Tuttle v. Berryhill

Filing 23

ORDER granting in part and denying in part 15 Motion for Summary Judgment; granting in part and denying in part 21 Motion for Summary Judgment. The matter is REMANDED as set forth in the Order.(Written Opinion) Signed by Magistrate Judge Hildy Bowbeer on 3/18/2019. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Janelle T.,

Case No. 18-cv-0267 (HB)
Plaintiff,

v.

ORDER

Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.
HILDY BOWBEER, United States Magistrate Judge1
Pursuant to 42 U.S.C. § 405(g), Plaintiff Janelle T. seeks judicial review of a final
decision by the Acting Commissioner of Social Security denying her application for
disability insurance benefits (“DIB”). The case is before the Court on the parties’ crossmotions for summary judgment [Doc. Nos. 15, 21]. For the reasons set forth below, the
Court grants in part and denies in part Plaintiff’s motion for summary judgment, grants in
part and denies in part the Commissioner’s motion for summary judgment, 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.
I.

Procedural Background
Plaintiff filed an application for DIB on February 2, 2015, alleging she was unable

1

The parties have consented to have a United States Magistrate Judge conduct all
proceedings in this case, including the entry of final judgment.

to work because of a disabling condition as of December 22, 2014. (R. 149.) 2 Plaintiff’s
application was denied initially and on reconsideration, and she requested a hearing
before an administrative law judge (“ALJ”). The hearing was convened on January 3,
2017. (R. 31-58.) Plaintiff and vocational expert Cheryl Zilka testified.
Plaintiff testified that she worked in the Freeborn County auditor/treasurer’s
department from 2008 through December 22, 2014. (R. 39.) She has not looked for
employment since she stopped working. (R. 40.) Plaintiff testified she was not able to
work because of mid back pain, low back pain, and headaches. (R. 40.) She experienced
dull headaches every day. (R. 40.) Botox injections were administered every three
months and were effective beginning about two to three weeks after they were
administered until about two to three weeks before the next injection could be scheduled.
(R. 40, 44.) Between injections, her headaches were aggravated by activities such as
riding in a car, bright lights, and using a computer. (R. 40-41.) Plaintiff also experienced
migraines, which made her feel nauseated and required her to lie down in a dark room
with a cold washcloth on her forehead for the rest of the day. (R. 49.) Just after she
stopped working in 2014, she was experiencing five or six severe migraines a month.
(R. 50.)
Plaintiff testified that she also felt cervical spine pain from her neck to her
shoulder daily. (R. 42.) Branch blocks were not effective. (R. 51.) She also noticed
cognitive difficulties and memory loss. (R. 41.) In addition to the Botox injections,

2

The Social Security Administrative Record (“R.”) is available at Doc. No. 11.
2

she took Duloxetine for depression, anxiety, and pain. (R. 44.)
Plaintiff testified that she needed to rest constantly throughout the day and could
fold only half a load of laundry before needing a break. (R. 41.) She could occasionally
drive to the pharmacy and shop with her husband. (R. 47-48.)
After Plaintiff testified, the ALJ asked Ms. Zilka to consider a hypothetical
individual of Plaintiff’s age and education, with past work as an administrative clerk, and
the following limitations: lifting and carrying 50 pounds occasionally and 25 pounds
frequently; sitting, standing, and walking limited to 6 hours in an 8-hour workday;
pushing and pulling limited to 50 pounds occasionally and 25 pounds frequently;
occasional climbing of ladders, ropes, or scaffolds; no exposure to unprotected heights or
moving mechanical parts; occasionally operating of a motor vehicle; no exposure to
extreme cold, extreme heat, or vibration; no more than moderate noise levels; simple,
routine, repetitive tasks; making simple, work-related decisions; occasionally interacting
with supervisors; and occasionally interacting briefly and superficially with coworkers
and the general public. (R. 54-55.) Ms. Zilka testified that such a person could not
perform Plaintiff’s past work, but could work as a dry cleaner helper, tag stubber, or
cleaner. (R. 55-56.)
The ALJ issued an unfavorable decision on March 22, 2017. (R. 16-26.) Pursuant
to the five-step sequential evaluation procedure outlined in 20 C.F.R. § 404.1520(a), the
ALJ first determined that Plaintiff had not engaged in substantial gainful activity since
December 22, 2014. (R. 18.) At step two, the ALJ determined that Plaintiff had severe
impairments of chronic neck pain with associated headaches and migraines, degenerative
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disc disease of the cervical and thoracic spine, major depressive disorder, anxiety
disorder, and obstructive sleep apnea. (R. 18.) The ALJ found at the third step that no
impairment or combination of impairments met or medically equaled the severity of an
impairment listed in 20 C.F.R. part 404, subpart P, appendix 1. (R. 18.)
At step four, the ALJ determined that Plaintiff had the residual functional capacity
(“RFC”) 3
to perform medium work as defined in 20 CFR 404.1567(c) [sic] (lift/carry,
push/pull up to 50 pounds occasionally and 25 pounds frequently; sit for
about 6 hours, and stand/walk for about 6 hours total in an 8-hour workday)
except the claimant is limited to occasional climbing of ladders, ropes, or
scaffolds, can never work at unprotected heights or around moving
mechanical parts, is limited to occasional operation of a motor vehicle, and
should never work in extreme cold, extreme heat, or vibration. The
claimant can work in moderate noise. She is limited to simple, routine,
repetitive tasks with simple work-related decisions. She is limited to
occasional, brief and superficial contact with coworkers, supervisors, and
the public . . . .
(R. 21.) At step four, the ALJ determined that Plaintiff was not able to perform her past
relevant work as an administrative clerk. (R. 24.) At step five, however, the ALJ found
that Plaintiff could work as a dry cleaner helper, tag stubber, or cleaner. (R. 25.)
Therefore, Plaintiff was deemed “not disabled.”
Plaintiff sought review by the Appeals Council, which denied her request. (R. 1.)
The ALJ’s decision therefore became the final decision of the Commissioner. (R. 1.)

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An RFC assessment measures the most a person can do, despite her limitations.
20 C.F.R. § 404.1545(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).
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Plaintiff then commenced this action for judicial review. She contends the ALJ erred by
(1) failing to account fully for symptoms associated with her migraines and headaches;
(2) not addressing the opinion of her treating physician, Dr. Michael Ulrich; (3) not
addressing limitations opined by an examining neuropsychologist, Dr. Jackie L.
Micklewright; and (4) failing to consider her work history in assessing her credibility.
(Pl.’s Mem. Supp. Mot. Summ. J. at 1 [Doc. No. 16].)
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.
II.

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
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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). The claimant must establish that he or 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 disability, not just the impairment, must have lasted or be expected
to last at least twelve months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
III.

Discussion
A.

The ALJ’s Evaluation of Plaintiff’s Subjective Symptoms

It is well-established that an ALJ must consider several factors in evaluating a
claimant’s subjective symptoms, in addition to whether the symptoms are consistent with
the objective medical evidence. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984);
see also Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029, at *2 (S.S.A. Mar.
16, 2016). These factors include the claimant’s daily activities; work history; intensity,
duration, and frequency of symptoms; side effects and efficacy of medications; triggering
and aggravating factors; and functional restrictions. Polaski, 739 F.2d at 1322; SSR 163p, 2016 WL 1119029, at *5. The ALJ need not explicitly discuss each factor, Goff v.
Barnhart, 421 F.3d 785, 791 (8th Cir. 2005), however, and a court should defer to the
ALJ’s findings when the ALJ expressly discredits the claimant and provides good reasons
for doing so, Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990).
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Here, the ALJ determined that the intensity, persistence, and limiting effects of
Plaintiff’s symptoms were not as severe as she claimed. (R. 21.) The ALJ cited to
20 C.F.R. § 404.1529, which sets forth factors similar to those in Polaski and SSR 16-3p,
including a claimant’s prior work record, but the ALJ did not specifically mention or
discuss Plaintiff’s prior work record. In fact, the ALJ did not explicitly discuss any factor
other than the objective medical evidence in evaluating Plaintiff’s symptoms at step four
of the sequential evaluation. (R. 21-22.) The extent of the ALJ’s substantive discussion
of the relevant factors was: “Objective and clinical findings were generally minimal and
the claimant was capable of more than alleged.” (R. 22.) The ALJ then proceeded to
weigh the opinions of medical sources.
Granted, Plaintiff does not challenge the entirety of the ALJ’s evaluation of her
symptoms; she argues only that the ALJ failed to consider her prior work record.
Ordinarily, an ALJ’s omission of this (or any) factor, alone, would not constitute grounds
for remand. But here, where the ALJ did not address at step four any factor other than
the objective medical evidence in his evaluation of Plaintiff’s statements, the Court
believes that the ALJ’s failure to consider Plaintiff’s prior work record warrants remand.
See SSR 16-3p (“[W]e will not disregard an individual’s statements about the intensity,
persistence, and limiting effects of symptoms solely because the objective medical
evidence does not substantiate the degree of impairment-related symptoms alleged by the
individual.”); cf. Roberson v. Astrue, 481 F.3d 1020, 1025-26 (8th Cir. 2007).
In Roberson, a case actually cited by the Commissioner here, the plaintiff also
argued that the ALJ erred by not considering her favorable work history. Id. at 1025.
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The court advised that “[i]t might have been better if the ALJ had referred specifically to
Ms. Roberson’s work record,” but reasoned “that the portions of the record that he
referred to were sufficient to support his credibility determination.” Id. at 1025-26.
Here, however, the ALJ did not refer to other, supporting portions of the record in his
evaluation of Plaintiff’s symptoms. Thus, not only is Roberson distinguishable from the
present case for the position advanced by the Commissioner, but it lends support to the
conclusion that where an ALJ does not consider any factor other than the objective
medical evidence, the ALJ’s failure to consider a claimant’s prior work record (or any
factor) warrants remand.
In addition, though the Commissioner contends that “[t]he ALJ discussed several
relevant factors in his credibility analysis”—specifically, the effectiveness of Botox
injections and Plaintiff’s daily activities (Def.’s Mem. Supp. Mot. Summ. J. at 24)—the
discussion of daily activities actually occurred at step three, as part of the ALJ’s
consideration of whether Plaintiff’s mental impairments met or medically equaled two
listed impairments. (R. 19-20.) The ALJ did not incorporate that step three discussion of
daily activities into his evaluation of Plaintiff’s statements at step four, other than making
a generalized reference to “reasons explained in this decision.” Nor did the ALJ
otherwise explain how his findings at step three detracted from Plaintiff’s statements at
step four. As to the effectiveness of Botox injections, the ALJ noted in his recitation of
the objective medical evidence that Botox injections had been helpful in the past, “but not
as much currently,” and equivocally concluded that the record both “support[ed] the
claimant’s headaches” and “support[ed] that the Botox injections are helpful.” (R. 23.)
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Thus, though the ALJ may have discussed the Botox injections in the context of the
objective medical evidence, the discussion does not support a finding that the efficacy of
Botox was inconsistent with the severity of Plaintiff’s claimed symptoms.
Consequently, in light of the above errors, the Court will reverse the ALJ’s
decision and remand the matter for a proper evaluation of Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of her symptoms. On remand,
the ALJ should not feel constrained to consider only Plaintiff’s prior work history, but
should engage in a more robust analysis of all the relevant factors.
B.

Plaintiff’s Migraines

Plaintiff argues that the ALJ failed to account for all of the effects of her
migraines, specifically, sensitivity to light, her inability to stay on task and need to lie
down until the migraines subsided, and other symptoms that were exacerbated when the
effectiveness of the Botox injections waned. (Pl.’s Mem. Supp. Mot. Summ. J. at 9.)
Plaintiff takes issue with the ALJ’s statement that he accounted for the effects of her
migraines by limiting her to routine, repetitive tasks, with other environmental
restrictions such as no exposure to extreme cold, extreme heat, or vibration.
The ALJ recounted Plaintiff’s testimony that she was not able to work in part due
to headaches, that her headaches were aggravated by bright light and computer work, that
she had five to six migraines a month, that she needed to lie down in complete darkness
when she had a migraine, that she did not do anything on days she had a migraine, and
that Botox took the edge off her headaches but was not effective for the full three months
between appointments. (R. 20, 22.) The ALJ identified supporting medical evidence that
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Plaintiff had mild difficulties with attention and organization, needed additional time to
process information and complete tasks, and was moderately limited in concentration,
persistence, and pace. (R. 20.) The ALJ cited other medical evidence of reports of
headaches, normal neurologic exams, an “essentially negative” MRI, full and pain-free
range of motion in the cervical spine, and varying effectiveness of Botox. (R. 22-23.)
The ALJ found that the medical records “reflect minimal objective findings, though
[they] do support the claimant’s headaches.” (R. 23.) In light of evidence that Botox
injections had been “helpful,” however, the ALJ concluded that the medical records did
“not support limitations greater than those provided in the [RFC].” (R. 23.)
The ALJ gave great weight to the opinions of non-examining consultants who
opined that Plaintiff would be limited to routine, repetitive three-to-four step tasks and
moderately limited in concentration, persistence, and pace. (R. 23.) The ALJ gave
significant weight to Dr. Micklewright’s neuropsychological evaluation and examination
findings from January 2015, which documented “a great deal of physical pain that would
likely require accommodation” and “attentional fluctuations secondary to pain, stress,
nonrestorative sleep, and fatigue.” (R. 23.) Dr. Micklewright recommended that Plaintiff
allow herself extra time to complete tasks, not work under time constraints, take frequent
breaks to renew her concentration, and establish routines. (R. 23-24.)
The ALJ gave little weight to treatment notes from 2015, because they were based
largely on Plaintiff’s self-reports, inconsistent with PHQ-9 scores, and inconsistent with
the lack of specialized mental health treatment. (R. 24.) The ALJ remarked that Plaintiff
“did have headaches as noted above, but this is accommodated for by the limitations to
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routine, repetitive tasks, and by limiting the claimant to a medium level of exertion with
additional environmental restrictions.” (R. 24.)
The Court finds that the ALJ adequately accounted for Plaintiff’s inability to stay
on task in assessing her RFC, but the ALJ did not discuss and either account for or
discount her sensitivity to light, her professed need to lie down until her migraines
subsided, or how the variable effectiveness of Botox injections caused the severity and
limiting effects of her symptoms to wax and wane. Nor did the ALJ include in the RFC
any limitations that would accommodate these symptoms. The omission of an
accommodation for Plaintiff’s sensitivity to light is particularly glaring in view of the
ALJ’s restrictions from working in extreme temperatures, around vibration, or in more
than a moderately noisy environment.
Defendant argues that the ALJ properly omitted Plaintiff’s claimed effects of
migraines from the RFC because the ALJ found the severity of those symptoms
inconsistent with the evidence of record. As discussed in Part III.A, however, the ALJ’s
consideration of Plaintiff’s subjective symptoms was flawed. Moreover, the ALJ did not
specifically discuss or discount Plaintiff’s claimed sensitivity to light or need to lie down
until her migraines subsided, and the ALJ did not discount—but instead credited—
Plaintiff’s statement that the effectiveness of Botox fluctuated.
Relatedly, Defendant points out that the ALJ acknowledged that Plaintiff’s Botox
injections varied in effectiveness. The parties are in agreement on that point. But the
error occurred when the ALJ failed to complete the discussion and address Plaintiff’s
sensitivity to light, need to lie down, and any other symptoms caused by the waning
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efficacy of the Botox injections.
In sum, the Court finds the matter should be remanded for the ALJ to specifically
consider Plaintiff’s sensitivity to light, professed need to lie down until the migraines
subsided, and overall effectiveness of the Botox injections.
C.

The ALJ’s Consideration of Dr. Ulrich’s Opinions

Dr. Ulrich treated Plaintiff for headaches and other pain, and he offered several
opinions concerning Plaintiff’s ability to work. The ALJ did not discuss Dr. Ulrich’s
opinions at all.
The first opinion Plaintiff references was a statement by Dr. Ulrich on February 5,
2015, that Plaintiff was “unfit [for] work related to [headaches].” (Pl.’s Mem. Supp. Mot.
Summ. J. at 12; R. 333.) The ALJ was not required to give this statement any weight
“because it invades the province of the Commissioner to make the ultimate disability
determination.” See House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007); 20 C.F.R.
§ 404.1527(d) (instructing that opinions that a claimant is disabled, has a certain RFC, or
is subject to certain vocational factors are determinations reserved for the Commissioner).
Thus, the ALJ did not err in failing to discuss it.
On April 1, 2015, Dr. Ulrich opined:
I agree that she has significant disability and I do not feel that she is able to
continue working at this point as documented previously. She has profound
fatigue and pain as noted. In a given day she would have to stop and rest at
unpredictable times and would be unable [to] work at least 3 to 5 days out
of a month.
(R. 440) (emphasis added). Similarly, on October 1, 2015, Dr. Ulrich wrote:
Multiple trigger points and this is related to her chronic neck pain and
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dystonia. This also leads to headaches which have been very frustrating for
her. We did discuss disability issues in detail as well. I had forwarded
some documentation in support of that. Given her symptoms, I have
advised that she does not appear fit for work at this time and this continues.
Prognosis is poor for return to activity. In a 30-day period she would have
to call in unfit to work at least 4 to 5 times at the very least if she was able
to work in any capacity and in a given day she would have to stop and rest
at least 3 to 4 times in an unpredictable fashion.
(R. 500) (emphasis added).
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). Correspondingly, an ALJ
need not give controlling weight to an opinion that is not well-supported by clinical
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). The ALJ is not required to
explicitly discuss each and every factor, as long as he or she considers all the factors and
gives good reasons for the weight assigned. 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,
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2011 WL 1304909, at *10 (E.D. Mo. Mar. 31, 2011).
The ALJ did not evaluate Dr. Ulrich’s opinions as required by § 404.1527(c). (See
R. at 22-24.) The ALJ did not identify Dr. Ulrich as a treating provider, refer to Dr.
Ulrich by name, refer to the April or October 2015 opinions, or give any weight to those
opinions. The ALJ did cite to a 58-page exhibit that contained the October 2015 opinion,
but only as evidence of Plaintiff’s self-reports of pain and diagnoses of depression and
anxiety located elsewhere in that exhibit. (R. at 24 (referring to Exhibit 16F).) The ALJ
did not cite to the exhibit that contained the April 2015 opinion (labeled as Exhibit 11F in
the administrative proceeding) at all.
Defendant argues that although the ALJ did not specifically mention Dr. Ulrich by
name in his decision, the ALJ inherently rejected Dr. Ulrich’s opinion because the ALJ
rejected Plaintiff’s self-reports that she would need unpredicted breaks and time off work.
But the standard for rejecting a claimant’s subjective statements is not the same as the
standard for rejecting a treating physician’s opinion. Moreover, the portion of the
decision cited by Defendant refers to Exhibits 8F and 13F, not Exhibits 11F and 16F.
Not only do Exhibits 8F and 13F not contain Dr. Ulrich’s April and October 2015
opinions, but the ALJ characterized the evidence as Plaintiff’s self-reports, not as
opinions of a treating medical source.
There is no question that the ALJ did not identify Dr. Ulrich as a treating source,
nor did the ALJ consider whether Dr. Ulrich’s April and October 2015 opinions were
entitled to controlling weight or apply the § 404.1527(c) factors to those opinions. The
ALJ’s cursory statement that he “considered opinion evidence in accordance with the
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requirements of” § 404.1527 and applicable social security regulations (R. 21) is
insufficient to meet his statutory obligations in weighing evidence from a treating
medical source. Consequently, the matter must be remanded for consideration of
Dr. Ulrich’s April and October 2015 opinions.
D.

The ALJ’s Consideration of Dr. Micklewright’s Evaluation

Dr. Micklewright, a neurologist, examined Plaintiff on January 30, 2015, at the
request of Plaintiff’s pain management specialist. (R. 285-91.) Testing revealed average
verbal comprehension and perceptual reasoning intellectual abilities, borderline to low
average auditory attention and working memory, low average visual attention, low
average cognitive speed, low average working memory, normal visual scanning, normal
sequencing, normal set-shifting, normal motor speed, low average expressive language
abilities, low average phonemic fluency, average semantic fluency, average auditory
verbal learning abilities, normal retention and recall of information, average recognition
memory, normal visuospatial memory abilities, average mental flexibility and set
shifting, high average visual attention, high average sequential reasoning, high average
problem solving, extremely efficient problem-solving, and average fine motor speed.
(R. 288-89.) Dr. Micklewright found no objective evidence of memory impairment, but
found the evaluation “notable for fluctuating attention and cognitive speed and
processing accuracy.” (R. 289.) Otherwise, Plaintiff’s cognitive abilities were normal.
(R. 289.) Dr. Micklewright believed Plaintiff could return to work, but that Plaintiff
would need some accommodations at work, especially when she felt pain, stress, or
fatigue. (R. 290.) Dr. Micklewright suggested several “strategies” to “facilitate/optimize
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her functioning in daily life” such as making lists, allowing extra time to complete tasks,
posting reminder notes, using a daily planner, using a filing system, breaking down
information into small units, repeating information, putting items such as keys in the
same place, establishing routines, and not working “under extreme time constraints.”
(R. 290.) Dr. Micklewright also “encouraged” Plaintiff “to take frequent breaks to renew
her concentration.” (R. 290.)
The ALJ gave significant weight to Dr. Micklewright’s opinion because it was
supported by objective medical findings. (R. 24.) The ALJ described the opinion as
consistent with the limitations of the RFC, “which allows for routine and repetitive
settings.” (R. 24.)
Plaintiff characterizes the “strategies” suggested by Dr. Micklewright as functional
limitations that the ALJ should have incorporated expressly into the RFC. The Court
disagrees. The strategies Dr. Micklewright suggested were not the type of limitations
typically incorporated directly into an RFC assessment. Significantly, Dr. Micklewright
did not opine that Plaintiff could not work unless the strategies were implemented.
Rather, Dr. Micklewright suggested the strategies to “facilitate” and “optimize”
Plaintiff’s functioning not just at work, but in daily life in general.
Furthermore, an ALJ need not “mechanically list and reject every possible
limitation.” McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011). Here, the ALJ
adequately accounted for the “mild difficulties with attention and organization” (R. 290),
which underlay the strategies recommended by Dr. Micklewright, by limiting Plaintiff to
simple, routine, and repetitive tasks with simple work-related decisions. The Court finds
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that the ALJ did not err in his consideration of Dr. Micklewright’s opinion and that the
ALJ adequately accounted for the limitations that engendered the strategies
recommended by Dr. Micklewright in his assessment of Plaintiff’s RFC.
IV.

Recommendation
Based on all the files, records, and proceedings herein, IT IS HEREBY

ORDERED that:
1. Plaintiff Janelle T.’s Motion for Summary Judgment [Doc. No. 15] is GRANTED
IN PART and DENIED IN PART;
2. Commissioner Nancy A. Berryhill’s Motion for Summary Judgment [Doc. No. 21]
is GRANTED IN PART and DENIED IN PART;
3. The matter is REMANDED for (1) a proper evaluation of Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of Plaintiff’s symptoms,
including, but not limited to, prior work history; (2) reconsideration of Plaintiff’s
sensitivity to light, the relative ineffectiveness of Botox a few weeks before and a
few weeks after injections are administered, and Plaintiff’s professed need to lie
down until the migraines subside; and (3) consideration of Dr. Ulrich’s opinions.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: March 18, 2019

s/ Hildy Bowbeer
HILDY BOWBEER
United States Magistrate Judge

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