Tretheway v. Colvin

Filing 20

MEMORANDUM OPINION - This matter is before the Court on the appeal of plaintiff, Michael Tretheway ("Tretheway"), of a final decision by the Commissioner of the Social Security Administration ("SSA") denying Tretheway's application for disability benefits. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
MICHAEL TRETHEWAY,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, Acting
)
Commissioner of the Social
)
Security Administration,
)
)
Defendant.
)
______________________________)

8:13CV109

MEMORANDUM OPINION

This matter is before the Court on the appeal of
plaintiff, Michael Tretheway (“Tretheway”), of a final decision
by the Commissioner of the Social Security Administration (“SSA”)
denying Tretheway’s application for disability benefits.

The

Court finds that the Administrative Law Judge (“ALJ”) erred in
assessing Dr. Zieno’s opinion and will remand that matter for
further consideration.
PROCEDURAL BACKGROUND
Tretheway filed an application for disability insurance
benefits on January 30, 2012, and alleged disability beginning
November 16, 2009 (Tr. 25).

The SSA denied that application on

February 21, 2012, and again on March 20, 2012 (Id.).

After the

ALJ hearing on August 8, 2012, the ALJ issued an unfavorable
opinion on August 16, 2012 (Tr. 22, 25).

The Appeals Council

then denied Tretheway’s request for review on February 22, 2013

(Filing No. 1, at 2, ¶ 6).

Tretheway timely filed this appeal on

April 3, 2013 (Id. at 3, see 42 U.S.C. § 405(g)).

The Court now

reviews the ALJ’s decision, which stands as the Commissioner’s
final decision.
FACTUAL BACKGROUND
Tretheway was a thirty-nine-year-old man on his onset
date with a high school diploma.
mail processor (Tr. 41-42).

He worked in avionics and as a

From July 1988 through March 1997,

Tretheway served in the Marine Corps and in Operations Desert
Shield, Desert Storm, and Eastern Exit (Tr. 502, 507, 447).
Tretheway was honorably discharged (Tr. 500).

Tretheway alleges

disability due to neuropathy in his hands, post-traumatic stress
disorder (“PTSD”), migraine headaches, and subluxation
impingement syndrome (Filing No. 13, at 2).
Neuropathy
In June 2010, Tretheway visited Dr. Agapito Lorenzo at
the Veterans Affairs (“VA”) hospital (Tr. 530).

In that visit,

Dr. Lorenzo assessed Tretheway with depression, migraines, hypertension, left shoulder pain, and bilateral weakness in the hands
and feet (Tr. 533-34).

In July 2010, Dr. Lorenzo reported that

electrophysiological studies of Tretheway’s upper extremities
revealed no evidence of neuropathy (Tr. 530).

However, Dr.

Wariyar reported that the electromyography (“EMG”) supported
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ordering Tretheway an elbow brace (Tr. 529).

In August 2010,

physical therapist Jan Nowling provided Tretheway with two tennis
elbow straps after a diagnosis of bilateral lateral epicondylitis
(Tr. 528, 514).

In November 2010, Tretheway stated the tennis

straps aided his extensor tendinitis (Tr. 527).

He later

admitted that he did not wear the straps (Tr. 514).
In February 2011, licensed practical nurse (“LPN”)
James McGary stated that Tretheway went to the VA with a primary
complaint of tendinitis in bilateral hands.

However, when asked

the severity of his pain, Tretheway responded that his pain was
zero on a ten scale (Tr. 516-17).

On February 22, 2011,

Tretheway returned to the VA with a complaint of bilateral arm
pain (Tr. 514).

Drs. Bonnema and Schumacher confirmed Tretheway

had tendinitis through an EMG reading (Tr. 514).
On February 25, 2011, Drs. Bonnema and Schumacher
assessed Tretheway with bilateral hand/wrist entensor tendinitis
(Tr. 510).

Specialists were unable to determine the etiology of

the pain (Tr. 511).

In March 2011, Tretheway reported that

playing catch with children aggravated his condition (Tr. 493).
On April 4, 2011, Tretheway’s occupational therapist
reviewed Tretheway’s treatment after eight visits in one month
(Tr. 483-85).

She stated that Tretheway was referred to her for

tendinitis but that she also focused on the possibility of radial
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tunnel syndrome (Tr. 484).

On April 8, 2011, Tretheway met with

Dr. Schumacker and physical therapist Lisa Gross to discuss
further treatment (Tr. 477-79).
On June 10, 2011, Drs. Schumacher and Bonnema had a
followup with Tretheway regarding his bilateral numbness and
weakness of the arms and hands (Tr. 440).

The EMG displayed no

evidence of neuropathy and labs were “unremarkable.”

The doctors

scheduled Tretheway for an evaluation of his neck and thorax.
Dr. Bonnema contacted Tretheway on July 1, 2011, to
discuss his labs for his bilateral hand numbness (Tr. 431).

The

doctor stated that physical therapy evaluation and labs were not
helpful.

The doctor did not know how to proceed but would

explore the differential.
On July 6, 2011, physical therapist Gross and Dr.
Bonnema suggested that a vascular surgeon assess whether
Tretheway should undergo surgery in order to alleviate his
bilateral stress (Tr. 429).

On July 22, 2011, LPN McGary

examined Tretheway for a followup on his bilateral hand pain (Tr.
422-24).

Tretheway noted his pain was a zero on a ten scale (Tr.

422).
PTSD
The earliest of Tretheway’s medical records from the VA
begins in 2004, prior to Tretheway’s alleged onset but related to
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Tretheway’s PTSD (Tr. 500).

Dr. James Mathisen made the

following statements in his Compensation and Pension evaluation
(“C&P”).

Tretheway reported there was a mid-air collision

involving a helicopter in 1996 for which Tretheway had felt
responsible because he had inspected the helicopter.

Tretheway

said he had known the crew chief and the aerial observer but
failed to recall their names (Tr. 501).

Tretheway also reported

that in September of 1995 and March of 1997, two of his friends
committed suicide.

Dr. Mathisen stated the suicides could

vicariously meet A criteria PTSD.
Dr. Mathisen determined that Tretheway did not exhibit
intrusive memories, thoughts, or images of stressful military
experiences as related to the reported suicides.

Tretheway

dreamt bimonthly about a friend who committed suicide.
having flashbacks or reminders of suicide.

He denied

Tretheway reported

that with the nightmares he has sweating at a minimal level.
This would meet B criteria PTSD but he did not exhibit any C
criteria PTSD.

Tretheway reported that he was quite able to talk

about the suicide or other military events.
Dr. Mathisen assessed Tretheway did not have PTSD, by
any criteria, but instead had depression.

Dr. Mathisen saw no

problems with concentration or anger and stated that Tretheway
was not easily startled.

Dr. Mathisen also reported regular
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activities for Tretheway (Tr. 502).

The doctor stated that

Tretheway’s symptom reporting was not consistent with his
behavior, which called into question those sub-threshold PTSD
symptoms that he did report.

Also, Dr. Mathisen questioned

whether Tretheway’s issues were military-connected because
Tretheway did not complain of these issues until four years after
he separated from the Marine Corps.

Dr. Mathisen attributed

Tretheway’s absences from work to complications with his wife's
pregnancy and problems at the Post Office.

Dr. Mathisen believed

that Tretheway’s depressive condition would have a mild impact
overall upon maintaining gainful employment.
Sometime in the beginning of 2009, Tretheway skipped
work for two months due to stress (Tr. 572).

In March 2010,

physician’s assistant Brandy Reineke noted that Tretheway’s
conditions led to increased absenteeism, including missing four
months within the last year (Tr. 550-51).
In March 2011, Mrs. Tretheway spoke about her husband’s
condition to Drs. Babuji Gandra and Praveen Fernandes (Tr. 506).
She said Tretheway would become violent and aggressive during his
sleep, which started in 1997 after returned from Marine Corps,
but worsened in the last three years (Tr. 506).

She also

mentioned that a couple of months ago he tried to choke his son
while asleep, and the next morning he did not recall.
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The

violence was not specifically related to any time or stress, but
he recently began hitting the walls or running in the hallways.
Tretheway denied memory of those things.
According to Tretheway, he would dream about his time
in the Marine Corps and then wake up suddenly in a sweat.
Tretheway was never hospitalized for his mental conditions (Tr.
507).

The doctors assessed Tretheway as having violent behavior

and aggression during sleep, some symptoms of PTSD.

Drs. Gandra

and Fernandes did not make a diagnoses of PTSD or bipolar
disorder at that time.
In March 2011, Dr. Terry North noted Tretheway
supplemented his list of traumas; he helped to evacuate embassy
personnel from Somalia in 1992.1

He reported that during that

operation, the helicopter they were in received small arms fire
and that he witnessed several people getting shot.

This was the

first time Tretheway mentioned this incident.
Tretheway then completed the PCL-C, PTSD Checklist, in
reference to this event and he scored 64 which is above the
threshold considered suggestive of a PTSD diagnosis (Tr. 503).
Also, Tretheway recalled dreaming of trying to help others escape
a dangerous situation and also trying to escape a dangerous

1

Operation Eastern Exit occurred in January 1991 (Tr.

447).
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situation.

Tretheway stated that he thought about this situation

almost every day, along with the other stressful, traumatic
events, and that he avoided thinking and talking about this
event.

Due to the incident in Somalia, which Tretheway had never

before mentioned, Dr. North believed that Tretheway met the
criteria for a PTSD diagnosis and review of the veteran's
responses to the PCL-C.

Tretheway’s PTSD treatment included

admittance to the PTSD Treatment Program, medication, and
counseling (Tr. 498).
Tretheway attended PTSD therapy regularly from March
2011 through his diagnosis in February 2012 (Tr. 369, 376, 37881, 391, 417, 425-27, 429, 432, 434, 440-42, 460, 462, 474, 48082, 488, 496).

On August 8, 2011, Tretheway mentioned he began

repairing bicycles in the neighborhood (Tr. 415).

On August 18,

2011, during PTSD treatment, Tretheway expressed anger at his
psychiatrist for the exposure therapy in his last session (Tr.
383).

On August 30, 2011, Tretheway missed his psychiatric

appointment (Tr. 382).

Drs. Angelo Zieno and Fernandes wrote

that they did not perform exposure therapy, but offered it as a
suggestion for the future (Tr. 382).
On October 20, 2011, Tretheway announced to his PTSD
Treatment group that he gained 100% unemployability from the VA
(Tr. 374).

On November 10, 2010, Tretheway moved to his new home
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and attended PTSD treatment (Tr. 372).

That day, Dr. Willcockson

suggested a diagnosis of PTSD for Tretheway (Tr. 370-71).
On February 3, 2012, Tretheway announced that he was on
the Dean’s List for last semester’s grades and considered
pursuing SSDI (Tr. 368).

On March 2, 2012, Tretheway told his

class that his wife was encouraging him to quit school in order
to qualify for SSDI (Tr. 630).
discouraged such advice.

The group and Dr. Willcockson

On May 11, 2012, Tretheway again

mentioned his wife’s financial interest in his social security
benefits.

Dr. Willcockson wrote the following entry:
He says that he has an SSDI hearing
on June 5 and his wife is
pressuring him that this rating is
necessary in order that she not
have to work.

(Tr. 722).
Migraines
In February 2009, Tretheway complained of migraine
headaches, left shoulder pain, depression, and unspecified joint
pain (Tr. 581-82).

The doctor prescribed a six-pill package of

Zolmitriptan with 12 refills to help Tretheway’s migraines (Tr.
581).

This medication is taken at the on-set of migraine

headaches and abates the symptoms.
In May 2009, Tretheway reported that the Zolmitriptan
helped his weekly migraines (Tr. 554, 563, 574-78).
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Tretheway’s

migraine medication expired in February of 2010 and he had
refilled his prescription only once (Tr. 554, 557, 563, 574-78).
Therefore, Tretheway possessed no more than twelve pills in a
twelve-month period.

If Tretheway had taken his prescription

every time he had a migraine, he could not have had more than
twelve migraines in that year.

A year after his prescription

expired, in February 2011, Drs. Rachel Bonnema and Abram
Schumacher noted that Zolmitriptan aided Tretheway’s migraine
pain (Tr. 516).
In 2012, Tretheway completed several diagnostic
documents prior to his hearing.

In these forms, Tretheway stated

that he no longer used Zolmitriptan (Tr. 202-14).

Specifically

regarding his migraines, Tretheway claimed Zolmitriptan did not
help his migraines (Tr. 215).

Yet, on July 2012, a month before

his ALJ hearing, Tretheway went to the VA and requested a refill
of Zolmitriptan (Tr. 709).

Tretheway said it worked very well

for his migraines but he had failed to renew the prescription and
it expired (Tr. 709).

In fact, Tretheway stated that he had not

had migraine medication “for several years” (Tr. 716).
Subluxation
While in the military, Tretheway was playing a game of
softball, slid into a base, and dislocated his shoulder.

In

April 20, 2011, Dr. Judson Jones performed a medical evaluation
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to determine the motion ranges of Tretheway’s joints by use of a
goniometer (Tr. 465).

Tretheway stated he had no standing or

walking limitations (Tr. 466).

Dr. Jones assessed Tretheway’s

range of motion in his left shoulder was as follows:
Forward elevation: 0° -- 115° with
tenderness beginning at 90°;
Abduction:
0° -- 95° with
tenderness beginning at 90°;
External rotation: 0° -- 70° with
tenderness beginning at 55°;
Internal rotation: 0° -- 75° with
tenderness beginning at 60°.
(Tr. 467).

The doctor stated that the effect of Tretheway’s left

shoulder condition would significantly affect a usual occupation
and that condition would impact Tretheway’s ability to lift,
carry, and reach (Tr. 468).

Dr. Jones also assessed the effects

of the condition on daily activities (Tr. 468).
Examinations
In August 10, 2011, Tretheway received a C&P consult
(Tr. 392-402).

Staff physician Isaac Witkowski noted that

Tretheway’s pain, weakness, and stiffness occurred daily.

Flare-

ups occurred with movement, activity, and yard work; could last
up to a few days; and functional impairment occurred because he
avoided some activities.

Tretheway said he can walk a few blocks

and sit and stand for about 20 minutes but played no sports.

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Tretheway also had occasional difficulty bathing but accomplished
routine chores without difficulty.
Dr. Witkowski assessed that Tretheway grasped with
equal and good muscle strength and had sensation in both upper
extremities.

Dr. Witkowski stated the headaches are likely to

interfere with sedentary employment and that the shoulder issue
is less likely to interfere with any sedentary employment, if the
joint is not used (Tr. 402).

On February 16, 2012, Dr.

Christopher Milne assessed Tretheway’s mental residual functional
capacity (“RFC”) (Tr. 592-610).

On February 17, 2012, Dr. Steven

Higgins assessed Tretheway’s RFC (Tr. 614-19).
In a Vocational Rehabilitation program survey on
October 10, 2010, Tertheway made the following assertions.
could do some physical work (Tr. 315).
job (Tr. 315).

He

He could work a full-time

He did not miss work more than an average

employee (Tr. 315).

His disabilities could worsen (Tr. 318).

required some special working conditions (Tr. 319).
disability limited some work (Tr. 320).
people at work is always easy (Tr. 320).
personality (Tr. 321).

He

His

Getting along with
He had a pleasing

On a scale from one to seven, Tretheway

marked he was moderately disabled, a three (Tr. 321).
Academically, Tretheway held good standing at
Metropolitan Community College (“MCC”) from 2010-2011 (Tr. 262).
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In a counseling session, rehabilitation counselor Candice Watson
advised Tretheway to pursue a business track because it was a
less demanding career field (Tr. 267).

On October 13, 2010,

counselor Watson had noted that Tretheway did not have a serious
employment handicap (Tr. 315).

On October 12, 2011, Tretheway

asked Counselor Watson to hold off on giving job referrals
because his service connected disability had increased (Tr. 270).
ADMINISTRATIVE HEARING
On August 8, 2012, the ALJ held a hearing.
began studying at MCC in May 2011 (Tr. 48).
failed three of his courses (Tr. 49).

Tretheway

He estimated that he

In addition, Tretheway

stated that he was doing poorly in the current quarter (Tr. 49).
Tretheway was a mail processor but lost his job for failing to
attend work two or three times per week over a period of two
years (Tr. 52).

Tretheway stated that his migraines and anxiety

kept him from working (Tr. 52).
Tretheway named Drs. Weber and Zieno as his medical
doctor and psychiatrist respectively (Tr. 53).

Tretheway never

attended solo counseling but attended the PTSD group counseling
sessions (Tr. 53-54).

He missed sessions due to school

activities, appointments, or transportation issues (Tr. 54).
In severity of pain, Tretheway listed his hands, neck,
head, feet, and calves (Tr. 56).

Tretheway stated his hands were

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in pain constantly and progressively worsened through the day
(Tr. 56).

Migraines caused the pain in Tretheway’s neck and head

and they occurred two or three times a week (Tr. 57).
Tretheway’s daily activities were caring for the
children, preparing meals, cleaning the house, loading the
dishwasher, and watching TV (Tr. 58-59).

Tretheway also drove

and went grocery shopping but he did not clean the bathrooms,
dust, or walk his dogs (Tr. 60).
care activities (Tr. 61).

Tretheway was capable of self-

Tretheway attended church once

bimonthly and recently took the family on a vacation to Oceans of
Fun and Worlds of Fun in Kansas City (Tr. 60-61).

Tretheway

occasionally went to the movies with his wife and visited family
regularly (Tr. 62-63).
Then, Tretheway’s attorney examined him.

Tretheway

testified that he failed three classes because he had difficulty
concentrating for longer than 25 minutes (Tr. 64).

He once was

on the Dean’s List of academic achievement but had been placed on
academic probation by the VA for his recent failures (Tr. 65).
Traveling to the campus for classes was difficult for Tretheway
because of his PTSD (Tr. 66).

Tretheway would type on the

computer approximately 40 minutes and then let his hands rest for
a couple of hours.
items.

He also experienced difficulty manipulating

Tretheway testified that he could lift 30 to 40 pounds.
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After numerous examinations, the VA had not identified the cause
for this condition (Tr. 67-68).
Tretheway discussed his PTSD.

He described his

anxiety, anger issues, and his night terrors (Tr. 69-70).

He

also explained that the VA never recommended that he see a
therapist one-on-one (Tr. 70).

Tretheway testified that he did

not believe that he could work because he could not stand or sit
for long periods or lift objects (Tr. 72).
The ALJ then examined the Vocational Expert (“VE”),
Steven Schill.

First, the ALJ asked whether a hypothetical

person with several limitations could perform the work which
Tretheway once performed (Tr. 72).

The ALJ described this

hypothetical person as sharing Tretheway’s age, education, and
work history, who would work best in a situation with minimal
contact with others and no contact with the general public.
Furthermore, the ALJ limited the hypothetical person’s physical
abilities by saying that person could perform only light work;
cannot do continuous push-pull with the upper extremities
bilaterally; cannot do frequent push-pull with the left upper
extremity; should never climb or reach up or back with his upper
left extremity; may frequently balance, stoop, kneel, crouch, and
crawl; and should avoid concentrated exposure to extreme cold,
noise, vibrations, and hazards (Tr. 74-75).
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With those

limitations in mind, the VE said that such a person could not
perform Tretheway’s previous work (Tr. 75).
Second, the ALJ asked the VE what sort of work such a
hypothetical person might perform (Tr. 75).

The VE replied

light, unskilled positions such as an office helper,2 photocopy
machine operator,3 and a cafeteria assistant.4
Then, Tretheway’s attorney examined the VE.

First,

Tretheway’s attorney used a hypothetical person with the same age
as Tretheway, with a high school education, some college, and the
following limitations:

unable to stand for longer than 10 to 15

minutes before needing to sit down; unlikely the person could
stand for six hours out of an eight-hour day; difficult for them
to perform jobs that involve significant amounts of handling,
grasping and feeling (Tr. 75).

Tretheway’s attorney asked what

sort of sedentary work such a person could perform (Tr. 75-76).
The VE responded that such a person could not work (Tr. 76).
Second, Tretheway’s attorney created a second
hypothetical person who simply missed work three days a month on

2

Dictionary of Occupational Titles (“DOT”) code 239.567010; 695 Iowa, Nebraska, Kansas, and Missouri (“regional”) jobs;
23,000 national (“US”) jobs.
3

DOT code 207.685-014; 900 regional jobs; 19,700 US jobs.

4

DOT code 311.677-010; 2,100 regional jobs; 86,000 US

jobs.
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account of migraines.

When asked if such a hypothetical person

could sustain a job, the VE answered no (Tr. 76).
Third, Tretheway’s attorney asked whether his first
hypothetical individual would be able to perform any of the three
light, unskilled jobs the VE previously mentioned (Tr. 77-78).
The VE answered no (Tr. 78).
THE ALJ’S FINDINGS
The ALJ found that Tretheway had not engaged in
substantial gainful employment since November 16, 2009 (Tr. 27).
The ALJ concluded Tretheway had the following severe impairments:
neuropathy, not otherwise specified, PTSD, migraine headaches,
and subluxation impingement of the left shoulder (Id.).

She did

not conclude, however, that Tretheway had an impairment or
combination of impairments that met or medically equaled one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1 (Tr. 28).

The ALJ went on to ascribe Tretheway’s RFC (Tr. 29).

The ALJ determined that Tretheway could perform “light work”
except the following limitations:
the claimant is limited to lifting
20 pounds occasionally and 10
pounds frequently but is limited
from continuous pushing or pulling
with the upper extremities
bilaterally and frequently pushing
or pulling with the lower
extremities. The claimant can
frequently climb, balance, stoop,
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kneel, crouch, and crawl, but
should avoid climbing ladders,
ropes, or scaffolds. The claimant
can reach, handle, finger, and
feel, but should avoid reaching up
and backwards with the left upper
extremity. The claimant should
avoid extreme and concentrated
exposure to cold, noise, hazards,
and vibrations. The claimant can
understand, remember, and carry out
simple instructions under ordinary
supervision. The claimant has
adequate attention and concentration to perform tasks. He would
work best in situations with
minimal contact with supervisors
and coworkers and should avoid all
contact with the general public.
(Tr. 29).

The ALJ explained her decision for this RFC over the

next four pages (Tr. 29-33).

After careful consideration of the

evidence, the ALJ found the Tretheway's statements concerning the
intensity, persistence, and limiting effects of those symptoms
were not credible to the extent they were inconsistent with the
RFC.

In light of those considerations, the ALJ found that

Tretheway was not fully credible and the evidence as a whole
supported the RFC (Tr. 33).

Consequently, the ALJ found that

Tretheway was able to perform light, unskilled work (Tr. 33-34).
STANDARD OF REVIEW
In reviewing a decision to deny disability benefits,
the district court's role under 42 U.S.C. § 405(g) is limited to
determining whether substantial evidence in the record as a whole
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supports the Commissioner's decision.
1190, 1193 (8th Cir. 1995).

Harris v. Shalala, 45 F.3d

“Substantial evidence is less than a

preponderance, but enough that a reasonable mind might accept it
as adequate to support a decision.”
626, 631 (8th Cir. 2008).

Juszczyk v. Astrue, 542 F.3d

If it is possible to draw two

inconsistent positions from the evidence and one of those
positions represents the Commissioner's findings, we must affirm
the denial of benefits.

Id. (quotations and citations omitted).

Thus, the Court will uphold the Commissioner’s final decision “if
it is supported by substantial evidence on the record as a
whole.”

Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008).
LAW & ANALYSIS
In his primary brief to this Court, Tretheway asserts

four errors to the ALJ’s decision:

the ALJ erred when she failed

to give proper consideration to the underlying VA medical
evidence; the ALJ’s credibility determination was not supported
by substantial evidence; the ALJ’s RFC was not supported by
substantial evidence; and, the ALJ’s hypothetical RFC question
failed to reflect Tretheway’s limitations (Filing No. 13, at iii).
I. Consideration to the underlying VA medical evidence.
Tretheway contends that the ALJ insufficiently
addressed the VA’s explanation for the ratings and the C&P
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examinations (Filing No. 13, at 9).

Also, Tretheway argues that

the ALJ violated SSA regulations by not weighing the medical
opinions in the VA’s rating.

Id. at 11.

Further, Tretheway

faults the ALJ for not providing explanation why the VA erred in
its determination of Tretheway’s disability under the VA’s
regulations.

Id. at 12.

These assertions fail because the ALJ

sufficiently reviewed the VA’s ratings and underlying medical
evidence.
Although a disability rating by the VA is not binding
on the ALJ, it is “entitled to some weight and must be considered
in the ALJ's decision.”

See Hamel v. Astrue, 620 F. Supp. 2d

1002, 1025 (D. Neb. 2009).

If the ALJ rejects the VA's finding

of disability, “reasons should be given to enable a reasoned
review by the courts.”

Id.

The Eighth Circuit announced that an

ALJ errs when she gives no reason for rejecting a VA rating.
Morison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998).

See

However, an

ALJ does not err when she addresses the VA rating and discusses
“the underlying medical evidence contained in the VA’s Rating
Decision.”

Pelkey v. Barnhart, 433 F.3d 575, 579-80 (8th Cir.

2006).
Here, the ALJ addressed the VA rating and examined its
underlying evidence at great length, including the examinations
of VA doctors.

Tr. 27-34.

Also, the Eighth Circuit does not
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require ALJs to square VA ratings with SSA decisions; instead, it
requires that ALJs give reasons for rejecting the VA’s
determinations.

The ALJ in this case gave such reasoning, and,

therefore, did not err.

See Pelkey, 433 F.3d at 579-80.

II. Credibility determination.
Tretheway contends that the ALJ erred in her assessment
of Tretheway’s credibility (Filing No. 13, at 22).

Tretheway

asserts that the ALJ considered only some, but not all, of
Tretheway’s testimony when making her assessment.

Id. at 23.

In making an RFC determination, the ALJ is required to
consider the “claimant's own descriptions of his limitations”
unless the ALJ makes a proper credibility determination and finds
that the claimant's statements regarding his own pain are not
credible.

Pearsall v. Massanari, 274 F.3d 1211, 1217–18 (8th

Cir. 2001).

To make such a finding, an ALJ must give full

consideration to all of the evidence presented relating to
subjective complaints, including the claimant's prior work
record, and observations by third parties and treating and
examining physicians relating to:

(1) claimant's daily

activities; (2) the duration, frequency, and intensity of the
pain; (3) precipitating and aggravating factors; (4) dosage,
effectiveness, and side effects of medication; and (5) functional
restrictions.

Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
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1986).

The absence of an objective medical basis which supports

the degree of severity of subjective complaints alleged is one
factor in evaluating the credibility of the testimony and
complaints.

Id.

Subjective complaints may be discounted if

there are inconsistencies in the evidence as a whole.

Id.

Consequently, an ALJ is required to make an “express
credibility determination” when discrediting a social security
claimant's subjective complaints.
971–72 (8th Cir. 2000).

Lowe v. Apfel, 226 F.3d 969,

The ALJ, however, is “not required to

discuss methodically each Polaski consideration.”

Id. at 972.

Deference is generally granted to an ALJ's determination
regarding the credibility of a claimant's testimony.

Dunahoo v.

Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001) (stating that if an
ALJ provides a “good reason” for discrediting claimant's
credibility, deference is given to the ALJ's opinion, “even if
every factor is not discussed in depth.”).

Here, the ALJ

expressly determined Tretheway’s statements concerning the
intensity, persistence, and limiting effects of his symptoms was
not credible above his RFC.

The reasons for this determination

included lack of objective medical evidence, and Tretheway’s
failure to abide by his treatments, and inconsistencies with the
record as a whole.

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In regards to migraines, the ALJ discussed Tretheway’s
treatment and lack thereof.

Though it is true that Tretheway was

prescribed medication on August 8, 2012, the time of the hearing,
the record clearly shows that Tretheway barely used his
prescribed medication.

In February 2009, a VA doctor prescribed

a six-pill package of Zolmitriptan with twelve refills for
Tretheway’s migraines.

Tr. 581.

However, Tretheway only

refilled his prescription once in the course of that year,
meaning that he used no more than twelve pills in that one year.
Tr. 557.

In February 2010, his prescription expired.

576, 557, 215, 516, 706.

Tr. 565,

Nonetheless, Tretheway told his

treating doctors that the medication was effective for treating
his migraines even after his migraines became more frequent and
the prescription ended.

Tr. 516, 706.

Years later, on February

2, 2012, Tretheway stated that he was not taking migraine
medication and the migraine medication he had taken,
Zolmitriptan, did not help.

Tr. 216.

Then in July, 2012 -- one

month before appearing before the ALJ -- Tretheway returned to
the VA to renew his prescription.

Tr. 709.

Tretheway said

Zolmitriptan “worked very well” for him but that his other
conditions prevented his refilling the prescription for two
years.

Tr. 709.

The evidence as a whole contradicts Tretheway’s

-23-

assertions regarding the frequency, duration, and intensity of
his migraines.
In regards to neuropathy, the ALJ cited the lack of
objective medical evidence of this condition, inconsistences in
the record, and daily activities to support her decision.

After

several tests, there were no specific causes for the neuropathy.
Also, the record reflects that neuropathy was never presented in
an EMG.

Tr. 440.

Tretheway reported that his tendinitis caused

constant pain, yet in his visits to the VA hospital, he noted his
pain was a zero out of ten.

Tr. 422, 516-17.

Tretheway stated

that the tennis straps aided his condition but later stated that
he stopped using the tennis straps.

Tr. 214, 527.

Tretheway

performed numerous daily activities with use of his hands,
including driving, grocery shopping, played catch, carrying
books, household chores, fixing bicycles, manipulating computers
and writing tools.

Tr. 392-402, 415, 493.

The evidence as a

whole contradicts Tretheway’s assertions regarding the frequency,
duration, and intensity of his neuropathy.
Similarly, Tretheway’s assertion regarding his foot
pain was inconsistent with the record.

In April 2011, Tretheway

stated he had no standing or walking limitations.

Tr. 466.

Less

than four months later, in August 2011, Tretheway claimed he
could not stand for more than twenty minutes.
-24-

Tr. 420.

There

was no diagnostic data to support Tretheway’s standing
limitation.

Tr. 31.

In regards to Tretheway’s PTSD, the ALJ noted
inconsistences in the record and Tretheway’s daily activities.
In 2004, Dr. Matheson questioned Tretheway’s symptom reporting
and the fact that Tretheway could not recall the name of his two
close friends who committed suicide.

Tr. 502.

The doctor also

noted that Tretheway was quite willing to discuss his stressful
military events, yet Tretheway did not discuss Operation Eastern
Exit until seven years later.

Tr. 501, 507.

discussed Tretheway’s daily activities.

Dr. Matheson also

Tretheway drove,

shopped, household chores, cared for his children, attended
church once every couple of months, took family vacations, went
to the movies, successfully attended school up until he applied
for Social Security benefits, and visited family.

Tr. 60-63.

The evidence as a whole contradicts Tretheway’s assertions
regarding the frequency, duration, and intensity of his PTSD.
III. The ALJ’s RFC was not supported by substantial evidence.
Tretheway contends the ALJ erred in the following
manners: giving improper weight to the opinion of Dr. Weber,
giving improper weight to the opinion of the Dr. Zieno, finding
Tretheway has no manipulation limitations.

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Filing No. 13, at 12.

A.

Opinion of Dr. Weber.
Dr. Weber, Tretheway’s treating physician, delivered a

letter to the ALJ regarding Tretheway’s conditions.

Tr. 697.

Dr. Weber relayed Tretheway’s subjective statements of pain.

Id.

(“Tretheway states he is unable to stand for a period longer than
10-15 minutes due to the severe pain in his feet . . . [and he]
complain[s] of migraine headaches that occur 2-3 days per week
and require him to miss work.”).

Dr. Weber informed the ALJ

that, after an exhaustive medical work-up trying to diagnose
Tretheway’s pain in his hands and feet, the most accurate
diagnosis was neuropathy NOS.

Id.

Dr. Weber said he was not

successful in treating Tretheway’s condition or diagnosing it.
Due to Tretheway’s statements of pain in his legs, Dr.
Weber opined that Tretheway would be unable to stand for more
than 10-15 minutes before sitting.

Due to Tretheway’s statements

of pain and numbness in his hands, Dr. Weber stated Tretheway
would have difficulty handling, grasping, and feeling objects.
Due to Tretheway’s migraine claims, Dr. Weber stated he would
miss a significant amount of work, approximately three days per
week.
The ALJ declined to give much weight to Dr. Weber’s
opinions because they relied upon the alleged "neuropathy" for
which there is no specific diagnosis.
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Also, the treating doctors

and neurologists were unable to specify an underlying cause of
the "neuropathy" or any further insights.

Tr. 32.

“Generally, [a] treating physician's opinion is due
controlling weight if that opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in the
record.”

Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004)

(citing Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001))
(alteration in original) (internal quotation omitted).

However,

“[a]n ALJ may discount or even disregard the opinion of a
treating physician where other medical assessments are supported
by better or more thorough medical evidence, or where a treating
physician renders inconsistent opinions that undermine the
credibility of such opinions.”

Id. (citing Goff v. Barnhart, 421

F.3d 785, 790 (8th Cir. 2005) (internal quotation omitted).
Here, the ALJ properly discounted Dr. Weber's opinion
because it was internally inconsistent.

In his letter, Dr. Weber

states that he was unsuccessful in diagnosing Tretheway, but
neuropathy was the “most accurate” diagnosis for Tretheway’s
complaints.

Tr. 697.

Dr. Weber and Tretheway’s neurological

teams based their medical opinions on Tretheway’s complaints
because no objective medical evidence supported Tretheway’s
underlying condition.

Id.

Nonetheless, unable to diagnose
-27-

Tretheway’s condition or support his claim with objective medical
evidence, Dr. Weber gave a prognosis which conflicted with the
record as a whole.

See supra 22-23.

Therefore, the ALJ did not

err in granting doctors who depended upon the unsuccessful
diagnosis, like Dr. Weber, less deference.
B.

Opinion of Dr. Zieno.
Dr. Zieno, Tretheway’s “treating psychologist” who

examined Tretheway only twice, completed most of a Mental
Impairment Questionnaire and submitted it to the ALJ.
653.

Tr. 647-

Dr. Zieno opined Tretheway would miss at least three days

of work per month and would be unable to maintain regular
attendance.

The ALJ did not give much weight to those opinions

because Dr. Zieno gave a “moderate” Global Assessment Function
(“GAF”) score.

The Court finds that this GAF score is not

internally inconsistent with the doctor’s opinion.

On remand,

the ALJ must reconsider whether to give weight to Dr. Zieno’s
report on factors above and beyond a mere GAF score.
v. Barnhart, 368 F.3d 820, 823-24 (8th Cir. 2004).

See Duncan
These factors

should include the treatment relationship, consistency,
specialization, the thoroughness of Dr. Zieno’s assessment, and
other things.

If the ALJ determines Dr. Zieno’s opinion deserves

consideration, the ALJ must likewise redetermine how much weight
the opinion deserves and the corresponding RFC.
-28-

C. Manipulation limitations
The substantial weight of the evidence supports the
ALJ’s RFC concerning Tretheway’s limitations in his hands, arms,
feet, shoulder, and legs.

See supra 19-24, 25-27.

IV. Hypothetical RFC question.
The ALJ erred in evaluating whether Dr. Zieno’s opinion
deserved consideration and to what extent.

Therefore, the Court

will not evaluate the ALJ’s hypothetical questions dependant upon
the ALJ’s reevaluation.
CONCLUSION
The substantial evidence in the record as a whole
illustrates that the ALJ did not improperly discount Tretheway’s
subjective claims of the persistency and severity of pain.

The

ALJ’s examination of Tretheway’s daily activities was a necessary
and proper factor in determining the credibility of Tretheway’s
subjective complaints.

Furthermore, numerous other

considerations in the record as a whole support the ALJ’s
conclusion pursuant to Polaski.

The Court will, however, remand

the matter to the ALJ to reassess the analysis of Dr. Zieno’s
opinion pursuant to this order.

The ALJ did not err in her

assessment of Tretheway’s manipulation limitations.

The Court

makes no ruling as to the RFC hypothetical questions in the

-29-

hearing.

A separate order will be entered in accordance with

this memorandum opinion.
DATED this 4th day of March, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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