Wolf v. Social Security Administration

Filing 18

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 10 Motion for Summary Judgment; granting 12 Motion for Summary Judgment. (BG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Jason E. Wolf,

)
)
Plaintiff,
)
)
vs.
)
)
Carolyn W. Colvin, Acting Social Security )
Administration Commissioner,
)
)
Defendant.
)

ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
AND DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT

Case No. 1:14-cv-058

The plaintiff, Jason E. Wolf (“Wolf”), seeks judicial review of the Social Security
Commissioner’s denial of his application for Social Security Disability Insurance Benefits under
Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-434. This court reviews the
Commissioner’s final decision pursuant to 42 U.S.C. § 405(g).
I.

BACKGROUND
A.

Procedural history

Wolf filed an application for Social Security Disability Insurance Benefits (“DIB”) on March
12, 2012, alleging an onset date of September 9, 2011. (Tr. 170-176). His application was denied
initially and upon reconsideration. (Tr. 110-116).
An Administrative Law Judge (“ALJ”) convened an administrative review hearing on May
16, 2013. (Tr. 32-84, 133-45). He issued a written decision denying Wolf’s application on May
29, 2013. (Tr. 12-26). The Appeals Council denied Wolf’s subsequent request for review and on
March 31, 2014, adopted the ALJ’s decision as the Commissioner’s final decision. (Tr. 1-3).
Wolf initiated the above-entitled action on May 29, 2014, seeking judicial review of the
Commissioner’s final decision pursuant to 42 U.S.C. § 405(g). The parties have since filed
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summary judgment motions that are now ripe for review. They have also filed notice of their
consent to the undersigned’s exercise of jurisdiction over this matter.
B.

Factual background
1.

Wolf’s personal data and work history

Wolf stands five feet, nine inches tall. (Tr. 40). At the time of his administrative hearing
he was 34 years old and weighed 300 pounds. (Tr. 39-40). (Tr. 31). He lives with Ray Ann
Christmann. (Tr. 39). He has three minor children who live with their mother. (Tr. 40). He has
graduated from high school. He has twice attended college but does not have a degree. (Tr. 481).
Wolf has worked as construction laborer, locator of underground utility lines, mechanic, and
heavy equipment operator. (Tr. 274-79, 308-13). He was most recently employed as a bore machine
operator by Dakota Line Contractor’s Inc. (Id.). He has not engaged in any substantial gainful
activity since September 2011. (Tr. 17, 44). He subsists on monthly workers compensation
payments and his wife’s earned income. (Tr. 45, 61, 257-264).
Wolf suffers from a torn rotator cuff, obesity, a degenerative disc disease of the cervical
spine, depression, anxiety, a learning disability that affects his reading comprehension, and sleep
apnea. (Tr. 17-20). He also reported that he has a cataract in one of his eyes, that his eyes are very
light sensitive, that he cannot drive at night without his glasses, that he has limited use of his left
arm, and that he experiences chronic pain in his lower back and between his shoulder blades. (Tr.
43, 50, 61, 79). For pain relief, he has in the past taken a combination of prescription painkillers and
muscle relaxers. (Tr. 62-63, 264, 272). However, he now relies primarily upon over-the-counter
pain relievers such as ibuprofen and naproxen. (Tr. 63). For his depression, he has been prescribed
Paxil. (Tr. 272).

2

2.

Summary of Wolf’s relevant medical history

Wolf presented to the emergency room on September 18, 2011, with complaints of severe
shoulder and neck pain dating back one week. (Tr. 367). X-rays of his chest and left shoulder were
negative. (Tr. 370, 373-74). He was prescribed painkillers and muscle relaxers and discharged in
stable condition. (Tr. 371-72).
On September 20, 2011, Wolf was examined by Dr. Laura Archuleta, who recommended that
he participate in physical therapy and return in two weeks for further evaluation. (Tr. 399-400).
Records reflect that Wolf reported to the Human Performance Center for physical therapy the
following day and returned a handful of times thereafter. (Tr. 353, 456-58).
MRIs of Wolf’s left shoulder and cervical spine were taken on September 29, 2011. (Tr.
365-66). The MRI of his shoulder revealed that he had a small intrasubstance tear of the
supraspinatus tendon, mild to moderate tendinopathy of the supraspinatus tendon, and moderate AC
joint degenerative change. (Tr. 365). The MRI of his cervical spine revealed that he had disc
protrusions at C5-C6 and C6-C7, moderate central canal stenosis at C5-C6, severe central canal
stenosis at C6-C7, and severe left-sided neural foraminal stenosis at C6-C7. (Tr. 365-66).
Wolf was referred to Dr. Timothy Juelson, who, on October 3, 2011, gave him a
corticosteroid injection in his shoulder. (Tr. 393-94).
On October 24, 2011, Wolf returned to Dr. Archuleta for a followup examination. (Tr. 402).
In her notes, Dr. Archuleta opined that, absent surgical intervention, it was unlikely that Wolf would
have any significant long-term recovery. (Id.). She issued Wolf a prescription for gabapentin and
recommended that he follow up in one month’s time. (Id.).
On November 22, 2011, Wolf underwent a psychological evaluation with Dr. Thomas Eick

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at the West Center Human Service Center in Bismarck, North Dakota. (Tr. 418). During the
evaluation, Wolf described symptoms of insomnia, depression, and anxiety brought on by his
chronic pain, his inability to work, and attendant financial concerns. (Id.). Dr. Eick recommended
that Wolf continue with individual therapy, started him on Lunesta and Paxil, and instructed him to
return the following month. (Tr. 419).
On January 24, 2012, Wolf presented to Steve Churchill, a therapist with AIM Physical
Therapy (“AIM”), for a standardized IWS Functional Capacity Evaluation. (Tr. 404-408). After
two days of testing, Mr. Churchill concluded that Wolf was capable of performing “light to medium”
work as those terms are defined on the Dictionary of Occupational Titles. (Tr. 406). Specifically,
he opined that Wolf was “best suited for aspects of the upper range in the LIGHT work category and
lower aspects of the MEDIUM work.” (Id.)
On January 30, 2012, Wolf presented to Dakota Pain Management Center for a physiatry
initial assessment with Dr. Carol Krause. (Tr. 437-440). On April 14, 2012, he followed up with
Dr. Krause. (Tr. 435-36).

In her notes of this latter visit, Dr. Krause made the following

observations about the Functional Capacity Evaluation performed at AIM:
They put him in the light to medium category of work. I would modify this to light
category of work. They do note difficulty with him with use of the left arm
especially overhead and recommend lifting this. However, under elevated work,
they say occasional to frequent due to difficulty with left arm. I would limit this to
occasional. They note sitting tolerance as frequent but he does need to get up and
move every hour. They rate standing tolerance and walking tolerance as frequent.
However, the patient states he can go 15 to 20 minutes at a time and needs to rest.
They also talk about deconditioning, so I think a frequent standing and walking
tolerance would be a little much. I’d limit this more to occasional. Other than that,
his functional capacity assessment is a good starting point for his work restrictions.
(Tr. 435)
On April 28, 2012, Wolf returned to Dr. Krause, who encouraged him to continue taking his
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pain medication and further counseled him on techniques to manage his pain. (Tr. 433-34).
On March 13, 2012, Wolf returned to Dr. Krause, reporting that his neck pain had recently
flared up and that he was experiencing numbness down his left arm into his fingers. (Tr. 431-42).
Dr. Krause refilled his prescription for hydrocodone, increased his daily dosage of gabapentin, and
again counseled him on techniques to help with pain management. (Id.).
On March 2, 2012, Wolf presented to Dr. Craig DeGree for a psychological evaluation. (Tr.
481-483). In his report, Dr. DeGree noted that Wolf had expressed a desire to obtain a commercial
drivers’ license (“CDL”) or, in the alternative, find work with a local cable company in a position
compatible with his physical limitations. (Tr. 481). He further noted that Wolf had taken the CDL
test with accommodations but had failed. (Tr. 482). With respect to Wolf’s educational history,
he highlighted the fact that Wolf had twice attended college, first in Wahpeton for a year and later
at Bismarck State College for nine months, but had struggled with the content material and had not
obtained a degree. (Id.). Reviewing Wolf’s test results, he diagnosed Wolf with the following: (1)
a mixed receptive-expressive language disorder; (2) a reading disorder; (3) a disorder of written
expression; and (4) an adjustment disorder with mixed emotional features. (Tr. 483).
On March 27, 2012, Wolf followed up with Dr. Krause. (Tr. 484). According to Dr.
Krause’s notes, Wolf had pushed himself too hard when doing chores around the house and had
exacerbated his shoulder and neck pain. (Id.). Dr. Krause counseled him, gave him samples of
Celebrex, and encouraged him to return as needed. (Id.).
An MRI of Wolf’s neck taken in January 2013 showed “severe narrowing of the central
spinal cord at C6-7 and at the neural foramen which is were the nerves exit the spine also at the C6-7
level.” (Tr. 486).

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On February 13, 2013, Wolf presented to surgeon Steve Kraljic for a discectomy and fusion
at C5-6 and 6-7. (Tr. 514-15).
In April 2013, Wolf presented to Dr. Chatree Wongjirad for a sleep study. (Tr. 525). He was
diagnosed with severe obstructive sleep apnea, for which he was prescribed a CPAP machine. (Id.).
3.

“Function Reports”
a.

Ray Ann Christman’s report

Ray Ann Christman, Wolf’s wife, submitted a third-party “function report” dated March 2,
2012, in support of Wolf’s application for disability insurance benefits. (Tr. 257-264). Therein she
reported that Wolf could not carry as much as a jug of milk without discomfort, could no longer play
with his children, and needed assistance when shaving his head as he could not raise his arms
overhead. (Id.). She further reported that although Wolf remained capable of driving and assisting
with some very basic household tasks, such as grocery shopping, laundry or basic food preparation,
he did so with observable discomfort. (Tr. 260-261). With respect to Wolf’s ability to focus, she
indicated that it fluctuated depending on his pain level or mood. (Tr. 262). With respect to Wolf’s
comprehension, she reported that he indeed had some issues but added that “if he understands he
can do well.” (Id.).
b.

Wolf’s report

Wolf also submitted a “function report” in March 2012. (Tr. 265-272). Therein he reported
that his ability to engage in simple activities, i.e., cooking, cleaning, and washing clothes, had been
hampered on account of his condition, that he experienced substantial discomfort in his neck and
shoulder when trying to exercise, and that his pain typically hovered between a 7 and 10 most nights.
(Tr. 265-268). By his estimation, he could walk 10 minutes before needing to stop and, depending

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on his pain level, would need to rest any where between 5 and 30 minutes before resuming. (Tr.
270).
4.

“Paper Reviews” Performed by Consulting Physicians
a.

Dr. Godfried’s Consultive Examination Report submitted in
April 2012

Dr. Ernest Godfried, a consulting physician, submitted a report of his findings and
conclusion–that Wolf was not disabled–to the Social Security Administration in April 2012
following a “paper review.” (Tr. 89-96). Based upon his review of the documentation provided to
him, Dr. Godfried was of the opinion that Wolf’s soft tissue injuries and spinal disorders were
severe, that Wolf’s affective and anxiety disorders were “non severe,” that Wolf’s restrictions on
daily living activities, difficulties in maintaining social functioning, and difficulties were in
maintaining concentration/persistence/ pace were mild, and that Wolf had at least partially
compromised his credibility by overstating his symptoms. (Tr. 91-92). He calculated that Wolf had
the residual function capacity to: lift 20 pound on occasions, lift 10 pounds with some frequency;
stand and/or walk for about 6 hours in an 8-hour day, sit (with normal breaks) for 6 hours in an 8hour day; occasionally climb stairs, ladders, and ropes; and occasionally balance, stoop, kneel,
crouch and crawl. With respect to manipulative limitations, Dr. Godfried noted that Wolf’s ability
to reach in any direction (including overhead) was limited as was his “Handling (gross
manipulation)” on his left. (Tr. 93) (explaining: “[Wolf] [h]as a left rotator cuff tear which needs
surgery; function at the present time is very limited with any lifting and or reaching. Still has grip
strength and feeling and can use fingers.”).

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b.

Dr. Johnson’s Consultive Examination Report submitted in July
2012

A second “paper review” of Wolf’s file was conducted by Dr. Marlin Johnson, a consulting
physician in July 2012. (Tr. 99-109). Like Dr. Godfried before him, Dr. Johnson concluded that
Wolf was not disabled. And his reported findings mirrored those of Dr. Godfried’s. (Id.).
5.

Administrative hearing
a.

Wolf’s testimony

Wolf testified that he received special education services while in high school to address his
learning disability. (Tr. 42). He further testified that some time after graduating from high school
he enrolled in Bismarck State College’s on-the-job plumbing school but was unable to finish the
program. (Id.). When asked about his learning disability, he testified that he has difficulty with
reading comprehension and with “writ[ing] it out in full sentences.” (Tr. 44). When asked whether
he could perform simple arithmetic, he responded in the affirmative. (Id.). However, he added that
his wife manages their finances and, when making purchases, he oftentimes has difficulty figuring
out how much change he should get back. (Id.).
Wolf went on to testify that he was injured while at work on September 9, 2011, and has
since been unable to return to any of his past jobs. (Tr. 44-45). However, when pressed, he did
acknowledge that he had not applied for any other work. (Tr. 46).
When queried further about his injury and how it impacted his physical health, Wolf
responded that he has ongoing back, shoulder, and neck discomfort, can only walk short distances
before he needs to sit, and that the pain in his lower back and between his shoulder blades is
exacerbated by walking or sitting for extended periods of time. (Tr. 47, 50). Additionally, he
testified that he cannot tolerate lifting more than ten pounds at any given time, cannot walk more
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than 10 to 15 minutes before he needs to take a break, cannot sit more than twenty to thirty minutes
before he needs to get up and move around, cannot stand for more than forty-five minutes in an
eight-hour day, cannot crawl, kneel or squat, and is limited in the number of stairs that he can
traverse on any given day. (Tr. 55-59, 67-68). He also testified that he experiences sleep
disturbances that doctors have attributed to his sleep apnea and that he had been prescribed a CPAP
machine. (Tr. 61-62). When asked to elaborate on his shoulder issue, he responded that he has full
range of motion but continues to experience ongoing discomfort and anticipates that at some point
he may require surgery. (Tr. 67).
When asked to rate the pain he experiences on a typical day on a scale of one to ten, with ten
being the most severe, Wolf responded that it can reach as high as an eight when he is active but,
“if [he] can get into that comfort zone level, [he] can get it down to a one or a two and try keep it
in there.” (Tr. 50). He further testified that, while his counseling sessions with his physiatrist, Dr.
Krause, have helped him to manage his pain to the point that he now relies primarily upon over-thecounter pain relievers as opposed to prescription medication for pain relief, he does experience
“flare ups” when engaging in physical activity. (Tr. 49-52,63-64).
Segueing to the issue of his mental health, Wolf testified that he had sought out counseling
for depression and anxiety in the year following his injury but that things had improved and that he
was no longer seeing anyone. (Tr. 52).
When asked to describe his daily routine, Wolf testified that he remains capable of tending
to his personal needs, drives up to 20 miles per day, and tries to contribute around the house by
taking out the garbage, doing a little bit of simple cooking, and running small errands. (Tr. 46-47).
In regards to his social life, he testified that he remains in contact with his friends by telephone, has

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a Facebook account, attends church weekly, and tries to attend his children’s school activities as his
health permits. (Tr. 47, 52-55).
In response to inquiries regarding his strength, stamina, and dexterity, Wolf testified that
he could carry no more than 10 pounds at any given time, could walk no longer than 10-15 minutes
before needing to sit down, could stand no more than 5 minutes at a time and no more than 30
minutes total in an 8-hour day, could sit no more than 45 minutes at a time, and could only climb
a modest number of stairs. (Tr. 55-59). Additionally, he testified that, although capable of bending
over and touching his toes, he could not squat, crawl, or kneel. (Tr. 58-59). Finally, he testified that
he could extend his arms both in over his head and directly in front of himself, could manipulate
small things like buttons and zippers, and could grasp and hold larger objects the size of oranges or
grapefruits. (Tr. 59).
At the close of the hearing, following testimony from the vocation expert, Wolf advised the
ALJ that he could neither tolerate vibrations in his left arm or lift anything with his left arm. (Tr.
79).
b.

Vocational expert’s testimony

When examining the vocational expert, the ALJ first inquired whether a hypothetical
individual of Wolf’s age, education, and vocational background could perform Wolf’s past relevant
work if he: (a) could sit for 45-60 minutes, alternative to a standing position for 5 minutes, and then
resume sitting; (b) could not kneel, crawl, or climb ladders, ropes, and scaffolds; (c) could
occasionally crouch or climb stairs and ramps; (d) could not engage in any overhead reaching; (e)
could not work when exposed to cold or bright lights; (f) had to receive instructions orally and not
in written form; and had to avoid left hand carrying. (Tr. 71-73). Second, he asked the ALJ to

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consider how the following would impact this hypothetical person’s ability to work: (a) a limitation
of standing and walking for 2 hours and sitting for 6 hours; and (b) ability to crouch only rarely. (Tr.
73-74). Third, he inquired whether this hypothetical individual could work if he could: (a) sit up
to 45-50 minutes at a time; (b) stand/walk for less than 2 hours total and sit less than 6 hours total
in an 8-hour day; (c) never climb ladders, ropes, or scaffolds; (d) occasionally climb stairs and
ramps; (d) neither crawl nor reach overhead; (f) not tolerate exposure to cold or bright lights; and
(g) perform simple, routine tasks and maintain concentration, pace, and persistence for two-hour
segments. (Tr. 74-75).
The vocational expert testified that the individual described in the ALJ’s first hypothetical
would be unable to perform Wolf’s past relevant work but nevertheless could perform light,
unskilled work. (Tr. 77-3). With respect to the second hypothetical, the vocational expert testified
that the individual described would be able to perform routine, sedentary jobs. (Tr. 73-74). As
examples, he cited the occupations of addresser, sorter, and final assembler. (Tr. 73-74). Finally,
with respect to the third hypothetical, he testified that the parameters as outlined by the ALJ would
exclude the individual from essentially all jobs. (Tr.74-75).
After the vocational expert had responded to the ALJ’s hypotheticals, counsel for Wolf was
afforded an opportunity for examination. First, counsel inquired about the specific vocational
training that would be required in order to perform the occupations cited by the vocational expert.
(Tr. 76). Second, counsel inquired how a communicative or cognitive deficit would impact on
one’s ability to work. (Tr. 76). Third, counsel inquired whether an individual whose pain level
severely compromised his ability to concentrate could perform any meaningful work. (Tr. 77).
The vocational responded that a maximum of thirty days training would be required to

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perform the cited occupations and that the inability to comprehend simple instruction “would be a
very negative factor in terms of work in general.” (Tr. 76-77). As for counsel’s third inquiry
regarding pain and its limiting effects, he testified that an individual would likely be unable to
perform any of the cited occupations if his ability to concentrate was so compromised. (Tr. 78).
Before adjourning, the ALJ revisited his hypotheticals to address Wolf’s testimony that he
could neither lift with his left arm or tolerate vibrations in his left arm. (Tr. 79-80). Specifically,
the ALJ inquired how the person described in his hypotheticals would be impacted if he had to avoid
hazards such as vibrations, could only with lift with right hand, or had no useful ability in his left
arm or hand. (Tr. 81).
The vocational expert responded that vibrations would have little to no effect on one’s ability
to perform the cited occupations. (Tr. 81-82). As for left arm or hand issues, the vocational expert
testified that it would be possible to perform the cited occupations so long as one could use the left
hand in a “bracing fashion.” (Id.). The vocational expert then added that the performance of such
occupations would not be possible if one could not use his left hand at all. (Id.).
C.

ALJ’s decision

The ALJ employed the five-step sequential analysis when evaluating Wolf’s application.
At step one, he concluded that Wolf had not engaged in any substantial gainful activities since
September 9, 2011, the alleged onset date. (Tr. 17). At step two, he concluded that Wolf suffered
from the following severe impairments: status post discectomy and fusion CS-6 and C6-7; left
rotator cuff tendinitis; obesity; and a learning impairment (reading disorder). (Tr. 17-19). He did
not consider Wolf’s sleep apnea to be a severe impairment, however, stressing (1) the dearth of
evidence of any work-related limitations secondary to the apnea, and (2) the fact that the apnea had

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appeared amenable to medical treatment. (Tr. 18). He likewise refused to consider Wolf’s light
sensitivity as a severe impairment as, in his opinion, there was no evidence in the record to reflect
any disabling visual impairment. (Id.).
Moving on to step three, the ALJ concluded that none of Wolf’s aforementioned
impairments, either singly or in combination, were presumptively disabling. (Tr. 14-15).
At step four, the ALJ made the following determination with respect to Wagner’s residual
function capacity:
[T]he claimant has the residual functional capacity to perform sedentary work as
defined by 20 CFR 404.1457(a) except carrying should be performed with the
dominant (right) arm with use of the non-dominant (left) arm for bracing/assisting.
The claimant is able to stand/walk for 2 hours and sit for 6 hours. The claimant
would require a sit/stand option wherein he would sit for 45-60 minutes, alternate to
standing position for 5 minutes, then resume sitting. The claimant should never
climb ladders/ropes/scaffolds. The claimant can occasionally climb stairs/ramps and
balance. The claimant can rarely stoop and crouch. The claimant should never kneel
or crawl. The claimant should do no overhead reaching. The claimant should do no
work in exposure to cold or bright lights. The claimant should do no work in
exposure to hazards. The claimant can perform simple, routine, repetitive tasks. The
claimant can maintain concentration, pace, and persistence for 2-hour segments. The
claimant has no problems interacting with others. The claimant would have to get
instructions in oral, not written form.
(Tr. 20).
In making this determination, the ALJ acknowledged that, while there was some dispute
over the etiology of Wolf’s neck and back issues, his medically determinable impairments could
reasonably be expected to cause the alleged symptoms. (Tr. 20-21). The ALJ also acknowledged
that the objective evidence supported the conclusion that Wolf’s ability to function had declined
both physically and mentally. (Tr. 21-22). The ALJ nevertheless remained unconvinced that this
decline was so precipitous that it precluded him from performing any type of work on a regular and
sustained basis. (Id.).
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The ALJ did not fully credit Wolf’s testimony regarding the intensity, persistence, and
limiting effects of his symptoms, citing: (1) Wolf’s history of work at the semi-skilled to skilled
level; (2) the care taken by Wolf not to engage in certain activities for fear of jeopardizing his
worker’s compensation case; (3) Wolf’s expressed interest in a plumbing apprenticeship, which the
ALJ viewed as good evidence of Wolf’s capability of engaging in activities at least to the level of
his residual functional capacity; (4) the lack of any documented impairments in his lower extremities
or other objective medical evidence demonstrative of any standing/walking limitations; (5) the
dearth of evidence demonstrative of significant deficits in concentration, persistence, and pace; (6)
Wolf’s stated ability to maintain his focus on the task at hand; and (7) the report of some
improvement in Wolf’s symptoms following surgery. (Tr. 21-23).
The ALJ likewise afforded reduced weight to the “capacity assessments and
correspondence,” the Functional Capacity Evaluation performed at AIM, and the DDS
determinations.

(Tr. 24).

Specifically, with respect to the capacity assessments and

correspondence, he opined that they did not reflect the full course of the medical record as they were
provided before Wolf had undergone physical therapy or surgery. (Id.). With respect to the DDS
determinations, he noted: (1) “the finding for light work [did] not consider the limitation concerning
the use of his left arm; and (2) “the finding of an ability to stand/walk for 6 hours [was] not
consistent with results of the function capacity evaluation.” (Id.). He did, however, afford great
weight to Dr. Carol Krause and her statement that Wolf would be limited to work lighter than that
referenced in the functional capacity evaluation. (Id.).
Moving on to step five, the ALJ opined that while Wolf was unable to perform any of his
past relevant work, he remained capable of performing light and unskilled sedentary work given his

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age, education, work experience, and residual functional capacity. (Tr. 24-25). Consequently, ALJ
concluded that Wolf was not disabled as defined by the Act from September 9, 2011, through the
date of the ALJ’s decision. (Tr. 25-26).
II.

GOVERNING LAW
A.

Law governing eligibility for adult benefits

An individual shall be considered to be disabled for purposes of DIB if the person is unable
to engage in any substantial gainful activity by reason of a medically determinable physical or
mental impairment that can be expected to result in death or that has lasted, or can be expected to
last, for a continuous period of not less than twelve months. E.g., Hilkenmeyer v. Barnhart, 380 F.3d
441, 443 (8th Cir. 2004); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A).
In deciding whether a claimant is disabled within the meaning of the Act, the ALJ is
required to use the five-step sequential evaluation mandated by 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4)1 and determine:
(1)

whether the claimant is presently engaged in a substantial gainful activity,

(2)

whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities,

(3)

whether the claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations,

(4)

whether the claimant has the residual functional capacity to perform his or
her past relevant work, and

(5)

if the claimant cannot perform the past work, the burden then shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.

1

The provisions in 20 CFR Part 404 apply to DIB and the provisions in Part 416 apply to SSI benefits.

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If the ALJ reaches the fourth or fifth steps, the ALJ must determine a claimant’s residual
functional capacity (“RFC”), which is what the claimant can do despite his or her limitations. 20
C.F.R. §§ 404.1545, 416.945. The ALJ is required to make the RFC determination based on all
relevant evidence, including, particularly, any observations of treating physicians and the claimant’s
own subjective complaints and descriptions of his or her limitations. Pearsall v. Massanari, 274 F.3d
at 1218.
In evaluating a claimant’s subjective complaints, the ALJ is required to assess the claimant’s
credibility in light of the objective medical evidence and “any evidence relating to: a claimant’s
daily activities; duration, frequency and intensity of pain; dosage and effectiveness of medication;
precipitating and aggravating factors, and functional restrictions.” Id. In this circuit, these are
referred to as the “Polaski factors” after the Eighth Circuit’s decision in Polaski v. Heckler, 739 F.2d
1320 (8th Cir. 1984).2 E.g., Ellis v. Barnhart, 392 F.3d 988, 993-996 (8th Cir. 2005) (“Ellis”). A
claimant’s subjective complaints may be discounted only if found to be inconsistent with the record
taken as a whole. Pearsall v. Massanari, 274 F.3d at 1218.
B.

Standard of review

The scope of this court’s review is limited. The court it is not permitted to conduct a de novo
review. Rather, it must look at the record as a whole to determine whether there is substantial
evidence to support the Commissioner’s decision. Ellis, 392 F.3d at 993.
Substantial evidence is less than a preponderance, but more than a scintilla of evidence. E.g.,
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (“Buckner”). It is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Nelson v. Sullivan, 966
2

The Polaski factors are now embodied in 20 C.F.R. §§ 404.1529, 416.929.

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F.2d 363, 366 n.6 (8th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401(1971)).
Under the substantial evidence standard, it is possible for reasonable persons to reach
contrary, inconsistent results. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). Thus, the
standard “embodies a zone of choice within which the [Commissioner] may decide to grant or deny
benefits without being subject to reversal on appeal.” Id. Consequently, the court is required to
affirm a Commissioner’s decision that is supported by substantial evidence - even when the court
would weigh the evidence differently and reach an opposite conclusion. Id.; Buckner, 646 F.3d at
556 (“Rather, if, after reviewing the record, we find that 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 decision of the Commissioner.”) (internal quotations and citations omitted).
In conducting its review, the court is required to afford great deference to the ALJ’s
credibility assessments when the ALJ has seriously considered, but for good reason has expressly
discounted, a claimant’s subjective complaints, and those reasons are supported by substantial
evidence based on the record as a whole. See Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999)
(“Haggard”); Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993) (“Brockman”). The Eighth
Circuit has stated, “Our touchstone is that a claimant’s credibility is primarily a matter for the ALJ
to decide.” Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (“Anderson”).
Nonetheless, the court’s review is more than a search for evidence that would support the
determination of the Commissioner. The court is required to carefully consider the entire record in
deciding whether there is substantial evidence to support the Commissioner’s decision, including
evidence unfavorable to the Commissioner. Ellis, 392 F.3d at 993.

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III.

DISCUSSION
A.

Consideration Given to Wolf’s Impairments in Combination

Wolf first asserts that the ALJ failed to adequately consider the combined impact of all his
impairments, particularly those the ALJ did not consider severe (sleep apnea, light sensitivity, etc.),
when assessing his ability to participate in substantial gainful activity. In an effort to illustrate this
point, he states, although the ALJ acknowledged that his obesity was a severe impairment that more
than minimally interfered with his ability to work, the ALJ did not engage in any extended and
explicit discussion about how his obesity sapped his energy, exacerbated his sleep apnea, and made
it difficult to ambulate.
In response, the Commissioner maintains that the ALJ’s language throughout the decision
reflects that he indeed considered the combined effects of Wolf’s impairments. The Commissioner
further asserts that ALJ’s explicit statement at the outset of his decision–that he reached his decision
after carefully considering of all of the evidence–should be sufficient to assuage any concerns
regarding the consideration given to the combined effects of Wolf’s impairments.
In determining a claimant’s residual function capacity, “the ALJ must consider the effects
of the combination of both physical and mental impairments,” Stormo v. Barnhart, 377 F.3d 801,
807 (8th Cir. 2004), to “determine whether the combination of . . . impairments is medically equal
to any listed impairment,” Shontos v. Barnhart, 328 F.3d 418, 424 (8th Cir. 2003) (quoting 20 C.F.R.
§ 404.1526(a)).
A close reading of the ALJ’s decision confirms that the ALJ did just that; the ALJ
summarized Wolf’s medical records and discussed each of Wolf’s impairments, including Wolf’s
physical and mental health, obesity, pain complaints, light sensitivity, sleep apnea, cognition,

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attention deficits, and learning disability/mixed receptive-expressive language disorder along with
representations made by Wolf regarding his stamina, persistence, and pace. (Tr. 18-22). In so
doing, he acknowledged that a number of Wolf’s impairments could fairly be characterized as
severe. Nevertheless, he was of the opinion that these impairments “were not attended, singly or
in combination with any other impairment, with the specific clinical signs and diagnostic findings
required to meet any listed impairment.” (T. 19).
It is well accepted in the Eighth Circuit that such a summary and pronouncement is enough
to establish that the ALJ has properly considered the combined effects of a claimant’s impairments.
See Martise v. Astrue, 641 F.3d 909, 924 (8th Cir. 2011) (“The ALJ expressly found that Martise
does not have an impairment or combination of impairments that meets or medically equals any of
the listed impairments . . . . Based on the ALJ's synopsis of Martise's medical records and discussion
of each of Martise's alleged impairments, we conclude that the ALJ properly considered the
combined effects of Martise's impairments.” (internal quotation marks omitted)); Hajek v. Shalala,
30 F.3d 89, 92 (8th Cir. 1994) (finding no basis for claimant’s assertion that the ALJ failed to
consider the combined effects of the claimant’s impairments in light of the ALJ’s recitation of a
claimant’s impairments followed the statement that no impairment or combination thereof was of
listing level severity); Browning v. Sullivan, 958 2d 817, 822 (8th Cir. 1992) (“After separately
discussing Browning's physical impairments, affective disorder, and complaints of pain, as well as
her daily level of activities, the ALJ found that her impairments do not prevent [her] from
performing her past relevant work. To require a more elaborate articulation of the ALJ's thought
processes would not be reasonable.” (internal quotation marks omitted)); see also Raney v.
Barnhardt, 396 F.3d 1007, 1011 (8th Cir. 2005) (“After the ALJ listed all of Raney's physical and

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mental impairments, he expressly stated he considered Raney's impairments individually and in
combination,” and based his RFC assessment on “the combination of [Raney's] impairments. The
ALJ found no evidence that the combined clinical findings from these impairments reached
listing-level severity. The record persuades us the ALJ properly considered the effect of Raney's
combined physical and mental impairments.” (internal quotation marks omitted)). Consequently,
the undersigned concludes that the ALJ properly considered Wolf’s combined impairments when
assessing Wolf’s residual functional capacity.
B.

Credibility Determination

Wolf next asserts that his subjective complaints were supported by the record as a whole and
that the ALJ erred to the extent that he discounted them. Specifically, he takes exception to the
ALJ’s suggestion that he was reluctant to engage in work activities for fear that it would jeopardize
his WSI benefits. He also asserts that the ALJ flouted both the facts and the law when pronouncing
him capable of performing simple, routine, and repetitive tasks, able to complete an 8-hour work
day, and able to maintain concentration, pace and persistence for 2-hour segments despite
overwhelming evidence to the contrary. Finally, he asserts in a rather shotgun fashion that the ALJ
purposefully overstated his intellectual abilities and improperly ignored his Global Assessment of
Functioning (“GAF”) score, erred when analyzing his pain complaints, misstated that he had a high
school education and could communicate in English, substituted his own medical judgment in place
of those from acceptable medical sources, cherry picked evidence, and otherwise attached an
inordinate amount of significance to his expressed desire to pursue a plumbing career.
Not surprisingly, the Commissioner disputes Wolf’s characterization of the record and
maintains there was substantial evidence in the record to support the ALJ’s credibility determination.

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In so doing, she highlights inconsistencies in the record. For example, she juxtaposes Wolf’s
testimony at the administrative hearing that he had not been looking for work since his employment
ended in 2011 with a statement made by Wolf to Dr. Eick in April 2012 that he had been looking
for work. (Tr. 46 and 441). Additionally, she notes that no medical or vocational professional
considered Wolf unable to work, that Drs. Churchill, Krause, and DeGree at one time or another
expressed their belief that Wolf could perform at least light work activities, that Dr. Krause also
encouraged Wolfe to pursue vocational training, and that Dr. DeGree was of the opinion that Wolf
could benefit from job counseling. (Tr. 431-33, 482-83).
Having reviewed the record in its entirety, the court would not necessarily draw the same
conclusions as those of the ALJ. For example, the court would not necessarily extrapolate from
statements made by Wolf regarding WSI that he was “sandbagging” in an effort to preserve his
benefit or that his stated desire to pursue a plumbing career somehow reflected of his residual
functional capacity. That being said, not all of Wolf’s assertions are borne out by the record. With
respect to Wolf’s intellectual abilities, the ALJ’s statement that he has a high school education is not
the abject distortion that Wolf maintains, particularly when viewed in conjunction with the ALJ’s
recognition that Wolf received special education while in school and that his learning disability
constituted a moderate impairment when it came to concentration, persistence, and pace and a severe
impairment in terms of reading and writing. (Tr. 18-19). With respect to Wolf’ s GAF scores, it is
clear from the record that they factored into the ALJ’s analysis; in his decision the ALJ noted that
Wolf “appear[ed] to have done reasonably well from a mental health standpoint including good
global assessment of functioning scores typically ranging from 60-66, with a singular reference to
a score of 55.” (Docket No. 18).

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In the final analysis, the ALJ’s interpretation of the statements made by Wolf are not beyond
the pale and the court is mindful that it is prohibited from substituting its own judgment in place of
the ALJ's interpretation or weigh the evidence de novo. See Wilcutts v. Apfel, 143 F.3d 1134, 1136
(8th Cir. 1998); Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997). As noted above, the ALJ’s
credibility assessments are entitled to great deference when the ALJ has seriously considered, but
for good reason has expressly discounted, a claimant’s subjective complaints, and those reasons are
supported by substantial evidence based on the record as a whole. See Haggard v. Apfel, supra.
In sum, the ALJ gave clear reasons for his credibility determination and there appears to be
sufficient evidence in the record to support them.
C.

Hypotheticals

Finally, Wolf takes issue with the hypotheticals that the ALJ posed to the vocational expert.
Specifically, he asserts that the ALJ failed to incorporate his pain, fatigue, attention deficits, and
stated inability to stand longer than 20-30 minutes. He also asserts that failed to consider his
inability to work with vibrations and or use his left hand.
The Commissioner is dismissive of Wolf’s assertions, asserting that they are conclusory.
The Commissioner further asserts that, when framing the hypotheticals, the ALJ needed only to
incorporate those limitations he deemed credible and in so doing again highlights inconsistencies
in the record that in her mind justifiably diminished Wolf’s credibility in the ALJ’s eyes. See
Vanderboom v. Barnhard, 421 F.3d 745, 750 (8th Cir. 2005).
The real dispute here is not with the hypotheticals per se but rather with the ALJ's
determination of Wolf’ RFC. Having reviewed the record, it is apparent to the undersigned that the
hypotheticals posed by the ALJ were consistent with the determinations he made concerning Wolf’s

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physical and mental capabilities. It is also worth noting that counsel was afforded the opportunity
to examine the vocational expert and, at the close of the hearing, when Wolf expressed concern
regarding his intolerance to vibration and left arm/hand limitations, the ALJ himself revisited his
hypotheticals with the vocational expert to discuss these concerns.
IV.

CONCLUSION
In this case, there is enough evidence supporting the Commissioner’s decision to meet the

“substantial evidence” threshold and the decision to deny benefits falls within the zone of choice that
prohibits this court from reversing the decision even though there is substantial evidence supporting
a contrary outcome. Accordingly, Wolf’s Motion for Summary Judgment (Docket No. 10) is
DENIED, the Commissioner’s Motion for Summary Judgment (Docket No. 12) is GRANTED, and
that the above-entitled action is DISMISSED.
IT IS SO ORDERED.
Dated this 13th day of April, 2016.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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