Ward v. Berryhill
Filing
23
ORDER denying 18 Motion for Summary Judgment; granting 20 Motion for Summary Judgment(Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 9/27/2018. (LCC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
Larry W.,
Civil No. 17-CV-00988 KMM
Plaintiff,
ORDER
v.
Nancy A Berryhill,
Commissioner of Social Security,
Defendant.
Fay E. Fishman, Peterson & Fishman, 2915 South Wayzata Boulevard, Minneapolis,
MN 55405, Counsel for Larry W.
Pamela Marentette, United States Attorney’s Office, 300 S. 4th St, Ste 600,
Minneapolis, MN 55415, Counsel for Nancy A. Berryhill.
This matter is before the Court on the parties’ cross-motions for summary
judgment. (Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 18; Def.’s Mot. for
Summ. J. (“Def.’s Mot.”), ECF No. 20.) For the reasons set forth below, the
Commissioner’s motion is granted and Plaintiff Larry W.’s motion is denied.1
I.
Procedural History and Factual Background
On August 30, 2013, Larry W. filed an application for supplemental security
income, alleging disability as of January 1, 2008. Larry W.’s claim was originally
denied on January 21, 2014, and again upon reconsideration on August 28, 2014. He
Plaintiff in this case will be referred to as Larry W. in accordance with a new local
rule designed to protect the privacy of social security claimants.
1
1
filed a request for a hearing, which was granted, and testified at the hearing on
September 30, 2015. After receiving an unfavorable decision, Larry W. now appeals.
A.
Factual Overview
In his application, Larry W. alleged disability as of January 1, 2008, resulting
from cardiomyopathy, depression, and borderline intellectual functioning. Larry W.
has an extensive recent history of cardiomyopathic events. Medical records from
2012 to the present show that he suffers from numerous health problems, including
hypertension, congestive heart failure, non-sustained ventricular tachycardia, and nonischemic cardiomyopathy. Larry W. has an implantable cardiac defibrillator to treat
his cardiac conditions.
Unfortunately, he has a significant history of medication non-compliance.
Since late 2012, Larry W. has regularly received emergent or urgent medical care
necessitated by a worsening of his conditions, often attributed to his failure to take his
medication. For example, in December 2012, Larry W. was seen for lower limb
edema and fatigue, which was diagnosed as cardiomyopathy likely due to medication
non-compliance. (R. 421.) In August 2013, Larry W. was hospitalized after
experiencing chest pain and shortness of breath. Medical records noted that he was
non-compliant with medication, which could explain the sudden worsening in his
cardiac function. (R. 355–362.) In October 2013, having missed several cardiology
appointments (see R. 476), Larry W. sought emergency care after coughing up blood
for three days. He admitted sometimes missing doses of his medication. The
emergency physician noted that Larry W.’s congestive heart failure was likely
exacerbated due to his medication non-compliance. (R. 395.) Again in 2014, Larry
W. was hospitalized for several days with acute cardiac symptoms; again he reported
that he had only been taking his medication intermittently. (R. 484–85.) This cycle
repeats itself throughout the Administrative Record—Larry W. is seen for a
worsening of his heart condition, at which point he reveals that he has been
noncompliant with his medication. (See R. 561–66, 600–07, 608–21.)
In addition to Larry W.’s physical health problems, he also suffers from
intellectual impairments. In June 2014, Dr. Alford Karayusuf, a Social Security
2
psychologist, evaluated Larry W. He did not perform IQ testing himself, but instead
referred to testing performed by Dr. Warner in 2009, where Larry W. scored a Full
Scale IQ of 74, which is within the borderline range of functioning. (R. 569.) Dr.
Karayusuf noted that Larry W. presented as more intellectually competent during his
interview than that score would suggest, and he was able to perform simple
subtraction and immediately recall digits, though his recent recall was impaired. (R.
570.) Dr. Karayusuf opined that Larry W. would not be able to consistently
understand and follow instructions or interact with the public, and noted that Larry
W. was unable to maintain pace and persistence because of his memory problems. (R.
570.)
In August 2014, Larry W. was examined by Social Security examiner and
psychologist Dr. Donald E. Wiger. Larry W.’s intellectual functioning was tested, and
he scored a Full Scale IQ of 80, which is the upper borderline range of functioning.
(R. 574–75.) Dr. Wiger opined that Larry W. could “carry out work-like tasks with
reasonable persistence and pace,” and “handle the stressors of at least an entry level
workplace.” (R. 575–76.) Dr. Wiger also diagnosed Larry W. with major depressive
disorder. (R. 575.) In June 2015, Larry W. was seen by a clinician at Natalis
Counseling and Psychology, and diagnosed with major depressive disorder and
anxiety disorder, with a Global Assessment of Functioning (“GAF”) score of 51–60.
(R. 652–57.)
Larry W.’s most recent psychological evaluation was performed by Dr. Stephen
J. Antonello, also in June 2015. Larry W. scored in the lower borderline section on his
IQ test, with a Full Scale IQ of 72. (R. 585.) He scored in the .1% or lower ranks in
the areas of daily living skills, socialization, and adaptive behavior, as measured by the
Vineland Adaptive Behavior Scales. (R. 586.) Larry W. was found to have a reading
level of Grade 2, and a mathematical skill level of Grade 3. (Id.) During that same
assessment, he was given a GAF of 40–50, and the examiner noted that Larry W. was
a potential candidate for ARMHS services. Dr. Antonello suggested that Larry W.
would require a reduced schedule of work hours, slow-paced tasks, work with few
reading or math requirements, and little social interaction with customers and
coworkers. (R. 589.)
3
At the hearing in front of the ALJ in this matter, Larry W. testified that he has a
sixth-grade education and was in special education classes for the entirety of his
school career. (R. 36.) He indicated that the longest job he ever held was drywalling
for a friend for approximately three years. (R. 36–37.) The work was intermittent
depending on availability. (R. 37.) Larry W. testified that his physical and mental
health problems prevent him from working now. (R. 37–43.) He described being
able to walk only half a block before getting short of breath and often spending four
to five hours a day lying down due to fatigue. (R. 38–39.) He reported no difficulty
sitting and responded “I don’t know” when asked what would prevent him from
working a job where he sat most of the day.” (R. 38–39.) Larry W. also testified to
having sleep apnea, but not using his CPAP regularly because he was not used to it.
(R. 39–40.) With regard to his mental health, Larry W. described having difficulty
reading and focusing, although he testified that he did not have memory problems.
(R. 42–43.) He also reported struggling to get along with most people.
Larry W. testified about difficulties in his everyday life. Larry W. lives with his
girlfriend and two children, ages eight and six. (R. 43–44.) While his girlfriend works
during the day, he watches the children, although during the summer they are often
with their grandmother. (R. 44–45.) Larry W. asserted that he can fix food for
himself by using the microwave, and that he needs reminders to shower regularly, but
can dress himself. (R. 45–46.) He does not help with chores such as doing the dishes
or the laundry, and rarely goes grocery shopping. (R. 46–48.) He reported that he
spends most of his time when he is alone during the day watching television and
sleeping. (R. 48.)
B.
ALJ Kunz’s Decision
Administrative Law Judge Mary M. Kunz reviewed Larry W.’s case. ALJ Kunz
followed the established five-step evaluation process in making her determination
regarding Larry W. See 20 CFR 416.920(a). At step one, ALJ Kunz found that Larry
W. had not engaged in substantial gainful activity since his application date of August
30, 2013. (R. 16.) At step two, ALJ Kunz determined that Larry W. has several
severe impairments: “Obesity, obstructive sleep apnea, non-ischemic cardiomyopathy
with congestive heart failure and past implantable cardioverter defibrillator (ICD)
4
placement, borderline intelligence, depression, anxiety disorder, personality disorder,
and possible panic disorder with agoraphobia.” (Id.)
At step three, ALJ Kunz decided that Larry W.’s impairments, singularly or in
combination, did not medically equal the severity of one of the listed impairments at
20 CFR Part 404 Subpart P, Appendix 1. (R. 17.) She noted that she paid particular
attention to listings 4.02 (chronic heart failure) and 12.05 (intellectual disorder). (Id.)
ALJ Kunz found that Larry W. did not meet listing 4.02 “while on a regimen of
prescribed treatment.” (R. 17.) She noted that Larry W. had an extensive history of
medication non-compliance, and that during the periods when his heart condition
otherwise met listing 4.02, he was not compliant with his regimen of prescribed
treatment. (Id.)
ALJ Kunz also found that Larry W.’s intellectual impairments did not meet the
listing of 12.05, and she rejected his attorney’s arguments that the impairments were
equal in severity to those in 12.05. (R. 18.) She determined that Larry W.’s
intellectual impairments did not meet the “paragraph B” criteria of demonstrating two
or more of the following: marked restriction of activities of daily living; marked
difficulties in maintaining social functioning; marked difficulties in maintaining
concentration, persistence, or pace; or repeated episodes of decompensation, each of
extended duration. ALJ Kunz found that Larry W. had moderate difficulty in social
functioning and maintaining concentration, persistence, or pace, and mild difficulty in
activities of daily living. (R. 19–20.)
At step four, ALJ Kunz determined that Larry W. has the residual functional
capacity to work with the following restrictions: the work must be sedentary and not
involve work at unprotected heights or near hazards; it must be routine, repetitive,
and simple; defined as no less than an 8 on the people rating in the DOT/SCO; be
low stress; and it must involve no reading or writing. (R. 21.) Finally, ALJ Kunz
determined at step five that there are jobs that exist in significant numbers in the
national economy that Larry W. can perform, such as final assembler, document
preparer, and stuffer. (R. 26–27.) In accordance with her findings, ALJ Kunz
determined that Larry W. was not disabled.
5
Larry W. requested review by the Appeals Council, which denied his request.
(R. 1.) Thus, ALJ Kunz’s decision became the final decision of the Commissioner of
Social Security, making this case ripe for review by the District Court. Larry W.
appealed to this Court, and he and the Commissioner have cross-moved for summary
judgment.
II.
Analysis
The Court does not evaluate Larry W.’s disability claim de novo; rather, the
Court reviews ALJ Kunz’s evaluation of Larry W.’s claim to determine whether it is
consistent with the law and that it is supported by substantial evidence in the record
as a whole. Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006); Tellez v. Barnhart, 403
F.3d 953, 956 (8th Cir. 2005). This review of an ALJ’s decision is highly deferential.
See Kelley v. Barnhart, 372 F.3d 958, 960 (8th Cir. 2004). Indeed, the Commissioner’s
findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42
U.S.C. § 405(g). “Substantial evidence is relevant evidence which a reasonable mind
would accept as adequate to support the Commissioner’s conclusion.” Haggard v.
Apfel, 175 F.3d 591, 594 (8th Cir. 1999). Where substantial evidence supports the
Commissioner’s findings, the Court should not reverse those findings merely because
other evidence exists in the record to support the opposite conclusion. Mitchell v.
Shalala, 25 F.3d 712, 714 (8th Cir. 1994).
Although ALJ Kunz’s decision merits deference, the Court must also ensure
that the ultimate decision properly considered those facts that weigh against ALJ
Kunz’s conclusion as well as those that support it. “There is a notable difference
between substantial evidence and substantial evidence on the record as a whole. . . .
[Review of the whole record] must take into account whatever in the record fairly
detracts from [an administrative decision’s] weight.” Gavin v. Heckler, 811 F.2d 1195,
1199 (8th Cir. 1987) (internal quotation marks omitted). Against this backdrop, the
Court determines that ALJ Kunz’s decision in Larry W.’s case is supported by
substantial evidence.
6
A.
ALJ Kunz’s Assessment of Larry W.’s RFC
“The RFC is a function-by-function assessment of an individual’s ability to do
work-related activities based upon all of the relevant evidence.” Harris v. Barnhart, 356
F.3d 926, 929 (8th Cir. 2004) (citing Depover v. Barnhart, 349 F.3d 563, 565 (8th Cir.
2003)). Here, ALJ Kunz properly assessed Larry W.’s abilities based on both his
physical and mental impairments, and correctly determined that he could perform
sedentary work with additional limitations. Larry W.’s arguments to the contrary do
not carry the day.
1.
Larry W.’s Physical RFC
Larry W. first argues that ALJ Kunz’s determination of his physical RFC was
not supported by medical opinions. This argument fails for two reasons. First, it
misstates the law, which does not require that an RFC finding be supported by or
directly derived from any specific opinion. Second, ALJ Kunz’s finding was supported
by substantial evidence throughout the entirety of the record.
“[T]here is no requirement that an RFC finding be supported by a specific
medical opinion.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (citing Myers v.
Colvin, 721 F.3d 521, 526–27 (8th Cir. 2013); Perks v. Astrue, 687 F.3d 1086, 1092–93
(8th Cir. 2012)). Rather, the RFC should be “based on all of the relevant evidence,
including the medical records, observations of treating physicians and others, and an
individual’s own description of his limitations.” Id. (quoting Myers, 721 F.3d at 527.)
Here, ALJ Kunz considered the medical opinions and gave them “some weight.” (R.
23.) However, ALJ Kunz further reduced the RFC based on correctly considering
other medical evidence in the record.
Moreover, the record as a whole provides substantial evidence that supports
ALJ Kunz’s determination. First, ALJ Kunz found Larry W. credible when he
claimed that his conditions made it difficult to perform sustained walking or heavy
lifting. (R. 22.) She reduced the RFC to accommodate this reality, as well as his sleep
apnea and increased risk of electrical shock. (Id.) However, there is substantial
evidence to support ALJ Kunz’s finding that Larry W. is physically capable of some
7
work. For example, Larry W. testified that he did not know why he could not work a
job where he spent most of the day sitting. (R. 38.) Indeed, the state agency medical
experts’ opinions each opined that Larry W. would be capable of light work, including
lifting weights up to 20 pounds. 2 (R. 129, 144–45.)
Additionally, there is substantial evidence to suggest that Larry W.’s symptoms
would be lessened if he was consistently compliant with his medications and
treatments. ALJ Kunz highlighted Larry W.’s significant pattern of medication noncompliance and noted that Larry W. acknowledged feeling better when taking his
medication. (R. 22–23; see recitation of facts, supra.) It is clear that limitations caused
by unjustified treatment non-compliance may be discredited and not included in the
RFC. E.g., Wildman v. Astrue, 596 F.3d 959, 969–70 (8th Cir. 2010). There was
substantial evidence within the record to believe that Larry W. understood the
importance of his medications. For example, after hospitalization in January 2015,
Larry W. stated that he was going to take his medications, “no more excuses, now that
I know how bad it’s gotten.” (R. 620; see also R. 23.)
Significantly, ALJ Kunz also highlighted evidence in the record showing that
Larry W.’s cardiac symptoms tended to improve when he was medication-compliant.
(R. 22–23.) In August 2013, Larry W. was hospitalized for shortness of breath after
not taking his medication, and his symptoms improved after resuming his diuretic.
(R. 22, 355–62.) In January 2014, Larry W. was hospitalized for seven days after
treatment non-compliance, but his symptoms “markedly improved” over the course
of his hospitalization after restarting his medication. (R. 488; see also R. 22.) And the
It is worth nothing that ALJ Kunz found that Larry W. required more restrictions
than either of the medical opinions did and included those limitations in the RFC.
The RFC assessment of both medical opinions contained within the record
determined that Larry W. would be capable of light work as defined by 20 CFR
416.967(b), including occasionally lifting or carrying up to 20 pounds, and frequently
carrying or lifting 10 pounds. (R. 129, 144–45.) However, ALJ Kunz, after
considering the entire record, determined that Larry W. had the physical RFC to
perform only sedentary work. (R. 21; see 20 CFR 416.967(a).) Any claim of harm
relating to ALJ Kunz’s consideration of the medical evidence made by Larry W. is
greatly diminished by this fact.
2
8
record is replete with more examples of the unfortunate cycle of acute illness brought
on by Larry W. not taking his medications as required.3 (See supra.) Larry W.’s
significant improvement with proper treatment supports ALJ Kunz’s finding that
Larry W.’s physical ailments do not render him incapable of work.
2.
Larry W.’s Mental RFC
There is also substantial evidence within the record as a whole to support ALJ
Kunz’s conclusion that Larry W.’s intellectual impairments do not prevent him from
working in some capacity, and ALJ Kunz adequately supported her findings with the
record. Larry W. argues that ALJ Kunz did not explain her reasoning for assigning
weight to Dr. Wiger’s opinion while rejecting the opinions of Dr. Antonello and Dr.
Karayusuf. 4 The Court disagrees.
First, ALJs are specifically tasked with resolving disparate opinions from
different caregivers. “It is the ALJ’s function to resolve conflicts among the opinions
of various treating and examining physicians. ALJ Kunz may reject the conclusions
of any medical expert…if they are inconsistent with the record as a whole.” Wagner v.
Astrue, 499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v. Massanari, 274 F.3d 1211,
1219 (8th Cir. 2001)). Here, ALJ Kunz noted that Larry W.’s psychological
assessments resulted in inconsistent evaluations of Larry W.’s capabilities. (R. 23.)
For example, Dr. Karayusuf and Dr. Wiger conducted evaluations of Larry W. within
two months of each other, but the results were inconsistent. ALJ’s Kunz’s reasoning
for giving Dr. Wiger’s evaluation more weight is not particularly well-explained, but
The reasoning behind Larry W.’s medication non-compliance is varied within the
record. Although it is attributed to insurance issues on at least one occasion (R. 439),
the majority of instances either have no explanation or are explicitly a result of Larry
W.’s own behavior (See R. 357, 394, 421, 484, 497, 519, (no explanation given); R. 40,
429, 474, 561, (Larry W. contributed to his own medication non-compliance).)
4
The opinion of Dr. Warner, a consultative psychologist, is not discussed in ALJ
Kunz’s opinion, and warrants no discussion here. An ALJ is not required to discuss
every piece of evidence submitted, and her failure to cite specific evidence does not
mean that she did not consider it See, e.g., Craig v. Apfel, 212 F.3d 433, 436 (8th Cir.
2000).
3
9
“an arguable deficiency in opinion-writing technique does not require [reversal] when
that deficiency had no bearing on the outcome.” Owen v. Astrue, 551 F.3d 792, 801
(8th Cir. 2008). Reviewing the record, it is clear that the key difference between Dr.
Karayusuf’s and Dr. Wiger’s evaluations is that Dr. Wiger’s is based on his own
psychometric testing, whereas Dr. Karayusuf’s evaluation relies heavily on testing
performed by another clinician five years previously. (R. 23–24, 569–70.) Indeed, Dr.
Karayusuf noted in his own opinion that Larry W. “comes across higher than
[borderline intellect]” during a clinical interview, but that he deferred to the older IQ
testing on that issue. (R. 570.) ALJ Kunz gave Dr. Wiger’s opinion the greatest
weight because it was supported by his own clinical evaluation and psychometric
testing that he conducted and did not give Dr. Karayusuf’s opinion weight because it
conflicted with Dr. Wiger’s opinion (R. 23–24.)
Further, Dr. Karayusuf’s report is inconsistent with other evidence within the
record. In a function report that Larry W. completed a month prior to seeing Dr.
Karayusuf, Larry W. indicated that he played cards and talked with people on the
phone and in person “a few times a week.” (R. 288.) This is in direct conflict with
Dr. Karayusuf’s report that Larry W. does not play cards and has “virtually no contact
with friends.” (R. 570.) Larry W. also reported going to church “every Sunday” and
reported no difficulty in attendance, whereas Dr. Karayusuf’s report stated that he
only attends once or twice a month and could not remember the services. (Compare R.
288 with R. 570.) Similarly, Larry W.’s Diagnostic & Assessment Interview from
Natalis Counseling indicated that his memory was intact, and that he presented with
good insight and judgment, in contrast from Dr. Karayusuf’s assessment that Larry
W.’s memory was deficient and that he had minimal insight. (Compare R. 655–656 with
R. 570.) Overall, there is substantial evidence in the record to support ALJ Kunz’s
finding that Dr. Karayusuf’s opinion did not merit great weight.
ALJ Kunz also adequately explained her reasoning for rejecting the opinion of
Dr. Antonello. She noted that Dr. Antonello did not explain several of his
conclusions, including why Larry W. would only be able to work two to three hours a
day and why he would not be able to maintain employment. (R. 25.) She also
highlighted inconsistencies between Dr. Antonello’s opinion and the rest of the
record. For example, Dr. Antonello opined that Larry W. had marked limitations in
10
concentration, persistence, or pace, but Larry W. recently scored a low average score
of 83 in working memory with Dr. Wiger—something that Dr. Antonello did not test.
(R. 25.) Dr. Wiger also noted that Larry W. was not easily distracted and that he
followed instructions during his examination. (R. 573–74.) Dr. Karayusuf’s
examination is consistent with this aspect of the evaluation, noting that Larry W.
exhibited good orientation and focus. (R. 570.) ALJ Kunz is permitted to assign less
weight to opinions that do not explain conclusions, Chesser v. Berryhill, 858 F.3d 1161,
1165 (8th Cir. 2017), or those that are inconsistent with the record as a whole.
Wagner, 499 F.3d at 848. Here, the Court concludes that ALJ Kunz properly assessed
Larry W.’s mental RFC and her evaluation of the various expert opinions was not
erroneous.
B.
ALJ Kunz’s Credibility Findings
The Court also concludes that Larry W.’s subjective complaints were properly
analyzed by ALJ Kunz. An ALJ is “in a better position to evaluate credibility” than
this Court, and thus deference is given to the ALJ’s decision when it is supported by
substantial evidence. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006) (citing
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)). When evaluating subjective
complaints, an ALJ must consider:
1.
2.
3.
4.
5.
the claimant’s daily activities;
the duration, frequency and intensity of the pain;
precipitating and aggravating factors;
dosage, effectiveness and side effects of medication; [and]
functional restrictions.
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); see also Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility
of an Individual’s Statements, SSR 96–7p, 1996 WL 374186 (Soc. Sec. July 2, 1996).5
SSR 96–7p was superseded by Social Security Ruling 16–3p Titles II and XVI:
Evaluations of Symptoms in Disability Claims, 2017 WL 5180304 (Soc. Sec. Oct. 25, 2017),
which applies to “determinations and decisions on or after March 28, 2016.” Id. at *1.
Because ALJ Kunz’s decision was rendered on December 28, 2015, SSR 96–7 and the
5
11
Although an ALJ must consider each factor above, she need not expressly discuss
each one. Ford v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008). And the ALJ may
discount subjective complaints “if there are inconsistencies in the evidence as a
whole.” Polaski, 739 F.2d at 1322.
ALJ Kunz properly applied this framework during her review of Larry W.’s
case. She found inconsistencies between Larry W.’s subjective complaints and the
rest of the record as a whole. In particular, ALJ Kunz noted that Larry W.’s
medication non-compliance, failure to seek out treatment, participation in daily
activities, and sporadic work history were all inconsistent with Larry W.’s allegation of
total disability.
Larry W.’s noncompliance with his medication weighs against his credibility
insofar as it relates to his claimed inability to perform any work whatsoever. See Julin
v. Colvin, 826 F.3d 1082, 1087 (8th Cir. 2016). As discussed in detail above, Larry W.
regularly failed to take his medicine as prescribed, which often resulted in him having
to seek emergency medical treatment for his worsening condition. The fact that Larry
W.’s symptoms seem to be alleviated or greatly improved when Larry W. is compliant
with medication and other treatments such as his CPAP machine further supports
ALJ Kunz’s finding that Larry W.’s claims of disability were not entirely credible. See
id.; Mabry v. Colvin, 815 F.3d 386, 391–92 (8th Cir. 2016). Indeed, Larry W. himself
testified that he did not know why he physically could not work at a sedentary job.
(R. 38–39.)
ALJ Kunz also properly discounted Larry W.’s subjective complaints regarding
his mental health due to his failure to seek treatment. E.g., Edwards v. Barnhart, 314
F.3d 964, 967 (8th Cir. 2003). Larry W. only began treatment for depression in June
2015, despite claiming to have suffered from it for much longer. Larry W. testified
that he did not know how to seek treatment prior to this date. However, ALJ Kunz
explained that she did not find this credible because Larry W. had successfully
obtained treatment for his physical conditions. (R. 25.) ALJ Kunz also noted that no
Polaski factors are the appropriate standard by which to analyze ALJ Kunz’s
determination.
12
follow-up treatment records were found after Larry W.’s first mental health
appointment, despite his indication that he wanted medication and therapy. (R. 25.)
Failure to seek treatment for one illness, despite seeking treatment for other illnesses,
is a factor that an ALJ may consider when determining a claimant’s credibility. See
Hensley v. Colvin, 829 F.3d 926, 935 (8th Cir. 2016).
Larry W.’s testimony regarding his daily activity also weighs against his
credibility. See Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001). Larry W. drives,
watches television, attends church, occasionally shops in stores, plays cards and video
games, and talks to others on the phone and in person. (R. 26, 47, 288, 570, 584.)
Larry W. also watches his children and helps them get their clothes ready, and he is
capable of caring for a cat. (R. 26, 44–45, 259.) A claimant’s ability to engage in such
daily activities weighs against a finding of complete disability. Ponder v. Colvin, 770
F.3d 1190, 1195–96 (8th Cir. 2014); see also Haley, 258 F.3d at 748.
In sum, ALJ Kunz’s determination that Larry W.’s subjective descriptions of
his disabilities were inconsistent with the record as a whole is supported by substantial
evidence. Because ALJ Kunz is in the best position to weigh a claimant’s credibility,
see Cox, 471 F.3d at 907, this Court will not reverse her determination here.
C.
ALJ Kunz’s Step Five Finding
Larry W. argues that ALJ Kunz erred when relying on the vocational expert’s
testimony in making her step five determination. Specifically, ALJ Kunz asked the
vocational expert a hypothetical question regarding jobs Larry W. could perform in
light of his limitations, including no reading or writing. In response, the vocational
expert testified that Larry W. could perform the jobs of final assembler, document
preparer, and stuffer. (R. 54–55.) However, the Dictionary of Occupational Titles
(the “DOT”) lists each of these jobs as requiring a level 1 or level 2 reading ability.6
Reading level 1 requires the ability to “[r]ecognize meaning of 2,500 (two- or threesyllable) words. Read at rate of 95–120 words per minute. Compare similarities and
differences between words and between series of numbers.” U.S. Dep’t of Labor,
Dictionary of Occupational Titles (4th ed. 1991), 713.687-018, 1991 WL 679271. Reading
level two requires a “[p]assive vocabulary of 5,000-6,000 words. Read at rate of 190-
6
13
U.S. Dep’t of Labor, Dictionary of Occupational Titles (4th ed. 1991), 713.687-018, 1991
WL 679271; 249.587-018, 1991 WL 672349; 731.685-014, 1991 WL 679811. Upon
cross-examination of the vocational expert by Larry W.’s attorney, the expert
specifically reiterated that the jobs would not involve reading. (R. 56.) Larry W.
argues that this cannot be accurate, given the reading ability requirements listed in the
DOT. However, because the DOT is not the only source for positional requirements,
this Court disagrees.
The DOT definitions are a reference that reflect the maximum requirements
for each category of positions, not the variations present between each individual job
within that category. See Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000); Jones v.
Chater, 72 F.3d 81, 82 (8th Cir. 1995). Conflict between the vocation expert testimony
and the DOT is not impermissible. See, e.g., Montgomery v. Chater, 69 F.3d 273, 276–77
(8th Cir. 1995). Indeed, the vocational expert “may be able to provide more specific
information about jobs or occupations than the DOT.” Fisher v. Colvin, No. 12-cv1933 (JNE/LIB), 2014 WL 859157 at *21 (D. Minn. 2014) (quoting SSR 00-4p).
There is no evidence within the record to indicate that the vocational expert did not
consider Larry W.’s additional literacy limitations, as provided by ALJ Kunz, when
testifying to the jobs that Larry W. could perform. Thus, ALJ Kunz properly relied
on the vocational expert’s testimony when making her step five determination.
III.
Conclusion
In sum, although Larry W. clearly struggles with several serious medical and
mental health challenges, ALJ Kunz’s decision that he is not disabled within the
meaning of the Social Security Act is supported by substantial evidence in the record
as a whole. This Court affirms the Commissioner’s decision and grants her motion
for summary judgment. Larry W.’s motion for summary judgment is denied.
215 words per minute. Read adventure stories and comic books, looking up
unfamiliar words in dictionary for meaning, spelling, and pronunciation. Read
instructions for assembling model cars and airplanes.” Id. at 249.587-018, 1991 WL
672349.
14
IV.
ORDER
For all the reasons stated above, IT IS HEREBY ORDERED THAT:
1.
Plaintiff’s motion for summary judgment (ECF No. 18) is DENIED;
2.
Defendant’s motion for summary judgment (ECF No. 20) is
GRANTED; and
3.
This matter is dismissed with prejudice.
Let Judgment be entered accordingly.
/s/ Katherine Mendez
Katherine Menendez
United States Magistrate Judge
Date: September 27, 2018
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?