Yang v. Berryhill
ORDER granting 16 Motion for Summary Judgment; denying 18 Motion for Summary Judgment: (1) Plaintiff Su Yangs Motion for Summary Judgment [Doc. No. 16] is GRANTED; (2) Defendant Commissioner Nancy A. Berryhills Motion for Summary Judgmen t [Doc. No. 18] is DENIED; and (3) This matter is REMANDED for reconsideration of whether Yang could perform her past relevant work as it was actually performed or as it is generally performed, as set forth fully in Part III.D. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Magistrate Judge Hildy Bowbeer on 3/12/2018. (JMK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Case No. 17-cv-0686 (HB)
Nancy A. Berryhill, Acting Commissioner
of Social Security,
Stephanie Ann Christel, Livgard and Lloyd PLLP, 2520 University Avenue Southeast,
Suite 202, Minneapolis, MN 55414, for Plaintiff Su Yang
Bahram Samie, United States Attorney’s Office, 300 South Fourth Street, Suite 600,
Minneapolis, MN 55415, for Defendant Nancy A. Berryhill
HILDY BOWBEER, United States Magistrate Judge
Pursuant to 42 U.S.C. § 405(g), Plaintiff Su Yang seeks judicial review of a final
decision by the Acting Commissioner of Social Security denying her applications for
supplemental security income (SSI) and disability insurance benefits (DIB). The matter
is now before the Court on the parties’ cross-motions for summary judgment [Doc. Nos.
16, 18]. For the reasons set forth below, the Court grants Yang’s summary judgment
motion, denies the Commissioner’s motion, reverses the Commissioner’s decision, and
remands the matter pursuant to sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this Order.
Yang filed applications for SSI and DIB on November 7, 2013, alleging a
disability onset date of March 31, 2013. (R. 193-206). 1 Yang claimed she was disabled
by depression, back and spinal impairments with pain, and neuropathy/radiculopathy.
(R. 223.) Her applications were denied initially and on reconsideration, and she
requested a hearing before an administrative law judge (ALJ).
The ALJ convened a hearing on November 20, 2015, at which Yang, psychologist
Dr. Karen Butler, and vocational expert Norman Nussbaum testified. (R. 40-41.)
Yang, whose primary language is Hmong, testified through an interpreter. (R. 43.)
She testified that she moved to the United States many years ago and has a fifth grade
education. (R. 47.) She worked as a seamstress in the approximately fifteen years before
her disability onset date. (R. 47-48.) Before that, she assembled medical ear devices at
Starkey Labs. (R. 48.) Yang stopped working as a seamstress because of back, hip, and
leg pain. (R. 49.) She also suffered from dizziness and depression. (R. 52.) Yang
testified that she was depressed because of her limitations and did not want to live
anymore. (R. 52.) At the time of the hearing, she no longer cooked or cleaned and had
trouble staying focused and concentrating. (R. 53.)
Yang testified that back surgery had not alleviated her back pain. (R. 49.) She
declined a second surgery suggested by her doctor because she had not benefited from the
first. (R. 51.) Physical therapy increased the pain. (R. 51-52.) Yang used a fourpronged cane when walking to alleviate her low back pain. (R. 50.) Yang had stopped
The Social Security Administrative Record (“R.”) is available at Doc. No. 12.
driving to her medical appointments about two years before the hearing because her
doctor told her she should no longer drive and her children forbade her from it. (R. 4647.) Since January 2014, a personal care attendant (PCA) assisted her each morning and
night with various daily activities, going to the bathroom, bathing, dressing, medication,
and nutrition. (R. 53-54.)
Testifying as an independent medical expert, Dr. Butler testified that Yang had
mental impairments of depression and pain disorder. (R. 55.) According to Dr. Butler,
Yang’s depression waxed and waned and did not meet the twelve-month durational
threshold for a listing-level impairment. 2 (R. 59.) Dr. Butler noted only isolated
instances of anxiety, panic disorder, and auditory hallucinations. (R. 55, 61.) Dr. Butler
opined Yang was moderately impaired in activities of daily living, social functioning, and
concentration, persistence, and pace. (R. 56.) Dr. Butler recommended work-related
limitations of simple, unskilled work that could be visually demonstrated, and brief and
superficial contact with others. (R. 59.) On questioning from Yang’s attorney, Dr. Butler
conceded that accounting for Yang’s pain and physical symptoms would be outside her
area of expertise, but “clearly, that would impose additional limitations.” (R. 60.)
The ALJ asked Nussbaum, the vocational expert, to consider a hypothetical
individual of the same age, education, vocational, and academic background as Yang,
with the following limitations: able to lift and carry ten pounds occasionally and less than
ten pounds frequently; able to sit for six hours in an eight-hour day; able to stand or walk
for two hours in an eight-hour day; able to push and pull the same as lift and carry; able
The Listing of Impairments is located in 20 C.F.R. part 404, subpart P, appendix 1.
to climb ramps and stairs occasionally; not able to climb ladders or scaffolds; not able to
balance; able to stoop, kneel, crouch, and crawl occasionally; not able to work at
unprotected heights or exposed moving mechanical parts; limited to simple routine tasks
with instructions that are visibly demonstrated; and able to respond appropriately to
supervisors, coworkers, and the public on an occasional basis. (R. 62-63.) Nussbaum
testified that an individual with those characteristics and restrictions could perform the
medical device assembly work Yang had performed previously. (R. 63.) If the
individual required the use of a cane to ambulate to or from the workstation, however,
work would be precluded due to the need to simultaneously carry a tray. (R. 64-65.) The
ALJ then modified the hypothetical question to add the following limitations: sitting no
more than two hours in an eight-hour day, requiring a cane to ambulate to and from the
workstation, and absent from work four days per month. (R. 63-64). Nussbaum testified
that work would be precluded under that hypothetical situation. (R. 64.)
On December 11, 2015, the ALJ issued a written decision denying Yang’s SSI and
DIB applications. (R. 19-33.) Pursuant to the five-step sequential process outlined in
20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), the ALJ first determined that Yang had
not engaged in substantial gainful activity since March 31, 2013. (R. 24.) At step two,
the ALJ determined that Yang had severe impairments of degenerative disc disease of the
lumbar spine with radiculopathy, status-post right lumbar microdiscectomy in 2006,
sacroilitis and hip pain, vertigo and dizziness, and major depressive disorder with
psychotic features. (R. 24.) The ALJ found at the third step that none of Yang’s
impairments, considered singly or in combination, met or equaled the severity of an
impairment listed in 20 C.F.R. part 404, subpart P, appendix 1. (R. 24-25.) With respect
to Yang’s mental impairments, the ALJ determined that Yang did not meet or equal the
criteria of Listing 12.04 (affective disorders). (R. 25.) The ALJ found Yang mildly
restricted in activities of daily living, moderately limited in social functioning, and
moderately limited in concentration, persistence, or pace. (R. 25-26.) Yang had no
episodes of decompensation of at least two weeks in duration. (R. 26.)
At step four, the ALJ concluded that Yang retained the residual functional
capacity (RFC) 3 to perform sedentary work, as defined in 20 C.F.R. §§ 404.1567(a) and
416.967(a), with the following restrictions: lifting, carrying, pushing, and pulling limited
to ten pounds frequently and less than ten pounds occasionally; sitting for six hours;
standing for two hours and/or walking for two hours in an eight-hour day; occasional
climbing of ramps or stairs; no climbing ladders or scaffolds; no balancing; occasional
stopping, kneeling, crouching, and crawling; no exposure to unprotected heights; no
exposure to moving mechanical parts; limited to simple, routine tasks with instructions
that are visually demonstrated; and occasional ability to respond appropriately to
supervisors, coworkers, and the public. (R. 27.) In arriving at this RFC, the ALJ found
that Yang’s statements concerning the intensity, persistence, and limiting effects of her
symptoms were not entirely credible. (R. 28-30.) In addition, the ALJ gave little weight
to the opinions of Yang’s treating psychiatrist Dr. Joseph M. Bebchuk, primary care
An RFC assessment measures the most a person can do, despite her limitations.
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ must base the RFC “on all relevant
evidence, including medical records, observations of treating physicians and others, and
the claimant’s own descriptions of his or her limitations.” Eichelberger v. Barnhart,
390 F.3d 584, 591 (8th Cir. 2004).
physician Dr. Deborah Mielke, and treating therapists Willie B. Garrett and Kathie
Bailey. (R. 31-32.) The ALJ gave substantial or significant weight, however, to the
opinions of state agency consulting physicians Dr. Shanti Tanna and Dr. Cliff Phibbs,
state agency consulting psychologist Dr. Maura Clark, and Dr. Butler. (R. 30-31.)
The ALJ found significant that some treatment modalities, namely epidural steroid
injections and surgery, had been at least somewhat effective in managing or alleviating
Yang’s back pain, but Yang had declined additional injections and surgery, both of which
were recommended by her doctors. (R. 28-29.) In addition, clinical findings and
observations were frequently unremarkable, Yang’s symptoms waxed and waned, and her
providers’ treatment regimens were conservative and routine. (R. 29-30.)
The ALJ concluded that Yang had retained the RFC to perform her past relevant
work as an assembler at the sedentary, unskilled level, both as the work was actually
performed and generally performed. (R. 33.) The ALJ categorized her past work as an
assembler under the Dictionary of Occupational Titles (DOT) 712.687-034
Consequently, the ALJ determined that Yang was not under a disability, as defined by the
relevant regulations between March 31, 2013, and the date of the decision. (R. 33.)
The Appeals Council denied Yang’s request for review, which made the ALJ’s
decision the final decision of the Commissioner. Yang then filed this action for judicial
review. She identifies four issues in her motion for summary judgment: (1) whether the
ALJ did not give proper weight to the opinions of her treating physicians and therapists,
(2) whether the ALJ erred in failing to consider the combined effect of her physical and
mental impairments in assessing whether Yang medically equaled Listing 12.04,
(3) whether the ALJ erred in assessing Yang’s RFC, and (4) whether the ALJ erred in
finding that Yang could perform her past relevant work.
The Court has reviewed the entire administrative record, giving particular
attention to the facts and records cited by the parties. The Court will recount the facts of
record only to the extent they are helpful for context or necessary for resolution of the
specific issues presented in the parties’ motions.
Standard of Review
Judicial review of the Commissioner’s denial of benefits is limited to determining
whether substantial evidence on the record as a whole supports the decision. 42 U.S.C.
§ 405(g). “Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the Commissioner’s conclusion.”
Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Prosch v. Apfel,
201 F.3d 1010, 1012 (8th Cir. 2000)). The Court must examine “evidence that detracts
from the Commissioner’s decision as well as evidence that supports it.” Id. (citing Craig
v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)). The Court may not reverse the ALJ’s
decision simply because substantial evidence would support a different outcome or the
Court would have decided the case differently. Id. (citing Woolf v. Shalala, 3 F.3d 1210,
1213 (8th Cir. 1993)). In other words, if it is possible to reach two inconsistent positions
from the evidence, and one of those positions is that of the Commissioner, the Court must
affirm the decision. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).
A claimant has the burden to prove disability. See Roth v. Shalala, 45 F.3d 279,
282 (8th Cir. 1995). To meet the definition of disability for DIB, the claimant must
establish that 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). The same standard applies to SSI. See
42 U.S.C. § 1382c(a)(3)(A). The disability, not just the impairment, must have lasted or
be expected to last for at least twelve months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir.
Opinions of Treating Providers
Yang argues that the ALJ erred by failing to give proper weight to the opinions of
treating psychiatrist Dr. Joseph M. Bebchuk, primary care physician Dr. Deborah Mielke,
and treating therapists Willie B. Garrett 4 and Kathie Bailey. (Pl.’s Mem. Supp. Mot.
Summ. J. at 28 [Doc. No. 17].)
A treating source’s opinion on the nature and severity of a claimed impairment is
entitled to controlling weight if the opinion “is well-supported by medically acceptable
clinical and laboratory techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). 5 The ALJ
need not give controlling weight to an opinion that is not well-supported by clinical
Contrary to Yang’s designation, Garrett is not a physician. He has a master’s degree
and is a licensed practitioner. (R. 594.)
These regulations have been amended for claims filed after March 27, 2017. Because
Yang filed her claims before that date, the Court will apply the prior version of the
findings or laboratory techniques or is inconsistent with other substantial evidence.
Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009). If the opinion of a treating source
is not afforded controlling weight, the ALJ must consider the following factors in
deciding what weight is due: (1) the existence of an examining relationship; (2) the nature
of the treatment relationship, such as length of treatment and frequency of examination;
(3) the degree to which the opinion is supported by medical evidence such as medical
signs and laboratory findings; (4) consistency with the record; (5) the source’s specialty;
and (6) any other relevant factors. 20 C.F.R. §§ 404.1527(c), 416.927(c).
The ALJ is not required to explicitly discuss each and every §§ 404.1527(c) and
416.927(c) factor. See Combs v. Colvin, No. 8:12-cv-429, 2014 WL 584741, at *11 (D.
Neb. Feb. 12, 2014); Derda v. Astrue, No. 4:09-cv-1847 AGF, 2011 WL 1304909, at *10
(E.D. Mo. Mar. 31, 2011). It is sufficient that an ALJ considered the listed factors, see
§§ 404.1527(c) and 416.927(c), and that the ALJ indicated in his written decision that he
has done so.
Dr. Bebchuk completed a mental impairment questionnaire on June 9, 2015.
(R. 602-06.) He recorded a diagnosis of major depressive disorder, recurrent with
psychotic features; and described Yang’s symptoms as a depressed mood, auditory
hallucinations, anhedonia, fatigue, poor concentration, and hopelessness. (R. 602.) He
indicated that Yang had responded minimally to treatment and medications, and that her
depression exacerbated her back pain. (R. 602.) Dr. Bebchuk declined to assess Yang’s
work-related activities, explaining that he did not assess his patients’ abilities as part of
his clinical practice. (R. 604.) He did indicate, however, that Yang would be extremely
limited in activities of daily living, extremely limited in maintaining social functioning,
and markedly limited in maintaining concentration, persistence, or pace. (R. 605.)
Dr. Bebchuk also indicated that Yang had suffered four or more episodes of
decompensation in the past twelve months 6 and met the paragraph C.2 criteria of Listing
12.04, 7 and he predicted that she would miss more than four days of work a month.
As defined by regulation and included on the questionnaire completed by Dr. Bebchuk,
“[e]pisodes of decompensation are exacerbations or temporary increases in symptoms or
signs accompanied by a loss of adaptive functioning, as manifested by difficulties in
performing activities of daily living, maintaining social relationships, or maintaining
concentration, persistence, or pace.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00.C.4.
This regulation has since been amended, but the Court uses the version in effect at the
time the ALJ issued his decision.
An episode of decompensation may be inferred from a significant change in
medication, from a hospitalization, or from placement in a halfway house or other highly
structured living situation. Id. The phrase “repeated episodes of decompensation, each
of extended duration” means three episodes in a year, each of which lasted for at least
two weeks. Id.
Paragraph C.2 of Listing 12.04 provides:
C. Medically documented history of a chronic affective disorder of at least
2 years’ duration that has caused more than a minimal limitation of ability
to do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following:
2. A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or
change in the environment would be predicted to cause the
individual to decompensate . . . .
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00.C.2. This listing has since been
amended, but the Court uses the version in effect on the date the ALJ issued his
The ALJ noted that Dr. Bebchuk was Yang’s treating psychiatrist but gave the
opinion little weight for several reasons. (R. 32.) The ALJ wrote that Dr. Bebchuk’s
opinion was “not at all supported by the overall mental status examinations” and was
inconsistent with Yang’s conservative course of treatment and Yang’s activities. (R. 32.)
The ALJ also found the opinion inconsistent with evidence that Yang’s mental symptoms
waxed and waned and did not meet the twelve-month durational requirement. (R. 32.)
Finally, the ALJ found that “not a shred of evidence” supported Dr. Bebchuk’s assertion
that Yang had four or more extended episodes of decompensation. (R. 32.)
The Court finds that substantial evidence supports the ALJ’s decision to give little
weight to Dr. Bebchuk’s opinion, and that the ALJ gave good reasons for discounting the
opinion. The ALJ declined to give controlling weight to Dr. Bebchuk’s opinion because
it was inconsistent with other substantial evidence. The ALJ did not err in this respect.
(See, e.g., R. 500-01 (noting no impairment with attention, concentration, or memory);
R. 514-16 (documenting a generally normal mental status examination, “unremarkable”
concentration and attention, normal memory, and “open and engaging” behavior); R. 520
(finding normal concentration, attention, and memory; average intelligence); R. 544
(recording no hallucinations, normal affect); R. 718 (reporting less anxiety, no previous
psychiatric hospitalizations); R. 722 (noting increased stress and hopelessness due to
temporary financial situation); R. 726 (recording improvement with depressive symptoms
but feeling overwhelmed by caring for son with special needs); R. 819-20 (reporting
normal mental state and normal dizziness test results); R. 828 (documenting moderate
The ALJ indicated at the beginning of the RFC discussion in his written decision
that he had considered all opinion evidence in accordance with §§ 404.1527 and 416.927.
(R. 27.) In deciding the weight due to Dr. Bebchuk’s opinion, the ALJ noted that
Dr. Bebchuk was a psychiatrist and Yang’s treating source, but found that the opinion
was not supported by mental status examinations and was not consistent with the
conservative course of treatment Dr. Bebchuk administered. These findings are welldocumented in the record. Yang’s mental status examinations frequently revealed normal
attention and concentration, no memory impairment, average intelligence, good judgment
and insight, and a history of (but no current) auditory hallucinations. (E.g., R. 728-29,
732-33, 736-37, 740-71, 744-45.) The mental status examinations were certainly not
consistent with being markedly restricted in activities of daily living, maintaining social
functioning, or maintaining concentration, persistence, or pace, for a twelve-month
period. In addition, Yang’s depression and other mental impairments were
conservatively managed with medication, monthly medication evaluations with
Dr. Bebchuk, and biweekly therapy sessions.
The ALJ also reduced the weight of Dr. Bebchuk’s opinion because the limitations
suggested by Dr. Bebchuk were inconsistent with some of Yang’s activities. Treatment
records from Yang’s providers contain very little detail about her activities, but Yang
completed a function report in December 2013, indicating that she could cook simple
meals, wash small loads of laundry, occasionally go to the doctor by herself, occasionally
shop for groceries, and garden. (R. 233-36.) She socialized primarily with her children,
conversing and having dinner with them after they came home from work. (R. 236, 239.)
A function report completed in August 2014 reveals that Yang’s daily activities were
more restricted, but she could still prepare simple lunches, and drive and shop
occasionally. (R. 261-68.) Yang said that her daughter PaChia, with whom she lived,
was her PCA at that time. (R. 262.) Importantly, because the ALJ found Yang only
partially credible—a finding Yang does not challenge—that finding may be applied to
other evidence of record based on subjective complaints or self-described symptoms and
limitations. 8 See Vance v. Berryhill, 860 F.3d 1114, 1120 (8th Cir. 2017); McCoy v.
Astrue, 648 F.3d 605, 617 (8th Cir. 2011). Thus, while some of the symptoms and
limitations described on Yang’s function reports are consistent with Dr. Bebchuk’s
opinion, the ALJ did not err in disregarding those self-reported symptoms and limitations.
Finally, the ALJ correctly observed that “not a shred of evidence” supports
Dr. Bebchuk’s finding that Yang has had four or more extended episodes of
decompensation. Indeed, the record does not contain evidence of even one such episode.
Such a significant error—whether due to a misunderstanding of the definition of the term
“episode of decompensation” or to a mischaracterization of the record—reasonably called
into doubt the validity of Dr. Bebchuk’s entire opinion.
Garrett completed mental impairment questionnaires in May and September 2015,
both of which the ALJ discussed in his written decision. (R. 32, 588-98.) In the earlier
SSR 16-3p removed the word “credibility” from the evaluation of a claimant’s
symptoms and subjective complaints. SSR 16-3p, 2017 WL 5180304, at *2 (S.S.A. Oct.
25, 2017). SSR 16-3p became effective on March 28, 2016, after the ALJ’s decision, and
the Court thus refers to Yang’s “credibility” when discussing inconsistencies between
Yang’s statements and other evidence in the record.
questionnaire, Garrett indicated that Yang could not perform at a consistent pace without
an unreasonable number and length of rest periods, remember work procedures, maintain
attention for two hours at a time, maintain attendance and punctuality, follow an ordinary
routine without supervision, make simple work-related decisions, or deal with normal
work stresses, among other restrictions. (R. 596.) Garrett opined that Yang was
markedly limited in activities of daily living and in maintaining concentration,
persistence, or pace. (R. 597.) Garrett also opined that Yang met the paragraph C.2
criteria of Listing 12.04 and predicted she would miss more than four days of work a
month. (R. 597.) He attributed her limitations to major depression, which he classified
as “Recurrent Moderate,” positional vertigo, and chronic pain. (R. 594, 596.) He further
indicated that her symptoms of depression had been reduced with treatment. (R. 594.)
Garrett indicated even greater restrictions on the September 2015 questionnaire. (R. 59091.)
The ALJ discounted Garrett’s opinions as inconsistent with treatment records that
reflected only temporary exacerbations of symptoms and a conservative course of
treatment, and for the other reasons he gave for discounting Dr. Bebchuk’s opinion.
(R. 32.) This Court’s finding that substantial evidence supports the ALJ’s decision to
give little weight to Dr. Bebchuk’s opinion applies with equal force to Garrett’s opinion.
Moreover, unlike Dr. Bebchuk, Garrett rarely noted on his treatment records specific
findings concerning Yang’s abilities to concentrate, pay attention, function socially, or
maintain persistence or pace. Garrett’s progress notes consisted of two or three sentences
describing Yang’s subjective complaints, noting that she appeared sad and anxious,
assessing her with major depression, and directing her to return in two to three weeks.
(E.g., R. 581, 582, 859, 876, 883.) There are no detailed clinical findings or mental status
examination results comparable to the information contained in Dr. Bebchuk’s treatment
In sum, the ALJ did not err in assigning little weight to the opinions expressed by
Garrett on the mental impairment questionnaires he completed in May and September
Dr. Mielke completed a Physical Residual Functional Capacity Questionnaire on
June 9, 2015. (R. 599-601.) She indicated diagnoses of severe chronic depression and
lumbar degenerative disc disease with radiculopathy. (R. 599.) Dr. Mielke listed
symptoms of low back pain, leg pain, leg weakness, fatigue, mental confusion, and
daytime sleepiness. (R. 599.) According to Dr. Mielke, depression and anxiety also
affected Yang’s physical condition. (R. 599.) Medication did not control Yang’s pain
and made concentration difficult. (R. 600.) Dr. Mielke indicated work restrictions of
sitting no more than fifteen minutes at a time, standing no more than fifteen minutes at a
time, standing or walking less than two hours in a workday, and sitting about two hours
in a workday. (R. 600.) Yang would need to walk around every fifteen minutes for five
minutes, according to Dr. Mielke, yet Dr. Mielke also indicated that Yang could not walk
longer than a city block at a time. (R. 600.) Yang would also need to take five-minute
unscheduled breaks every thirty minutes. (R. 601.) Dr. Mielke estimated that Yang
could never carry any amount of weight, twist, stoop, crouch, or climb. (R. 601.) She
would be absent more than four days a month. (R. 601.)
The ALJ gave Dr. Mielke’s opinion little weight because it was not supported by
clinical findings and signs, course of treatment, response to treatment, and activities.
(R. 31.) In addition, the ALJ noted that Dr. Mielke relied heavily on Yang’s subjective
reports of symptoms and limitations and accepted nearly everything reported by Yang as
true, whereas the ALJ found reason to doubt Yang’s reliability. (R. 31.)
The Court finds that substantial evidence supports the ALJ’s decision to give little
weight to Dr. Mielke’s opinion, and that the ALJ gave good reasons for doing so. The
ALJ declined to give controlling weight to Dr. Mielke’s opinion because it was not
supported by clinical findings and was inconsistent with a conservative course of
treatment, with Yang’s response to treatment, and with Yang’s activity level. These are
legitimate reasons to discount Dr. Mielke’s opinion, and the ALJ did not err in doing so.
(See, e.g., R. 354, 458 (documenting normal gait, station, and muscle tone); R. 459, 461
(noting physical therapy, massage, chiropractor, and medications were somewhat
helpful); R. 461-62 (documenting physical examination findings of moderate restrictions
in lumbar soft tissue areas, normal hip range of motion, and balance issues attributed to
“unsupportive clogs”); R. 466 (noting a slow gait, normal station, and normal muscle
tone; reporting medications were “helpful” and had no side effects); R. 532 (noting
success of physical therapy and muscle-strengthening exercises, and recommending
additional physical therapy and a back brace); R. 544-45 (noting objective findings of
normal neurological strength and tone, normal sensory exam, and no back tenderness;
commenting “may not need medication at this time”); R. 631 (recording normal
neurological strength and tone except for hip flexors, normal fine and general motor
control, and normal gait); R. 796 (finding good strength and sensation on direct
examination); R. 832 (documenting normal neurological strength and tone, and functional
lower extremity strength).) Lumbar spine imaging in April 2015 was unremarkable,
revealing only mild or moderate bulging, degeneration, and other findings. (R. 812-13.)
In addition, though epidural steroid injections had proved helpful in managing
pain previously, Yang declined further injections and opted to continue with only oral
medication. (R. 466, 481, 547, 796, 853.) Yang also declined surgery recommended by
her doctor (R. 541, 547, 796) and ceased going to physical therapy without notice
(R. 624). Yang’s dizziness was resolved with treatment at the National Dizzy and
Balance Center. (R. 663.) Finally, as discussed above, Yang’s activities were not
entirely consistent with the restrictions opined by Dr. Mielke, and the reported severity of
her symptoms and limitations was not believable.
In deciding what weight to give Dr. Mielke’s opinion, the ALJ noted that
Dr. Mielke was a treating family practitioner. He assigned the opinion little weight,
however, for the reasons set forth above; namely, the opinion was not supported by
medical evidence such as medical signs and clinical findings and was not consistent with
other substantial evidence of record. Furthermore, the opinion was based largely on
Yang’s self-reports. When an ALJ finds a claimant is only partially credible, as the ALJ
did here, the ALJ may apply that finding to other evidence in the record that is based on
the claimant’s subjective complaints or self-reported symptoms. See Vance, 860 F.3d
1114, 1120 (8th Cir. 2017).
Unlike Dr. Bebchuk, Garrett, and Dr. Mielke, Bailey is categorized under the
relevant regulations as an “other source,” rather than a “treating source” or an “acceptable
medical source.” 20 C.F.R. §§ 404.1513(d), 416.913(d). 9 Evidence from “other sources”
may be used “to show the severity of [an] impairment and how it affects [the claimant’s]
ability to work.” 20 C.F.R. §§ 404.1513(d), 416.913(d). An “other source” cannot
provide the requite medical evidence needed to establish an impairment and does not
qualify for “controlling weight” deference, however. See 20 C.F.R. §§ 404.1502(a),
404.1513(d), 404.1527, 416.902(a), 416.913(d), 416.927.
Yang attended therapy sessions with Bailey for pain management, depression, and
related symptoms. (R. 584.) Similar to Dr. Bebchuk and Garrett, Bailey deemed Yang
markedly limited in activities of daily living and maintaining social functioning, and
extremely limited in maintaining concentration, persistence, and pace. (R. 586.) Bailey
also checked a box indicating that Yang had a complete inability to function
independently outside the home. (R. 586.) Bailey opined that Yang would not be able to
work because of paranoia, distractedness, poor concentration, and persistent pain.
These regulations have also been amended. The Court uses the version in effect at the
time of the ALJ’s decision.
The ALJ gave Bailey’s opinion little weight for the same reasons he discounted
Dr. Bebchuk’s and Garett’s opinions. The Court has already found that the ALJ
considered those opinions and gave good reasons for reducing their weight. The same
discussion applies to Bailey’s opinion. In addition, as the ALJ noted, there is no evidence
in the record to support the finding that Yang cannot function outside her home. (R. 32.)
Non-Treating, Non-Examining Physician Assessments
Yang argues that if the opinions of her treating sources are given little weight, the
only evidence supporting the ALJ’s RFC is assessments of non-treating, non-examining
physicians. Yang submits that “such assessments alone cannot be considered substantial
evidence in the face of the conflicting assessment of a treating physician.” See Singh v.
Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
There are several problems with Yang’s argument. First, the Court has found that
the ALJ properly discounted the weight of certain opinions expressed on questionnaires
completed by Dr. Bebchuk, Dr. Mielke, Garrett, and Bailey. Because the opinions were
afforded little weight, they are not “conflicting assessment[s] of a treating physician”
with which the non-treating, non-examining physician assessments must be reconciled.
See Casey v. Astrue, 503 F.3d 687, 694 (8th Cir. 2007) (where reports of treating
physicians were not entitled to significant weight, finding the ALJ properly considered
the consulting physician’s opinion along with other medical evidence in the record).
Second, non-treating, non-examining medical and psychological consultants “are
highly qualified medical sources who are also experts in the evaluation of medical issues
in disability claims under the [Social Security] Act.” SSR 17-2p, 2017 WL 3928306, at
*3 (S.S.A. Mar. 27, 2017). The ALJ may consider evidence from non-treating, nonexamining medical and psychological consultants as medical opinion evidence.
20 C.F.R. §§ 404.1527(e), 404.1513a(b), 416.927(e), 416.913a(b). Here, the ALJ
considered the opinions of consulting physicians Dr. Shanti Tanna and Dr. Cliff Phibbs
concerning Yang’s physical impairments and limitations, and the opinions of Dr. Butler
and consulting psychologist Dr. Maura Clark concerning Yang’s mental impairments and
limitations. (R. 30-31.) The ALJ explained that he gave significant or substantial weight
to the opinions of the medical and psychological consultants because they were consistent
with the objective clinical findings and medical signs documented by Yang’s own
providers, the nature of treatment, Yang’s response to treatment, and Yang’s activities.
(R. 30-31.) The Court finds the ALJ did not err in his consideration of these opinions or
the weight he assigned them.
Paragraph B Criteria of Listing 12.04
The ALJ found at step three that Yang’s impairments did not meet or equal the
severity of an impairment listed in 20 C.F.R. part 404, subpart P, appendix 1. One of the
listings the ALJ considered was Listing 12.04 (affective disorders), and Yang contends
the ALJ erred in this regard. Yang argues that the ALJ failed to consider the combined
effects of her physical and mental impairments in determining whether they met or
equaled Listing 12.04. She relies on a 1996 decision by the Ninth Circuit Court of
Appeals, Lester v. Chater, 81 F.3d 821 (9th Cir. 1995), as amended (Apr. 9, 1996), in
which the court faulted an ALJ for omitting the claimant’s pain and depression from the
discussion of paragraph B criteria 10 upon finding that those “symptoms and signs” were
attributable to his back impairment, not a mental impairment. Id. at 829-30 (“Pain
merges into and becomes a part of the mental and psychological responses that produce
the functional impairments. The components are not neatly separable. Given that the . . .
physical and mental impairments are so inextricably linked, the Commissioner must
consider whether these impairments taken together result in limitations equal in severity
to those specified by the listings.”).
Contrary to Yang’s portrayal of the record, the ALJ did not refuse explicitly (or
implicitly) to consider the effect of her physical impairments on the abilities to function
contained in paragraph B. The ALJ stated at the outset of the step three discussion that
he considered Yang’s impairments in combination. (R. 25.) The ALJ then addressed
Yang’s physical impairments and found the extent of symptoms and limitations she
described was not credible. (R. 25.) Yang does not challenge those determinations.
In addressing Yang’s mental impairments, the ALJ specifically addressed her
physical pain and resulting limitations in his discussion of activities of daily living.
(R. 25.) He noted that she was able to drive, shop, prepare simple meals, perform simple
chores, and provide some care for her disabled son. (R. 25.) The ALJ found that Yang
At the time of the ALJ’s decision, the paragraph B criteria of Listing 12.04 were:
Marked restriction of activities of daily living; or
Marked difficulties in maintaining social functioning; or
Marked difficulties in maintaining concentration, persistence, or pace; or
Repeated episodes of decompensation, each of extended duration.
20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04.
had no mental impediments to taking care of her personal care needs, but that physical
pain limited her abilities to dress, bathe, and carry laundry and groceries. (R. 25.) The
ALJ further noted that physical pain had affected Yang’s interest in and ability to engage
in hobbies such as walking and sewing. (R. 25.) “Due to physical conditions and
depression,” the ALJ wrote, “the claimant has a personal care attendant for four and [a]
half hours a day . . . .” (R. 25.) The ALJ observed that Yang’s physical pain had become
more limiting over time. (R. 25.) In discussing Dr. Butler’s opinion in the context of the
“concentration, persistence, or pace” criterion, the ALJ noted that Dr. Butler had declined
to testify about Yang’s physical impairments because they were outside her area of
expertise, but the ALJ acknowledged that “it is clear that the claimant’s physical pain is
impacting her mental health issues.” (R. 26.) Yang’s assertion that the ALJ failed to
consider her physical impairments in combination with her mental impairments is
Even if the ALJ did not set forth his factual findings concerning the combined
effects of Yang’s physical and mental impairments in sufficient detail at step three, the
ALJ fully discussed her physical and mental impairments at step four. In the Eighth
Circuit, an ALJ’s failure to make specific findings at step three is excusable as “a
deficiency in opinion-writing” when there is other substantial evidence of record to
support the ALJ’s decision and thus no practical effect on the case. Senne v. Apfel,
198 F.3d 1065, 1067 (8th Cir. 1999). For example, an ALJ’s findings at step four can
cure a deficient step three analysis. See Vance, 860 F.3d at 1117-18 (where the ALJ
made a conclusory determination at step three but elaborated on the impairments and
their limitations at step four, finding no error and concluding that “[a]n ALJ’s failure to
address a specific listing or to elaborate on his conclusion that a claimant’s impairments
do not meet the listings is not reversible error if the record supports the conclusion.”).
Here, as discussed fully in Part III.C below, the ALJ’s findings at step four are consistent
with and provide support for his determination at step three that Yang did not meet or
equal Listing 12.04.
Yang mentions the term “medical equivalence” in passing, without really
explaining how the concept should apply to her case. (Pl.’s Mem. Supp. Mot. Summ. J.
at 27.) It is important to the issues at hand, however, because “medical equivalence”
determines when “a combination of impairments, no one of which meets a listing” will
nonetheless be medically equivalent to that listing. See 20 C.F.R. § 404.1526(b)(3).
In making this determination, the ALJ considers all evidence of record about the
impairments and their effects on the claimant, including the opinions of medical and
psychological consultants. 20 C.F.R. § 404.1526(c). Medical equivalence is a medical
question, and thus is based strictly on medical findings. Sullivan v. Zebley, 493 U.S. 521,
525 (1990); Cockerham v. Sullivan, 895 F.2d 492, 496 (8th Cir. 1990) (“[T]he question
of whether a claimant meets a listed impairment is strictly a medical determination.”).
The ALJ does not consider age, education, work experience, or other vocational factors.
20 C.F.R. § 404.1526(c). Moreover, a claimant does not qualify for benefits under the
equivalence standard “by showing that the overall functional impact of his unlisted
impairment or combination of impairments is as severe as that of a listed impairment.”
Sullivan v. Zebley, 493 U.S. 521, 531-32 (1990) (citation omitted).
As the Court concluded above, the ALJ properly discounted the weight due to the
opinions of Dr. Bebchuk, Dr. Mielke, Garrett, and Bailey. Yang does not identify any
other medical findings from which the ALJ could have found a combination of
impairments that met or equaled Listing 12.04. (Pl.’s Mem. Supp. Mot. Summ. J. at 2728.) Consequently, she has not shown the ALJ erred concerning medical equivalence.
Yang next surmises that because Dr. Butler found she was moderately restricted in
three of the paragraph B criteria—based solely on her mental impairments and without
any consideration to physical impairments—that any restrictions caused by her physical
impairments would necessarily tip the scale into the “marked” category. The Court
disagrees. To meet her burden, Yang must identify reliable medical evidence that would
support marked restrictions in the paragraph B criteria; she may not rely on speculative
Next, Yang asserts that substantial evidence does not support the ALJ’s
consideration of the paragraph B criteria, and she identifies several reports and records
that would support more restrictions than those found by the ALJ. Essentially, Yang is
asking the Court to reweigh the evidence. But a court may not reverse the ALJ’s decision
simply because substantial evidence would support a different outcome or the court
would have decided the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). If it is
possible to reach two different results from the evidence, and one of those is the position
of the Commissioner, the Court must affirm the decision. Robinson v. Sullivan, 956 F.2d
836, 838 (8th Cir. 1992).
In assessing the paragraph B criteria at step three, the ALJ found that Yang had
mild restrictions in activities of daily living. (R. 25.) During the relevant period of time,
Yang could cook simple meals, wash small loads of laundry, occasionally go to the
doctor by herself, occasionally shop for groceries, and garden. Nearly all of the evidence
of moderate or marked restrictions in daily activities stems from Yang’s own statements
made to her providers or on function reports. The ALJ found that Yang’s statements
concerning the intensity, persistence, and limiting effects of her symptoms were not
entirely credible, however, and this finding is properly applied to other evidence in the
record that is based on her statements. See Vance, 860 F.3d at 1120. While this Court
might conclude that Yang’s impairments caused moderate restrictions in activities of
daily living, any corresponding error by the ALJ would be harmless, because a finding
that Yang was moderately restricted in activities of daily living would not change the
ALJ’s finding at step three that Yang’s impairments did not meet or equal Listing 12.04.
As to social functioning, the ALJ found that Yang was moderately restricted in
this area. (R. 26.) This finding is supported by substantial evidence of record. “Social
functioning” refers to a claimant’s “capacity to interact independently, appropriately,
effectively, and on a sustained basis with other individuals” such as family members,
friends, neighbors, grocery clerks, and coworkers. 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.00.C.2. Impaired social functioning may be evidenced through “a history of
altercations, evictions, firings, fear of strangers, avoidance of interpersonal relationships,
or social isolation.” Id. Although Yang did tend to socially isolate, she interacted
appropriately with her children and her medical providers. Indeed, her providers
routinely commented that Yang behaved appropriately and cooperatively, made good eye
contact, had normal thought content and process, and was pleasant. (E.g., R. 515-16,
520, 524, 708.) There is no evidence of altercations, evictions, firings, or fear of
strangers. Yang could drive, shop, or attend appointments without being accompanied by
one of her children, when necessary. Finally, consultative psychologist Dr. Clark opined
that Yang was moderately limited in social functioning. (R. 78.)
The ALJ found that Yang was also moderately limited in concentration,
persistence, or pace. (R. 26.) Numerous mental status examinations describe Yang’s
concentration, attention, and memory as ranging from moderately impaired to normal.
(E.g., R. 498, 499, 500-01, 515-16, 520, 720-21, 733, 745.) Dr. Clark opined that Yang
was moderately limited in some, but not all, abilities related to concentration, persistence,
and pace. (R. 76-77.)
In sum, the ALJ did not err in concluding at step three that Yang did not meet or
equal Listing 12.04.
Yang challenges the ALJ’s assessment of her RFC on several grounds. An RFC
assessment measures the most a person can do, despite his limitations, in a work setting.
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ is responsible for assessing a
claimant’s RFC. 20 C.F.R. §§ 404.1546(c), 416.946(c). The ALJ must base the RFC “on
all relevant evidence, including medical records, observations of treating physicians and
others, and the claimant’s own descriptions of his or her limitations.” Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). But when an ALJ determines that a
claimant is not entirely credible, the ALJ may discount evidence that is based in part on
self-reported symptoms. See McCoy, 648 F.3d at 617. In addition, “RFC is not simply a
laundry list of impairments and limitations.” Gann v. Colvin, 92 F. Supp. 3d 857, 884
(N.D. Iowa 2015). Thus, the ALJ may distill what may be numerous impairments and
limitations into a descriptive phrase, such as “limited to simple, routine tasks with
instructions that are visibly demonstrated,” as long as it accurately captures a claimant’s
abilities in a work setting. See Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001)
(finding the ALJ’s description of the claimant as “able to do simple, routine, repetitive
work” adequately accounted for the claimant’s borderline intellectual functioning).
Yang’s first challenge to the RFC assessment is that the ALJ did not include
limitations contained in the opinions of Dr. Bebchuk, Dr. Mielke, Garrett, and Bailey.
An ALJ is not required, however, to include limitations suggested by a provider that the
ALJ has properly considered and excluded. See Ellis v. Barnhart, 392 F.3d 988, 995, 997
(8th Cir. 2005)
Yang next argues that RFC is a medical question and the ALJ wrongly substituted
his own opinion for the opinions of her medical providers. This argument disregards the
fundamental precept that the RFC assessment is an issue reserved to the Commissioner,
and while the ALJ must consider medical source opinions in assessing RFC, the final
responsibility for determining RFC, applying vocational factors, and deciding whether a
claimant is able to work belongs to the Commissioner alone. 20 C.F.R. §§ 404.1527(d),
416.927(d); see Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010) (“[O]pinions that a
claimant is ‘disabled’ or ‘unable to work’ concern issues reserved to the Commissioner
and are not the type of opinions which receive controlling weight.”).
Next, Yang claims that a language barrier would preclude her from effectively
communicating at work and that the ALJ should have included this in the RFC. But the
ALJ included a provision limiting Yang to instructions that could be demonstrated
visually, thereby moderating the need for English proficiency. Moreover, Yang’s
language skills were apparently sufficient for her past work at Starkey Labs. Finally,
there is evidence in the record demonstrating that Yang has sufficient English skills to
comprehend and communicate effectively without an interpreter, at least to one of her
medical providers. Certified nurse practitioner Deanna German noted in February 2014:
“Patient is here today without interpreter but we were able to complete the visit as she has
fair English language skills.” (R. 466.) The treatment note is three full pages in length
and documents a comprehensive visit and robust discussion about Yang’s pain,
depression, related symptoms, activities, medication regimen, treatment options, and
follow-up care. (R. 466.)
Citing SSR 85-15, Yang next faults the ALJ for not considering the impact of
stress on her mental impairments. To the contrary, the ALJ acknowledged that Yang had
some difficulty managing stress and that her “back pain has been an ongoing stressor and
has contributed to [her symptoms of depression, which has also been factored into the
above-residual functional capacity.” (R. 26, 29.) The ALJ properly discounted the
opinion of Dr. Mielke, who found Yang incapable of working in even a low-stress job.
He accepted, on the other hand, Dr. Butler’s opinion that Yang’s stress waxed and waned
according to situational stressors and levels of pain. (R. 32.) SSR 85-15 requires an ALJ
to include in the RFC assessment “impairment-related limitations created by an
individual’s response to demands of work” including an inability to function in even a
low-stress job. Here, the ALJ properly considered Yang’s stress and included in the RFC
assessment the stress-related limitations he found credible and supported by medical and
The next point of error raised by Yang is that the ALJ did not include the need for
a cane in the RFC. The ALJ noted documentation of Yang’s use of a cane in the record,
but determined that her purported need to use a cane was inconsistent with her
conservative treatment history and refusal to consider surgery. (R. 30.) The Court finds
that the ALJ did not err in this respect. Even though the ALJ gave little weight to
Dr. Mielke’s Physical RFC Questionnaire, it is notable that Dr. Mielke did not include a
need to use a cane in the limitations section of the form. (R. 601.) In February 2014,
nurse practitioner Deanna Germain noted that Yang’s daughter, not a medical provider,
had given her the cane. (R. 466.) Yet other evidence reveals that a PCA assessor, not a
medical provider, recommended that Yang use a tripod cane. (R. 442.) Yang also
identifies evidence from the National Dizzy and Balance Center to show that she needed
assistance with ambulation, but her dizziness and balance issues were resolved after
twelve appointments. (R. 663.) In addition, there are numerous treatment notes
reflecting normal gait, station, mobility, toe walk, heel walk, and lower extremity muscle
tone. (R. 354, 365, 458, 472-73, 515, 692, 699, 765.) Thus, though there is evidence that
Yang felt more stable when she used a cane, there is also substantial evidence that Yang
does not require a cane. Finally, the ALJ accounted for evidence of instability, antalgic
gait, slow walking, and the like by limiting Yang to sedentary work.
Yang argues that the ability to do activities such as light housework and visiting
friends does not support a finding that she can perform full-time competitive work. But
Yang mischaracterizes the context of the ALJ’s consideration of her daily activities. An
ALJ may properly consider a claimant’s daily activities in assessing her credibility, see
Edwards v. Barnhart, 314 F.3d 964, 965-66 (8th Cir. 2003), and that is what the ALJ did
here (R. 28-30).
Past Relevant Work
Yang argues the ALJ erred in finding that she had the RFC to perform her past
work as an assembler. Although the ALJ has the responsibility of assessing a claimant’s
RFC, the claimant bears the burden at step four to demonstrate that she cannot perform
her past relevant work. See Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). If the
claimant can perform her past relevant work, she is not disabled. Eichelberger, 390 F.3d
There are three tests for determining whether a claimant has the capacity to
perform her past relevant work:
1. Whether the claimant retains the capacity to perform a past relevant job
based on a broad generic, occupational classification of that job, e.g.,
“delivery job,” “packaging job,” etc.
2. Whether the claimant retains the capacity to perform the particular
functional demands and job duties peculiar to an individual job as he or she
actually performed it.
3. Whether the claimant retains the capacity to perform the functional
demands and job duties of the job as ordinarily required by employers
throughout the national economy. (The Dictionary of Occupational Titles
(DOT) descriptions can be relied upon—for jobs that are listed in the
DOT—to define the job as it is usually performed in the national economy.)
It is understood that some individual jobs may require somewhat more or
less exertion than the DOT description.
SSR 82-61, 1982 WL 31387, at *1-2 (S.S.A. 1982). SSR 82-61 further provides that “[a]
properly completed SSA-3369-F6, Vocational Report, may be sufficient to furnish
information about past work.” Id. at *2. An ALJ may resolve variations between a
claimant’s description and the DOT description by contacting the employer or the
claimant. Id. Where a composite job has no exact counterpart in the DOT, the ALJ may
utilize the services of a vocational expert. Id.
SSR 82-62 provides further guidance about comparing an RFC with the physical
and mental demands of past relevant jobs. SSR 82-62, 1982 WL 31386, at *3 (S.S.A.
1982). It reiterates that the claimant should be the primary source for information about
past work, and the claimant’s statements “are generally sufficient for determining the
skill level[,] exertional demands[,] and nonexertional demands of such work.” Id. The
ALJ should carefully appraise:
(1) the individual’s statements as to which past work requirements can no
longer be met and the reason(s) for his or her inability to meet those
requirements; (2) medical evidence establishing how the impairment limits
ability to meet the physical and mental requirements of the work; and (3) in
some cases, supplementary or corroborative information from other sources
such as employers, the Dictionary of Occupational Titles, etc., on the
requirements of the work as generally performed in the economy.
Id. Given the “far-reaching implications,” the ALJ must fully develop and explain the
determination of whether the claimant has the RFC to perform past work. Id.
Appropriate documentation of past work may include details of “strength, endurance,
manipulative ability, mental demands and other job requirements,” as obtained from the
claimant. Id. Job titles, dates, compensation, equipment used, required knowledge, the
extent of supervision, the degree of independent judgment required, and a description of
tasks and duties are also relevant. Id. For a claimant with a mental impairment, it is
important to consider factors such as “speed, precision, complexity of tasks, independent
judgments, [and] working with other people . . . to determine if the claimant’s mental
impairment is compatible with the performance of such work.” Id.
Yang completed an SSA-3369-F6 form on December 17, 2013. (R. 240-47.) She
described her work in medical device assembly as “us[ing] small tools to cut, scrape and
create a hole and place the battery in the ear device then place it in my ear to test it on me
whether it works and make noise.” (R. 244.) She used machines, tools, and equipment,
but did not need technical skills or knowledge, or writing skills. (R. 244.) In an eighthour day, Yang typically walked for half an hour to an hour, stood for two hours, sat for
six hours, handled large objects for one to three hours, handled small objects for six to
eight hours, and reached for six to eight hours. (R. 244.) She frequently lifted ten
pounds. (R. 244.) With respect to lifting and carrying, Yang carried boxes of medical
devices from one station to another when she was finished with a box or needed more
materials. (R. 244.) She was paid an hourly wage of $12, and she worked eight hours a
day, five days a week. (R. 244.) Yang did not supervise other employees and was not a
lead worker. (R. 244.)
In February 2016, about six months after the ALJ rendered his decision, Yang
submitted to the Appeals Council an affidavit further describing her work as a medical
device assembler. (R. 316-19.) Yang said she typically sat during the entire workday,
except for two fifteen-minute breaks and a lunch break, and was not allowed to move
around or adjust herself in her chair. (R. 316.) Assembling the devices required her to
bend her head downward, which now would cause dizziness and vertigo. (R. 316.) She
frequently needed fifteen to twenty minutes of verbal instructions to learn how to
assemble a new device. (R. 317.) When she did not work quickly or accurately, her
supervisor yelled at her, which was stressful. (R. 317-18.) One or two days a week, she
was required to walk around a room all day delivering packages to other assemblers.
Yang argues the ALJ did not properly consider whether she could perform her past
relevant work as it was actually performed or generally performed. The Court agrees. In
determining that Yang could perform her past relevant work, the ALJ did not refer to the
SSA-3369-F6, Vocational Report, completed by Yang in December 2013. Instead, the
ALJ cited to an exhibit that simply listed the name of the employer, the dates of
employment, “medical ear device assembly line,” hours per week, and hourly pay.
(R. 33, 288.) The vocational expert’s written Vocational Analysis reads simply:
“Assembly: DOT . . . 712.687-034 / Exertional Level: Sedentary / Skill Level: Unskilled /
Transferable Skills: Assembly.” (R. 309.)
The form Yang completed in December 2013, on the other hand, contained much
more information about her past work, including the use of small tools, machines, and
equipment; and time spent walking, standing, sitting, handling large and small objects,
reaching, lifting, and carrying. (R. 244.) Of greatest concern is Yang’s statement that
she walked around the office carrying and delivering packages one or two days a week.
This job requirement is not consistent with the RFC assessment. Given that the claimant
should be the primary source for information about past work, the ALJ should have
specifically considered Yang’s statements about her past work.
Yang argues she is also precluded from working as an assembler as the job is
generally performed. The ALJ determined in the written decision that Yang’s past
relevant work as an assembler was generally performed as described in DOT 712.687034. The occupation described in DOT 712.687-034 is “Suture Winder, Hand.” The job
Winds single or multiple lengths of surgical catgut onto fiber suture reel:
Pulls out holding flaps on reel, inserts end of strand under one flap, and
places reel on power-driven wheel. Presses pedal to actuate wheel and
guides strand under holding flaps as wheel spins to wind precut lengths or
counts wheel revolutions to measure lengths. Turns reels by hand when
winding numerous strands. Cuts catgut from spool, using scissors. Inserts
completed reels in plastic envelopes for subsequent sterilization, or into
glass tubes for future use.
DOT 712.687-034. Requirements of the job include carrying out detailed written or oral
instructions, reading at a rate of 95-120 words per minute, and writing simple sentences.
Neither the vocational expert nor the ALJ discussed the job description or job
requirements of DOT 712.687-034, or how those requirements and duties fit within
Yang’s RFC. Most significantly, the requirements to carry out detailed written or oral
instructions, read at a rate of 95-120 words a minute, write simple sentences, and not just
be exposed to but operate moving mechanical parts such as spinning wheels, reels, and
pedals simply do not comport with the RFC or Plaintiff’s limited English skills. “When
there is an apparent unresolved conflict between [vocational expert] . . . evidence and the
DOT,” the ALJ “must elicit a reasonable explanation for the conflict before relying on
the [vocational expert] . . . evidence to support a determination or decision about whether
the claimant is disabled.” SSR 00-4P, 2000 WL 1898704, at *2 (S.S.A. Dec. 4, 2000).
The ALJ did not elicit a reasonable explanation for the inconsistencies in Yang’s case.
The ALJ’s decision will be reversed and remanded to the Commissioner for
reconsideration of whether Yang could perform her past relevant work as it was actually
performed or as it is generally performed. On remand, the Commissioner must consider
the SSA-3369-F6 form Yang completed on December 17, 2013, as well as the affidavit
Yang submitted to the Appeals Council in February 2016. The Commissioner may also
obtain additional evidence from Yang and/or information from other sources such as
employers. The Commissioner must also reconcile the conflict between the vocational
expert evidence and DOT 712.687.034.
Accordingly, based on all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
Plaintiff Su Yang’s Motion for Summary Judgment [Doc. No. 16] is
Defendant Commissioner Nancy A. Berryhill’s Motion for Summary
Judgment [Doc. No. 18] is DENIED; and
This matter is REMANDED for reconsideration of whether Yang could
perform her past relevant work as it was actually performed or as it is generally
performed, as set forth fully in Part III.D.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 12, 2018
s/ Hildy Bowbeer
United States Magistrate Judge
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