophthalmologists complete 12 to 13 years of training
and education, and are licensed to practice medicine and surgery. . . .
Typical training includes a four-year college degree followed by at least
eight years of additional medical training.
.

.

15

.

Because
they
are
medical
doctors,
ophthalmologists
can
sometimes recognize other health problems that aren’t directly related to
the eye, and refer those patients to the right medical doctors for treatment.
Am. Acad. Ophthalmology, Ophthalmologist, https://www.aao.org/eye-health/tipsprevention/what-is-ophthalmologist.
The ALJ found that Dr. Folk’s opinion related to exertional restrictions was
beyond his expertise. (AR at 142.) However, as Claimant argues, and as the above
demonstrates, ophthalmologists have a broader base of medical knowledge than just the
eye. Therefore, while Dr. Folk did not specialize in general medicine or family medicine
or some other area that would have seemed more relevant to the ALJ, he is a medical
doctor as well as an ophthalmologist and was, by and large, capable of opining on general
physical exertional restrictions such as lifting and bending. Accordingly, I find this factor
weighs slightly in favor of affording Dr. Folk’s exertional restrictions more weight than
the ALJ afforded it.
c.

Supportability

“The better an explanation a source provides for a medical opinion, the more
weight [the ALJ] will give that medical opinion.” 20 C.F.R. § 404.1527(c)(3). “A
treating physician’s own inconsistency may . . . undermine his opinion and diminish or
eliminate the weight given [her] opinions.” Hacker v. Barnhart, 459 F.3d 934, 937 (8th
Circuit 2006). In addition,“‘[t]he checklist format, generality, and incompleteness of
the assessments limit [an] assessment’s evidentiary value.’” Wildman v. Astrue, 596 F.3d
959, 964 (8th Cir. 2010) (quoting Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir.
2001) (internal brackets omitted); Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir.1996)
(“A treating physician’s opinion deserves no greater respect than any other physician’s
opinion when the treating physician’s opinion consists of nothing more than vague,
conclusory statements.”); see also Thomas v. Berryhill, 881 F.3d 672, 675 (8th Cir.

16

2018) (“[Dr. Hollis’s] assessments, however, consist of nothing more than vague,
conclusory statements—checked boxes, circled answers, and brief fill-in-the-blank
responses. They cite no medical evidence and provide little to no elaboration, and so they
possess little evidentiary value. On that basis alone, the ALJ did not err in giving Dr.
Hollis’s RFC assessments little weight and relying more heavily on other opinions in the
record.”) (internal quotations and citations omitted). Therefore, a treating source’s
opinion can be given limited weight if it contains only conclusory statements or
inconsistent opinions “that undermine the credibility of such opinions.”

Papesh v.

Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015) (quotation omitted).
Dr. Folk’s opinion is written on a form called VISION IMPAIRMENT MEDICAL
SOURCE STATEMENT. (AR at 834.) While Dr. Folk’s opinion was provided on a
form that was largely of the check-box, short fill-in-the-blank variety, I find that the
opinion does not suffer from the deficiencies that most form opinions do. As will be
discussed below, Dr. Folk provided additional support for his opinion that elevates a
typical check-box form to a more useful medical opinion.
The section regarding exertional restrictions specifically asked Dr. Folk to
“explain the relationship of” his lifting, carrying, stooping, and crouching restrictions
“to [Claimant’s] vision.” (Id. at 835.) As discussed, Dr. Folk opined that Claimant
could lift and carry 20 pounds in a competitive work situation and could occasionally
stoop, bend, and crouch/squat.

(Id.)

The medical basis for Claimant’s exertional

restrictions was “Can’t see well.” (Id.)
In other places in the opinion form, Dr. Folk stated that the best visual acuity
correction achieved in Claimant’s right eye was 20/60 and in Claimant’s left eye was
20/100. (Id. at 834.) Dr. Folk attached 12 pages of treatment notes to his checkbox
opinion. (Id. at 837-48.) These treatment notes are from appointments on January 27,
2017 and March 10, 2017.

(Id.)

The March 10, 2017 treatment note documents

17

“[a]ssociated difficulties include daily activities. . . . Characterized as blurry vision.”
(Id. at 837.) The treatment note does not mention problems with eye pressure related to
exertion.

(Id.)

In fact, Dr. Folk’s treatment notes nowhere mention eye pressure

problems when Claimant lifts, stoops, or bends. (Id. at 606-728.) Each of Dr. Folk’s
treatment notes begin with a “History of Present Illness” section wherein he documents
Claimant’s then-current symptoms and eye problems. (See e.g. id. at 606.) Dr. Folk
never documented the need for exertional restrictions in Claimant’s daily life because of
eye pressure. (Id. at 606-728.) Accordingly, Dr. Folk’s opinion is simply not supported
by anything in his own treatment notes and is not entitled to more weight. Thomas, 881
F.3d at 675 (holding that treating physician’s opinions that provide “little to no
elaboration . . . possess little evidentiary value”).
Claimant argues that Dr. Folk’s opinion on Claimant’s exertional restrictions is
entitled to more than no weight under 20 C.F.R. Section 404.1527(c)(2)(ii) because Dr.
Folks had “reasonable knowledge” of Claimant’s exertional restrictions. I have already
determined because Dr. Folk is a medical doctor with a specialty in ophthalmology, he
was generally competent to opine regarding exertional restrictions. However, the
Government challenges Claimant’s reliance on Section 404.1527(c)(2)(ii) because
whether Dr. Folk was qualified to render his opinion means nothing if there is no
indication in the record that he had “reasonable knowledge” of Claimant’s overall
physical functioning, including her lifting, bending, and stooping restrictions. (Doc. 15
at 5) (citing 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3)) (“The more a medical source
presents relevant evidence to support a medical opinion, particularly medical signs and
laboratory findings, the more weight we will give that medical opinion.”)). I agree.
While an ophthalmologist might be qualified to assign exertional restrictions, in general, 8
8

I find that I do not need to decide whether all ophthalmologists are qualified to address the
issues before the Court. Because I need only decide whether Dr. Folk was generally competent

18

that does not mean he can assign such restrictions without having a medical basis for
doing so. There is no indication in any of Dr. Folk’s treatment notes that he ever asked
Claimant about the connection between eye pressure and physical exertion or that
Claimant ever reported to him any problems she was having with eye pressure restricting
her lifting, carrying, bending, or stooping activities. More importantly, Dr. Folk did
provide a medical basis for his exertional restrictions: blurred vision. Blurred vision is
supported by the medical records Dr. Folk attached to his opinion. Dr. Folk’s other
treatment notes track and discuss Claimant’s vision issues. (Id. at 606-728.) Thus, I
find Dr. Folk’s only basis for assigning exertional restrictions was Claimant’s blurred
vision. More relevant, Dr. Folk’s treatment notes provide no support for his exertional
restrictions. Therefore, I find this factor weighs in favor of giving the opinion no weight.
d.

Consistency

“Generally, the more consistent a medical opinion is with the record as a whole,
the more weight [the ALJ] will give to that medical opinion.” 20 C.F.R. §
404.1527(c)(4). Dr. Folk wrote his opinion on May 28, 2015. Both parties proffer
arguments related to this factor. I will address each argument, in turn.
Claimant argues that she testified at the hearing and told the SSA that bending and
lifting put pressure on her eyes. (Doc. 13 at 5.) Claimant also asserts that she reported
to her primary care physician that she had limited activities like gardening “due to
increased pressure when bending forward.” (Id. at 6) (citing Id. at 527). On January
20, 2015, Claimant told the SSA that she “cannot bend for any substantial period of time
[] or lift more than 10 pounds at a time” because “these actions put additional pressure
on [her] eyes,” which “exacerbates” her condition. (AR at 332.) At the hearing on this
matter, Claimant testified that “bending and lifting puts pressure on the edema behind the
to assign exertional restrictions by virtue of his training, I only find that the “specialization”
factor weighs slightly in favor of giving Dr. Folk’s opinion more than no weight.

19

eyes. . . . I cannot do repetitive bending or lifting because it puts pressure on the eyes.”
(Id. at 191.) She does do yard work, but it takes her longer than it used to because she
cannot bend very often due to eye pressure. (Id. at 193.) On June 4, 2013, Claimant
told her primary care physician that she was unable to do activities like gardening because
of increased pressure in her eyes from bending forward. (Id. at 527.) Claimant also
testified that she gets injections to prevent this pressure. (Id. at 193-94.) The injections
work and can last approximately five months. (Id. at 194, 580, 650, 697.) Her latest
injection was supposed to last two-to-two-and-one-half years. 9 (Id.) Claimant has no
side effects from her injections. (Id. at 193.)
The ALJ did not dispute that Claimant has pressure in her eyes. The ALJ found
that glaucoma was one of Claimant’s severe impairments. 10 The issue is whether the
pressure is so severe that Claimant is incapable of working. Although Claimant stated
that bending and lifting caused increased pressure in her eyes, she directs the Court to no
medical records wherein physicians assigned exertional restrictions based on glaucoma
or other eye impairments. Significantly, Claimant testified that medication relieved her
symptoms. “If an impairment can be controlled by treatment or medication, it cannot be

9

Claimant argues that although she testified that her then-most recent eye injections were
supposed to last two-to-two-and-one-half years, she actually experienced very high right eye
pressure seven months after the hearing; thus, the injections did not result in the long-lasting
improvement she had hoped for. (Doc. 13 at 7.) Claimant cites high eye pressure readings from
dates after the hearing for support. (Id.) This post-hearing evidence is irrelevant for two reasons
noted by the Appeals Council: (1) because it did not “show a reasonable probability that it would
change the outcome of the decision” and (2) because it does not relate to the relevant time period
in this case. (AR at 2.) I have not considered this specific post-hearing evidence in making my
recommendation, although I do acknowledge that relief from Claimant’s injections is not lasting
as long as she had hoped.
10
Glaucoma is “a group of eye diseases usually characterized by an increase in intraocular
pressure that causes pathologic changes in the optic disk and typical defects in the field of vision.”
Dorland’s, supra note 4, at 782. Claimant also testified that her eye pressure is a “kind of a
glaucoma type feature.” (AR at 194.)

20

considered disabling.” See Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993). As
discussed in footnote 9, Claimant apparently is not experiencing the long relief she was
hoping for at the time of her hearing. However, whether she has injections every two
years or more often is irrelevant because Claimant still experiences relief from her
symptoms. Accordingly, Claimant’s testimony and her medical records do not support
Dr. Folk’s exertional restrictions because Claimant’s eye pressure issues are controlled
with treatment.
Moreover, I find that the ALJ was not inappropriately assuming the role of doctor
when he referred to the longer-term relief Claimant hoped to get from her injections in
the following sentence:
. . . [T]he claimant still manages to function in many areas including
performing personal hygiene, light housework, preparing meals, yard work
(which should be quite a bit better since the edema is greatly relieved),
prepare meals, attend church, go out to eat, shop, attend Bible study, drive,
and do other related chores and functions.
(AR at 141.) This sentence immediately followed discussion of the efficacy of eye
injections and other medications Claimant uses to treat her edema, including the statement
that Claimant “recently received longer lasting edema injections which is a slow releasing
medication and it has been effective so far.” (Id.) In context, the ALJ’s statement was
merely a statement of fact as it existed at the time—Claimant’s “long-lasting” injections
were working as they were supposed to work. Claimant had testified as to how long yard
work took because of eye pressure problems. It was reasonable for the ALJ to refer to
hearing testimony when discussing daily activities and the efficacy of medications. 11
11

The case at bar can be distinguished from the cases cited by Claimant. In Pate-Fires v. Astrue,
the claimant had a long history of severe mental health issues. 564 F.3d 935, 937-41 (8th Cir.
2009). The Eighth Circuit reversed a district court’s denial of benefits and reasoned that not
only did the evidence “overwhelmingly” demonstrate that the claimant’s noncompliance was due
to mental health issues, but also that the ALJ’s determination that the claimant’s noncompliance
was “attributable to free will [was] tantamount to the ALJ ‘playing doctor,’ a practice forbidden

21

According to Claimant, the ALJ’s “faulty assumption” that eye injections need
only be performed every two years or so resulted in the ALJ’s failing to evaluate
Claimant’s functioning during most of the relevant period. (Doc. 13 at 7.) Claimant
cites no evidence to support her argument that the ALJ failed to conduct a thorough
review of all evidence germane to the relevant time period. I find that the ALJ did,
indeed, conduct a proper review of the relevant evidence in the record. During his
evaluation, the ALJ cited medical evidence, Claimant’s self-reports to the SSA, and
Claimant’s testimony. (Id. at 138-42.) The ALJ cited extensively to the record to support
his conclusions. (Id.) The ALJ was not required to discuss every piece of evidence in
the administrative record. Wildman, 596 F.3d at 966 (quoting Black v. Apfel, 143 F.3d
by law.” Id. at 946-47 (quoting Rohan v. Chater, 98 F.3d 966 (7th Cir. 1996)). In the case at
bar, the ALJ did not speculate as to Claimant’s motivations for doing certain things. As discussed
above, the ALJ acknowledged Claimant’s eye pressure issues when he stated what severe
impairments Claimant had and when he assigned the RFC. The ALJ was merely acknowledging
Claimant’s testimony that at the time of the hearing she was optimistic that her injections would
last longer than they had previously lasted and that she could engage in one of her daily activities
for longer periods of time.
In Combs v. Berryhill, the claimant challenged the ALJ’s RFC determination. 878 F.3d
642, 645 (8th Cir. 2017). In crafting his RFC, the ALJ had to decide which of two conflicting
medical opinions from non-examining reviewing physicians to adopt. Id. at 646. The ALJ gave
more weight to one of the opinions because the opinion was “more consistent with [the
claimant’s] record as a whole,” in large part because of the claimant’s treating physician’s
notations in treatment notes. Id. at 645-46. Combs held that the ALJ erred in relying on his
own conclusion as to the relevance of certain terms in physician treatment notes when
determining the relative weight to assign the competing opinions. Id. at 647. The court reasoned
that while the claimant’s physicians consistently noted that the claimant had a full range of
motion, they also consistently diagnosed her with rheumatoid arthritis and prescribed medications
for pain. Id. Therefore, the court found that the ALJ had relied on his own interpretations of
terms in treatment notes when crafting the claimant’s RFC, which violated the ALJ’s duty to
fully and fairly develop the record. Id. (citation omitted). The court remanded the case so the
ALJ could conduct further inquiry as to what relevance the treatment note terms had for the
claimant’s ability to function in the workplace. Id. In the case at bar, the ALJ was not
interpreting treatment note terms. Rather, he was restating Claimant’s testimony. Just prior to
the sentence at issue, the ALJ noted that Claimant said the new supposedly-long-lasting injections
were providing relief. (AR at 141.) Accordingly, I find this argument to be without merit.

22

383, 386 (8th Cir. 1998)); Holmes v. Astrue, No. C10-2042, 2011 WL 2580333, at *11
(N.D. Iowa June 28, 2011) (same).
Claimant also argues that the objective medical evidence is consistent with her
complaints. For support, Claimant cites tonometry readings, which often showed high
eye pressure in one or both eyes. 12 (See AR at 589, 604, 609, 614, 628, 670, 704, 846.)
For the same reasons that Claimant’s self-reports that bending, stooping, lifting, and
carrying increase her eye pressure do not support Dr. Folk’s exertional restrictions, these
high tonometry readings also do not support Dr. Folk’s exertional restrictions. The issue
is not the existence of pressure. The question is the impact on exertion. Moreover,
Claimant’s eye pressure issues are relieved with medication and are therefore not
disabling. Stout, 988 F.2d at 855.
Claimant further asserts that Dr. Folk’s opinion is in concert with the opinion of
consulting ophthalmologist John Alpar.

Claimant avers that the ALJ erred in not

acknowledging this and using this supposed disagreement as a reason to assign less weight
to Dr. Folk’s exertional restrictions opinion. Claimant contends this is “particularly
egregious” because Dr. Alpar assigned a ten-pound lifting and carrying limitation only
after explaining that he was providing limitations based on Claimant’s eye conditions.
(Id.)
Dr. Alpar is the only other ophthalmologist who provided an opinion in this case. 13
Claimant argues that because Dr. Alpar stated that his opinions would be “based
exclusively on [Claimant’s] eye condition (Id. at 880), the ALJ should have given Dr.
Folk’s opinion more weight. Dr. Alpar concluded that Claimant’s impairments do not
meet or equal a listing and provided reasons for his conclusions. (Id. at 878, 880.)
12

Tonometry is “the measurement of tension or pressure, particularly intraocular pressure.”
Dorland’s, supra note 4, at 1937.
13
Because Dr. Alpar is an ophthalmologist, I find that he, too, was generally qualified to give
opinions regarding patients’ physical health.

23

Because Dr. Alpar concluded that Claimant did not have a listed impairment, he was
asked to provide functional restrictions for Claimant. (Id. at 879.) This is where Dr.
Alpar stated that his opinions are based on Claimant’s eye condition. (Id. at 880.)
Accordingly, I find that unlike Dr. Folk, Dr. Alpar did tie his ten-pound lifting and
carrying restrictions to Claimant’s eye problems. However, that finding does not end the
inquiry. Dr. Alpar’s opinion was provided on a form supplied to him by the SSA. When
Dr. Alpar received his request for a medical opinion, the cover letter stated that the SSA
was providing a CD “with exhibits selected for inclusion in the record of this case and .
. . a list of this evidence.” (Id. at 863.) The record does not show what evidence was
selected for Dr. Alpar’s review. Even if the entire administrative record was included,
Dr. Alpar’s opinion is still problematic.
While Dr. Alpar based his exertional restrictions on Claimant’s eye conditions, he
did not document what parts of the record support his conclusions. If his restrictions are
based on objective clinical findings or advice an ophthalmologist gave Claimant, that
could be persuasive evidence. However, if his restrictions are based solely on Claimant’s
self-reports, Dr. Alpar’s restrictions are less persuasive. Dr. Alpar discussed the record
as it related to functional restrictions, stating that he wanted to call attention to Claimant’s
need for large print and large fonts and noting that Claimant could likely still drive, albeit
with a restricted license, but said nothing about Claimant’s exertional restrictions. 14 (Id.
at 880.) Accordingly, I find that Dr. Alpar’s exertional restrictions “consist of nothing
more than . . . checked boxes. . . . They cite no medical evidence and provide little to
no elaboration, and so they possess little evidentiary value.” Thomas, 881 F.3d at 675.
It appears Dr. Alpar’s opinion is based on Claimant’s eye problems, which is what one

14

Claimant testified that she still holds an unrestricted driver’s license, but has limited herself to
driving very rarely, and then only on bright sunny days. (AR at 178-79.) Driving under other
conditions is “beyond scary” for Claimant. (Id. at 179.)

24

would expect from an opinion from an ophthalmologist. 15 Accordingly, I find that Dr.
Alpar’s opinion regarding exertional restrictions is unsupported. Therefore, even if the
ALJ had found the opinion in concert with Dr. Folk’s opinion, it would not have changed
the ALJ’s decision on this issue.
In addition, I find that the other medical opinions do not support giving Dr. Folk’s
exertional restrictions opinion more weight. In relevant part, Dr. John Anigbogu opined
Claimant could lift and carry up to ten pounds occasionally. (Id. at 886.) In addition,
Dr. Anigbogu found no reaching, handling, fingering, feeling or pushing and pulling
restrictions. (Id. at 888.) Dr. Anigbogu noted various environmental and postural
restrictions, but did not specifically opine as to Claimant’s bending restrictions. (Id. at
888-90.) The ALJ found that Dr. Anigbogu’s opinions related to Claimant’s physical
restrictions were not supported because Dr. Anigbogu did not specify which of
Claimant’s seven impairments caused his recommended restrictions. (Id.) In addition,
the ALJ found that Dr. Anigbogu’s opinion was inconsistent with Claimant’s testimony
that she is left-handed; Dr. Anigbogu stated she was right-handed. (Id.) Dr. Anigbogu’s
opinion was provided on the same SSA form as Dr. Alpar’s opinion and Dr. Anigbogu
provided no supplemental explanation for any of his check-box responses. (Id. at 88191.) Therefore, Dr. Anigbogu’s opinion is not entitled to any more than the limited
weight the ALJ assigned it. See Thomas, 881 F.3d at 675. Moreover, Dr. Anigbogu’s
opinion is at odds with Dr. Folk’s exertional restrictions opinion and therefore does not
support Dr. Folk’s opinion.
In relevant part, the state agency physicians opined that Claimant had no exertional
restrictions. (Id. at 211.) The ALJ gave the physicians’ opinions little weight because
the physicians did not consider the effect Claimant’s documented obesity had on her
15

For the reasons that Dr. Folk’s opinion is not supported by substantial evidence in the record,
I also find that Dr. Alpar’s opinion is not supported by substantial evidence in the record.

25

exertional abilities.

(AR at 142.)

The ALJ went on to note that he was limiting

Claimant’s RFC to the medium level based on “the claimant’s arthritis and testimony
about lifting putting pressure on her eyes.” (Id.) I find that these opinions do not support
Dr. Folk’s exertional restrictions.
Therefore, none of the medical opinion evidence supports Dr. Folk’s exertional
restrictions opinion because they are either at odds with Dr. Folk’s exertional restrictions
or because they suffer from defects that render them unreliable.
The Government argues that Claimant’s ability to engage in a wide variety of daily
activities supports finding that Dr. Folk’s exertional restrictions are not supported in the
record. Claimant told the SSA that on a typical day, she accomplishes the following tasks
before lunch: takes care of her own personal hygiene, including showering; “fix[es] the
bed”; brings dirty laundry to the laundry room; has breakfast and washes the breakfast
dishes; cleans the kitchen; sweeps and mops the floor; watches television; and makes
lunch. (Id. at 394.) After lunch, Claimant does laundry; does some “light cleaning,”
such as vacuuming or dusting; listens to music; watches television; makes dinner; washes
dishes; cleans and sweeps the kitchen; watches more television; and goes to bed. (Id.)
In her most recent Adult Function Report, Claimant stated that lunches are usually
sandwiches or leftovers and dinners are usually “full balance[d] meals.” (Id. at 399.)
Claimant is also able to rake leaves, although it takes time. (Id.) Claimant shops weekly
for groceries and less often for household goods, both in stores and by phone. (Id. at
400.) Claimant’s hobbies include visiting with people daily, both in person and on the
phone; going to church; and going out to eat. (Id. at 401.) She has given up her old
hobbies of reading, using the computer, crocheting, and crafting due to her impairments.
(Id.) She told a physician that she gave up gardening because of eye pressure. (Id. at
527.)

26

I agree that in isolation this list does not support a finding of disability. However,
this list is not inconsistent with Dr. Folk’s exertional restrictions because none of
Claimant’s daily activities necessarily implicates lifting or carrying more than 20 pounds,
bending, or stooping. While the list is not at odds with Dr. Folk’s exertional restrictions,
I find that is does nothing to support them, either. Claimant said she gave up her hobbies
due to her impairments, but does not state to which impairments she was referring.
Because reading, using the computer, crocheting, and crafting do not involve lifting,
carrying, bending, or stooping, the Court should not speculate as to what impairments
Claimant was referring. Therefore, I find that evidence of Claimant’s daily activities is
neutral as it relates to Dr. Folk’s opinion on Claimant’s exertional restrictions.
f.

Conclusion

After analyzing the foregoing five factors, I find that substantial evidence on the
record as a whole supports the ALJ’s decision on the narrow issue before the Court. See
Hacker, 459 F.3d at 936 (holding that the court cannot disturb the ALJ’s decision if it is
within the available “zone of choice” within which the ALJ can decide).
I further find that although he did so in a cursory manner, the ALJ properly
explained his reasons for assigning no weight to Dr. Folk’s exertional restrictions
opinion. “An arguable deficiency in opinion-writing technique does not require [the
court] to set aside an administrative finding when that deficiency had no bearing on the
outcome.” Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir. 2011). The ALJ analyzed
all of the above factors during the course of his analysis and explained why the evidence
does not support more limited exertional restrictions than he assigned. (AR at 139-42.)
To the extent the ALJ’s explanation was insufficient, I find it was harmless error. A
harmless error occurs when there is no indication that the ALJ would have reached a
different decision without the alleged error. See Byes v. Astrue, 687 F.3d 913, 917 (8th
Cir. 2012) (citing Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008)) (holding

27

there was no indication the ALJ would have decided differently had he not committed the
error and therefore the error was harmless). As the above analysis demonstrates, a more
complete analysis of Dr. Folk’s exertional restriction opinion and, presumably, a more
thorough explanation of his reasons for the weight the ALJ assigned to the opinion, would
not have resulted in a different outcome. The ALJ would still have assigned no weight
to Dr. Folk’s opinion because of the lack of support for the opinion both in Dr. Folk’s
treatment notes and in the rest of the administrative record.
Therefore, I recommend that the District Court affirm the ALJ’s decision on
this issue.
B.

Claimant failed to timely raise her Appointments Clause argument under Lucia
v. SEC.
In Lucia v. SEC, 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, and, therefore, the President, a court of law, or department head must appoint
them. 138 S. Ct. at 2049. Claimant argues that Social Security Administration ALJs
should be treated as improperly appointed “inferior officers” like the SEC ALJs in Lucia.
Claimant asserts this Court should vacate the denial of benefits by ALJ Meyr and remand
the case for decision by what he contends is a properly-appointed ALJ. Claimant admits
that she is asserting her Appointments Clause challenge for the first time in her opening
brief to this Court.
Claimant does not argue that her case presents any factual or procedural
differences from other cases that have previously been addressed by this Court. Indeed,
this case has the same procedural posture as several other cases wherein this Court already
addressed this issue (i.e., all administrative proceedings, including denial by the Appeals
Council, were completed before Lucia was decided on June 21, 2018).

28

This Court has ruled in favor of the Commissioner on similar claims on many
occasions. See White v. Comm’r of Soc. Sec., No. C18-2005-LTS, 2019 WL 1239852,
at *4 (N.D. Iowa Mar. 18, 2019); Stearns v. Berryhill, No. 17-CV-2031-LTS, 2018 WL
4380984, at *6 (N.D. Iowa Sept.14, 2018); Davis v. Comm’r of Soc. Sec., No. 17-CV80-LRR, 2018 WL 4300505, at *8-9 (N.D. Iowa Sept. 10, 2018); Iwan v. Comm’r of
Soc. Sec., No. 17-CV-97-LRR, 2018 WL 4295202, at *9 (N.D. Iowa Sept. 10, 2018);
Thurman v. Comm’r of Soc. Sec., No. 17-CV-35-LRR, 2018 WL 4300504, at *9 (N.D.
Iowa Sept. 10, 2018).
In Stearns, this Court ruled as follows:
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 170879-JPR, 2018 WL 3602380, at *3 n.3 (C.D. Cal. July 25, 2018). I find
this holding to be consistent with [relevant precedent]. 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 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. . . . 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.
2018 WL 4380984, at **5–6 (paragraph break added); see also Kimberly B. v. Berryhill,
No. 17-CV-5211 (HB), 2019 WL 652418, at *14 (D. Minn. Feb. 15, 2019) (noting that

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the “Eighth Circuit has concluded that a party forfeits an Appointments Clause claim by
failing to raise it to the agency”) (citing NLRB v. RELCO Locomotives, Inc., 734 F.3d
764, 798 (8th Cir. 2013)).
Although Claimant argues that raising the issue during the administrative process
would have been futile because Social Security EM-1003 16 prevented the ALJ from
addressing the issue, nothing stopped Claimant from raising the issue during the
administrative prosses and preserving it for appeal. In addition, Claimant’s argument
that Acting Commissioner Berryhill’s authority lapsed between November 2017 and April
2018, leaving no one at the SSA with the “power to correct the Appointments Clause
issue . . . [when her] claim was pending with the Appeals Council” (Doc. 13 at 13, n.9),
is unavailing for the same reason. Nothing prevented Claimant from raising this issue in
her appeal to the Appeals Council and preserving it for appeal to this Court. Accordingly,
I recommend that Claimant’s request for remand on this basis be denied. 17
IV.

CONCLUSION

For the foregoing reasons, I respectfully recommend that the District Court affirm
the decision of the ALJ and dismiss Plaintiff’s case with prejudice.
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

16

EM-1003 was issued on January 30, 2018, and stated, “Because the 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.” It did not prevent claimants from
making such challenges and, by its very existence, anticipated that claimants would make them.
17
Claimant’s counsel states in footnote 7 of Claimant’s brief that evidence in the record “clearly
shows” that Claimant suffers from intellectual functioning limitations. I dismissed this argument
as an inadvertent “cut and paste error.” Claimant does not claim to have intellectual impairments
and appears from the record to be a person of at least average intellectual capabilities.

30

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).
DONE AND ENTERED this 25th day of July, 2019.

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