Ham v. Astrue

Filing 24

MEMORANDUM AND ORDER - IT IS ORDERED: 1. The Commissioner's decision is affirmed. 2. Ham's complaint is dismissed. 3. The parties shall bear their own costs. 4. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN ARTHUR HAM,
Plaintiff,

8:12-CV-209

vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court on the denial, initially and upon
reconsideration, of plaintiff John Arthur Ham's disability insurance benefits
under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq.
and 1381 et seq. The Court has considered the parties' filings and the
administrative record, and affirms the Commissioner's decision to deny
benefits.
I. PROCEDURAL HISTORY
Ham filed applications for disability insurance benefits and
supplemental security income in March 2010, alleging disability beginning on
September 30, 2009. T138-49. Ham's claims were denied initially and on
reconsideration. T66-69; T74-79. Following a May 18, 2011 hearing, the
administrative law judge (ALJ) found, in a decision dated June 9, 2011, that
Ham was not disabled as defined under 42 U.S.C. §§ 416(i), 423(d), or
1382(a)(3)(A), and therefore not entitled to disability benefits. T24. The ALJ
determined that, although Ham suffered from several severe impairments,
and could no longer perform his past relevant work, he had the residual
functional capacity to perform other jobs that exist in significant numbers in
the national economy. T14-24. The Appeals Council of the Social Security
Administration considered additional evidence that had been submitted by
Ham, but nonetheless denied Ham's request for review of the ALJ's decision.
T4-7. Ham's complaint seeks review of the ALJ's decision as the final decision
of the Commissioner under sentence four of 42 U.S.C. § 405(g). Filing 1.

II. FACTUAL BACKGROUND
1. MEDICAL HISTORY
Ham's medical history is extensive: the record contains notes from
Ham's primary care physician, George Hutfless, M.D., that go back as far as
1997. But for the most part, his complaints are consistent, and can be
generally summarized. Ham was first diagnosed with exogenous obesity in
1997. T293. Ham's treatment records reflect an ongoing struggle with
obesity, and hypertension has also been a chronic problem. E.g. T279-93.
Hutfless diagnosed sleep apnea in 2005, and first diagnosed symptoms of
depression in 2007. T282, T279. Ham also complained of joint pain, and
arthritis was later observed. T284, T266-269, T295. By 2009, Ham was
seeking bariatric surgery to address his obesity, which had progressed to
morbidity. T266-69. Hutfless continued to treat Ham for various conditions,
including obesity and depression. E.g. T295-98.
By 2010, Ham was seeing Hutfless regularly for chronic pain and
arthritis, sleep apnea, depression, and obesity. T351-54. An MRI in 2010
suggested spondylolisthesis. T312. A consultation with a pulmonologist also
suggested sleep apnea and hypoxemia. T330. Ham underwent gastric bypass
surgery in May 2010. T334.
In connection with Ham's application for disability benefits, a
psychological interview was performed in June 2010 by Jane Warren, Ph.D.
T371. Ham told Warren he began taking an antidepressant (prescribed by
Hutfless) about 3 years earlier, when his parents were having health
problems. T375. Ham reported "that he has never been suicidal and has
never experienced auditory or visual hallucinations." T375. Warren wrote:
[Ham] states that his depression primarily takes the form of his
negative attitude towards other people. He states that he feels
like nobody cares about him and the whole world is often against
him. He feels like bad things have always happened in his life
and he prefers to be alone much of the time. [Ham] describes his
depression as "just being down in the dumps most of the time."
He states that the medication has been slightly helpful, but that
the loss of both of his parents was significant and it has been
difficult to not be able to work.
T375. Warren diagnosed Ham with major depressive disorder, single episode,
mild. T377. She observed "[m]ild clinical depression symptoms in past 2-3
years." T372. Warren opined:

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[Ham] does not appear to have any restriction of activities of
daily living or difficulties in maintaining social functioning. He
endorses symptoms of mild clinical depression that he has
experienced over the past two to three years. These symptoms
appear to be related to the death of both of his parents and
worsening physical health problems.
[Ham] appears able to sustain concentration and attention
needed for task completion. He appears able to understand and
remember short and simple instructions and to carry them out.
He appears able to relate appropriately to coworkers and
supervisors and to adapt to change in his environment.
T377. Warren concluded: "The prognosis for this man appears to be positive.
His antidepressant medication appears to keep his symptoms at a minimum."
T377. Warren estimated that Ham's global assessment of functioning (GAF)
was 60-70.1
In July 2010, Patricia Newman, Ph.D., performed a psychiatric review.
T379. Newman found that Ham had a mood disorder secondary to morbid
obesity that caused mild difficulties in maintaining concentration,
persistence, or pace; but no restriction of activities of daily living or repeated
episodes of decompensation.2 T382; T389. Newman concluded: "[Ham] has
history of treatment for his conditions. He has no history of hospitalizations.
His symptoms appear to be mild with continued medication compliance.
Considering the overall evidence the claimant's mental health condition is
found to be non-severe." T391. A subsequent psychiatric review, conducted by
Christopher Milne, Ph.D., reaffirmed Newman's findings. T415.
Jerry Reed, M.D., performed an assessment of Ham's physical residual
functional capacity (RFC) in July 2010. T401. Reed found that Ham could
A GAF is "the clinician's judgment of the individual's overall level of functioning," not
including impairments due to physical or environmental limitations. See American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.
2000) (hereinafter, "DSM-IV-TR"). A GAF score of 51–60 indicates some mild symptoms; or
some difficulty in social, occupational, or school functioning. A GAF score of 61 to 70
indicates some mild symptoms; or some difficulty in social, occupational, or school
functioning; but that the subject is "generally functioning pretty well, [and] has some
meaningful interpersonal relationships." DSM-IV-TR at 34.
1

Newman failed to check any of the boxes on the psychiatric review technique form for
whether Ham's condition produced difficulties in maintaining social functioning. T389. But
it seems clear from the rest of the review that Newman did not find any significant
limitations in that regard, or any other.
2

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occasionally lift 20 pounds, frequently lift 10 pounds, and stand for at least 2
hours and sit about 6 hours in an 8‐hour workday. T395. Ham could
occasionally climb, balance, stoop, and kneel, but never crouch or crawl.
T396. Reed estimated that Ham's condition would improve from bariatric
surgery and that within 12 months of onset he should be capable of
performing work activities within the residual functional capacity Reed had
assessed. T401. Another physical RFC assessment was performed by A.R.
Hohensee, M.D., which reaffirmed Reed's findings. T417.
Hutfless also completed an RFC form on April 7, 2011. On the form,
Hutfless opined that Ham could occasionally lift or carry 10 pounds, but
never more. T419. Hutfless indicated on the form that Ham could
occasionally reach, but never bend, climb, squat, crawl, or reach above
shoulder level. T419. In a separate letter, however, Hutfless opined that Ham
could occasionally lift up to 10 pounds or 10-25 pounds, and could "possibly"
carry up to 20 pounds occasionally, "but only for a short distance." T418. On
the RFC form, Hutfless indicated that Ham could not sit, stand, or walk for
more than an hour in each 8-hour workday. T419. In his separate opinion
letter, Hutfless explained that while Ham spent most of the day sitting, he
could not do so for prolonged periods without getting up and changing
position. T418. Ham could not walk very far. T418. Hutfless said Ham's
condition had been present for more than 12 months and could be expected to
last at least 12 more months. T418.
Hutfless continued to treat Ham, observing arthritis, physical pain,
and depression. T424-26; T438. Ham sought treatment for depression at
Catholic Charities, and an initial diagnostic interview was conducted on April
13, 2011, by K.G. Langdon, PMHNP-BC. T428-35. At this interview, Ham
reported new symptoms, including nightmares, paranoia, hallucinations,
suicidal thoughts, and violent urges. T432-33. Langdon's initial diagnosis was
major depressive disorder, single episode, severe without psychotic features.
T434. Langdon also diagnosed a generalized anxiety disorder, specific
phobias, and a personality disorder not otherwise specified. T434. Langdon
estimated that Ham's GAF was 50.3 T435. Langdon saw Ham twice more
before the administrative hearing, and noted no progress in his condition.
T440-41; T443-45.
2. HEARING TESTIMONY
Ham testified at the administrative hearing that he was unable to work
because of problems with his back and legs: his legs would go numb and he
A GAF score of 41-50 indicates serious symptoms or any serious impairment in social,
occupational, or school functioning. DSM-IV-TR at 34.
3

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had severe back pains. T29. Ham also said that he suffered from depression
and severe headaches. T30. He used a CPAP machine for sleep apnea, but
still woke up 2 or 3 times during the night due to back or leg pain, and was
unable to go back to sleep for 30 to 45 minutes. T34-35. He said it was hard
for him to sit because he constantly had to reposition himself. T35.
Ham explained that he could only sit comfortably for 2 to 3 minutes
before having to stand up or move around. T35. But he could only stand for 5
minutes before his right leg went numb. T35. So, he could only walk, with a
cane, for a block or two. T36-37. He could only be on his feet, he said, for 30 or
45 minutes a day. T37. But he also said he could only sit for about an hour a
day. T37. Ham was asked what he did with the rest of his time, if he could
only sit for an hour a day and could only be on his feet for about 45 minutes,
and he said he "[t]r[ied] to do chores around the house" and spent about 3 or
4 hours a day lying down. T37.
Ham said his depression caused episodes of crying 2 or 3 times a day,
and that 3 or 4 days a week he could not do anything because he was
depressed. T39. He said that had been going on for 6 to 8 months.4 T39.
Before that, he said, he was depressed, but not as severely. T40. Ham said his
depression had affected him at work, as he had broken down crying in the
office. T40.
Ham said he did not think there was any job he could do, because he
had trouble sitting and could not stand. T42. He also did not think he could
alternate sitting and standing for 8 hours a day, 5 days a week, but he did
not explain why. T42. Although he had lost 105 pounds since his surgery—
down to 265 pounds at the time of the hearing—he said he felt worse than
when he weighed 370 pounds. T28; T45.
The ALJ presented the vocational expert (VE) with a hypothetical
based on a person who could lift up to 20 pounds on occasion and 10 pounds
on a frequent basis; could stand for 2 hours and sit for 6 hours in an 8-hour
day with normal breaks; had unlimited use of the extremities of the hands
and arms but should not use his feet for pushing, although he could drive;
and who should never crouch or crawl but could occasionally bend or stoop.
T54. Such a person, the VE opined, could perform a full range of sedentary
work. T55. But the VE said that if Ham's testimony was considered credible,
he would not be able to perform competitive employment. T55-56.

The administrative hearing was held on May 18, 2011. T25. Ham's alleged date of
disability was nearly 30 months earlier: September 30, 2009. T138; T143.
4

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3. SEQUENTIAL ANALYSIS AND ALJ FINDINGS
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4).
(a) Step One
At the first step, the claimant has the burden to establish that he has
not engaged in substantial gainful activity since his alleged disability onset
date. Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); 20 C.F.R. §
404.1520(a)(4)(i). If the claimant has engaged in substantial gainful activity,
the claimant will be found not to be disabled; otherwise, the analysis proceeds
to step two. Gonzales, 465 F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(i).
In this case, the ALJ found that Ham had not engaged in substantial
gainful activity since his alleged disability onset date, and that finding is not
disputed on appeal. T16.
(b) Steps Two and Three
At the second step, the claimant has the burden to prove he has a
"medically determinable physical or mental impairment" or combination of
impairments that is "severe[,]" 20 C.F.R. § 404.1520(a)(4)(ii), in that it
"significantly limits his physical or mental ability to perform basic work
activities." Gonzales, 465 F.3d at 894; see also Kirby v. Astrue, 500 F.3d 705,
707–08 (8th Cir. 2007). Next, "at the third step, [if] 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." Gonzales, 465 F.3d at 894; 20 C.F.R. §
404.1520(a)(4)(iii). Otherwise, the analysis proceeds.
For mental impairments, at steps two and three of the sequential
analysis, the ALJ utilizes a two-part "special technique" to evaluate a
claimant's impairments and determine, at step two, whether they are severe,
and if so, at step three, whether they meet or are equivalent to a "listed
mental disorder." 20 C.F.R. § 404.1520a(a), (d)(1) and (2). The ALJ must first
determine whether the claimant has "medically determinable mental
impairment(s)." 20 C.F.R. § 404.1520a(b)(1). If any such impairment exists,
the ALJ must then rate the degree of "functional limitation" resulting from
the impairment. 20 C.F.R. § 404.1520a(b)(2). This assessment is a "complex
and highly individualized process that requires [the ALJ] to consider multiple
issues and all relevant evidence to obtain a longitudinal picture of [the
claimant's] overall degree of functional limitation." 20 C.F.R. §
404.1520a(c)(1).
Four "broad functional areas" are used to rate these limitations:
"[a]ctivities of daily living; social functioning; concentration, persistence, or

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pace; and episodes of decompensation." 20 C.F.R. § 404.1520a(c)(3). These
areas are also referred to as the "paragraph B criteria," which are contained
in 20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.00 et seq. The first three
criteria are rated using a five-point scale of none, mild, moderate, marked,
and extreme. 20 C.F.R. § 404.1520a(c)(4). The fourth criterion, episodes of
decompensation, is rated as: none, one or two, three, four or more. Id.
After rating the degree of functional limitation resulting from any
impairments, the ALJ determines the severity of those impairments (step
two). 20 C.F.R. § 404.1520a(d). Generally, if the first three functional areas
are rated as "none" or "mild" and the fourth area as "none," the ALJ will
conclude that any impairments are not severe, unless the evidence indicates
otherwise. 20 C.F.R. § 404.1520a(d)(1). If any impairments are found to be
severe at step two, the ALJ proceeds to step three, and compares the medical
findings about the impairments and the functional limitation ratings with
the criteria listed for each type of mental disorder in 20 C.F.R. Part 404,
Subpart P, Appx. 1, § 12.00 et seq.
In this case, at step two, the ALJ found that Ham had some severe
impairments: morbid obesity, multi-level degenerative disk disease of the
lumbar spine, and obstructive sleep apnea. T16. The ALJ explained that
while Ham had a mood disorder secondary to obesity, he did not have a
severe, medically determinable mental impairment. T17. Regarding the
paragraph B criteria, the ALJ found that Ham's mental impairment did not
interfere more than minimally with his ability to perform basic work-related
activities: he had no restriction of activities of daily living or difficulties in
maintaining social functioning; only mild difficulties in maintaining
concentration, persistence, and pace; and no repeated episodes of
decompensation. T17. Nor did he satisfy the paragraph C criteria: he had not
had repeated episodes of decompensation of extended duration, would not
decompensate with even a minimal increase in mental demands, and had not
required a highly supportive living arrangement for at least 1 year.5 T17.

As relevant in this case, the paragraph C criteria would require a medically documented
history of a chronic affective disorder of at least 2 years' duration that has caused more
than a minimal limitation of ability to do basic work activities, with symptoms or signs
currently attenuated by medication or psychosocial support; and either repeated episodes of
decompensation, each of extended duration; or a residual disease process that has resulted
in such marginal adjustment that even a minimal increase in mental demands or change in
the environment would be predicted to cause the individual to decompensate; or a current
history of 1 or more years' inability to function outside a highly supportive living
arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. Part
404, Subpart P, Appx. 1, § 12.04C.
5

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(c) Residual Functional Capacity
Before moving to step four, the ALJ must determine the claimant's
residual functional capacity (RFC), which is then used at steps four and five.
20 C.F.R. § 404.1520(a)(4). "'Residual functional capacity' is defined as 'the
most [a claimant] can still do' despite the 'physical and mental limitations
that affect what [the claimant] can do in a work setting' and is assessed
based on all 'medically determinable impairments,' including those not found
to be 'severe.'" Gonzales, 465 F.3d at 894 n.3 (quoting 20 C.F.R. §§ 404.1545
and 416.945).
To determine a claimant's RFC, the ALJ must consider the impact of
all the claimant's medically determinable impairments, even those previously
found to not be severe, and their related symptoms, including pain. 20 C.F.R.
§§ 404.1529(d)(4) and 404.1545(a)(1) and (2). This requires a review of "all the
relevant evidence" in the case record. 20 C.F.R. § 404.1545(a). Although the
ALJ is responsible for developing the claimant's complete medical history, 20
C.F.R. § 404.1545(a)(3), the claimant bears the burden of proof to
demonstrate his or her RFC. Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000). The ALJ will consider "statements about what [the claimant] can still
do that have been provided by medical sources, whether or not they are based
on formal medical examinations," as well as descriptions and observations of
the claimant's limitations caused by his impairments, including limitations
resulting from symptoms, provided by the claimant or other persons. 20
C.F.R. § 404.1545(a)(3).
The RFC assesses the claimant's ability to meet the physical, mental,
sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(4). The
mental requirements of work include, among other things, the ability: to
understand, remember, and carry out instructions; to respond appropriately
to supervision, coworkers, and work pressures in a work setting; to use
judgment in making work-related decisions; and to deal with changes in a
routine work setting. 20 C.F.R. §§ 404.1545(c) and 404.1569a(c); SSR 96-8p,
61 Fed. Reg. 34474-01, 34477 (July 2, 1996). An RFC must assess the
claimant's ability to meet the mental requirements of work, 20 C.F.R. §
404.1545(a)(4), which includes the ability to respond appropriately to
coworkers and work pressures. 20 C.F.R. §§ 404.1545(c) and 404.1569a(c);
SSR 96-8p, 61 Fed. Reg. at 34477. The RFC must include all limits on workrelated activities resulting from a claimant's mental impairments. SSR 85-16,
1985 WL 56855, at *2 (1985)
A special procedure governs how the ALJ evaluates a claimant's
symptoms. The ALJ first considers whether the claimant suffers from
"medically determinable impairment(s) that could reasonably be expected to
produce [the claimant's] symptoms." 20 C.F.R. § 404.1529(a) to (c)(1). A
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medically determinable impairment must be demonstrated by medical signs
or laboratory evidence. 20 C.F.R. § 404.1529(b). If this step is satisfied, the
ALJ then evaluates the intensity and persistence of the claimant's symptoms
to determine how they limit the claimant's ability to work. 20 C.F.R. §
404.1529(c)(1). This again requires the ALJ to review all available evidence,
including statements by the claimant, "objective medical evidence,"6 and
"other evidence."7 20 C.F.R. § 404.1529(c)(1) to (3).
The ALJ considers the claimant's statements about "the intensity,
persistence, and limiting effects of [his] symptoms," and evaluates them "in
relation to the objective medical evidence and other evidence." 20 C.F.R. §
404.1529(c)(4). Ultimately, symptoms will be determined to diminish the
claimant's capacity for basic work activities, and thus impact the claimant's
RFC, "to the extent that [the claimant's] alleged functional limitations and
restrictions due to symptoms . . . can reasonably be accepted as consistent
with the objective medical evidence and other evidence." Id.; 20 C.F.R. §
404.1529(d)(4). In assessing the credibility of a claimant's subjective
testimony regarding his or her alleged symptoms, the ALJ must weigh a
number of factors. See, Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009); 20
C.F.R. § 404.1529(c)(3)(i–vii).8 When deciding how much weight to afford the
opinions of treating sources and other medical opinions regarding a
claimant's impairments or symptoms, the ALJ considers a number of factors
set forth in 20 C.F.R. § 404.1527.
Based on the credibility findings discussed above at steps two and
three, the ALJ found that Ham had the RFC to perform sedentary work.9 He
could occasionally lift 20 pounds and frequently lift 10 pounds. He could
stand for 2 hours out of 8 and sit for 6 hours out of 8, with normal breaks. He
had the unlimited use of his arms and hands but was not to use his feet for
6

20 C.F.R. §§ 404.1529(c)(2) and 404.1528(b) and (c).

"Other evidence" includes information provided by the claimant, treating and non-treating
sources, and other persons. See 20 C.F.R. § 404.1529(a)(1) (and sections referred to therein);
see also 20 C.F.R. § 404.1529(c)(3).
7

In assessing a claimant's credibility, the ALJ should consider: (1) the claimant's daily
activities; (2) the duration, intensity, and frequency of pain; (3) the precipitating and
aggravating factors; (4) the dosage, effectiveness, and side effects of medication; (5) any
functional restrictions; (6) the claimant's work history; and (7) the absence of objective
medical evidence to support the claimant's complaints. Moore, 572 F.3d at 524.
8

Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is
defined as one which involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties. Jobs are sedentary if walking and standing are
required occasionally and other sedentary criteria are met. 20 C.F.R. § 416.967(a).
9

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pushing, using pedals, or similar activities. He could drive. He was never to
crouch or crawl but could occasionally bend and stoop. T17.
As is common in these cases, the ALJ found that Ham's "medically
determinable impairments could reasonably be expected to cause the alleged
symptoms"; but that Ham's statements "concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are
inconsistent with" the ALJ's RFC assessment. T18. The ALJ did not give
great weight to Hutfless' assessment of Ham's capabilities because the RFC
form he filled out was inconsistent with his accompanying opinion letter. T21.
The ALJ found that Ham's "recent reports of auditory hallucinations and
feelings that he is being watched appear exaggerated when viewed within the
record as a whole." T21. The ALJ concluded:
The claimant undoubtedly has impairments and limitations from
pain; however, the record fails to establish these are as severe as
alleged. The claimant's earnings record shows consistent,
substantial earnings and reflects favorably on the credibility of
his allegations, but even an outstanding earnings record cannot
alone form the basis for a finding of disability, particularly when
there are inconsistencies in the record as a whole.
T21. "Based on the total record," the ALJ found, "the claimant's symptoms
and impairments are not as severe as alleged, and the undersigned has not
given great weight to the claimant's implicit allegation that he is unable to
engage in any and all kinds of full-time, competitive, gainful employment on
a sustained basis." T21.
(d) Steps Four and Five
At step four, the claimant has the burden to prove that he lacks the
RFC to perform his past relevant work. Gonzales, 465 F.3d at 894; 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant can still do his past relevant work, he will
be found to be not disabled; otherwise, the analysis proceeds to step five. At
step five, the burden shifts to the Commissioner to prove, considering the
claimant's RFC, age, education, and work experience, that there are other
jobs in the national economy that the claimant can perform. Gonzales, 465
F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(v).
In this case, at step four, the ALJ found that Ham was unable to
perform any past relevant work. T21. But the ALJ found, based on the
testimony of the VE, that there were jobs that existed in significant numbers
in the national economy that Ham could perform. T22. So, the ALJ concluded
that Ham was not under a disability, and denied his claims for benefits. T24.
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4. REQUEST FOR APPEALS COUNCIL REVIEW
Ham filed a request for review of the ALJ's decision. T10. In support of
that request, Ham submitted new evidence for consideration by the Appeals
Council. T231-32.
(a) New Evidence
Langdon completed a psychiatric review form on which she diagnosed
Ham with depressive syndrome characterized by anhedonia, sleep
disturbance, decreased energy, difficulty concentrating or thinking, thoughts
of suicide, and hallucinations. T453. Langdon opined that Ham's condition
produced marked restriction of activities of daily living; difficulties in
maintaining social functioning; and difficulties in maintaining concentration,
persistence, or pace. T454. Langdon also diagnosed an anxiety disorder
resulting in motor tension, autonomic hyperactivity, and vigilance and
scanning. T456. Langdon opined that as a result of all his mental disorders,
Ham had marked restrictions of activities of daily living; extreme difficulties
in maintaining social functioning; and often suffered deficiencies of
concentration, persistence, or pace; and three or more episodes of
decompensation in work or work‐like settings. T461-63.
Langdon also authored a letter10 in which she opined that Ham had,
among other things, a major depressive disorder and a generalized anxiety
disorder. T467. Langdon opined that Ham's anxiety and depression were
worsening his physical pain, and his physical pain was aggravating his
depression and anxiety. T468. Langdon reported that Ham reported being
unable to vacuum, load and unload the dishwasher, do yard work, laundry,
clean the bathrooms, or do heavy grocery shopping. T468. She said he had "to
push himself to do the limited amount of light housework he is capable of as
his depression is so severe and he does not have sufficient energy, motivation
and ability to clean it even though he wants to have a clean house." T468-69.
Langdon opined that as a result, Ham was "likely to experience extended
episodes of deterioration which would cause him to withdraw from work or a
work-like setting." T469. Langdon concluded that Ham would be unable to
participate in gainful employment for at least a year. T469.
Ham had also seen Hutfless again; Hutfless noted arthritis, back pain,
sleep apnea, hypertension, exogenous obesity, depression, and ongoing
results of Ham's gastric bypass surgery. T470. Hutfless opined that Ham was
Both the psychiatric review form and the opinion letter were co-signed by Michael Meyer,
M.D., as a "collaborative psychiatrist." But there is no indication in the record that Meyer
ever treated or saw Ham. As a result, there is no basis for considering Meyer to be a
treating medical source, and the Court does not view his signature on these documents as
adding anything significant to the credibility of Langdon's opinions.
10

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"unable to be gainfully employed." T470. Ham was also seen by Joseph A.
Wenzl, M.D., for an initial evaluation of chronic pain; Wenzl's assessment
was chronic pain syndrome. T471-74.
(b) Appeals Council Determination
The Appeals Council said that in looking at Ham's case, it had
considered the additional evidence submitted by Ham. T4; T7. But, the
Appeals Council found no reason to review the ALJ's decision, and denied
Ham's request for review. T4.
III. STANDARD OF REVIEW
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole, including the new evidence that was considered by the
Appeals Council. See, Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011)
(citing 42 U.S.C. § 405(g)); McDade v. Astrue, 720 F.3d 994, 1000 (8th Cir.
2013); see also Perks v. Astrue, 687 F.3d 1086, 1093 (8th Cir. 2012).
Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the conclusion. Teague,
638 F.3d at 614. When the Appeals Council denies review of an ALJ's
decision after reviewing new evidence, the Court does not evaluate the
Appeals Council's decision to deny review, but rather determines whether the
record as a whole, including the new evidence, supports the ALJ's
determination. McDade, 720 F.3d at 1000; Perks, 687 F.3d at 1093; see also,
Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000); Browning v.
Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
The Court must consider evidence that both supports and detracts from
the ALJ's decision, and will not reverse an administrative decision simply
because some evidence may support the opposite conclusion. Perkins v.
Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the record, the
Court finds it is possible to draw two inconsistent positions from the evidence
and one of those positions represents the ALJ's findings, the Court must
affirm the ALJ's decision. Id. The Court reviews for substance over form: an
arguable deficiency in opinion-writing technique does not require the Court to
set aside an administrative finding when that deficiency had no bearing on
the outcome. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir. 2011). And the
Court defers to the ALJ's determinations regarding the credibility of
testimony, so long as they are supported by good reasons and substantial
evidence. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).

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IV. ANALYSIS
Ham argues generally that the Commissioner's decision to deny
benefits is neither supported by substantial evidence nor consistent with
legal and regulatory standards. In particular, Ham argues that the ALJ erred
by not classifying Ham's mental impairments as severe, the Appeals Council
failed to consider his supplemental evidence, the ALJ improperly evaluated
Ham's subjective complaints of pain and depression, and the ALJ failed to
appropriately account for all of his impairments in determining his RFC.
1. FAILURE TO EVALUATE ALL SEVERE IMPAIRMENTS
Ham's first argument is that the ALJ erred by finding that his mental
impairments were not severe. Filing 16 at 11. This argument is directed at
the ALJ's determination, at step two, that Ham had a mood disorder but that
it was not a severe impairment. T17. Ham points to the evidence that he had
been diagnosed with and treated for depression by Hutfless, his primary care
physician. And Ham relies on his initial evaluation by Langdon at Catholic
Charities. Ham argues that
[w]hile the ALJ recognized Ham's treatment at Catholic
Charities, he discounted it because if [sic] was of short duration
at the time of the hearing. At no time did the ALJ recognize and
possibly correlate Ham's prior treatment by his primary care
physician with prescription medications and consider that the
depression spanned the relevant time period in this case. It is as
if Ham suddenly woke up one day with the severe impairments
as set forth in the Catholic Charities evaluation.
Filing 16 at 12.
But from the record, it does appear as if Ham "suddenly woke up one
day" with the symptoms he reported to Langdon at Catholic Charities. This
is, in fact, support for the ALJ's finding: the ALJ did not find Ham's reports
to Langdon credible because they were not consistent with the record as a
whole. T21. Ham reported symptoms to Langdon, such as hallucinations and
paranoia, that do not appear in any of Hutfless' notes, and there is no reason
to believe that Hutfless would not have noted them (and taken them
seriously) had Ham reported them. Ham denied hallucinations or suicidal
thoughts in his interview with Warren. In sum, there is substantial evidence
in the record to support the ALJ's determination that Ham's complaints to
Langdon were not wholly credible.
Instead, the ALJ relied on the state agency consultants, Newman and
Milne, who had reviewed Ham's treatment history and Warren's consultative
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examination of Ham. T20. Each opined that Ham's condition was not severe.
T377; T391; T415. This is substantial evidence supporting the ALJ's finding
to the same effect.11
2. NEW EVIDENCE TO APPEALS COUNCIL
Ham contends that the Appeals Council "did nothing" with the evidence
that was submitted after the ALJ's decision. Filing 16 at 14. He correctly
notes that pursuant to 20 C.F.R. § 404.970(b), if new and material evidence is
submitted, the Appeals Council shall consider the additional evidence if it
relates to the period on or before the date of the ALJ's decision, shall evaluate
the entire record including the new and material evidence, and then review
the case if it finds that the ALJ's decision is contrary to the weight of
evidence in the supplemented record. Ham asserts that "[t]here is nothing in
the decision of the Appeals Council which indicates that the above regulation
was followed." Filing 16 at 14.
But there is. The Appeals Council stated that it had "considered the
reasons [Ham] disagree[d] with the decision and the additional evidence
listed on the enclosed Order of Appeals Council." T4. And the Order of
Appeals Council itself stated that it had received Ham's additional evidence,
consisting of Ham's brief and exhibits 28F and 29F, which contained the new
evidence summarized above.12 T7. This was sufficient to show compliance
with 20 C.F.R. § 404.970(b).
That having been said, the Court notes that the Appeals Council
decision simply states that the new evidence was "considered" but that it did
not "provide a basis for changing" the ALJ's decision. T4-5. This is a
As will be discussed below, there is some question about whether the additional evidence
submitted to the Appeals Council was actually weighed by the Appeals Council, such that
the Court should consider it now when reviewing the record for substantial evidence. But
for reasons that will become apparent, the Court finds that even if the new evidence
submitted to the Appeals Council is included, the record contains substantial evidence
supporting the ALJ's decision.
11

For the sake of completeness, the Court notes that the order expressly described exhibit
28F as containing medical records "dated July 5, 2011 and July 19, 2011" but, among other
things, described Hutfless as an "unknown source" and failed to note Langdon's separately
dated June 30 psychiatric review form. The Court is troubled by that: in particular, it is
hard to believe that given the prominence of Hutfless' progress notes in the record, someone
could meaningfully review the evidence yet describe Hutfless as an "unknown source." That
kind of sloppiness does not speak well of the Social Security Administration. But the Court
cannot conclude that the Appeals Council did not mean what it said when it said it had
considered exhibit 28F. See Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005). And
Hutfless' progress note said nothing remarkable, nor does the Court find (as explained
below) that Langdon's opinions provide a basis to reverse the ALJ's decision.
12

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particularly unhelpful bit of Social Security boilerplate: as the Seventh
Circuit has noted, "[o]n the one hand, it might indicate that the Appeals
Council found the proffered new evidence to be immaterial, but on the other
hand it might indicate that the Council accepted the evidence as material but
found it insufficient to require a different result." Farrell v. Astrue, 692 F.3d
767, 771 (7th Cir. 2012). The Court urges the Commissioner to strive for more
clarity on this point. For now, from an excess of caution, the Court will
interpret the Appeals Council decision as stating that it had rejected the
evidence as non-qualifying under the regulation. See id.; see also Aulston v.
Astrue, 277 Fed. Appx. 663, 664 (8th Cir. 2008).
But the Court finds no error in the Appeals Council's (implicit)
determination that the proffered evidence was not new or material. To be
"new," evidence must be more than merely cumulative of other evidence in
the record. Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008). And evidence is
"material" if it is relevant to the claimant's condition for the time period for
which benefits were denied. Id. To be material, there must also be a
reasonable likelihood that consideration of the evidence would have changed
the Commissioner's determination. Meyer v. Astrue, 662 F.3d 700, 705 (4th
Cir. 2011); Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003); see also
Padgett v. Shalala, 9 F.3d 114, at *2 (8th Cir. 1993) (unpublished table
decision); cf. Krogmeier v. Barnhart, 294 F.3d 1019, 1025. (8th Cir. 2002)
(applying same standard to new evidence received for first time by court
under 42 U.S.C. § 405(g)). Whether evidence meets these criteria is a
question of law the Court reviews de novo. Bergmann, 207 F.3d at 1069.
Neither Hutfless' additional progress note nor Wenzl's assessment of
chronic pain syndrome were "new" evidence: both were cumulative of
diagnoses that were already present in the record. Langdon's opinions may
have been new, but they were not "material": Langdon was not a "treating
source" whose opinion was entitled to controlling weight. Even if the two
appointments Langdon had with Ham could be said to establish an ongoing
treatment relationship, a nurse practitioner is not one of the acceptable
medical sources listed in the regulations. See, 20 C.F.R. §§ 404.1502,
404.1513(a), and 404.1527(c)(2). And Langdon's opinions were based on
Ham's self-reported symptoms, which the ALJ found to be overstated when
compared with Ham's medical records. Nothing in Langdon's documentation
made Ham's symptoms more persuasive or consistent with the rest of the
record. Therefore, even if the Appeals Council did reject the evidence, the
Court finds no reasonable likelihood that it would have changed the
Commissioner's determination. Simply put, the ALJ's decision was based on
credibility determinations that are unaffected by the additional evidence.

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3. EVALUATION OF SUBJECTIVE COMPLAINTS
Ham contends that the ALJ improperly evaluated his testimony
regarding his subjective complaints of pain and depression. As previously
noted, in assessing a claimant's credibility, the ALJ should consider: (1) the
claimant's daily activities; (2) the duration, intensity, and frequency of pain;
(3) the precipitating and aggravating factors; (4) the dosage, effectiveness,
and side effects of medication; (5) any functional restrictions; (6) the
claimant's work history; and (7) the absence of objective medical evidence to
support the claimant's complaints. Moore, 572 F.3d at 524. Ham contends
that the ALJ failed to properly consider all these factors.
Having reviewed the ALJ's decision, however, the Court is satisfied
that the ALJ applied the appropriate standard when weighing Ham's
credibility. Although the ALJ did not enumerate each factor and explain it
separately, each of the factors listed was discussed in the ALJ's
comprehensive discussion of Ham's medical history. T18-21. And the ALJ did
not wholly discredit Ham's testimony—he simply found that Ham's
limitations were not quite as severe as alleged. That conclusion is supported
by the evidence. The Court has already noted, as did the ALJ, that the
symptoms of mental illness Ham reported to Langdon were not consistent
with what had previously been reported to Hutfless and denied to Warren.
And Ham's testimony at the administrative hearing was somewhat difficult
to sort out: Ham seems to have testified that he could stand up for no more
than 45 minutes a day, could only sit for an hour a day, and spent 3 or 4
hours a day lying down. That simply does not add up. In short, while there is
no real question that Ham suffers from some physical impairments, there
was sufficient reason for the ALJ to question whether Ham is as limited as he
claimed to be.
As is true in many disability cases, there is no doubt that the claimant
is experiencing pain; the real issue is how severe that pain is. Perkins, 648
F.3d at 901. While the ALJ may not discount subjective complaints solely
because they are not supported by objective medical evidence, the absence of
such evidence is relevant to a claimant's credibility. See, Halverson v. Astrue,
600 F.3d 922, 931-32 (8th Cir. 2010); Hamilton v. Astrue, 518 F.3d 607, 61213 (8th Cir. 2008). Here, the ALJ adequately addressed Ham's credibility and
found that he was mostly but not entirely credible about his own limitations.
The Court defers to that conclusion. See Boettcher, 652 F.3d at 863.
Ham also contends, in passing, that the ALJ erred by discounting a
report from Ham's sister, who described his physical limitations and
depression. The ALJ explained that

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[o]ut of natural concern and devotion, it is not uncommon for
friends and family members to place unreasonable limitations on
the daily activities of a loved one, or to attribute even ordinary
changes in mood to an impairment, whenever illness or injury
occurs. Clearly [Ham's sister] is genuinely concerned about the
claimant's well-being; however, her implicit allegation that the
claimant is disabled is subject to the considerations noted above
regarding the claimant's own testimony.
T21. Ham argues that if reports from family or friends can be "summarily
discounted" on those grounds, then "there is no reason to obtain the
information in the first place." Filing 16 at 19.
A failure to make credibility determinations concerning such evidence,
and to reject it without specifically discussing it, could require a reversal. See,
Willcockson v. Astrue, 540 F.3d 878, 880-81 (8th Cir. 2008); Smith v. Heckler,
735 F.2d 312, 317 (8th Cir. 1984). But in evaluating the statements of a
claimant's family member, it is entirely acceptable to consider whether those
statements are motivated by affection for the claimant. See Perkins, 648 F.3d
at 901; cf., Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993); Rautio v.
Bowen, 862 F.2d 176, 180 (8th Cir. 1988). The ALJ, having properly found
Ham's complaints not fully credible, was equally empowered to reject the
cumulative testimony of his sister. Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir.
2001); Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 1998); see also Ostronski v.
Chater, 94 F.3d 413, 419 (8th Cir. 1996).
4. DETERMINATION OF RFC
Finally, Ham contends that the ALJ failed to appropriately account for
all of Ham's impairments in determining his RFC. Thus, Ham argues, the
hypothetical question posed to the VE was deficient. See Howard v.
Massanari, 255 F.3d 577, 581-82 (8th Cir. 2001) (hypothetical question must
precisely describe claimant's impairments so that VE may accurately assess
whether jobs exist for claimant). But a hypothetical must include only those
impairments and limitations that are supported by the record, which the ALJ
accepts as valid, and which the ALJ finds to be credible. Gragg v. Astrue, 615
F.3d 932, 940 (8th Cir. 2010); Young, 221 F.3d at 1069. Ham's argument is
really that the ALJ should have based Ham's limitations on the evidence that
the ALJ, as discussed above, did not find credible. The Court has already
rejected the basis of that argument.

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V. CONCLUSION
The Court has reviewed the administrative record and finds that the
ALJ did not err in any of the ways asserted by Ham. The Court therefore
concludes that the Commissioner's decision was supported by substantial
evidence and should be affirmed.
IT IS ORDERED:
1.

The Commissioner's decision is affirmed.

2.

Ham's complaint is dismissed.

3.

The parties shall bear their own costs.

4.

A separate judgment will be entered.

Dated this 27th day of September, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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