Wiemers v. Colvin

Filing 35

ORDER that upon review of the record as a whole, substantial evidence supports the ALJ's decision, and the government's motion to affirm the decision of the Commissioner of the Social Security Administration, (Filing No. 32 ), is granted. Judgment in accordance with this memorandum and order will be entered by separate document. Ordered by Magistrate Judge Cheryl R. Zwart. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KURTIS TODD WIEMERS,
Plaintiff,

8:16CV413

vs.
ORDER
NANCY A. BERRYHILL, Commissioner
of the Social Security Administration;
Defendant.
Plaintiff Kurtis T. Wiemers (“Wiemers”), seeks review of the decision by the
defendant, Nancy A. Berryhill, Acting Commissioner of the Social Security
Administration (the “Commissioner”), denying his application for Social Security
disability insurance and benefits under Title II of the Act. See 42 U.S.C. § 1381.
After carefully reviewing the record, the Commissioner’s decision is affirmed.

I.

PROCEDURAL BACKGROUND

Wiemers applied for Title II disability and disability insurance benefits on
April 11, 2013, claiming he is unable to work due to disability beginning April 17,
2012. (Filing No. 22-2 at CM/ECF p. 19). Wiemers subsequently amended his
disability onset date to March 7, 2012. (Id). Wiemers’ claim was denied on July 25,

2013. Upon reconsideration, the claim was again denied on March 13, 2014.
Plaintiff then filed a written request for a hearing. Administrative Law Judge
(“ALJ”) J. Doug Wolfe presided over a video hearing, in accordance with 20
C.F.R. 404.936(c), on March 4, 2015. Wiemers was represented by attorney
Mary Kay Hansen.

ALJ Wolfe issued his written opinion on April 15, 2015, finding that
Wiemers was not disabled within the meaning of the Social Security Act (“the
Act”). (Id. at CM/ECF p. 16). On June 28, 2016, the Appeals Council denied
Wiemers request for review. (Id. at CM/ECF p. 2). Wiemers timely appealed the
Commissioner’s final decision to this court on August 30, 2016. (Filing No. 1).

II.

THE ALJ’S DECISION

The ALJ evaluated Johnson’s claim through the five-step sequential
evaluation process to determine whether Johnson was disabled. 20 C.F.R.
§416.920(a)(4). As reflected in his decision, the ALJ made the following findings:
1.

The claimant last met the insured status requirements of the Social
Security Act on December 31, 2013.

2.

The claimant has not engaged in substantial gainful activity during
the period from his alleged onset date of March 7, 2012 through his
date last insured of December 31, 2013. (20 CFR 404.1571 et seq.).

3.

Through the date last insured, claimant had the following severe
impairments: degenerative lumbar disc disease status post two
surgeries on disc L5, bipolar disorder, and a generalized anxiety
disorder (20 CFR 404.1520(c)).

4.

Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and
404.1526).

5.

The claimant has the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b). However, claimant is
physically limited to performing postural activities for one-third (1/3)
of an eight (8) hour work day and is mentally limited to simple
unskilled work.

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6.

Through the date last insured, the claimant was unable to perform
any past relevant work. (20 CFR 404.1565).

7.

The claimant was born on August 7, 1971 and was 42 years old,
which is defined as a younger individual age 18-49, on the date last
insured (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.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is "not disabled,"
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).

10.

Through the dated last insured, considering the claimant's age,
education, work experience, and residual functional capacity, there
were jobs that existed in significant numbers in the national economy
that the claimant could have performed (20 CFR 404.1569 and
404.1569(a)).

11.

The claimant was not under a disability, as defined in the Social
Security Act, at any time from March 7, 2012, the alleged onset date,
through December 31, 2013, the date last insured (20 CFR
404.1520(g)).

III.

ISSUES RAISED FOR JUDICIAL REVIEW

Wiemers requests judicial review of the ALJ’s decision. In his complaint
(Filing No. 1), and his filing in opposition to Defendant’s motion to affirm, (Filing
No. 31), Wiemers raises the following arguments in favor of reversal:

1.

Whether the Commissioner afforded appropriate weight to the
treating-source opinions of Dr. Glenn and Dr. Tatay.

2.

Whether the Commissioner afforded appropriate weight to the
opinion of consultative examiner Dr. Meyer.
3

3.

IV.

Whether the Commissioner’s ultimate decision was supported by
substantial evidence.
THE RECORD AND PROCEEDINGS BEFORE THE ALJ

Wiemers was 42-years-old on the date he last met the insured status
requirements of the Social Security Act. (Filing No. 22-2 at CM/ECF p. 30)
Wiemers, a high school graduate, is able to communicate in English. He has past
relevant work experience as a heavy truck driver and as a cashier. (Id). He is
married but has no children or other dependents.

In early March 2012, Wiemers sought treatment for lower back pain
through Thayer County Health Services. (Filing No. 22-8 at CM/ECF p. 21). He
received an MRI on March 10, 2012, and based on the results, Wiemers was
recommended for back surgery. On April 4, 2012, he underwent a surgical
procedure consisting of a “right LS partial hemilaminectomy and removal of
extruded disc.” (Id. at CM/ECF p. 63). Post-surgery, Wiemers reported residual
back pain to treating physician Dr. Matthew Glenn, M.D., in April, June, and
August 2012. See (Filing No. 23-4 at CM/ECF pp. 44-47; Filing No. 22-8 at
CM/ECF p. 16; Filing No. 22-8 at CM/ECF pp. 98-99). Two of the reported
August 2012 back pain incidents were related to a slip-and-fall and to heavy
lifting, which both caused pain at the site of his surgical incision. (Filing No. 22-8
at CM/ECF pp. 98-99). In November and December 2012, Wiemers sought
emergency room care related to his lower back and underwent an additional
lower back-related surgical procedure on December 19, 2012. (Filing No. 23-2 at
CM/ECF pp. 77-78; Filing No. 22-8 at CM/ECF p. 53).

In January and February 2013, Wiemers reported back pain and requested
additional pain medication; however, he concurrently reported that his lower back
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pain was “overall…getting better.” (Filing No. 22-8 at CM/ECF pp. 76-78). From
February 2013 through December 31, 2013, the date last insured, Wiemers
reported some back pain and stiffness, including some pain as the result of a
September car accident, but it was not documented as “acute distress.” See
(Filing No. 23-2 at CM/ECF p. 42; Filing No. 23-4 at CM/ECF pp. 66, 70, 76).

In addition to medical problems related to lower back pain, Wiemers has
reported and sought treatment for bipolar disorder, depression, generalized
anxiety and mood swings. Wiemers also complains of recurrent seizures.(Filing
No. 22-2 at CM/ECF p. 21). Wiemers began seeing psychiatrist Dr. Rafael Tatay
in September 2010, who diagnosed him as bipolar, anxious and depressed. He
reported symptoms generally including anxiety, panic, helplessness, and erratic
sleep. In March 2012, Wiemers reported “moderate anxiety.” In April and May
2012, Wiemers described severe mood swings and anxiety, but Dr. Tatay
otherwise observed that his thought processes, speech, cognitive functioning,
and level of abstraction were within normal bounds on each visit. (Filing No. 22-9
at CM/ECF pp. 38-41). On May 24, 2012, Wiemers reported to his primary care
provider, Dr. Glenn, that he had “minor complaints,” a “good energy level,” and
was “sleeping well.” (Filing No. 23-4 at CM/ECF p. 42). Dr. Glenn noted Wiemers’
bipolar disorder, depression, and anxiety diagnoses but indicated that Wiemers
was “not in acute distress.” (Id. at CM/ECF p. 44). In addition, Dr. Glenn noted no
acute mental distress at appointments in June, August, October and December
2012. (Filing No. 23-4 at CM/ECF pp. 46, 50, 53, 56).

Wiemers continued treatment for mental health related complaints in
January, April, May, and July 2013, with the most severe symptoms reported in
May. (Filing No. 22-9 at CM/ECF p. 34, 55). At a May 9, 2013 appointment at the
Fillmore County Medical Center, Wiemers reported “significant problems” related

5

to insufficient medication prescribed to treat his anxiety symptoms. (Filing No. 232 at CM/ECF p. 42). By July, however, Wiemers depression was noted as
“present” but his anxiety was noted as “controlled.” (Filing No. 23-5 at CM/ECF p.
75).

Dr. Allen Meyer, Ph.D., performed a disability evaluation of Wiemers on
July 22, 2013, in connection with his application for Social Security
Administration benefits. Dr. Meyer determined that Wiemers suffered from
generalized anxiety. Dr. Meyer also referenced an EEG scan that indicated
Wiemers suffered from recurrent grand mal seizures. But he found no signs of
mania that would otherwise indicate bipolar disorder, no signs of obsessive
compulsive disorder, and no paranoia. He noted that Wiemers took Serax and
Seroquel medications that Wiemers found “effective.” (Filing No. 22-9 at CM/ECF
pp. 2-8).

Wiemers showed some indications of memory loss, but could remember
three-word sequences presented to him, even when presented with a delay or
distraction. (Id. at CM/ECF p. 7). Dr. Meyer noted that Wiemers was rapid and
scattered in his communication style during his interview, but he could be
directed back to pertinent topics. He could also understand and carry out short
and simple instructions when under ordinary supervision. Dr. Meyer ultimately
determined that Wiemers was not restricted in regard to the requirements of daily
living, but he faced reduced scope of employment ability and would have
difficulty working regular, consistent hours. (Id. at CM/ECF p. 8). His findings
were based on his one-time July 2013 evaluation of Wiemers.

Dr. Tatay and Dr. Glenn provided treating source opinions in September
and October 2013, respectively. (Filing No. 22-9 at CM/ECF pp. 24-29; Filing No.

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23-6 at CM/ECF pp. 66-69). Dr. Tatay completed a questionnaire evaluating
Wiemers mental impairment, indicating that he saw and treated Wiemers in
three-month increments over a span of years. Dr. Tatay noted Wiemers’ bipolar
disorder diagnosis. He further indicated other symptoms, including sleep
disturbance, distractibility, decreased energy, and generalized persistent anxiety.
He questioned Wiemers’ ability to function outside of a highly supportive living
environment as well as his ability to meet a “minimal increase in mental
demands.” (Filing No. 22-9 at CM/ECF p. 28). He opined that Wiemers would
need to be absent from work more than four days per month.

In his report, Dr. Glenn indicated Wiemers suffered from seizures
beginning in May 2012, and had chronic back pain, anxiety and bipolar disorder.
(Filing No. 23-6 at CM/ECF p. 67). Focusing on Wiemers’ physical health, Dr.
Glenn opined that Wiemers could walk approximately two to three city blocks
without rest or severe pain. He further opined that Wiemers could sit or stand for
approximately 20 minutes at time. Dr. Glenn determined that Wiemers could
stand or sit for a total of two hours each during an 8-hour work day. He also
opined as to Wiemers’ need for unscheduled breaks every 20 or 30 minutes and
his inability to lift 50 pounds or to climb ladders.

During the video hearing held before ALJ Wolfe on March 4, 2015,
Wiemers testified that he has “good days” and “bad days,” with varying levels of
pain and discomfort. (Filing No. 22-2 at CM/ECF p. 52). Wiemers testified that he
has approximately four “good days” per each seven-day period. (Id). Wiemers
indicated that his pain level can reach eight (8) or nine (9) on a ten-point scale,
but is reduced to a two (2) when he regularly takes his prescribed medication.
However, Wiemers testified that on a “bad day” his symptoms remain difficult to
manage even when he has taken a full dosage of his medications. He states that

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on a “bad day” he has difficulty walking a short distance to his kitchen and that he
cannot sit for more than two hours without experiencing discomfort and the need
to move. He indicated that some days, he has trouble bending or kneeling. (Id. at
CM/ECF p. 54).

Wiemers also indicates that he experiences symptoms of anxiety and
depression on a daily basis. He testified that he has frequent memory loss during
conversation and has difficulty focusing. He says he experiences a panic attack
approximately once per month. In addition, Wiemers reports experiencing grand
mal seizures “once a month” or “once every two months.” (Id). After experiencing
a seizure, Wiemers feels the effects for up to four days. He testified that he
regularly takes anti-seizure medications.1 He further states that between grand
mal seizures, he frequently experiences smaller episodes that result in memory
loss.2

Following Wiemers’ testimony, ALJ Wolfe heard the testimony of
vocational expert (“VE”) Stephen Kuhn. ALJ Wolfe asked the testifying VE to
assume a person of Wiemers’ age, education, and work experience has the
following limitations:
Assume that posturally the individual was limited to performing those
activities for one-third of an eight-hour workday, and mentally
assume that the individual was limited to performing the mental
demands of simple unskilled work.

1

In October 2013, Wiemers indicated that he was not taking any medication for
his reported seizure condition. (Filing No. 22-6 at CM/ECF p. 28).
2

Wiemers’ wife, Kristi Wiemers, and his mother-in-law Deanna Jeardoe,
completed separate questionnaires in October 2013 indicating that they have witnessed
Wiemers seize on multiple occasions. Both testify that his seizures come with no
warning and can cause confusion for several hours thereafter. See (Filing No. 22-6 at
CM/ECF p. 32).

8

The VE testified that the hypothetical individual described could not
perform any of Wiemers' past relevant work. However, the VE indicated that the
hypothetical individual could perform other light, unskilled work, including “a
packager, DOT number 559.685-018” (with 150,000 such jobs nationwide), or
“fast food worker, DOT number 311.472-010” (with over a million such jobs
nationwide).

ALJ Wolfe further inquired whether an individual of Wiemers’ age,
education, and relevant work experience could perform light work if afflicted by
the following additional limitations:
[L]imited to lifting and or carrying no more than 10 pounds for no
more than one-third of an eight-hour workday…[L]imited to standing
and or walking for no more than two hours out of an eight-hour
workday...[L]imited to sitting for no more than two hours out of an
eight-hour workday….[U]nable to climb ladders, ropes, or scaffolds
and...other postural activities that would be limited to less than onethird of an eight-hour workday…[I]ndividual would miss on the
average about four days [of work] per month…[M]entally…unable
and on a sustained regular basis would be unable to respond
appropriately to supervision, co-workers, usual work situation[s], or
changes in a routine work setting.
The testifying VE indicated that an individual with the preceding limitations
could neither perform Wiemers’ past relevant work nor are there occupations in
the national economy that the hypothetical individual could perform.

V.

ANALYSIS

Wiemers asks this court to overturn the Commissioner’s decision claiming:
(1) the Commissioner did not afford appropriate weight to the treating-source
opinions of Dr. Glenn and Dr. Tatay; (2) the Commissioner did not afford

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appropriate weight to the opinion of consultative examiner Dr. Meyer; and (3) the
Commissioner’s ultimate decision was not supported by substantial evidence.
I.

Failure to Provide Proper Weight to Treating Source Opinions
Wiemers first argues that the ALJ erred in assigning “little weight”3 to the

opinions of treating psychiatrist Dr. Rafael Tatay and treating physician Dr.
Matthew Glenn. The ALJ determined that the treating source opinions of Drs.
Tatay and Glenn were “without support from other substantial evidence in record
including the medical evidence…[and] the claimant’s activities.” (Filing No. 22-2
at CM/ECF p. 29).

In September 2013, Dr. Tatay

completed a

Mental Impairment

Questionnaire in connection with Wiemers’ application for disability insurance
benefits. Dr. Tatay noted that Wiemers suffers from bipolar disorder. He further
documented signs and symptoms of mental impairment that include several
mood, memory and emotional disturbances. Dr. Tatay’s evaluation of Wiemers’
ability to function included: a serious inability to maintain concentration, to remain
punctual, or to respond appropriately to simple instructions. He opined that
Wiemers is unable to meet competitive standards at all with regard to his ability
to follow simple routines, to remember work procedures or to handle normal
workplace stress. (Filing No. 22-9 at CM/ECF pp. 24-29).

When prompted to provide clinical findings that support the severity of
Wiemers’ impairments, Dr. Tatay stated that “with current medication he is doing

3

In his brief, Wiemers initially argues that ALJ Wolfe assigned “no weight” to the
treating source opinions of Drs. Tatay and Glenn. However, it is clear from the ALJ’s
decision that he afforded “little” rather than “no” weight to the treating sources. The court
notes that even in light of this discrepancy, the same analysis is applicable.

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fairly well, [but] still has some memory loss.” (Id. at CM/ECF p. 24). Dr. Tatay
was further prompted to provide “medical/clinical findings that support his
assessment” of any serious limitations to Wiemers’ “mental abilities and aptitudes
needed to do unskilled work.” In response, Dr. Tatay provided some general
comments regarding memory loss, mood swings and an alleged history of
alcohol abuse. (Id. at CM/ECF p. 27).

In October 2013, Dr. Matthew Glenn provided his findings and opinions in
a General (Physical) Questionnaire. He notes Wiemers chronic back pain and
anxiety. He further notes that Wiemers back pain was “severe” and included pain
in his leg as well as “nerve decompression.” (Filing No. 23-6 at CM/ECF p. 66).
He indicates significant limitations in Wiemers’ ability to sit or stand without
experiencing severe pain, ultimately concluding that Wiemers could only stand or
sit for two (2) hours during a standard 8-hour workday. He indicated lifting and
movement restrictions that would disallow Wiemers from ever lifting more than 50
pounds and or climbing a ladder. He believes Wiemers would require
unscheduled breaks during the workday every 20-30 minutes, lasting a duration
of 5-10 minutes per break. (Id). Dr. Glenn ultimately concluded that Wiemers
physical health would limit him to “low stress work.” (Id. at CM/ECF p. 69).

When prompted to “identify the clinical findings and objective signs” that
led to his conclusions, Dr. Glenn wrote “tender palpation lumbar,” “diminished
reflexes bilat[erally],” and “[decreased] ambulation [from] pain.” No further written
explanation was provided. (Id. at CM/ECF p. 66).

ALJ Wolfe, while acknowledging that Dr. Tatay and Dr. Glenn were treating
sources, assigned “little weight” to their evaluations. The ALJ found that both
treating source opinions “provided little explanation of the evidence relied on.”
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(Filing No. 22-2 at CM/ECF p. 29). He further determined that they were “without
support” of other substantial evidence in record, including other medical evidence
or Wiemers’ own testimony as to his activities. (Id).
An ALJ must give “’controlling weight’ to a treating physician's opinion if it
is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.” Papesh v.
Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015) (quoting Wagner v. Astrue, 499 F.3d
842, 848–49 (8th Cir.2007)); see also 20 C.F.R. § 404.1527. A treating
physician’s opinion “should not ordinarily be disregarded…[.]” Miller v. Colvin,
784 F.3d 472, 477 (8th Cir. 2015). However, the opinion of a treating source may
have “limited weight if it provides conclusory statements only…or is inconsistent
with the record.” Samons v. Astrue, 497 F.3d 813, 818 (8th Cir. 2007). Moreover,
“[t]he ALJ may discount or disregard such an opinion if other medical
assessments are supported by superior medical evidence, or if the treating
physician has offered inconsistent opinions.” Hogan v. Apfel, 239 F.3d 958, 961
(8th Cir. 2001) (emphasis added).

Here, Drs. Tatay and Glenn provide little more than conclusory statements
regarding both Wiemers’ physical and mental health. When asked for specific
“clinical findings” both treating sources reiterated their diagnoses without further
elaboration. Neither cited specific incidents, specific clinical visits, or specific
medical tests performed. An ALJ does not have a duty to “patch the holes in a
treating physician's porous opinion nor give the opinion controlling weight...[.]”
Cline v. Colvin, 771 F.3d 1098, 1104 (8th Cir. 2014). Likewise, a treating
physician’s opinion should not control when devoid of “clinical or diagnostic data.”
Id. (citing Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir.1989)). Thus, ALJ

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Wolfe reasonably concluded that the treating source opinions of Drs. Tatay and
Glenn were afforded little weight.

Even assuming Drs. Tatay and Glenn provided more than mere
conclusions in their Questionnaires, those opinions may still be properly
discounted if “inconsistent with the record.” Samons, 497 F.3d at 818. As such,
ALJ Wolfe found these opinions “less persuasive” based on a lack of support
“from other substantial evidence in the record.” (Filing No. 22-2 at CM/ECF p.
29).

From his disability onset date through his date last insured, Wiemers
consistently sought treatment for chronic lower back pain, which included two
surgical procedures and emergency room visits in November and December
2012. (Filing No. 23-2 at CM/ECF pp. 77-78; Filing No. 22-8 at CM/ECF p. 53).
Wiemers did, however, report as to the effectiveness of his medication and
indicated that his back pain was “overall…getting better” in February 2013. (Filing
No. 22-8 at CM/ECF at p. 76). At his hearing before ALJ Wolfe, Wiemers testified
that he has good and bad days, with approximately four good days per week. He
indicated that on a good day, he can accompany his wife to the grocery store,
care for their dog, and do light work around the house, including small loads of
laundry and dishes. (Filing No. 22-2 at CM/ECF at pp. 52, 56, 69). On bad days,
he has trouble sitting for prolonged periods and walking more than a short
distance. He indicated that on good days, which he implied outnumber the bad,
his medication is effective at alleviating his lower back pain. (Id. at CM/ECF p.
53).

Wiemers also complained on multiple occasions of anxiety, panic, mood
swings and depression. Dr. Tatay, while recording Wiemers' reported symptoms,

13

found that his thought processes, speech, cognitive functioning, and level of
abstraction were within normal bounds at multiple appointments. (Filing No. 22-9
at pp. 38-41). Also on multiple occasions, Dr. Tatay noted that Wiemers
medication was “effective” or “working well.” (Id). In July 2013, he further noted
that Wiemers’ anxiety was “controlled.” At appointments with Dr. Glenn in May,
June, August, and December 2012, Wiemers was noted as “not in acute
distress.” (Filing No. 23-4 at CM/ECF pp. 46, 50, 53, 56). Wiemers did indicate at
his hearing that he experiences symptoms of anxiety and depression daily. He
stated that he has recurrent panic attacks approximately once per month and
suffers from grand mal seizures “once a month” or “once every two months.”
(Filing No. 22-2 at CM/ECF p. 61).

The ALJ thoroughly weighed the record and determined that the opinions
of Dr. Tatay and Dr. Glenn were inconsistent when viewed in light of other
substantial evidence in the record, including their own previous medical
evaluations and Wiemers’ own testimony. “‘Substantial evidence is relevant
evidence that a reasonable mind would accept as adequate to support the
Commissioner=s conclusion.’” Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir.
2006) (quoting Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). Here, a
reasonable mind could conclude that the record was inconsistent with the
treating source opinions of Drs. Tatay and Glenn. Moreover, the court “will not
reverse the decision merely because substantial evidence would have also
supported a contrary outcome.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir.
2010).
In sum, ALJ did not err in affording little weight to the treating source
opinions based either on their conclusory nature or their inconsistency with
substantial evidence in the record as a whole.

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II.

Failure to Provide Proper Weight to Opinion of Consultative Examiner

Wiemers next argues that the opinion of consultative examiner Dr. Allen
Meyer should have been afforded more than “some weight.” Wiemers asserts
that the ALJ erred in determining that Dr. Meyer’s opinion was “without support
from other substantial evidence in record.” (Filing No. 22-2 at CM/ECF p. 28).

Dr. Meyer conducted his one-time examination of Wiemers on July 22,
2013. (Filing No. 22-9 at CM/ECF p. 2). Dr. Meyer determined that Wiemers
suffered from generalized anxiety and recurrent grand mal seizures. Dr. Meyer’s
report indicates that Wiemers found his prescribed seizure and anxiety
medications “effective.” Dr. Meyer noted some indications of memory loss as well
as Wiemers’ rapid and scattered communication style. (Id. at CM/ECF at p. 5).
He reported that Wiemers could remember three-word sequences and could
carry out short and simple instructions when under ordinary supervision. He
ultimately determined, however, that Wiemers faced reduced scope of
employment and would have difficulty working regular, consistent hours. (Id).
“[T]he results of a one-time medical evaluation do not constitute substantial
evidence on which the ALJ can permissibly base his decision . . . [.]” Cox v.
Barnhart, 345 F.3d 606 (8th Cir. 2003). In assigning weight to the opinion of a
non-treating examiner, the ALJ should consider the nature of the treatment
relationship, the length of treatment, the supporting evidence, the consistency
with the record as a whole, and whether the physician was practicing in his or her
specialty. See 20 C.F.R. § 416.927(c)(1–6). Here, the ALJ determined that Dr.
Meyer’s opinion should be afforded some weight. ALJ Wolfe noted that Dr. Meyer
only interacted with Wiemers on one occasion and that his analysis was overall

15

inconsistent with substantial evidence in the record. (Filing No. 22-2 at CM/ECF
p. 28).
Wiemers takes issue with ALJ Wolfe’s decision to afford more weight to
the opinion of a consultative examiner than to those of treating source
physicians. Wiemers argues that the treating source opinions should have been
given controlling weight but that Dr. Meyer’s opinion, in turn, should have been
afforded more than just “some weight.” (Id).
The Eighth Circuit has recognized an ALJ’s ability to afford more weight to
a non-treating source’s opinions when the opinion of a treating source has been
found inconsistent with the record. Hacker v. Barnhart, 459 F.3d 934, 939 (8th
Cir. 2006) (“[h]aving determined that [treating source] opinions were inconsistent
with substantial evidence in the record, the ALJ was clearly authorized to
consider the opinions of other physicians”). As explained, supra, the court finds
no error in the ALJ’s decision to assign little weight to the opinions of treating
sources Drs. Tatay and Glenn based on inconsistency with substantial evidence
in the record. Thus, the court finds no error in assigning more weight to a nontreating source.
An ALJ may also appropriately afford “some weight where it was
warranted, and discount[ ] it when it was contradicted by a lack of evidence or
was undermined by contrary evidence…[.]” Aguiniga v. Colvin, 833 F.3d 896, 902
(8th Cir. 2016). Even when lacking in specificity as to which pieces of evidence
were discounted, “a deficiency in opinion-writing is not a sufficient reason for
setting aside an administrative finding where the deficiency had no practical
effect on the outcome of the case.” Vance v. Berryhill, 860 F.3d 1114, 1118 (8th
Cir. 2017); see also Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (finding that

16

ALJ “is not required to discuss every piece of evidence submitted,” and his
“failure to cite specific evidence [in the decision] does not indicate that such
evidence was not considered”).
Here, the ALJ properly took into account Dr. Meyer’s limited treatment
history of Wiemers and also reasonably determined that Meyer’s opinion was not
supported by substantial evidence. ALJ Wolfe evaluated Meyer’s opinion in light
of other medical evidence as well as Wiemers’ testimony regarding his limitations
and daily activities. As such, a “reasonable mind would accept as adequate” the
ALJ’s conclusion. Smith, 435 F.3d at 930.
For the foregoing reasons, ALJ Wolfe did not error in affording “some
weight” to the portions of Dr. Meyer’s testimony that he found consistent and
persuasive with the substantial evidence in the record.

III.

Failure to Find Substantial Evidence on the Record as a Whole

Finally, Wiemers argues throughout his brief that even if the treating and
non-treating sources in the record were afforded appropriate weight, substantial
evidence still warranted a finding of disability on the record as a whole.
“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.” Schultz v. Astrue, 479 F.3d 979, 982 (8th Cir. 2007) (citing Hogan v.
Apfel, 239 F.3d 958, 960 (8th Cir. 2001)). If substantial evidence on the record as
a whole supports the decision, it must be affirmed. Choate v. Barnhart, 457 F.3d
865, 869 (8th Cir. 2006) (emphasis added). As discussed above, “‘[s]ubstantial
evidence is relevant evidence that a reasonable mind would accept as adequate
to support the Commissioner=s conclusion.’” Smith, 435 F.3d at 930 (quoting
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Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “The ALJ is in the best
position to gauge the credibility of testimony and is granted deference in that
regard.” Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). The court should
not overturn an ALJ’s decision so long as it is in the “zone of choice” even if the
court disagrees with the ALJ’s conclusion. Buckner v. Astrue, 646 F.3d 549, 556
(8th Cir. 2011).
ALJ Wolfe determined that Wiemers had the following severe impairments:
degenerative lumbar disc disease status post two surgeries on disc L5, bipolar
disorder, and a generalized anxiety disorder. He found that even given his severe
impairments, Wiemers “did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).” (Filing No. 22-2 at CM/ECF p. 23).

Wiemers argues that the ALJ erred in failing to categorize his alleged
seizure condition as a severe impairment. He seems to implicitly argue that doing
so would have created a combination of impairments that would have met an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526). ALJ Wolfe indicated that he reviewed the
record and did not find substantial evidence on the record as a whole that
Wiemers’ seizure condition was as severe as reported. ALJ Wolfe points to
discrepancies as to whether Wiemers was taking anti-seizure medication, a
failure to seek emergency treatment for his seizure condition, and Wiemers’
credibility as a witness. (Filing No. 22-2 at CM/ECF p. 22). The ALJ weighed the
opinion evidence of Wiemers’ wife and mother-in-law but found that their
opinions were overall inconsistent with the record. (Id). The ALJ stated that, while
Wiemers testified at his hearing to the severity of his seizure condition, there was
“essentially nothing in the record to suggest that the claimant made such
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profound complaints to any of his medical providers on a frequent consistent
basis during the relevant time period.” (Id). The ALJ’s conclusion is consistent
with the record.

Wiemers did keep a log of seizure activity that he points to as
corroborative of his testimony. (Filing No. 22-6 at CM/ECF pp. 45-63). But, the
recorded activity falls mostly outside the relevant period—i.e. the alleged onset
date through the date last insured. “Evidence from outside the insured period can
be used in ‘helping to elucidate a medical condition during the time for which
benefits might be rewarded.’” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006)
(quoting Pyland v. Apfel, 149 F.3d 873, 877 (8th Cir.1998)). However, “evidence
[from outside the relevant period] is required to pertain to the time period for
which benefits are sought and cannot concern subsequent deterioration of a
previous condition.” Moore v. Astrue, 572 F.3d 520, 522 (8th Cir.2009) (internal
citation omitted).

In his evaluation of the record, the ALJ did not rely on the seizure log as
indicative of Wiemers’ condition during the relevant period. It is reasonable that
the ALJ viewed the evidence, along with medical records outside the relevant
period, as a “subsequent deterioration” of Wiemers’ condition. Id. Thus, his
contention that the ALJ erroneously disregarded this information is without merit.

The ALJ ultimately determined that Wiemers has the residual functional
capacity (“RFC”) to perform light work as defined in 20 CFR 404.1567(b), to
performing postural activities for one-third (1/3) of an eight (8) hour work day, and
was limited mentally to simple unskilled work. (Filing No. 22-2 at CM/ECF p. 24).

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There is substantial evidence in the record as a whole to support the ALJ’s
conclusion as to Wiemers’ impairments and his RFC. As discussed, supra, the
ALJ did not err in assigning “little” and “some” weight to the treating and nontreating sources, respectively. Yet, he found that substantial evidence in the
record supported a finding of severe impairments both physically to his lower
back and mentally in the form of anxiety and bipolar disorder—all of which find
support in the treating and non-treating source opinions. However, the ALJ found
that substantial evidence, both in the form of medical and testimonial evidence,
undercut the austere work restrictions opined to in the medical opinions.

The ALJ also found Wiemers’ testimony as to the severity of his conditions
“not entirely credible.” (Filing No. 22-2 at CM/ECF p. 26). “If an ALJ explicitly
discredits the claimant’s testimony and gives good reason for doing so, [the
court] will normally defer to the ALJ’s credibility determination.” Gregg v.
Barnhart, 354 F.3d 710, 714 (8th Cir. 2003). The ALJ explained his credibility
findings and those findings were supported by the record. The court finds no
error in the ALJ’s credibility determination.

In sum, the ALJ weighed the record in its entirety and determined that
Wiemers was not disabled within the meaning of the Act. The ALJ’s decision was
within the “zone of choice” when viewed in light of substantial evidence on the
record as a whole. Buckner, 646 F.3d at 556.
For all the foregoing reasons,

IT IS ORDERED that upon review of the record as a whole, substantial
evidence supports the ALJ’s decision, and

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1)

The government’s motion to affirm the decision of the Commissioner
of the Social Security Administration, (Filing No. 32), is granted.

2)

Judgment in accordance with this memorandum and order will be
entered by separate document.

Dated 22nd day of December, 2017.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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