Pearson v. Astrue

Filing 24

MEMORANDUM AND ORDER - The Commissioner's decision is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ shall explain the evidentiary basis for his RFC assessment and any reasons for excluding a limit ation from that assessment, especially Pearson's workplace performance and motivation limitations. Judgment shall be entered by separate document providing that the decision of the Commissioner is reversed and remanded. Ordered by Judge Richard G. Kopf. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LISA M. PEARSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Defendant.

)
)
)
)
)
)
)
)
)

8:11CV83

MEMORANDUM
AND ORDER

In this social security appeal, plaintiff Lisa M. Pearson (“Pearson”) argues that
the Commissioner of Social Security committed reversible error in determining that
she is not entitled to disability insurance benefits. For the reasons discussed below,
the Commissioner’s decision is reversed and remanded.
A.

Background
On August 22, 2006, Pearson filed an application for disability insurance

benefits. (Tr. 16, 114-16.) In her application, Pearson alleged that she has been
disabled, and has not been able to perform substantial gainful activity, since August
11, 2006.1 (Tr. 16.) Pearson’s application was denied initially and on reconsideration.
(Tr. 16, 52-55.) On April 9, 2009, an administrative law judge (“ALJ”) issued a
decision finding that Pearson was not disabled under sections 216(i) and 223(d) of the
Social Security Act. (Tr. 16-27.) In his decision, the ALJ followed the five-step
sequential analysis prescribed by the Social Security Regulations to evaluate
Pearson’s disability claim.2 See 20 C.F.R. §§ 404.1520, 416.920. The ALJ found as
1

Pearson originally alleged that her disability onset date was December 1, 1998.
(Tr. 16.) However, through her attorney, Pearson amended her alleged onset date to
August 11, 2006. (Id.)
2

The Social Security Administration uses a five-step process to determine
whether a claimant is disabled. These steps are described as follows:

follows:
1.

The claimant meets the insured status requirements of the Social Security
Act through March 31, 2010.

2.

The claimant has not engaged in substantial gainful activity since August
11, 2006, the amended alleged onset date (20 CFR 404.1571 et seq.).

3.

The claimant has the following severe impairments: migraines and
depression (20 CFR 404.1521 et seq.).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525 and
404.1526).

At the first step, the claimant must establish that he has not engaged in
substantial gainful activity. The second step requires that the claimant
prove he has a severe impairment that significantly limits his physical or
mental ability to perform basic work activities. If, at the third step, the
claimant shows that his impairment meets or equals a presumptively
disabling impairment listed in the regulations, the analysis stops and the
claimant is automatically found disabled and is entitled to benefits. If the
claimant cannot carry this burden, however, step four requires that the
claimant prove he lacks the [residual functional capacity] to perform his
past relevant work. Finally, if the claimant establishes that he cannot
perform his past relevant work, the burden shifts to the Commissioner at
the fifth step to prove that there are other jobs in the national economy
that the claimant can perform.
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006).
2

5.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform a full
range of work at all exertional levels but with the following
nonexertional limitations: she would need a lower stress level job, such
as a level 4 with 10 being the most stressful; she should have no contact
with the general public and only limited contact with fellow workers;
and she can never work at heights or on ladders.

6.

The claimant is unable to perform any past relevant work (20 CFR
404.1565).

7.

The claimant was born on September 23, 1979 and is defined as a
younger individual on the amended alleged disability onset date (20 CFR
404.1563).

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).

9.

The claimant has acquired work skills from past relevant work (20 CFR
404.1568).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant has acquired work skills from past
relevant work that are transferable to other occupations with jobs
existing in significant numbers in the national economy (20 CFR
404.1569, 404.1569a and 404.1568(d)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from August 11, 2006 through the date of this decision (20
CFR 404.1520(g)).

3

(Tr. 16-27.) After the ALJ issued his decision, Pearson filed a timely request for a
review hearing with the Appeals Council of the Social Security Administration. (Tr.
12.) On January 5, 2011, the Appeals Council denied Pearson’s request for review.
(Tr. 1-4.) Thus, the ALJ’s decision stands as the final decision of the Commissioner
of Social Security.
B.

Standard of Review
A denial of benefits by the Commissioner is reviewed to determine whether

the denial is supported by substantial evidence on the record as a whole. Hogan v.
Apfel, 239 F.3d 958, 960 (8th Cir. 2001). “Substantial evidence” is less than a
preponderance, but enough that a reasonable mind would find it adequate to support
the Commissioner’s conclusion. Id. at 960-61; Prosch v. Apfel, 201 F.3d 1010, 1012
(8th Cir. 2000). Evidence that both supports and detracts from the Commissioner’s
decision must be considered, but the decision may not be reversed merely because
substantial evidence supports a contrary outcome. See Moad v. Massanari, 260 F.3d
887, 890 (8th Cir. 2001).
This court must also review the decision of the Commissioner to decide
whether the proper legal standard was applied in reaching the result. Smith v.
Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). Issues of law are reviewed de novo.
Olson v. Apfel, 170 F.3d 820, 822 (8th Cir. 1999); Boock v. Shalala, 48 F.3d 348, 351
n.2 (8th Cir. 1995).
C.

Medical History and Opinions
1.

Dr. Ruggle

In January 2005, and throughout 2006, 2007, and 2008, Paul Ruggle, M.D.,
provided primary healthcare services for Pearson. (Tr. 358-85, 469, 78-97.)

In

February 2005, Pearson visited Ruggle for depression and anxiety. (Tr. 372.) Ruggle
4

increased her Paxil dose and instructed her to stop smoking. (Id.) In June 2005,
Pearson visited Ruggle complaining of depressive symptoms. (Tr. 370.) Ruggle gave
Pearson medication for her symptoms and suggested that she make an appointment
with a psychiatrist. (Id.) At the end of July 2005, Pearson visited the emergency
room complaining of a migraine that had lasted four days. (Tr. 303.)
In early November 2005, Pearson visited Ruggle complaining of a sore throat
and “a little bit of headache.” (Tr. 367.) Ruggle determined that Pearson had a viral
infection, directed her to take Tylenol and suggested she continue good fluid intake.
(Id.) In late November 2005, Pearson visited Ruggle for a physical. (Tr. 366.)
Ruggle noted that Pearson had migraines and symptoms of anxiety and depression.
(Id.)
In mid-April 2006, Pearson visited Ruggle complaining of a right-sided
headache that had lasted 17 hours. (Tr. 364.) Ruggle provided Pearson with a
prescription and asked her to return in one month to follow up on her headaches. (Id.)
At the end of April 2006, Pearson visited the emergency room for a migraine
headache. (Tr. 304.) Pearson followed up with Ruggle a few days later. (Tr. 363.)
During the follow up, Ruggle discouraged Pearson from smoking and indicated that
her migraine medication seemed “to be working as she increase[d] the dose.” (Id.)
Pearson subsequently visited Ruggle for migraine headaches in late May, June, July,
August, September and December 2006. (Tr. 358-62, 489, 491) Ruggle continued
to advise Pearson to stop smoking. (See Tr. 358.)
Between January 2007 and April 2008, Pearson visited Ruggle’s office for
healthcare services numerous times. (Tr. 469-91.) In March 2007, Pearson visited
Ruggle complaining of migraines, sleep problems and fatigue. (Tr. 483.) Ruggle
noted that Pearson was still smoking and that she argued that she could not afford
smoking cessation medication. (Id.) Ruggle informed Pearson that if she could afford
cigarettes, she could afford smoking cessation medication. (Id.) In February 2008,
Pearson underwent a computed tomography (“CT”) scan. (Tr. 480.) The CT scan
5

revealed two nonspecific calcified densities, but was otherwise negative, and revealed
no findings to explain Pearson’s headaches. (Id.)
On March 10, 2008, Ruggle completed a “Headaches Residual Functional
Capacity Questionnaire.” (Tr. 461-65.) In this questionnaire, Ruggle listed Pearson’s
diagnoses as migraine headaches and depression. (Tr. 461.) Ruggle described the
frequency of Pearson’s headaches as “weekly.” (Tr.462.) He also indicated that
Pearson would need to take an unscheduled break from an eight-hour work day once
a month, and that she would be absent from work as a result of her impairments once
a month. (Tr. 464-65.) Overall, Ruggle thought Pearson’s prognosis was “good,” and
that she could perform low-stress jobs. (Tr. 463-64.)
2.

Dr. Koenen

Between December 2005 and August 2006, Pearson visited Dr. Jay A. Koenen,
at Koenen Chiropractic, for back pain on numerous occasions. (Tr. 308-37.) During
several of her visits, Dr. Koenen noted Pearson’s headache complaints and indicated
that her “[c]omplicating problems include[d]: cephalgia/headache.” (See Tr. 310-13,
324-25, 327, 337-38, 340, 344, 346, 349, 351, 354).
3.

Dr. Martin

In October 2006, Richard A. Martin, Ph.D., examined Pearson’s mental status.
(Tr. 387-90.) During the examination, Pearson reported that she was attending
community college and taking courses in accounting. (Tr. 387.) Pearson said she was
able to complete all self-care tasks independently and listed her household chores as
“cleaning, dishes, laundry, take care of kids.” (Tr. 389.) Martin provided the
following impressions/recommendations:
Ms. [Pearson] appears to possess the cognitive abilities required to work
within a wide range of simple unskilled vocational situations. She
appears capable of understanding simple instructions and procedures. On
6

the surface, her concentration/attention and memory abilities appear
adequate for most simplified vocational situations; however, these
abilities are likely to vary depending on her overall emotional
functioning. Overall, results of this evaluation indicate that her judgment
abilities, particularly within social situations, are generally intact. Given
her ongoing depression and migraine headache complaints, she appears
likely to experience occasional problems with workplace performance
and motivation. In general, she appears to have adequate social skills to
appropriately handle interactions with supervisors, co-workers, and the
public.
(Id.) Martin indicated that Pearson appeared to meet the criteria diagnoses of major
depressive disorder, recurrent. (Tr. 389-90.)
4.

Dr. Lovell

On December 11, 2006, Rhonda Lovell, Ph.D., filled out a “Psychiatric Review
Technique” and a Mental Residual Functional Capacity Assessment (“RFCA”)
regarding Pearson. (Tr. 401-14.) Lovell indicated that Pearson was suffering from
depressive syndrome characterized by anhedonia or pervasive loss of interest in
almost all activities, sleep disturbance, psychomotor agitation or retardation,
decreased energy, and difficulty concentrating or thinking. (Tr. 404.) In the Mental
RFCA, Lovell indicated that Pearson’s ability to maintain attention and concentration
for extended periods, and her ability to perform activities within a schedule, were
moderately limited. (Tr. 415.)
5.

Dr. Kakade

In January 2007, Neeraja Kakade, M.D., performed a psychiatric evaluation on
Pearson. (Tr. 425-27.) Kakade diagnosed Pearson with a dysthymic disorder and
borderline personality disorder.

(Tr. 426.)

Kakade ruled out recurrent major

depressive disorder. (Id.) Kakade discussed her findings, diagnoses and treatment
with Pearson and noted that Pearson would undergo psychotherapy. (Tr. 427.)
7

Pearson subsequently attended two counseling appointments, but she failed to attend
a third appointment on March 9, 2007. (Tr. 432-34.)
6.

Dr. Garfield

On May 22, 2007, John Garfield, Ph.D., completed a “Psychiatric Review
Technique” and a Mental RFCA on Pearson. (Tr. 438-55.) Like Lovell, Garfield
indicated that Pearson was suffering from depressive syndrome characterized by
anhedonia or pervasive loss of interest in almost all activities, sleep disturbance,
psychomotor agitation or retardation, decreased energy, and difficulty concentrating
or thinking. (Tr. 441.) And, like Lovell, Garfield’s Mental RFCA of Pearson
indicated that her ability to maintain attention and concentration for extended periods,
and her ability to perform activities within a schedule, were moderately limited. (Tr.
452.)
7.

Cindy Goshorn

In March 2008, Pearson visited Nurse Practitioner Cindy Goshorn for a
psychiatric follow-up.

(Tr. 468.)

At the follow-up, Pearson reported that her

depression was ongoing, but with the addition of medication at bedtime, she was
sleeping better. (Id.) Goshorn diagnosed Pearson with dysthymia disorder and
borderline personality disorder. (Id.)
D.

Administrative History
On January 29, 2009, the ALJ held a hearing regarding Pearson’s claim for

disability. (Tr. 28-51.) At the hearing, Pearson testified that she was 29 years old and
had completed some college.

(Tr 32-33.)

Pearson stated that she lived in an

apartment with her husband and five-year-old son. (Tr. 33-34.) Pearson was not
currently working, but she had worked as a dietary aide for “Carriage of Newton”in
2006 and USA Healthcare in 2007. (Tr. 34-35.) Pearson said she quit working at
8

“Carriage of Newton” because she had a migraine and she was going to be written up.
(Tr. 35.) She stated she was fired from USA Healthcare because of a conflict with a
coworker. (Id.) Although Pearson indicated that her migraine medication worked
“most of the time,” she also stated she had migraines about “once a week.” (Tr. 3637.) Pearson said she was no longer able to work because she suffered from severe
migraines and depression. (Tr. 36-37, 39.)
After Pearson’s testimony, the ALJ asked vocational expert Julie Speck
(“Speck”) if a hypothetical person with Pearson’s age, education and work experience
could perform Pearson’s past relevant work. (Tr. 46-47.) This hypothetical individual
would have no exertional limitations, but would need a lower-stress level job, such as
the level of four with 10 being the most stressful and one being the least stressful. (Tr.
47.) The individual would require a job with no contact with the general public and
limited contact with fellow coworkers. (Id.) The individual could not work around
heights or on ladders. (Id.) Speck answered, stating that this hypothetical individual
could not perform Pearson’s past relevant work. (Id.) However, Speck testified that
the hypothetical individual’s clerical skills and ability to use the computer would be
transferrable, and therefore, the hypothetical individual could perform work as a gate
guard (Dictionary of Occupational Titles (“DOT”) 372667030), order filler (DOT
222487014) or file clerk (DOT 206387034). (Id.) The ALJ then asked if the
hypothetical individual could perform any unskilled work. (Id.) Speck stated the
hypothetical individual could perform work as a pricer or a tagger (DOT 229587018),
a folder (DOT 3687018), or a sterilization clerk (DOT 599685018). (Tr. 48.)
When the ALJ finished questioning Speck, he asked Pearson’s attorney if he
had “any additional hypotheticals or questions.” (Tr. 49.) Pearson’s attorney said yes
and asked Speck the following hypothetical question:
We’re going to do a third hypothetical with the same age, education, past
relevant work experience, and I’m basing this on the statement of the
consulting examiner to define that. I’ll read his quote, and then I’m going
to provide some definition for it. He said, “The individual would
9

occasionally have problems with workplace performance,” and to
provide a little specification of that, occasional defined by Social
Security, would be one-third of the time the individual’s performance at
their job would not be satisfactory. With that as a hypothetical, could
they do past relevant work?
(Tr. 49.) Speck responded, “No, she could not.” (Id.) The lawyer then asked whether
the individual could perform “other jobs” if the same limitations applied, and Speck
responded: “It would not be possible.” (Tr. 50.)
E.

Discussion
In her appeal brief, Pearson argues that the ALJ erred in denying her disability

claims because he (1) erred in determining that Pearson’s statements concerning the
intensity, persistence, and limiting effects of her symptoms were not credible to the
extent that they were inconsistent with his RFC assessment, (2) failed to consider
Pearson’s husband’s third-party statement, (3) failed to include all of Pearson’s
limitations in his RFC assessment, (4) erred in relying on vocational testimony that
was inconsistent with the DOT, and (5) erred at step five of the sequential evaluation
process. (Filing 14 at CM/ECF pp. 1-27.) Defendant contends that substantial
evidence on the record as a whole supports the Commissioner’s decision. (Filing 15
at CM/ECF pp. 1-23.) The court will explore Pearson’s arguments in turn.
1.

Credibility

First, Pearson argues that the ALJ erred in determining that Pearson’s
statements concerning the intensity, persistence , and limiting effects of her symptoms
were not credible to the extent that they were inconsistent with his RFC assessment.
(Filing 14 at CM/ECF pp. 12-14.) To evaluate whether the ALJ erred in discounting
Pearson’s testimony, this court follows the standard set forth in Polaski v. Heckler,
739 F.2d 1320 (8th Cir. 1984). In Polaski, the Eighth Circuit held that the ALJ must
consider “the claimant’s prior work history; daily activities; duration, frequency, and
intensity of pain; dosage, effectiveness and side effects of medication; precipitating
10

and aggravating factors; and functional restrictions.” Medhaug v. Astrue, 578 F.3d
805, 816 (8th Cir. 2009) (citing Polaski, 739 F.2d at 1322). An ALJ is not required
to discuss each “Polaski factor,” as long as the ALJ “acknowledges and considers the
factors before discounting a claimant’s subjective complaints.” Halverson v. Astrue,
600 F.3d 922, 932 (8th Cir. 2010) (quoting Moore v. Astrue, 572 F.3d 520, 524 (8th
Cir. 2009)). If an ALJ explicitly discredits the claimant’s testimony and gives good
reason for doing so, courts will normally defer to the ALJ’s credibility determination.
Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008).
In making his RFC determination the ALJ specifically stated that he:
[C]onsidered all symptoms and the extent to which these symptoms can
reasonably be accepted as consistent with the objective medical evidence
and other evidence, based on the requirements of 20 CFR 404.1529
(incorporating and expanding upon Polaski v. Heckler, 739 F.2d 1320
(8th Cir. 1984)) and SSRs 96-4p and 96-7p.
(Tr. 21.) In addition, the ALJ considered opinion evidence “in accordance with the
requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” (Id.)
After discussing opinion evidence from Martin, Wilson, Lovell, Kakade and Ruggle,
the ALJ considered the Polaski factors and assessed Pearson’s allegations. (Tr. 2125.) The ALJ then concluded that Pearson’s daily activities “were not limited to the
extent one would expect, given [her] complaints of disabling symptoms and
limitations.” (Tr. 24.) In doing so, the ALJ noted that Pearson could take care of her
children (with the help of her husband when needed), care for herself, cook complete
meals two to three times per week, clean, do laundry, go to the grocery store, talk to
her sister on the phone, communicate by email and play computer games. (Id.) The
Eighth Circuit has held that acts which are inconsistent with a claimant’s assertion of
disability reflect negatively upon that claimant’s credibility. Heino v. Astrue, 578
F.3d 873, 881 (8th Cir. 2009).

11

The ALJ also noted Pearson’s failure to show up for several doctors
appointments and her failure to follow Ruggle’s repeated recommendation to quit
smoking. (Tr. 24-25, 358, 359, 363, 432, 469-70, 482-83, 489, 471, 497.) “A failure
to follow a recommended course of treatment weighs against a claimant’s credibility.”
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005); see also Choate v.
Barnhart, 457 F.3d 865, 872 (8th Cir. 2006) (stating an ALJ may consider a
claimant’s failure to follow a treating physician’s direction to quit smoking when
evaluating a claimant’s credibility).
Reading the ALJ’s opinion as a whole, the court finds that the ALJ considered
the Polaski factors and provided a reasonable explanation for discounting Pearson’s
testimony. As such, this court defers to the ALJ’s credibility determination.
2.

Failed to Consider Third-Party Statement

Second, Pearson argues that the ALJ failed to consider her husband’s third party
statement. (Filing 14 at CM/ECF pp. 15-18.) This claims lacks merit. The ALJ
specifically discussed Mr. Pearson’s statement at step three of the sequential
evaluation, stating:
The claimant’s husband indicated that she does not take care of the
children very often, but will if she has to such as when he cannot be
home. . . . The claimant’s husband reported that the claimant wears
sweatpants all the time, does not take a shower every day, does not do
anything with her hair, does not shave very often, and does not cook
much but will eat when he cooks. . . . The claimant’s husband reported
that she will put away clean laundry and she will go to the grocery store
to purchase food and household goods. . . . The claimant’s husband
reported that the claimant does not do anything and she does not leave
the house or have any friends. . . . The claimant’s husband indicated the
claimant cannot pay attention for very long.

12

(Tr. 19.) Indeed, most of this testimony is discredited by the same evidence that
discredits Pearson’s testimony. See supra Part E.1. Thus, even though the ALJ failed
to specifically discredit Mr. Pearson’s testimony, this deficiency in opinion-writing
technique had no bearing on the outcome of Pearson’s case. See, e.g, Buckner v.
Astrue, 646 F.3d 549, 560 (8th Cir. 2011) (concluding ALJ did not err by failing to
address a third party’s statement where the same evidence that the ALJ referred to in
discrediting the claimant’s testimony also discredits the third party’s statement);
Lorenzen v. Chater, 71 F.3d 316, 319 (8th Cir. 1995) (affirming the ALJ because “it
is evident that most of [the third party’s] testimony concerning [the claimant’s]
capabilities was discredited by the same evidence that discredits [the claimant’s] own
testimony concerning his limitations.”); Robinson v. Sullivan, 956 F.2d 836, 841 (8th
Cir. 1992) (concluding arguable deficiency of failing to specifically discredit witness
has no bearing on outcome when the witness’s testimony is discredited by the same
evidence that proves claimant’s claims not credible).
3.

Failure to Include Limitations in RFC

Third, Pearson argues that the ALJ erred by failing to include all of Pearson’s
limitations in his RFC assessment.

(Filing 14 at CM/ECF pp. 18-21.)

More

specifically, Pearson argues that despite assigning “significant weight” to Martin’s
opinion, the ALJ omitted Martin’s conclusions that (a) Pearson is capable of “simple,
unskilled work” with the ability to understand and follow “simple instructions and
procedures” and (b) that, due to her depression, Pearson would occasionally have
problems with workplace performance and motivation. (Id.; Tr. 389.) The court will
address the impact of these omissions in turn.
a.

Simple, Unskilled Work

“ALJs bear the primary responsibility for assessing a claimant’s residual
functional capacity based on all relevant evidence.” Wildman v. Astrue, 596 F.3d 959,
969 (8th Cir. 2010). Here, the ALJ gave Martin’s opinion “significant weight” and
13

did not discredit it. (Tr. 22.) In Martin’s opinion, Pearson possessed “the cognitive
abilities required to work within a wide range of simple unskilled vocational
situations” and appeared “capable of understanding simple instructions and
procedures.” (Tr. 389.) Pearson argues that the ALJ’s RFC finding should have
included both an “unskilled” and a “simple” work limitation. (Filing 14 at CM/ECF
pp. 18-21.)
Although the ALJ did not include an unskilled work limitation in his RFC
assessment, he did address unskilled work in his hypothetical questions to the
vocational expert. (Tr. 47-48.) When asked whether a hypothetical individual with
Pearson’s age, education and work experience could perform “unskilled work,” the
vocational expert testified that the individual could perform “unskilled work” as a
pricer or a tagger (DOT 229587018), a folder (DOT 3687018), or a sterilization clerk
(DOT 599685018). (Id.) In light of this, the ALJ’s failure to include an “unskilled
work” limitation in his RFC determination was harmless. See, e.g., McAnally v.
Astrue, 241 Fed. Appx. 515, 519 (10th Cir. 2007) (concluding that ALJ’s failure to
include certain limitations in the RFC was harmless where the vocational expert
testified that such limitations would not change the result).
Separately, substantial evidence on the record as a whole supports the ALJ’s
decision to exclude a “simple” work limitation from his RFC assessment.

As

discussed above, Martin’s opinion indicated that Pearson was “capable of
understanding simple instructions and procedures.” (Tr. 389.) The record also
includes Mental RFCAs performed by Lovell and Garfield. (Tr. 415, 452.) These
Mental RFCAs indicate that Pearson had the “ability to carry out detailed
instructions.” (Id.) The ALJ gave Martin, Lovell and Garfield’s opinions either
“significant” or “great” weight, and when read together, these opinions are consistent
with respect to Pearson’s ability to understand instructions. (Tr. 22, 25.) Stated
another way, Martin’s opinion that Pearson is “capable of understanding simple
instructions and procedures” does not mean Pearson is incapable of carrying out
detailed instructions.
14

b.

Workplace Performance and Motivation

In contrast to the omissions above, the ALJ’s omission of Pearson’s workplace
performance and motivation limitations require a remand. Martin’s opinion indicates
that Pearson would occasionally have problems with workplace performance and
motivation because of her depression. (Tr. 389.) This opinion is further supported by
the Mental RFCAs performed by Lovell and Garfield, which show that Pearson was
moderately limited in her ability to “maintain attention and concentration for extended
periods,” “perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances.” (Tr. 415, 452.) Again, the ALJ assigned these
opinions either “significant” or “great” weight, and did not reject or discredit them.
(Tr. 22, 25.) Thus, it is unclear why the ALJ adopted some of the limitations
addressed in these opinions and not others. Although an ALJ is not required to
explain all the evidence in the record, he is not entitled to pick and choose only those
parts of the record that are favorable to a finding of nondisability. Taylor v. Barnhart,
333 F. Supp. 2d 846, 856 (8th Cir. 2004); see also Confere v. Astrue, 235 Fed. Appx.
701, 704 (10th Cir. 2007) (“An ALJ is not entitled to pick through an uncontradicted
medical opinion, taking only the parts that are favorable to a finding of
nondisability.”); Switzer v. Heckler, 742 F.2d 382, 385–86 (7th Cir. 1984) (stating an
ALJ cannot “pick and choose” only the evidence that supports his position). Had the
ALJ included Pearson’s mental limitations, his disability determination may have been
different. After all, the vocational expert testified that an individual with Pearson’s
age, education and work experience, who also had occasional problems with
workplace performance, could not perform Pearson’s past relevant work or any other
work. (Tr. 49-50.)
In short, the ALJ’s RFC fails to capture the nuances of Pearson’s mental
limitations as assessed by Martin, Lovell and Garfield. Because the ALJ gave these
opinions “significant” or “great” weight, and because the vocational expert testified
that Pearson would not be able to work if she had occasional problems with workplace
performance, the court will remand. On remand, the ALJ shall explain the evidentiary
15

basis for his RFC assessment and any reasons for excluding a limitation from that
assessment.
4.

Remaining Arguments

Pearson also argues that the ALJ erred in relying on vocational testimony that
was inconsistent with the DOT, and erred at step five of the sequential evaluation
process. (Filing 14 at CM/ECF pp. 22-26.) Because the court is remanding this
matter to the ALJ for further consideration of Pearson’s limitations, the ALJ’s
hypothetical question and analysis may change. Therefore, the court declines to
address Pearson’s remaining arguments.
IT IS ORDERED that:
1.

The Commissioner’s decision is reversed and remanded pursuant to

sentence four of 42 U.S.C. § 405(g).

On remand, the ALJ shall explain the

evidentiary basis for his RFC assessment and any reasons for excluding a limitation
from that assessment, especially Pearson’s workplace performance and motivation
limitations.
2.

Judgment shall be entered by separate document providing that the

decision of the Commissioner is reversed and remanded.

16

DATED this 28 th day of October, 2011.
BY THE COURT:
s/Richard G. Kopf
United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
approve, or guarantee any third parties or the services or products they provide on
their Web sites. Likewise, the court has no agreements with any of these third parties
or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
17