Longley v. Berryhill

Filing 18

ORDER. IT IS HEREBY ORDERED that: 1. Plaintiff's Motion for Summary Judgement (ECF No. 12) is DENIED. 2. Defendant's Motion for Summary Judgment (ECF No. 15) is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Magistrate Judge Tony N. Leung on 9/27/2017. (ACH)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Melissa Gale Longley,

Case No. 16-cv-2071 (TNL)

Plaintiff,
v.

ORDER

Nancy A. Berryhill, 1
Acting Commissioner of Social Security,
Defendant.

Kirk C. Thompson, Kirk C. Thompson Law Office, 1201 Marquette Avenue, Suite 110,
Minneapolis, MN 55403 (for Plaintiff); and
Pamela Marentette, Assistant United States Attorney, United States Attorney’s Office,
300 South Fourth Street, Suite 600, Minneapolis, MN 55415 (for Defendant).

I. INTRODUCTION
Plaintiff Melissa Gale Longley brings the present case, contesting Defendant
Commissioner of Social Security’s denial of her application for disability insurance
benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The
parties have consented to a final judgment from the undersigned United States Magistrate
Judge in accordance with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D. Minn. LR
72.1(c).

1

Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017. The Acting
Commissioner of Social Security, Soc. Sec. Admin., https://www.ssa.gov/agency/commissioner.html (last visited
Sept. 21, 2017). Commissioner Berryhill is automatically substituted for the previous Acting Commissioner of
Social Security Carolyn W. Colvin. Fed. R. Civ. P. 25(d) (public officer’s successor is automatically substituted as
party when officer ceases to hold office while action is pending).

1

This matter is before the Court on the parties’ cross-motions for summary
judgment.

(ECF Nos. 12, 15.)

Being duly advised of all the files, records, and

proceedings herein, IT IS HEREBY ORDERED that Plaintiff’s motion for summary
judgment (ECF No. 12) is DENIED and the Commissioner’s motion for summary
judgment (ECF No. 15) is GRANTED.
II. PROCEDURAL HISTORY
Plaintiff applied for DIB in October 2012, asserting that she has been disabled
since April 2008, due to, among other things, a traumatic brain injury resulting in
impaired language/vocabulary, memory, intelligence, comprehension, and verbal
reasoning. (Tr. 17, 64, 80, 82, 98.) Plaintiff’s DIB application was denied initially and
again upon reconsideration.

(Tr. 17, 78, 80, 96, 98.)

Plaintiff appealed the

reconsideration of her DIB determination by requesting a hearing before an
administrative law judge (“ALJ”). (Tr. 17, 113.)
The ALJ held a hearing in November 2014. (Tr. 17, 38, 40.) After receiving an
unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council,
which denied her request for review. (Tr. 1-3, 12, 14-37.) Plaintiff then filed the instant
action, challenging the ALJ’s decision. (Compl., ECF No. 1.) The parties have filed
cross motions for summary judgment. (ECF Nos. 12, 15.) This matter is now fully
briefed and ready for a determination on the papers.
III. BACKGROUND
Previously, Plaintiff worked as a pharmacy technician at a retail store. (See, e.g.,
Tr. 43, 221, 196, 510.) She lives with her husband and adult children. (Tr. 42, 221, 526.)
2

In late April 2008, Plaintiff suffered a traumatic brain injury and multiple fractures
following a motor vehicle accident. (See, e.g., Tr. 300-05, 306, 310-11, 313-14, 357-58,
361-63, 364, 373, 382, 653-54.) Plaintiff underwent a serious of medical procedures to
treat her injuries. (See, e.g., Tr. 300-05, 306, 310-11, 313-14, 357-58, 366-72, 383-99,
446-50, 656-57.)
A. 2008 Accident
When Plaintiff was initially admitted to the hospital, her speech was “intelligible”
and she was repeating “help me, help me,” but did not respond to questions or
commands. (Tr. 366.) Approximately one month after her accident, Plaintiff continued
to be confused with impaired insight, judgment, and memory. (Tr. 326, 328, 330.)
Plaintiff was also exhibiting difficulties with speech, including rambling, being off topic,
aphasia, and trouble finding words. (Tr. 326, 328.)
A cognitive and language evaluation was conducted by a speech language
pathologist near the end of June 2008. (Tr. 453-456.) Plaintiff was noted to have
impairments in awareness, functional memory, immediate recall, and verbal expression.
(Tr. 454.) Plaintiff was described as “very tangential, verbose and jumps around from
topic to topic midsentence.” (Tr. 456.) She had “[d]ifficulty with expressing thoughts
and ideas due to tangentiality [sic] and language issues”; was “[u]nable to understand
[the] time of year, holidays or events”; was “[u]nable to remember immediately after
hearing information”; and appeared “[c]onfused and unable to concentrate.” (Tr. 454; see
Tr. 455-56, 466, 469, 471.) It was also noted that Plaintiff did not appear to be aware of
her difficulties. (Tr. 456; see Tr. 470.)
3

Hospital discharge notes generated around the same time describe Plaintiff as
“present[ing] with confusion, aphasia,[2] and restlessness.” (Tr. 358; accord Tr. 301, 311,
314, 660.)

Plaintiff’s restlessness had improved over time but “she tended to be

impulsive at times” and did not consistently follow instructions. (Tr. 358; accord Tr.
301, 311, 314, 660.) “With respect to her cognitive defects, [Plaintiff] showed a fluent
aphasia and impaired naming.” (Tr. 358; accord Tr. 301, 311, 314, 660; see Tr. 304, 657,
659.) Plaintiff’s auditory comprehension and aphasia were noted to be improving with
therapy. (Tr. 301, 311, 314, 358, 660.) “With cognitive tasks, she was functioning at a
moderate to high level with minimal assistance.” (Tr. 358; accord Tr. 301, 311, 314,
660.) “With instrumental activities of daily living, she was independent.” (Tr. 358;
accord Tr. 301, 311, 314, 660.) Plaintiff was again “noted to have limited awareness into
her deficits.”

(Tr. 358; accord Tr. 301, 311, 314, 660.)

During the discharge

examination, Plaintiff had “fluent aphasia” but could “follow directions well,” and she
was “redirectable.” (Tr. 358; accord Tr. 301-02, 311-12, 314, 660-61; see Tr. 304.)
Plaintiff was prescribed Effexor 3 for improved mood and cognition and Seroquel 4 “to
help with restlessness, impulsivity, and sleep.” (Tr. 358; accord Tr. 301, 311, 314, 660;
see Tr. 304.)

2

Aphasia is “[i]mpaired or absent comprehension or production of, or communication by, speech, writing, or signs,
due to an acquired lesion of the dominant cerebral hemisphere.” Aphasia, Stedman’s Med. Dictionary 110 (27th ed.
2000).
3
Effexor is a brand name for venlafaxine, a medication used to treat depression, generalized anxiety disorder, panic
disorder, and social anxiety disorder. Venlafaxine (By mouth) (Effexor), PubMed Health, U.S. Nat’l Library of
Medicine, https://www.ncbi nlm nih.gov/pubmedhealth/PMHT0012623/ (last visited on Sept. 21, 2017).
4
Seroquel is a brand name for quetiapine, a medication used to treat schizophrenia, mania, and depression.
Quetiapine, MedlinePlus, U.S. Nat’l Library of Medicine, https://medlineplus.gov/druginfo/meds/a698019 html
(last visited on Sept. 21, 2017).

4

B. Post-Accident Treatment
1. 2008
Around the middle of July 2008, Plaintiff followed up with her primary care
physician, Thomas A. Leaf, M.D. (Tr. 499-501, 613-14, 739-41.) Plaintiff reported that
she was “doing much better at home” and had stopped taking all of her medications. (Tr.
500; accord Tr. 613, 740.) Plaintiff still had no memory of the accident. (Tr. 500, 613,
740.) She also reported continued “word finding difficulty.” (Tr. 500; accord Tr. 613,
740.) Dr. Leaf noted “some word finding problems, but overall [Plaintiff’s] speech was
fairly normal and she seemed oriented.” (Tr. 500; accord Tr. 613, 740; see Tr. 495, 501.)
Dr. Leaf also noted that Plaintiff was to receive speech therapy at her home. (Tr. 500,
613, 740.)
In early October, Plaintiff followed up with Dr. Leaf. (Tr. 493-94, 619-20, 74445.)

Plaintiff had finished with physical and occupational therapy, but was still

continuing with speech therapy. (Tr. 493, 620, 744; see Tr. 7535-59, 769-76.) Dr. Leaf
noted that he spoke with Plaintiff’s speech therapist who indicated that, while Plaintiff
discussed going back to work, the speech therapist did not feel that Plaintiff was able to
“to that at this time because she has difficulty organizing her thoughts and difficulty
finding words and using word substitutions.” (Tr. 493; accord Tr. 620, 744.) Plaintiff
experienced “some improvement” and was “focusing better,” but did “have literal
interpretations of figures of speech.” (Tr. 493; accord Tr. 620, 744.) Plaintiff did better
when things were written versus “auditory input.”

(Tr. 493; accord Tr. 620, 744.)

During the appointment, Plaintiff reported being unable to remember names, and Dr.
5

Leaf noted that she had “some word finding difficulties and substitutions.” (Tr. 493;
accord Tr. 620, 745.)
Towards the end of October, Plaintiff was seen by Sarah B. Rockswold, M.D. (Tr.
526, 528, 801-03.) Plaintiff again reported difficulties with her memory, words, and
concentration. (Tr. 526, 529, 802.) Dr. Rockswold observed that Plaintiff was “aphasic”
and at times had difficulty comprehending what Dr. Rockswold said. (Tr. 527; accord
Tr. 529, 802.) Plaintiff also gave answers that were “inappropriate for the questions”
being asked. (Tr. 527; accord Tr. 529, 802.) Plaintiff’s fund of knowledge, insight, and
judgment were all adequate. (Tr. 527, 529, 802.) Dr. Rockswold diagnosed Plaintiff
with, among other things, “[c]ognitive defects including aphasia secondary to severe
traumatic brain injury.” (Tr. 527; accord Tr. 529, 803.) Dr. Rockswold noted that
Plaintiff would benefit from a more intense therapeutic program, but that the drive was
difficult for Plaintiff and her husband to make once per week. (Tr. 527, 529, 803.) Dr.
Rockswold referred Plaintiff for neuropsychological testing. (Tr. 527, 530, 803.)
Plaintiff underwent neuropsychological testing in November with James B.
Thomson, Ph.D. (Tr. 533-38, 539-44, 794-801.) She again reported “difficulty with
naming, word substitution, neologisms, and hesitation and delay in speech.” (Tr. 534;
accord Tr. 540, 795.) Plaintiff reported “no memory deficits except for language,” which
her husband confirmed. (Tr. 534; accord Tr. 540, 795.) Plaintiff’s husband also reported
that Plaintiff “has difficulty dealing with friends if they talk too rapidly.” (Tr. 534;
accord Tr. 540, 795.) Plaintiff described her current “activities of cleaning, housework,
laundry, [and] shopping, and stated that she walked regularly when it was warmer.” (Tr.
6

534; accord Tr. 540, 796.)

Plaintiff’s husband stated “that she runs the entire

household.” (Tr. 534; accord Tr. 540, 796.)
Dr. Thomson noted that Plaintiff’s symptom questionnaire “was marked in a
number of places, with many erasures, and then filled out again with words written in
some places and check marks in other places,” suggesting that Plaintiff “may have filled
it out incorrectly or misunderstood it initially.” (Tr. 534; accord Tr. 540, 796.) Dr.
Thomson noted that Plaintiff’s “[e]xpressive speech was clearly impaired . . . with
repetitive and occasionally disorganized speech.” (Tr. 535; accord Tr. 541, 797.) Dr.
Thomson concluded that Plaintiff “demonstrated grossly impaired verbal reasoning,
general knowledge, concentration, and working memory abilities because of an apparent
combination of auditory comprehension difficulty and dysnomia.” (Tr. 537; accord Tr.
543, 799.)

Plaintiff’s “[v]isual reasoning abilities, by comparison, were average to

superior, with average concentration.” (Tr. 537; accord Tr. 543, 799.)
Overall, Dr. Thomson concluded that Plaintiff
demonstrated significant impairment in language-related
tasks,
reflecting
aphasic
symptoms
of
auditory
comprehension, verbal expressive difficulty, reading
recognition impairments, reading comprehension impairment
(presumably), verbal memory impairment, verbal fluency
impairment, and mental inflexibility in one visual test. Other
visual tests found grossly intact attention, focus, perception,
memory, reasoning, problem solving, planning, and fluency,
with mildly reduced efficiency in letter and number
recognition in scanning and cancellation tests. Overall, the
results appear to relatively clearly indicate a focal cognitive
dysfunction implicating language centers, similar to a left
hemisphere stroke syndrome.

7

(Tr. 538; accord Tr. 544, 799.) Dr. Thomson recommended that Plaintiff continue with
speech therapy. (Tr. 538, 544, 799.) Dr. Thomson also explained to Plaintiff that she
could not return to her previous job as a pharmacy technician “given her difficulty with
reading recognition, reading comprehension, and other language-based deficits that
would be very dangerous in a pharmacy setting where errors could put someone’s life at
risk.” (Tr. 538; accord Tr. 544, 799.)
2. 2009
Plaintiff had three additional appointments with Dr. Rockswold in 2009. (Tr. 54650, 564-68, 572-75, 792-793.) Plaintiff felt that her comprehension was improving and
she was “working on words and remembering them.” (Tr. 547; accord Tr. 549, 792.) Dr.
Rockswold noted that Plaintiff continued to have problems with aphasia, but she was
improving and answered questions appropriately.

(Tr. 547, 550, 565, 567, 793.)

Plaintiff’s fund of knowledge, insight, and judgment were noted to be improving as well
during the first two appointments, but her insight and judgment were described as “still
lacking” at the third. (Compare Tr. 547, 550, 565, 567, 793 with Tr. 572, 574.) Similar
to Dr. Thomson, Dr. Rockswold also felt it was unsafe for Plaintiff to work as a
pharmacy technician and wrote two letters for Plaintiff to this effect. (Tr. 517, 548, 550,
553, 573, 575, 577, 793.)
During the second appointment, Dr. Rockswold noted that Plaintiff had been
discharged from speech therapy at the end of February because “she had plateaued in her
goals,” and was described as “continu[ing] to have mild to moderate deficits in figurative
language and organized verbal expression and word finding for complex information or
8

conversation requiring multiple sentences.” (Tr. 565; accord Tr. 566, 567, 568; see Tr.
761-68, 769-76.) Plaintiff also reported that she had returned to her previous employer
and was working as a cashier “a few hours a day.” (Tr. 565; accord Tr. 567.)
At the third appointment, Dr. Rockswold noted that Plaintiff “recently underwent
repeat neuropsychological testing” with Dr. Thomson, which showed “continued
impairment in language-related tasks, though there is some improvement in functional
auditory memory.” (Tr. 572; accord Tr. 574; see Tr. 512-16.) Plaintiff also had “some
improvement in functional auditory memory more so than reading recognition, reading
comprehension, or naming.” (Tr. 572; accord Tr. 574, 515.) Dr. Thomson stated that
Plaintiff “could have problems in accuracy and reliability in her work, even as a cashier,”
and “she would be more successful in work that does not require significant amounts of
written or even spoken communication or learning that requires reading or spoken
information.” (Tr. 572; accord Tr. 574, 515.) On the other hand, Plaintiff was “primarily
unimpaired in tasks requiring nonverbal abilities, including perceptual analysis, visual
memory, visual reasoning, visual problem solving, visual planning, motor coordination,
[and] visual memory.” (Tr. 515.)
Dr. Rockswold further noted that Plaintiff was being seen in speech pathology,
where “[s]he continue[d] to present with moderate expressive aphasia characterized by
decreased word finding, word substitution and repetition.” (Tr. 572; accord Tr. 519,
574.) Notes from the speech pathology consultation stated that, despite her language
deficits, Plaintiff was “compensating quite well on a functional level, using various
compensation strategies to get her thoughts and ideas across,” and “[r]eceptively she is
9

able to follow directions and engage in conversation appropriately and within context, but
state[s] th[a]t she does intermittently require repetition or clarification on a functional
level.” (Tr. 519-20.) It was also noted that Plaintiff was “unsure if she is interested in
resuming therapy at this time, but did agree to return 1-2 more times to complete
assessment and discuss potential goals.” (Tr. 520.)
3. 2013
Plaintiff participated in a three-day vocational evaluation by Courage Center in
February 2013. (Tr. 221-29.) Plaintiff underwent a battery of tests designed to assess
areas such as comprehension and vocabulary skills, math skills, and ability to follow
verbal instructions. (Tr. 222-27.) Ultimately, the vocational evaluator concluded that
Plaintiff read above a sixth-grade reading level, had basic math skills, demonstrated good
spatial skills, showed attention to detail, and performed at a near competitive work speed.
(Tr. 228.) Additionally, the vocational evaluator noted that Plaintiff had difficulty with
multistep verbal instructions, performed at a below competitive work speed, and could be
abrupt in her interpersonal skills. (Tr. 228.) The vocational evaluator listed repetition,
checklists, routing/structure, and concrete tasks as suggested accommodations. (Tr. 228.)
In June, Plaintiff returned to Dr. Leaf, asking about medication that could help
with her memory. (Tr. 607, 638-40.) Plaintiff was no longer working as a cashier. (Tr.
607, 638.) Plaintiff reported completing a program for certified nursing and home health
assistants, but had been unable to find work. (Tr. 607, 638-39.) While Plaintiff was alert
and oriented, Dr. Leaf noted that her thoughts were scattered and disorganized. (Tr. 608,
640.) Plaintiff was also tangential and had difficulty expressing her thoughts despite
10

referring to notes.

(Tr. 608, 640.)

Dr. Leaf recommended an additional

neuropsychological evaluation. (Tr. 608, 640.)
Notes from visits Plaintiff had with a nurse practitioner in each of October and
November indicated, in relevant part, that Plaintiff’s speech was normal, she could reason
abstractly, and her thoughts were not tangential. (Tr. 643, 651.) During one of the
appointments, however, it was noted that Plaintiff was “overinclusively verbose and has
difficulty staying on task of conversation.” (Tr. 651.)
IV. MEDICAL OPINIONS
A. Consultative Examination: Marlin Trulsen, Ph.D., L.P.
Marlin Trulsen, Ph.D., L.P., performed a psychological consultative examination
in April 2013. (Tr. 579-89.) Plaintiff reported that, although she had tried working as a
cashier for her former employer after the accident, she left in 2011 after “feeling poorly
treated by the employer.” (Tr. 580.) Plaintiff listed watching television and movies,
Internet research, and listening to music as her hobbies. (Tr. 581.) Plaintiff reported
helping to care for her daughter’s pet rabbit, cleaning up around the house, getting the
mail, running errands, preparing meals, doing laundry, shopping, and assisting with yard
work. (Tr. 581; see Tr. 196, 200, 201, 202.)
Plaintiff reported “problems remembering specific words for use in general
conversations and . . . taking longer to recall the words or at other times not finding the
words at all.” (Tr. 580; see Tr. 203, 239, 247, 254.) “She [also] noted remembering
details of conversations can seem difficult and results in more confusion occasions for
her.”

(Tr. 580; see Tr. 203.)

Plaintiff “reported experiencing greater difficulty
11

concentrating and experiencing easier occasions of distraction than previous to her head
injury. She noted this as more frustrating when trying to complete school responsibilities
or other tasks requiring concentration.” (Tr. 580; see Tr. 203, 254.)
Dr. Trulsen noted that Plaintiff “was noticeable for patterns of speech that
appeared to reflect her loosing [sic] track of the focus of the conversation and not
appearing fully aware of loosing [sic] track and requiring the examiner to redirect the
conversation.” (Tr. 582.) Plaintiff
demonstrated occasions of pausing and appearing to try to
find specific words when responding and then moving on to
use other words for her various responses. Her speech
otherwise appeared average for pitch, rate, volume, with
content appropriate for topics discussed. Her perceptions
appeared appropriate. She appeared generally alert and
oriented x[]4, made appropriate eye contact, and appeared in
a pleasant mood. She demonstrated a full range of . . . affect
for topics discussed. Her judgment and insight appeared
developed below expected levels as . . . she appeared less
aware of her general difficulties with conversation processes.
(Tr. 582.)
After conducting a series of tests, Dr. Trulsen concluded that Plaintiff’s
general mental capacity for understanding appears to
demonstrate a moderate to occasionally marked level of
impairment as suggested by her general pattern for difficulties
with various conversations and appearing to loose [sic] track
of the general conversation focus[]and appears for the most
part unaware of this pattern. As a result, it appears that she
may under report her general difficulties for this pattern. Her
general mental capacity for remembering appears to
demonstrate occasions of slight impairment. Her general
mental capacity for following instructions, sustaining
attention and concentrating all appear to demonstrate a slight
to occasionally moderate level of impairment especially as
12

[she] becomes required to discuss and dialogue about
processes.
[Plaintiff’s] general mental capacity for carrying out worklike tasks with reasonable persistence or pace would appear
likely to demonstrate a moderate to occasionally marked level
of impairment due to the observed pattern for her general loss
of focus for the conversation or particular activity details and
seemingly unaware of this pattern. Her general mental
capacity for responding appropriately to brief and superficial
contact with coworkers and supervisor[s], as well as
tolerating stress and pressures typically found in an entrylevel workplace appear adequate in development and show no
general impairment.
....
She demonstrated an average ability to hear and produce
normal conversation and sustain speech with the above noted
pattern for appearing to lose track and focus of the
conversation details and appearing fairly unaware of this
pattern.
(Tr. 587-88; see Tr. 583-86.)
B. Consultative Examination: A. Neil Johnson, M.D.
A. Neil Johnson, M.D., performed a physical consultative examination in April
2013 as well. In relevant part, Dr. Johnson noted that Plaintiff was “loquacious” with
“somewhat hyper” speech. (Tr. 591; see Tr. 592.) Plaintiff “ha[d] a hard time thinking
about what words she wants to use.” (Tr. 591; see Tr. 595.) Plaintiff reported “some
trouble with reading comprehension,” but claimed that her memory and concentration
were “satisfactory.” (Tr. 591; see Tr. 595.) When asked why she was unable to work,
Plaintiff “had a hard time articulating why she could not work.” (Tr. 591.) Plaintiff
otherwise “seemed to answer questions appropriately and without difficulty” and could
13

“hear conventional speech without limitation.”

(Tr. 592.)

Plaintiff “was able to

accurately subtract 7 from 100, multiply 8 x 9 and divide 100 by 20.” (Tr. 595.) Dr.
Johnson noted some “subtle finds with word finding and word comprehension.” (Tr.
595.)
C. Medical Source Statement: Thomas Leaf, M.D.
Dr. Leaf completed a medical source statement in May 2014. (Tr. 820.) Dr. Leaf
described Plaintiff’s diagnoses as traumatic brain injury with “some speech difficulty,”
including “word finding problems, memory issues, [and] disorganized thoughts.” (Tr.
820.) Dr. Leaf indicated that Plaintiff experienced personality changes, problems with
judgment, speech/communication difficulties, and difficulties with her memory. (Tr.
820.)
Dr. Leaf opined that Plaintiff was disabled and unable to work for at least 12
months. (Tr. 820.) At the same time, Dr. Leaf opined that Plaintiff would “[n]ever” miss
a day of work. (Tr. 820.) Dr. Leaf opined that Plaintiff would be off-task 25% or more
of the time due to her symptoms and limitations. (Tr. 820.) Lastly, Dr. Leaf checked
“[n]o” when asked if Plaintiff was able to “perform a simple, sit down type job on a full
time basis,” stating that Plaintiff had “[d]ifficulty finding a job she could do with [her]
cognitive limitations.” (Tr. 820.)
D. State Agency Consultants
In relevant part, the state agency consultants assessing Plaintiff’s physical residual
functional capacity both concluded that Plaintiff’s ability to speak was limited and opined

14

that she should “[a]void work requiring continuous verbal communication.” (Tr. 73;
accord Tr. 91.)
The state agency consultants assessing Plaintiff’s mental residual functional
capacity opined that: (1) Plaintiff “retained sufficient mental capacity to concentrate on,
understand, and remember routine, repetitive instructions, but would be markedly
impaired for detailed or complex/technical instructions,” (Tr. 75; accord Tr. 91-92); (2)
her “ability to carry out routine, repetitive tasks would be intact, but markedly impaired
for detailed and complex tasks,” (Tr. 76; accord Tr. 93); (3) her “ability to handle coworker and public contact would be reduced but adequate to handle brief and superficial
contact,” (Tr. 76; accord Tr. 94); (4) her “ability to tolerate and respond appropriately to
supervision would be reduced but adequate to handle ordinary levels of supervision found
in a customary work setting,” (Tr. 76; accord Tr. 93); and (5) her “ability to tolerate and
respond appropriately to stress in the work place would be reduced but adequate to
handle the routine stresses of a routine, repetitive work setting,” (Tr. 77; accord Tr. 94).
V. HEARING BEFORE THE ALJ
At the hearing, Plaintiff testified that she was unable to work because she could no
longer verbalize things correctly. (Tr. 44; see Tr. 59.) Plaintiff testified that “almost
every day there’s a weird word . . . that’s missing.” (Tr. 60.) Plaintiff testified that she
had to go through the nursing assistant course twice and had difficulty concentrating.
(Tr. 58-59.) The ALJ asked Plaintiff if she received a settlement from the accident and
Plaintiff testified that she received a monthly annuity. (Tr. 44-45; see Tr. 52.) During the
hearing, the ALJ commented on Plaintiff’s speech, stating that it “doesn’t seem like she is
15

ineffective. She has issues but obviously—I don’t know that she’s ineffective. She’s
been reasonably effective here today.” (Tr. 50-51.)
The ALJ asked the vocational expert if he reviewed the Courage Center vocational
evaluation and to opine on the employability of a hypothetical individual fitting the
resultant profile.

(Tr. 46-47, 48-49.)

The vocational expert testified that such an

individual could perform unskilled work that could be “learned via demonstration as
opposed to a lot of oral direction,” such as a bench assembler, janitor/cleaner, and officer
helper. (Tr. 48-49.)
The ALJ then asked the vocational expert about a second hypothetical individual
who had “no communication limitations in hearing, but in speaking there would be some
limitations which would involve avoidance of work requiring continuous verbal
communication.”

(Tr. 49.)

This hypothetical individual had a “mental residual

functional capacity [that] would rule out detailed and complex tasks, [but] would be
sufficient for routine and repetitive reinforced type tasks,” and “public contact would
need to be reduced to brief, meaning for a short period of time, and superficial, not on a
decision-making basis, consistent with her speech limitations.” (Tr. 49.) The vocational
expert testified that this second hypothetical individual would be able to perform the
three jobs previously identified as well as work as a hand packager. (Tr. 49-50.)
Then-counsel 5 for Plaintiff asked the vocational expert whether Dr. Trulsen’s
finding that Plaintiff’s “mental capacity for carrying out work-like tasks with reasonable
persistence or pace . . . [was] moderately to occasionally markedly impaired” would
5

Plaintiff was represented by different counsel at the ALJ hearing. (See Tr. 110, 112; see also Tr. 38, 40.)

16

preclude employment.

(Tr. 61.)

The vocational expert responded that “if that

impairment resulted in a person being off task in excess of 10% of a workday over and
above regularly scheduled breaks, it’s my opinion that productivity standards would not
be met” and those jobs would be eliminated. (Tr. 61.)
VI. ANALYSIS
Disability benefits are available to individuals who are determined to be under a
disability. 42 U.S.C. § 423(a)(1); 20 C.F.R. § 404.315. An individual is considered to be
disabled if she is unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. § 404.1505(a). This standard
is met when a severe physical or mental impairment, or impairments, renders the
individual unable to do her previous work or “any other kind of substantial gainful work
which exists in the national economy” when taking into account her age, education, and
work experience. 42 U.S.C. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(a). In general, the
burden of proving the existence of disability lies with the claimant.

20 C.F.R.

§ 404.1512(a).
A. ALJ’S Decision
Disability is determined according to a five-step, sequential evaluation process.
20 C.F.R. § 404.1520(a)(4).
To determine disability, the ALJ follows the familiar five-step
process, considering whether: (1) the claimant was employed;
(2) she was severely impaired; (3) her impairment was, or
17

was comparable to, a listed impairment; (4) she could
perform past relevant work; and if not, (5) whether she could
perform any other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010).
In relevant part, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since her alleged onset date and her “traumatic brain injury with an organic
mental disorder” constituted a severe impairment. (Tr. 19-20.) The ALJ concluded that
this impairment did not meet or medically equal a listed impairment in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Tr. 20-22.)
The ALJ concluded that Plaintiff had the residual functional capacity to perform
medium work with additional limitations, including “avoid[ing] work requiring
continuous communication”; “rul[ing] out detailed or complex tasks but sufficient for
routine repetitive 3-4 step tasks”; and allowing for “brief and superficial public contact
with no decision making and consistent with her speech limitations.” (Tr. 22.) The ALJ
determined that Plaintiff’s “complaints of aphasia, difficulty communicating and
organizing warrant[ed] restrictions in the complexity of work, communication frequency
and intensity, and contact with public” and her “[a]lleged adaptive deficits warrant[ed]
routine and repetitive work tasks.” (Tr. 23; see Tr. 28.) The ALJ found that Plaintiff’s
subjective complaints were not fully credible and gave no weight to those portions of Dr.
Leaf’s opinion regarding Plaintiff’s non-physical limitations. (Tr. 23, 28-30.) Based on
the testimony of a vocational expert, the ALJ found that Plaintiff was capable of
performing jobs in the national economy such as light bench assembler, janitor/cleaner,

18

office helper, and hand packager and ultimately concluded that Plaintiff was not disabled.
(Tr. 31-32.)
B. Issues for Review
Plaintiff’s challenges to the ALJ’s decision all relate to the determination of her
residual functional capacity. A claimant’s “residual functional capacity is the most [she]
can do despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1); see McCoy v. Astrue, 648
F.3d 605, 614 (8th Cir. 2011) (“A claimant’s [residual functional capacity] represents the
most he can do despite the combined effects of all of his credible limitations and must be
based on all credible evidence.”). “Because a claimant’s [residual functional capacity] 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.” Perks v. Astrue, 687
F.3d 1086, 1092 (8th Cir. 2012) (quotation omitted).

“Medical records, physician

observations, and the claimant’s subjective statements about h[er] capabilities may be
used to support the [residual functional capacity].” Id. “Even though the [residualfunctional-capacity] assessment draws from medical sources for support, it is ultimately
an administrative determination reserved to the Commissioner.” Id. (quotation omitted);
see 20 C.F.R. § 404.1546(c). Plaintiff asserts that the ALJ (1) did not give appropriate
weight to the opinion of Dr. Leaf; (2) did not properly take into account the extent of her
symptoms; and (3) improperly assessed her credibility.
1. Dr. Leaf
The Court begins with Plaintiff’s argument that the ALJ did not give appropriate
weight to the opinion of Dr. Leaf regarding her non-physical impairments. There is no
19

dispute that Dr. Leaf is an acceptable medical source who treated Plaintiff. See 20 C.F.R.
§§ 404.1502 (identifying claimant’s own physician as treating source), .1513(a)(1)
(identifying licensed physicians as acceptable medical sources). A treating source’s
“opinion is entitled to controlling weight when it is supported by medically acceptable
techniques and is not inconsistent with substantial evidence in the record.” Julin v.
Colvin, 826 F.3d 1082, 1088 (8th Cir. 2016); accord Cline v. Colvin, 771 F.3d 1098,
1103 (8th Cir. 2014).
“Yet[, this controlling] weight is neither inherent nor automatic and does not
obviate the need to evaluate the record as a whole.” Cline, 771 F.3d at 1103 (citation and
quotation omitted). The opinions of treating physicians “are given less weight if they are
inconsistent with the record as a whole or if the conclusions consist of vague, conclusory
statements unsupported by medically acceptable data.” Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004); see Cline, 771 F.3d at 1103 (permitting the opinions of treating
physicians to be discounted or disregarded “where other medical assessments are
supported by better or more thorough medical evidence, or where a treating physician
renders inconsistent opinions that undermine the credibility of such opinions”) (quotation
omitted). When a treating source’s opinion is not given controlling weight, the opinion is
weighed based on a number of factors, including the examining relationship, treatment
relationship, opinion’s supportability, opinion’s consistency with the record as a whole,
specialization of the provider, and any other factors tending to support or contradict the
opinion. 20 C.F.R. § 404.1527(c)(2); Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir.

20

2003). The ALJ is required to “give good reasons” for the weight assigned to a treating
source’s opinion. 20 C.F.R. § 404.1527(c)(2); Cline, 771 F.3d at 1103.
While the ALJ accorded substantial weight to that portion of Dr. Leaf’s opinion
addressing Plaintiff’s physical abilities, the ALJ gave no weight to the portions of Dr.
Leaf’s opinion regarding her non-physical impairments: Plaintiff would be off-task 25%
or more of the time, and she was unable to perform a simple, seated job on a full-time
basis due to difficulty finding a job that she was able to do with her cognitive limitations.
The ALJ found that these conclusions were not consistent with the record as whole. The
ALJ also noted that Dr. Leaf’s assessment of Plaintiff’s ability to remain on task was not
supported by any mental status or psychological examination. The ALJ reasoned that Dr.
Leaf “appear[ed] to deal more so with . . . [Plaintiff’s] physical impairments” and “[t]here
is no indication that he reviewed or is qualified to assess the vocational implications of
. . . [Plaintiff’s] neuropsychology and other traumatic brain injury treatment.” (Tr. 30.)
As an initial matter, the ALJ properly gave no weight to Dr. Leaf’s opinion that
Plaintiff was unable to perform a simple, seated job on a full-time basis because “it
strayed beyond medical issues to a legal opinion on the applicability of the social security
statute.” Julin, 526 F.3d at 1089 (treating physician’s opinion that claimant was unable
to work full time strayed beyond medical issues and not entitled to controlling weight);
accord Stormo, 377 F.3d at 806 (“Dr. Gutnik’s conclusory statement ‘that Lance’s
problems would make it difficult for him to hold any significant employment,’ similarly
asserts an inappropriate legal conclusion.”) (citation omitted).

21

Nor does Dr. Leaf’s reliance on Plaintiff’s apparent difficulty in finding
employment render her disabled as a matter of course.

So long as work exists in

significant numbers whose requirements a claimant is able to meet with his or her
physical and mental capabilities and vocational qualifications, it does not matter, for
example, if the claimant has been unable to get work, there are no job openings for the
claimant, or the claimant would not actually be hired to do the work he or she could
otherwise do. 20 C.F.R. § 404.1566(c); see, e.g., Kerns v. Apfel, 160 F.3d 464, 467 (8th
Cir. 1998) (“[S]tatutory definitions and social security regulations provide that disability
is to be evaluated in terms of a claimant’s ability to perform jobs rather than on his or her
ability to obtain them.”); Glassman v. Sullivan, 901 F.2d 1472, 1474 (8th Cir. 1990)
(“Under the Social Security regulations, the test for disability is not whether an individual
can actually get hired for a job, but whether he or she has the physical and mental
capacity to adequately perform one.”).

Accordingly, the Court turns to Plaintiff’s

arguments as applied to Dr. Leaf’s opinion that Plaintiff would be off-task 25% or more
of the time.
Plaintiff argues that, when assessing the weight to be accorded to Dr. Leaf’s
opinion regarding her ability to stay on task, the ALJ did not properly take into account
the number of times she had seen Dr. Leaf. The nature of the treatment relationship is
one factor to consider when assigning weight to opinion evidence.

20 C.F.R.

§ 404.1527(c)(2)(i) (“Generally, the longer a treating source has treated you and the more
times you have been seen by a treating source, the more weight we will give to the
source’s medical opinion.”). But Plaintiff’s contention that the ALJ did not consider how
22

many times she saw Dr. Leaf is belied by the ALJ’s discussion of these visits in the
decision. The ALJ specifically described Dr. Leaf as Plaintiff’s primary care physician
and discussed each of the “at least four times since the accident” Plaintiff states that she
saw Dr. Leaf. (Pl.’s Mem. in Supp. at 15, ECF No. 13.) Importantly, this factor is only
one of several to be considered.
Based on other factors, the ALJ properly determined that Dr. Leaf’s opinion that
Plaintiff would be off-task 25% or more of the time was not entitled to controlling
weight. While Plaintiff argues that the ALJ “did not assess and consider the medical
evidence that supported Dr. Leaf’s assessment,” (Pl.’s Mem. in Supp. at 15), the ALJ in
fact expressly considered the supportability of Dr. Leaf’s opinion.

See 20 C.F.R.

§ 404.1527(c)(3) (“The more a medical source presents relevant medical evidence to
support an opinion, particularly medical signs and laboratory findings the more weight
we will give that opinion.”). Substantial evidence in the record supports the ALJ’s
conclusion that Dr. Leaf primarily dealt with Plaintiff’s physical impairments rather than
her mental impairments and his opinion regarding Plaintiff’s ability to remain on task
was not supported by findings from mental status examinations or psychological
evaluations. And, as discussed below, Dr. Leaf’s opinion was inconsistent with other
medical evidence in the record showing that Plaintiff was able to maintain attention and
focus when speech was not required. In a similar vein, the ALJ appropriately took into
account that this opinion appeared to be outside Dr. Leaf’s area of expertise. See 20
C.F.R. § 404.1527(c)(5) (“We generally give more weight to the opinion of a specialist

23

about medical issues related to his or her area of specialty than to the opinion of a source
who is not a specialist.”).
Perhaps most significantly, the ALJ properly considered Dr. Leaf’s opinion in the
context of the entire record. See 20 C.F.R. § 404.1527(c)(2); Bernard v. Colvin, 774 F.3d
482, 487 (8th Cir. 2014) (“Since the ALJ must evaluate the record as a whole, the
opinions of treating physicians do not automatically control.”) While Dr. Leaf opined
that Plaintiff would be off-task 25% or more of the time, this opinion was inconsistent
with other medical evidence in the record showing that Plaintiff’s focus had improved
and she demonstrated at least average performance in non-language related tasks,
including maintaining attention and focus and paying attention to detail. As stated by the
Commissioner, such findings undermine Dr. Leaf’s opinion. Additionally, following the
consultative examination, Dr. Trulsen concluded that Plaintiff’s “mental capacity for
following instructions, sustaining attention and concentrating all appear to demonstrate a
slight to occasionally moderate level of impairment,” which became more apparent as
Plaintiff was “required to discuss and dialogue about processes.” (Tr. 587.)
Plaintiff points to Dr. Trulsen’s opinion that her mental capacity for carrying out
work-like tasks with reasonable persistence and pace “demonstate[d] a moderate to
occasionally marked level of impairment.” (Tr. 587.) Dr. Trulsen stated that this opinion
was based on Plaintiff’s pattern of “general loss of focus for the conversation or
particular activity details and [being] seemingly unaware of this pattern.” (Tr. 587.) The
ALJ concluded reasonably that such opinion was based on difficulties Dr. Trulsen
observed Plaintiff to experience during conversations.
24

When determining Plaintiff’s

residual functional capacity, the ALJ accounted for the difficulties noted by Dr. Trulsen
by limiting Plaintiff to work that did not require continuous conversation and involved
only brief, superficial public contact.
Moreover, when evaluating Dr. Leaf’s opinion, the ALJ did not incorrectly
interpret the opinions of Drs. Rockswold and Thomson. Drs. Rockswold and Thomson
each opined that Plaintiff should not return to her previous job as a pharmacy technician
due to her speech and language difficulties, expressing serious concern over the dangers
such deficits posed in the pharmacy setting. Plaintiff argues that these opinions do not
mean that she is capable of performing other work.

But, as Plaintiff herself

acknowledges, Dr. Thomson opined that Plaintiff had little to no impairment with tasks
requiring non-verbal abilities. And, Dr. Thomson in fact stated that Plaintiff would be
more successful with work that did not involve significant amounts of written and spoken
information. There is nothing in these opinions suggesting that Plaintiff’s languagebased deficits preclude her from any and all employment, 6 particularly when the ALJ’s
residual-functional-capacity determination accounted for Plaintiff’s speech and language
difficulties.
In the end, “it is the ALJ’s function to resolve conflicts among the opinions of the
various treating and examining physicians.” Renstrom v. Astrue, 680 F.3d 1057, 1065
(8th Cir. 2012) (quotation omitted). The ALJ gave good reasons for assigning no weight

6

Plaintiff argues that “Dr. Rockswold said that [she] would be unreliable in working given her language-based
deficits,” citing page 7 of Exhibit 6F in the administrative record. (Pl.’s Mem. in Supp. at 16.) The Court could find
no notation by Dr. Rockswold to this effect.

25

to these portions of Dr. Leaf’s opinion and substantial evidence in the record supports the
ALJ’s treatment of Dr. Leaf’s opinion.
2. Symptoms
Plaintiff argues that the ALJ failed to recognize the extent of her traumatic brain
injury and the resultant effects on her cognitive abilities and ability to perform with
reasonable persistence and pace.

Plaintiff cites places in the record documenting

cognitive deficits following the accident, aphasia, reading difficulties, difficulties with
conversation (both expressing her own thoughts and following along), Dr. Trulsen’s
opinion that her capacity for understanding was moderately to occasionally markedly
impaired, and Dr. Leaf’s opinion that Plaintiff was unable to work for at least 12 months
and could not perform a simple, sit-down job on a full-time basis. Plaintiff argues that
“[a]ll of the medical evidence over time shows the severity of [her] cognitive
impairments.”

(Pl.’s Mem. in Supp. at 14.)

The Commissioner responds that the

limitations contained in the ALJ’s residual-functional-capacity determination properly
account for Plaintiff’s speech and cognitive difficulties and Plaintiff has not shown the
need for additional limitations.
Among other things, the ALJ limited Plaintiff to work that did not require
continuous communication, did not involve detailed or complex tasks, and involved only
brief and superficial public contact with no decision-making.

In making this

determination, the ALJ reasoned that Plaintiff’s “complaints of aphasia, difficulty
communicating and organizing warrant restrictions in the complexity of work,

26

communication frequency and intensity, and contact with the public,” and her “[a]lleged
adaptive deficits warrant routine and repetitive work tasks.” (Tr. 22.)
Contrary to Plaintiff’s assertion that the ALJ did not recognize the extent of her
traumatic brain injury and resulting limitations, the ALJ’s discussion of the medical
evidence and residual-functional-capacity determination reflect careful consideration of
how and to what extent Plaintiff’s traumatic brain injury impacted her ability to function
in the workplace. See Stormo, 377 F.3d at 807 (“It is appropriate for the ALJ to take a
‘functional approach’ when determining whether impairments amount to a disability.”
(quoting Bowen v. Yuckert, 482 U.S. 137, 146 (1987)). The record reflects that, while
Plaintiff was at times noted to demonstrate some improvement particularly with regard to
answering questions, she continued to experience problems with language following the
accident. Plaintiff’s treatment providers, the consultative examiners, and the state agency
consultants all noted at least some level of language impairment. Plaintiff testified that
she had difficulty with verbalization and the ALJ observed first-hand Plaintiff’s
communication difficulties during the hearing. 7

The ALJ expressly recognized that

“[t]he residual deficits [of Plaintiff’s traumatic brain injury] are most notable in
expressive and to a lesser degree receptive communication,” warranting a “restriction on
communication and public contact.” (Tr. 28.) By limiting Plaintiff to work that did not
7

Albeit in her discussion of the weight given to portions of Dr. Leaf’s opinion, Plaintiff suggests that the ALJ
impermissibly relied on his own opinion of Plaintiff’s communication difficulties based on observations made at the
hearing. “While the ALJ’s observations cannot be the sole basis of his decision, it is not an error to include his
observations as one of several factors.” Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008); see Johnson v. Apfel,
240 F.3d 1145, 1148, 1149 (8th Cir. 2001) (ALJ’s personal observations of claimant during hearing were
“completely proper” as one factor in credibility determination). Here, any personal observations made by the ALJ
were at most only a factor in the ALJ’s overall consideration of the entire record. See Lamp, 531 F.3d at 632;
Johnson, 240 F.3d at 1149.

27

require continuous communication and involved only brief and superficial public contact
with no decision-making, the ALJ recognized and accounted for the continued language
difficulties Plaintiff experienced following her traumatic brain injury.
At the same time, the evidence in the record also shows that, despite her language
difficulties,

Plaintiff

was

largely

unimpaired

in

non-verbal

tasks.

Repeat

neuropsychological testing by Dr. Thomson showed Plaintiff’s attention, focus, memory,
and problem-solving to be grossly intact for non-verbal tasks. The ALJ noted that this
repeat testing “indicated that [Plaintiff] retained the ability to learn, [and] had low
average to average academic proficiency,” reasoning that the results “suggest[ed] the
ability to perform . . . [a] reduced complexity of work.” (Tr. 28.) Various notes in the
record, including from a speech pathologist, the vocational evaluator, and Dr. Trulsen,
also describe Plaintiff as able to follow instructions and sustain attention and
concentration when multistep verbal instructions were not involved and she was not
required to dialogue about the process. The ALJ also pointed to the findings of Dr.
Trulsen in support of Plaintiff’s ability to perform routine and repetitive tasks, noting that
these “findings further suggest[] the intellect for routine and repetitive simpler tasks but
again reflect difficulties with train of thought and communication.” (Tr. 28.)
The state agency psychological consultants, whose opinions were given great
weight, similarly concluded that Plaintiff was able to understand and remember routine,
repetitive instructions and tasks but would be markedly impaired for detailed or
complex/technical instructions and tasks. And for the reasons stated above, the ALJ
properly gave no weight to Dr. Leaf’s opinion that Plaintiff would be off-task 25% or
28

more of the time or that she was unable to perform a simple, sit-down job on a full-time
basis.
Moreover, Plaintiff’s daily activities reflect that, notwithstanding any residual
language and cognitive deficits from her traumatic brain injury, she was able to carry out
routine and repetitive tasks that were not detailed or complex and engage in brief,
superficial contact with others. See Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007)
(“In evaluating a claimant’s [residual functional capacity], consideration should be given
to the quality of the daily activities and the ability to sustain activities, interests, and
relate to others over a period of time and the frequency, appropriateness, and
independence of the activities must also be considered.”) (quotation omitted). Plaintiff
reported watching television and movies, researching on the Internet, listening to music,
caring for a pet rabbit, cleaning, getting the mail, running errands, preparing meals, doing
laundry, shopping, and assisting with yard work.

Her husband described her as

“run[ning] the entire household.” (Tr. 534.) As the ALJ correctly observed, this level of
activity is inconsistent with the degree of impairment alleged.
In sum, the ALJ considered all of the relevant evidence, including the medical
records, opinion evidence, and Plaintiff’s activities, in assessing Plaintiff’s functional
limitations following her traumatic brain injury. See Myers v. Colvin, 721 F.3d 521, 527
(8th Cir. 2013); Perks, 687 F.3d at 1092. It is not the role of this Court to reweigh the
evidence. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). When, after reviewing the
record, it is possible to draw two inconsistent positions from the evidence and one of the
positions represents the findings of the ALJ, this Court must affirm. Perks, 687 F.3d at
29

1091; Cox, 495 F.3d at 617. Based on the foregoing, the Court concludes that the ALJ
properly accounted for Plaintiff’s speech and cognitive limitations to the extent supported
by the record and the ALJ’s residual-functional-capacity determination is supported by
substantial evidence as a whole.
3. Credibility Determination
Lastly, Plaintiff argues that the ALJ erred in assessing her credibility by
improperly considering the settlement she received in connection with her accident and
drawing an inappropriate conclusion from the general absence of relevant complaints
between summer 2009 and spring 2011.
“Credibility determinations are the province of the ALJ, and as long as good
reasons and substantial evidence support the ALJ’s evaluation of credibility, [courts] will
defer to [the ALJ’s] decision.” Julin, 826 F.3d at 1086 (quotation omitted); see McCoy,
648 F.3d at 614 (“If an ALJ explicitly discredits a claimant’s testimony and gives good
reasons for doing so, [courts] will normally defer to the ALJ’s credibility
determination.”).
When evaluating the claimant’s subjective complaints, the
ALJ must consider all of the evidence, including objective
medical evidence, the claimant’s work history, and evidence
relating to the Polaski factors: (i) the claimant’s daily
activities; (ii) the duration, frequency, and intensity of the
claimant’s pain; (iii) precipitating and aggravating factors;
(iv) the dosage, effectiveness, and side effects of medication;
and (v) the claimant’s functional restrictions.
Julin, 826 F.3d at 1086 (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984);
20 C.F.R. § 416.929(c)); see McCoy, 648 F.3d at 614 (“In assessing a claimant’s
30

credibility, an ALJ must consider all of the evidence related to the subjective complaints,
the claimant’s daily activities, observations of third parties, and the reports of treating and
examining physicians.” ).
At the hearing, the ALJ inquired whether Plaintiff received a settlement from the
accident and the amount of any such settlement. Plaintiff responded that she received a
monthly annuity for the rest of her life. When assessing Plaintiff’s credibility, the ALJ
noted that Plaintiff “had a part[-]time employment history even before the alleged onset
date of disability.” (Tr. 29 (citation omitted).) The ALJ observed that Plaintiff “may not
have had motivation to work full[-]time before the car accident and the substantial
settlement may reduce the motivation to return on a full[-]time basis.” (Tr. 29.) Without
citation to any authority, Plaintiff declares that “[c]onsideration of insurance payments is
not allowed” and contends that “[i]t should be presumed that the ALJ improperly
considered and weighed these payments, and his decision[] should be reversed.” (Pl.’s
Mem. in Supp. at 18.)
Albeit not in the settlement context, authority outside the Eighth Circuit exists for
the proposition that an ALJ may not consider a claimant’s receipt of workers’
compensation benefits as giving a claimant less motivation to return to work. See, e.g.,
Buchan v. Astrue, No. 08-4099-JAR, 2009 WL 2176046, at *6 (D. Kan. July 21, 2009)
(“The law is clear in the Tenth Circuit and in this district. It is error for the ALJ to use
the receipt of workers’ compensation in his credibility analysis to suggest plaintiff might
not be motivated to work.”) (citing cases). It is far from clear, however, that the Eighth
Circuit Court of Appeals would reach the same conclusion. See Renstrom, 680 F.3d at
31

1067 (“[T]he ALJ discussed Renstrom’s work history, finding Renstrom had a possible
disincentive to return to work because of his worker’s compensation litigation. . . . [This
and other] inconsistencies in the record as a whole undermined the credibility of
Renstrom’s allegations.”). Although the funds at issue were part of a settlement and not
workers’ compensation benefits, Plaintiff has not provided any authority to the Court
showing that such consideration by the ALJ as one factor in the overall credibility
determination was error.
In any event, the ALJ did not merely discuss Plaintiff’s settlement, and the
Commissioner is correct that an ALJ may consider a claimant’s motivation to return to
work when assessing credibility. See, e.g., Krogmeier v. Barnhart, 294 F.3d 1019, 1024
(8th Cir. 2002); Ramirez v. Barnhart, 292 F.3d 576, 581 n.4 (8th Cir. 2002); Thiele v.
Astrue, 856 F. Supp. 2d 1034, 1050 (D. Minn. 2012). Here, the record supports that
Plaintiff was employed less than full time even before the accident. “A lack of work
history may indicate a lack of motivation to work rather than a lack of ability.” Pearsall
v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). Plaintiff does not challenge the
ALJ’s findings with respect to her history of part-time work, but argues that her attempt
to work as a cashier for her former employer following the accident and her nursing
assistant coursework demonstrate her motivation to work. As the ALJ reasoned and the
Commissioner points out, Plaintiff’s return to work at a reduced degree of responsibility
following her accident while admirable suggests that Plaintiff’s impairments were
limiting but not disabling. See Goff v. Barnhart, 421 F.23 785, 792 (8th Cir. 2005)
(“Working generally demonstrates an ability to perform a substantial gainful activity.”).
32

This is particularly true considering that Plaintiff reported to Dr. Trulsen that she left her
job because she felt that she was treated poorly. “Courts have found it relevant to
credibility when a claimant leaves work for reasons other than her medical condition.”
Id. at 793; see Kelley v. Barnhart, 372 F.3d 958, 961 (8th Cir. 2004) (fact that claimant
left work for reasons other than medical condition relevant to consideration of claimant’s
subjective complaints). While Plaintiff now suggests that it is “likely [that she] left her
position . . . because she could not do the work,” (Pl.’s Reply at 11, ECF No. 17), it is not
the function of this Court to reweigh the evidence before the ALJ.
Plaintiff also argues that the ALJ did not take into account that her progress in
speech therapy had plateaued when considering her history of medical treatment. Noting
that “the record is generally absent presentations for relevant complaints from summer
2009 until spring 2011,” the ALJ concluded that this “absence of care does not suggest
the degree of deficits alleged.” (Tr. 28.) Significant gaps in treatment can undermine a
claimant’s credibility. See, e.g., KKC ex rel. Stoner v. Colvin, 818 F.3d 364, 373 (8th
Cir. 2016). Similarly, “[i]nfrequent treatment is also a basis for discounting a claimant’s
subjective complaints.” Kelley, 372 F.3d at 961. While Plaintiff’s progress in speech
therapy may have plateaued, it was not unreasonable for the ALJ to conclude that the
absence of continuing treatment and the several years’ gap before Plaintiff returned to Dr.
Leaf seeking medication to improve her memory were inconsistent with the level of
impairment alleged.
Essentially, Plaintiff is asking this Court to review her credibility de novo.
“Questions of credibility are for the ALJ in the first instance.” Whitman v. Colvin, 762
33

F.3d 701, 707 (8th Cir. 2014) (quotation omitted); see Igo v. Colvin, 839 F.3d 724, 731
(8th Cir. 2016) (“The credibility of a claimant’s subjective testimony is primarily for the
ALJ to decide, not the courts.”). Here, the ALJ gave good reasons for finding Plaintiff’s
subjective complaints regarding her speech and cognitive limitations following her
traumatic brain injury not fully credible. The ALJ properly took into account the gap in
Plaintiff’s medical treatment, Plaintiff’s departure from her cashiering job for a reason
unrelated to her medical conditions, and the inconsistency not only of Plaintiff’s work
activity, but her varied daily activities with the degree of impairment alleged. The Court
concludes that substantial evidence in the record supports the ALJ’s credibility
determination.
VII. ORDER
Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY
ORDERED that:
1. Plaintiff’s Motion for Summary Judgement (ECF No. 12) is DENIED.
2. Defendant’s Motion for Summary Judgment (ECF No. 15) is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: September

27

, 2017

s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
for the District of Minnesota

Longley v. Berryhill
Case No. 16-cv-2071 (TNL)
34