Reinhardt v. Colvin

Filing 19

OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER. Signed by U.S. District Judge Roberto A. Lange on 3/1/17. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CLERK

SOUTHERN DIVISION

KAREN B. REINHARDT,

4:16-CV-04009-RAL

Plaintiff,
OPINION AND ORDER AFFIRMING
DECISION OF COMMISSIONER

vs.

NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Plaintiff Karen B. Reinhardt (Reinhardt), who formerly was known as Karen Ford,' seeks
reversal of the decision of the Commissioner of Social Security (Commissioner) denying her claim

for supplemental security income (SSI). This is a case where a decision whether Reinhardt is
disabled due to mental health issues is a close call, but the ALJ's decision must be affirmed under the

deferential "substantial evidence in the record as a whole" standard. For the reasons explained
below, this Court affirms the Commissioner's decision.
L

Procedural History

Reinhardt applied for SSI benefits on August 16, 2012. AR^ 191-97. Reinhardt initially
alleged that her disability preventing her from gainful employment began on May 15, 1995. AR 191.
Information collected by the Commissioner, however, showed that Reinhardt had income as reported
on W-2 forms in 1998, 1999, 2000, 2004, 2005, 2006, 2007, and 2011. AR 201-06. In addition.

'Throughout the proceedings before the Commissioner, Plaintiff used the name Karen B. Ford. She
subsequently has changed her last name back to her maiden name of Reinhardt.
^ This Opinion and Order uses "AR" to refer to the Administrative Record, followed by the relevant
page numbers therein.
1

between May of 1995 and June of 2004, Reinhardt also was self-employed doing daycare and
earning on average $7,000 per year, while raising her own children. AR 231. At the evidentiary
hearing before Administrative Law Judge Eskunder Boyd (the ALJ), Reinhardt took the position that
she had engaged in no substantial gainful activity since July 31, 2012, instead of the earlier date in
1995. AR35.

Reinhardt in proceedings before the Commissioner alleged disabilities for both physical and
mental health conditions, including the following:

Panic Attacks and Major Depression, PTSD from abuse, Attention Deficit Disorder,
High Cholesterol, Bipolar Disorder, Chronic Insomnia, Mitral Valve Prolapse, Sciatic
Nerve Problems, Hearing Loss, Cataracts, Glaucoma, Irritable Bowel Syndrome,
Hietal (sic) Hernia, Ulcers, Heart Bum, Chronic Pain, Epidural Injections, Edema,
Fibromyalgia, Osteoarthritis, Bersitis (sic). Ankle Pain, Tendonitis, Dislocated left
and right knees and surgery. Carpal Tunnel (need surgery and have had on right
hand). Degenerative Disc Disease, Scoliosis, No Curve in Neck.
AR 91-92. Various function reports completed by Reinhardt, if believed, indicate that she often is
bedridden, seemingly in need of daily home medical care given the extent of her claimed limitations
and problems. AR 248—55; AR 264—71; AR 274-81; AR 282—88.
The Commissioner collected and considered treatment records and had Reinhardt undergo

physical and mental ,health evaluations, as well as having a Residual Functional Capacity (RFC)
Assessment and a Mental RFC Assessment done. AR 91-95; AR 97-102; AR 367-72. The

Commissioner denied the claim initially. AR 124-26. Reinhardt sought reconsideration. AR 12728. The Commissioner had a second evaluation of Reinhardt's RFC and Mental RFC done.

AR

116—18; AR 118—19. The Commissioner then determined that the previous denial of the claim was
proper under the law. AR 130-36.

Reinhardt was tardy in filing her request for hearing; but the Commissioner granted such a

hearing. AR 137-41; AR 142-48; AR 151-82; AR 185-90. The ALJ conducted an evidentiary
hearing on June 12, 2014. AR 29-69. The ALJ then released his decision and notice, from which
Reinhardt now appeals. AR 8-24.

II.

Factual Background
A. Reinhardt's Relevant Personal History
Reinhardt was bom in Febmary of 1958, and thus was 54 at the time she ultimately claimed

to have been last able to engage in substantial gainful activity, and was 56 at the time of the hearing.

AR 38;^AR 36. Reinhardt originally is from Michigan, graduated from high school in 1976, and
worked as a machinist and welder from 1979 until 1995. AR 294. Reinhardt has two years of
college and sortie computer training. AR 230. Reinhardt married Mark Ford in 1994, had a son bom
in 1995 and a daughter bom in 1997, and ran an in-home daycare from 1995 until 2005. AR 231;

AR 294. Reinhardt and her husband divorced in 2011. AR 2!95. Reinhardt worked as a telemarketer
or in similar jobs for parts of 2004, 2005, 2006, 2007, and 2011. AR 201-06; AR 215-21; AR 231.
At the time of the evidentiary hearing, Reinhardt testified that she was 5'1 in height and weighed 210
pounds. AR38.

Reinhardt has both physical and psychological issues. Although the Court recognizes and
considers the interplay between the physical and the psychological issues in Reinhardt's case, it is
easier to summarize Reinhardt's treatment history separately for the physical issues and
psychological issues.
B. Reinhardt's Treatment History for Physical Issues

The Administrative Record is devoid of records concerning Reinhardt's treatment history for

physical conditions prior to July 12, 2011, AR 403, although there are records as early as September
1, 2009, from Counselor Ellen Hohm for psychological issues. AR 333-39. Reinhardt apparently

had been prescribed methadone^ for pain while living in Michigan. At the June 2014 hearing,
Reinhardt testified that she had moved from Michigan to Sioux Falls approximately four and a half

^ Methadone is a synthetie narcotic analgesic prescribed for relief of moderate to severe pain.
Methadone is a long acting opioid receptor agonist that alters the perception of and response to pain.
See Methadone (Oral RouteJ. Mayo Clinic (Jan. 1, 2016), http://mayoclinic.org/dmgssupplements/methadone-oral-route/description/drg-20075806.

years earlier, which would have been around the first of 2010, although some records suggest that
she was living in Sioux Falls before then. AR 333-39; AR 387.
The earliest treatment records in the Administrative Record for Reinhardt's physical

conditions are from Dr. James M. Barker, a physician with Avera Medical Group. The early

treatment records appear to be for methadone refills, rather than evaluations of Reinhardt's overall

physical condition. AR 403. Dr. Barker's record from November of 2011 describes that Reinhardt
had pain all over and had quit her job. At that point. Dr. Barker suggested that Reinhardt find a new
physician because he felt pressure to reduce narcotic prescriptions, while Reinhardt was seeking an
increase in those prescriptions. AR 402. Reinhardt continued,to see Dr. Barker into 2012. AR
398-400.

On August 15, 2012, Reinhardt sought treatment at Sanford USD Medical Center for right
great toe pain, after she had stubbed it and feared that a dirty toothpick was within. She was
described as being "in no acute distress." X-rays of the toe were negative and no foreign body was
found in it. AR 313-17.

On October 27, 2012, Reinhardt presented to the Avera McKennan Hospital Emergency

Room with what was described as a right ankle sprain from having twisted her ankle while walking

down some steps. AR 359-60. The initial x-ray showed no fracture or dislocation. AR 360.
Reinhardt followed up with the Orthopedic Institute on October 30, 2012, for the right ankle issue.

X-rays revealed a possible old fracture in an area that was not causing her discomfort. AR 366.
Having the impression that Reinhardt had plantar fasciitis from the injury, a certified nurse

practitioner at the Orthopedic Institute placed her in a walking boot. AR 366. According to the
medical records, Reinhardt was "insisting on pain pills," and the certified nurse practitioner gave her

20 hydrocodone"^ tablets and a Medrol Dosepak to reduce swelling. AR 366. The next day.
Hydrocodone is a narcotic analgesic opioid medication typically used short-term to treat pain
because of its addictive qualities. See Hvdrocodone and Acetaminophen COral Route"), Mayo Clinic

November 1, 2012, Reinhardt presented to Dr. Barker and told him that the second x-rays showed a

fracture. She received from Dr. Barker a prescription of 50 oxycodone^ tablets. AR 389. On
November 16, 2012, Reinhardt called Dr. Barker asking for a refill of the oxyeodone prescription.

Dr. Barker also refilled her elonazepam^ prescription at that time. AR 388.
On November 26, 2012, Dr. Barker authored a medical record because someone had

overwritten Reinhardt's elonazepam prescription and the pharmacy had filled Reinhardt's

prescription thinking it was for lorazepam.^ Dr. Barker recorded that both Reinhardt and her husband
had accused one another of"misadventures related to narcotics," and both were on methadone at one

point. Dr. Barker was concerned about Reinhardt's high dose of methadone and elonazepam, and
about the handwritten alteration over his prescription. Dr. Barker had learned through the South
Dakota Narcotic website that Reinhardt had also received a hydrocodone prescription from the

Orthopedic Institute, and was deeply concerned about her narcotic use. AR 387. At about the same
time, on November 23, 2012, Reinhardt returned to the Orthopedic Institute for examination of her

right ankle. She was found to be "in no distress," and was referred to physical therapy for
instructions on strengthening and rehabilitation. AR365.

The most thorough record of a physical examination of Reinhardt in the Administrative
Record comes from Dr. Mark List of the Center for Family Medicine, who completed a South

(Jan. 1, 2016), http://mayoclinic.org/drugs-supplements/hydrocodone-and-acetaminophen-oralroute/description/drg-20074089.

^ Oxyeodone is another narcotic analgesic and opioid for short-term pain relief, which can be highly
addictive. ^Oxvcodone rOral -Routeh Mayo Clinic (Jan. 1, 2016), http://mayoclinie.org/drugssupplements/oxycodone-oral-route/description/drg-20074193.

® elonazepam is a benzodiazepine used to treat certain seizure disorders by slowing down the central
nervous system.
See Clonazenam (Oral Route!. Mayo Clinic (Dee. 1, 2015),
http://mayoelinic.org/drugs-supplements/clonazepam-oral-route/deseription/drg-20072102.
^ Lorazepam is a benzodiazepine different from elonazepam used to treat anxiety by slowing down
the central nervous system.
See Lorazepam COral Routel. Mayo Clinic (Dec. 1, 2015),
http://mayoclinic.org/dmgs-supplements/lorazepam-oral-route/description/drg-20072296.
Lorazepam can be more addictive than elonazepam. See Lance P. Longo & Brian Johnson,
Addiction: Part I. Benzodiazepines—Side Effects, Abuse Risk and Altematives, 61 Am. Fam.

Physician 2121 (2000), available at http://www.aa:Q5.org/a^/2000/0401/p2121.html.

Dakota Disability Determination and Evaluation of Reinhardt on November 29, 2012. Dr. List
interviewed Reinhardt and summarized her disability claim as "alleged problems with back, neck,

knees, ankles, shoulders, elbows, spine jfrom cervical down to lumbar, fibromyalgia, osteoarthritis,

problems with edema, problems with panic attacks, depression, PTSD, ADHD and bipolar disease."
AR 367. Dr. List talked with Reinhardt about her work history and recorded that she had quit her last

job at a call center after two weeks because of having too much pain in her knees. AR 367. Dr. List

categorized her complaints into seven areas and noted that she was being evaluated separately for
psychiatric complaints. AR 367-68. Dr. List observed that Reinhardt had "mild distress when
moving any of her joints or with any palpation of any of her joints or extremities." AR 368. Dr.

List's physical examination of Reinhardt was extensive. AR 368-69. Dr. List found Reinhardt's
reflexes to be intact, but noted that she had a shuffling gait and was walking with a cane. AR 369.

Her right ankle was in a brace from the recent sprain. AR 369. Her neck showed a slight decrease in
range of motion, but she had firll range of motion ofthe lumbar spine. AR 369. Reinhardt had some

right shoulder range-of-motion loss. AR 369. Reinhardt had good range of motion in her knees, but

complained of pain with movement of her knees. AR 369. The x-rays ordered by Dr. List of
Reinhardt's back showed degenerative disc disease at T-11 through L-3, with disc space narrowing at
L-1-2 and L-2-3. AR 371. The x-ray ordered by Dr. List of Reinhardt's knee showed advanced
tricompartment degenerative changes present in her knee. AR372.
Dr. List's assessment was that Reinhardt would have difficulty lifting or carrying more than

25 pounds occasionally, and would be unable to stand for an eight-hour period, but she could stand
for two hours spread out throughout the day. AR 369. Dr. List reasoned that "given that she is
seated for the entirety of our hour long exam without problems, I feel like she may be able to do
some sedentary work doing some sitting." AR 369—70. Dr. List found no objective findings for any
vision or hearing defieits, but did fmd joint pain and problems with ambulation to be legitimate. AR
370. Dr. List concluded that notwithstanding his physical findings,"I find it very hard to believe that

she would not be able to do a sedentary job where she would be required to sit for the majority of her
day and answer a phone or type on a computer or do some sedentary office work." AR 370.
Reinbardt separately bad a RFC done by Dr. Kevin Whittle on December 22, 2012. Dr.
Whittle believed that Reinbardt could occasionally lift 20 poimds, frequently lift 10 pounds, stand or

walk for two hours in a day, and sit for six hours of an eight-hour day with breaks. AR 97-98. Dr.
Whittle based Reinbardt's limitations on her chronic generalized pain syndrome. AR 98. Dr.

Whittle believed that Reinbardt's "[sjymptoms appear to be out of proportion to the objective
findings," but acknowledged that PTSD and depression were problems that may have been
contributing to her symptoms. AR 99. Dr. Whittle then opined that Reinbardt was not disabled
based on her ability to do past relevant work as a telemarketer. AR 101-02.
In March of 2013, Dr. Barker wrote that "it would be difficult for me to justify continued

treatment of her chronic pain," due to bis concerns about Reinbardt's narcotic use and possible abuse.
AR 385. On March 25, 2013, Reinbardt began seeing Dr. Phillip Kelcben of Falls Community

Health as her primary medical doctor. AR 423. Dr. Kelcben took a history from Reinbardt and
assessed her as having chronic pain, secondary insomnia, and adjustment disorder with depressed
mood. AR 423-24. Reinbardt had run out of medications a couple of days before the visit, and Dr.

Kelcben discussed with her getting her to be more active "as inactivity is really at the root of her

chronic pain and that greater activity will make her feel better in addition to lessening the pain." AR

424. At the next visit on April 1, 2013, Dr. Kelcben prescribed simvastatin,^ nortriptyline,^
methadone, omeprazole,"' and Paxil," together with encouraging walking for exercise. AR 422-23.
^ Simvastatin is prescribed to treat high cholesterol. See Simvastatin tOral Routef Mayo Clinic
(Dec. 1, 2015), http://mayoclinic.org/drugs-supplements/simvastatin-oral-route/description/drg20069006.

'
Nortriptyline is used to treat depression, presumably by increasing serotonin levels in the brain.
Nortrintvline tOral Routel. Mayo Clinic (Jan. 1, 2016), http://mayoclinic.org/drugssupplements/nortriptyline-oral-route/description/drg-20071998.

Omeprazole is used to reduce stomach acid to treat gastroesophageal reflux as well as conditions
such as heartburn, ulcers, belching, and indigestion. See Omenrazole /Oral Route). Mayo Clinic

By the April 26, 2013 visit, Dr. Kelchen recorded that Reinhardt "has been only moderately
compliant with the exercises," and "really just wants medication." AR 413. As of April 26, 2013,
Dr. Kelchen recorded that "other than her chronic pain, she has no complaints." AR 413.
Reinhardt, on May 25, 2013, was admitted to Avera McKennan Hospital for excruciating left

rib pain, apparently from a muscle spasm caused by coughing. AR 426-51. Reinhardt followed up
with Dr. Kelchen on June 3, 2013, who described the hospitalization as being one for fear of
pneumonia with likely chronic obstructive pulmonary disorder(COPD)and bronchitis. Dr. Kelchen

recorded that Reinhardt's "chronic pain in her lower extremities is not noticeable at the present
time."AR510.

As a consequence of Reinhardt's seeking reconsideration ofthe initial denial of SSI benefits,

the Commissioner had a second medical doctor—^Thomas Burkhart—do an RFC Assessment on July
5,2013. Dr. Burkhart's RFC is similar to that of Dr. Whittle. AR 116-18. The end conclusion

remained that Reinhardt was not disabled based on an ability to perform past relevant work as a
telemarketer. AR121.

Reinhardt continued to see Dr. Kelchen on a fairly regular basis in 2013. On August 19,
2013, Dr. Kelchen recorded that Reinhardt had experienced an exaeerbation of her left knee pain.
AR 505-06. Reinhardt went to Sanford Orthopedic & Sports Medicine to see a physieian's assistant
for left knee pain on August 14, 2013. AR 531-34. After x-rays were taken, the physician's
assistant attributed the left knee pain to degenerative joint disease and suggested a series of range-ofmotion exercises. AR 534. Dr. Kelchen, on October 8, 2013, talked at length with Reinhardt about

her left knee pain and the bone-on-bone arthritis. AR 502-03. Dr. Kelchen described the x-rays as

(Jan. 1, 2016), http://mayoclinic.org/drugs-supplements/omeprazole-oral-route/description/drgs20066836.

"Paxil is a brand name for paroxetine, which is prescribed to treat depression, obsessive-compulsive
disorder, anxiety disorders, and post-traumatic stress disorder, presumably by iiicreasing serotonin
levels in the brain.
Paroxetine COral Route!. Mayo Clinic (Dec. 1, 2015),
http://mayoclinie.org/drugs-supplements/paroxetine-oral-route/description/drg-20067632,

revealing osteoarthritis and a lack of cartilage. AR 504. Reinhardt agreed to be evaluated for
possible surgery. AR 502-03.

To be evaluated for possible left knee replacement surgery, Reinhardt saw Dr. Carl Bechtold
at Sanford Orthopedic & Sports Medicine on October 31, 2013. AR 536-37. Reinhardt's knee was

tender on examination. Dr. Bechtold's impression was severe bone-on-bone degenerative joint

disease of the left knee.

Dr. Bechtold talked with Reinhardt about the possibility of knee

replacement, but also about her risk factors for a poor outcome due to her fibromyalgia, chronic pain,
depression, anxiety, obesity, and smoking. AR 537. Dr. Bechtold and Reinhardt discussed use of a
cane to help her walk. AR 537. Dr. Bechtold offered to see Reinhardt in the future, AR 537,
although there is no record that she followed up with Dr. Bechtold.
In late 2013 and into 2014, Reinhardt continued to see Dr. Kelchen on roughly a monthly
basis. AR 540-55. On November 6, 2013, Dr. Kelchen recorded that Reinhardt had resumed

smoking and was using a cane whenever her left knee pain flared up. AR 553. At a December 2,
2013 visit, Dr. Kelchen recorded that Reinhardt had a marked increase in low back pain. AR 551.
At a January 9, 2014 visit. Dr. Kelchen noted that the left knee was quite a bit better than the prior
month. AR 550.

In the record of a February 10, 2014 visit. Dr. Kelchen described having a long discussion
with Reinhardt about physical activity and work. Reinhardt at that time was looking for a job to
work 15 to 20 hours per week, where she could alternate sitting and standing. AR 547. Dr. Kelchen
recorded in his note that Reinhardt felt that "she can function [with] the current level of pain." AR

549. Dr. Kelchen thought that having Reinhardt "get a reasonable job herself and have something
[to] occupy her time . . . would be a good thing," and would do the most to help her mood and
chronic pain. AR549.

Reinhardt experienced leg swelling in March of 2014. AR 542-46. At the April 16, 2014
visit. Dr. Kelchen was concerned about Reinhardt's ankle edema and chronic back pain, but noted
9

that she had applied for a job, had a newer car, and should be able to get a job shortly. AR 540.
During the May 15, 2014 visit to Falls Community Health, Reinhardt reported "significant

improvement in her mood/anxiety since start of Abilify,"'^ and that "this is the best she has ever felt
for some time." AR 538.

Dr. Kelchen's note from June 30, 2014, reads that Reinhardt "states the pain is better this

month after being able to walk significantly farther," and was not having swelling in her legs. AR
604. During the remainder of 2014, Dr. Jennifer Tinguely updated prescriptions and saw Reinhardt.
Reinhardt appeared to have low back and knee pain in July of 2014, and edema in her lower legs in
September of 2014. AR 596; AR 600; AR 602-03.

On November 19, 2014, Dr. Tinguely saw Reinhardt for a physical. AR 85. Reinhardt was
struggling with pain and asked for an increase in the methadone prescription. AR 85. She also
reported stress living at home alone and appeared to be depressed. AR 85. Dr. Tinguely recorded
that Reinhardt had a normal neck exam, had a normal eye exam, and had a normal cardiovascular

exam, but was "slow to move" with trouble laying down and getting up. AR 87.. Dr. Tinguely
switched Reinhardt back to Abilify and increased her methadone prescription. AR 88. The next
day—November 20, 2014—^Reinhardt went to Avera McKennan Hospital Emergency Room for
what was described as a "straightforward COPD exacerbation, very mild." AR 613. The medical
record described that "the patient is otherwise doing really quite well." AR 613.
The final notes in the Administrative Record are from early 2015. Dr. Tinguely saw
Reinhardt on January 13, 2015. AR 77-79. Reinhardt reported worsening pain and was distraught
because she had been in a car accident where she slid into a brick wall and was concerned about her

Abilify is the brand name for aripiprazole, which is an anti-psychotic agent used to treat mental
health conditions such as bipolar disorder, major depressive disorder, and schizophrenia. See
Aripiprazole (Oral Routel. Mayo Clinic (Jan. 1, 2016), http://mayoclimc.org/drugssupplements/aripiprazole-oral-route/description/drg-20066890.
10

financial ability to pay for fixing the car. AR 77. The remaining notes from early 2015 seem to
concern prescriptions only. AR 77.

C. Reinhardt's Treatment History for Psychological Issues

The earliest record'^ of Reinhardt's psychological treatment is from counselor Ellen Hohm
dated September 1, 2009. AR 333. Counselor Hohm assessed Reinhardt as having major depressive
disorder, dysthymic disorder, and possible bipolar disorder as a "rule out" diagnosis. AR 333.
Hohm foresaw weekly treatment of Reinhardt to alleviate and stabilize Reinhardt's depression and to
develop healthy cognitive patterns, among other things. AR333.
The next record of psychological treatment, nearly two years later, is fi-om counselor Hohm

dated July 5, 2011, when Hohm recorded that Reinhardt was presenting with depression, anxiety, and
stress. AR 340. Hohm, beginning in early August 2011, saw Reinhardt nearly weekly, although
Reinhardt missed some ofthe weekly meetings. AR 342-48. Reinhardt's son was living with her by
September 20, 2011. AR 348. There was then a five-month break in counseling records until
February 23, 2012, when Reinhardt visited Hohm with anxiety and extreme stress, reporting that she
had nearly heen murdered by strangulation three weeks previously. AR 350.
Reinhardt was thereafter treated at the Compass Center, which specializes in assisting those
who have been victims of sexual or domestic abuse. AR 318-22. However, Reinhardt was either a

no show or cancelled most counseling sessions at the Compass Center in March and April of 2012.
The Compass Center ultimately could not complete a description of Reinhardt's current mental
functioning when requested to do so. AR 318-22.

Reinhardt returned to counselor Hohm on April 4, 2012, reporting that she could not sleep
because she could not shut her brain off and had constant worries. AR 352. On May 30, 2012,

" The Court is referring to the earliest entry in the administrative record. Reinhardt's attorney
supplemented the administrative record with some additional treatment records which this Court has
read and incorporated into this Opinion and Order.
11

Reinhardt expressed pride of her son for graduating high school, but was anxious and concerned
about her daughter who remained living with the ex-husband. AR354.
Reinhardt was working with social workers in 2011 and 2012, and some notes from those
social workers are in the Administrative Record. AR 474-501. However, the next time Reinhardt

saw a mental health professional was July 19, 2012, when Reinhardt began treatment at Southeastern
Behavioral Healthcare, initially with psychiatry resident Ammar Ali and then psychiatrist William

Fuller. AR 470. On July 19, 2012, Reinhardt told Dr. Ali that her depression was "totally out of
control" and that she had struggled with mental health issues from age 18, had chronic sleep

problems, and had been diagnosed as being bipolar. AR 470. Reinhardt also described a history of
abuse. AR 472. Dr. Ali diagnosed Reinhardt as bipolar not otherwise specified, seeking to rule out
ADHD and substance induced mood disorder. AR 472. Dr. Ali's differential diagnosis was major

depressive disorder, generalized anxiety disorder, dissociative personality disorder. AR 474. When

Reinhardt returned to Dr. Ali and Dr. Fuller on August 9, 2012, the risperidone^'* prescribed to
Reinhardt had produced a dramatic change and she was sleeping better. Reinhardt's weight had been
down considerably overall, but she reported gaining 20 pounds in the prior two weeks from the

risperidone. AR 468. Reinhardt then was prescribed Strattera'^ for ADD. AR468.
On a Description of Current Mental Functioning form dated August 21, 2012,'^ Dr. Fuller
described Reinhardt as having multiple illnesses making almost any job not feasible. AR 464. Dr.

Fuller based that opinion at least in part on his understanding of Reinhardt's physical conditions,
although there is no indication that he had any records outside of the psychiatric treatment records.

See AR 464-65. Dr. Fuller recorded on September 13, 2012, that the Strattera prescription for ADD
Risperidone is used to treat mental health conditions including schizophrenia, bipolar disorder, and
irritability from autism.
See Risperidone (Oral RouteJ. Mayo Clinic (Jan. 1, 2016),

http://mayoclinic.org/drugs-supplements/risperidone-oral-route/description/drg-20067189.
"Strattera is a brand name for atomoxetine, which is a selective norepinephrine reuptake inhibitor
used to treat ADHD.
See Atomoxetine tOral Route). Mayo Clinic (Dec. 1, 2015),
http://mayoclinic.org/drugs-supplements/atomoxetine-oral-route/description/drg-20066904.
Dr. Fuller for some reason dated his signature September 10, 2011. AR 465.
12

had been discontinued because Reinbardt bad beadacbes. AR 462. Reinbardt at that time was more

accepting of doing ber home activities, bad an improved mood, and was cooperative and pleasant.
AR462.

Reinbardt then appeared to miss a series of appointments scbeduled in late 2012 and early
2013 at Soutbeastem Directions for Life. AR 455-57. During this time, on October 22, 2012,
Reinbardt returned to counselor Hobm, who recorded that she bad not seen Reinbardt for five months

and that Reinbardt finally bad a car. AR 356. Counselor Hobm encouraged Reinbardt to come for
weekly visits, which Reinbardt said she would do. AR 356; AR 583. Reinbardt next saw counselor

Hobm about six weeks later in mid-December of 2012, AR 581, and then continued visiting
counselor Hobm into early 2013. AR 577-79. On February 4, 2013, Reinbardt expressed fi*ustration
with ber physicians over pain medications and acknowledged that she feared physical pain. AR 575.
Counselor Hobm believed Reinbardt's chief mental health problem at the time to be major depressive
disorder. AR 575. After Reinbardt reported being denied disability benefits on February 18, 2013,
Hobm recorded that "it seems this client should have been approved for disability," noting ber few
resources,and struggles with anxiety and depression. AR 573. Reinbardt returned to Soutbeastem

Behavioral Healthcare on November 8, 2012, by which point she bad discontinued taking

risperidone, associating the dmg with ber weight gain. AR 458-59.
On December 10, 2012, Reinbardt saw counselor Patricia LaVelle for a mental status
examination. AR 373-79.

LaVelle recorded that Reinbardt was groomed appropriately, was

cooperative, and walked in without aid, although she walked slowly and appeared to be in pain. AR
373. Reinbardt gave ber medical history, listed medications that she was taking, spoke of having

sleeping issues, and described being depressed "all ber life." AR 374. Reinbardt said she bad ADD

and bad been diagnosed with PTSD at the Compass Center. AR 374. Reinbardt described physical
violence during ber upbringing and domestic violence in a recent relationship, but LaVelle recorded

that Reinbardt's "behavior during ber narrative did not fit the description." AR 375. Reinbardt gave
13

a confiising account of her legal problems to LaVelle. AR 376. LaVelle recorded that Reinhardt was
able to eook for herself, recently started driving again, was of average intelligence, had a mood that
was sad and anxious, was low energy, and appeared to have ehronic pain. AR 377. According to
LaVelle, "ADD was noticeable in her manner" as she had "trouble focusing and had to be

redirected." AR 377. LaVelle's diagnostic impression was PTSD, general anxiety disorder with
panie attacks, bipolar disorder II, ADD, and possibly borderline and histrionic features. AR 378.
LaVelle reeommended continued eounseling. AR378.
Dr. S. Riehard Gurm, on January 22, 2013, ereated a mental RFC for Reinhardt. AR 99-101.

Dr. Gurm thought Reinhardt to have no understanding and memory limits, hut sustained
eoncentration and persistenee limits. AR 99. Dr. Gurm believed that Reinhardt could carry out very

short and simple instruetions. AR 99. Dr. Gurm thought Reinhardt was moderately limited on
earrying out detailed instructions, and maintaining attention and coneentration for extended periods
of time. AR 100.

Reinhardt last saw Dr. All on April 18, 2013, when Dr. All's impression of Reinhardt was
bipolar disorder NOS and a history of ADD. AR 452. Reinhardt recently had lost Medicaid
coverage with her son turning 18. AR 453. Dr. All discussed medieation choiees and recorded that
she was applying for disability and was having her methadone prescription levels decreased. AR
453.

Upon her request for reconsideration of the denial of SSI benefits, the Commissioner had a
second mental RFC done of Reinhardt. On July 1, 2013, Doug Soule, Ph.D., produced a mental RFC

that was similar to Dr. Gunn's prior mental RFC. AR 118-19. The result of the mental RFC
remained that Reinhardt was not disabled based on her ability to perform past relevant work as a
telemarketer. AR 120-21.

14

After a three-month break fi-om treatment with counselor Hohm, Reinhardt returned to see

Hohm on June 28, 2013. AR 569. Reinhardt continued to struggle with increased depression during
monthly meetings with Hohm in June, July, and August of2013. AR 565-69.
Reinhardt scheduled and missed some appointments at Southeastern Directions for Life with

Dr. Bob Nuss in September of 2013. AR 527. She ultimately saw Dr. Nuss for the first time on
October 28, 2013. AR 517-18. Reinhardt reported to Dr. Nuss having sleeping issues, chronic pain,
decreased energy, and needing assistance in her activities of daily living fiom her son. AR 517. She
walked with a cane, had normal language skills, and displayed an anxious mood. AR 518.
The final three visits in the record between Reinhardt and counselor Hohm are ftom

November 25, 2013, June 10, 2014, and July 23, 2014. During these visits, Reinhardt continued to

struggle with anxiety, depression, extreme stress and physical pain. AR 559-63. Reinhardt saw
counselor Sarah Thoms on November 25, 2014.

AR 83-84.

She had scheduled additional

counseling sessions with Thoms in December of2014, but missed those. AR 79. She again was a no
show for counseling with Thoms in January of 2015. AR 77. No further records of Reinhardt's
mental health treatment or counseling exist in the Administrative Record.
D. Testimony During Evidentiary Hearing

The ALJ conducted an evidentiary hearing on June 12, 2014. AR 31. Reinhardt appeared
with her attorney. AR 33-35. The ALJ clarified through questioning that Reinhardt had changed her
date of alleged onset of disability from May 15, 1995 to July 31, 2012. AR 36.
Reinhardt testified to using a cane and a walker in order to ambulate. AR 39. She had

completed some college. , AR 40. Although she testified that her hands cramp when writing too
much, she acknowledged that she maintains a checkbook and keeps track of bills. AR 40. Reinhardt

15

testified that she last worked in 2013,'^ when she cleaned offices for something less than three
months' time. AR 41. She quit the position because she was not strong enough. AR 41.
Reinhardt testified to severe limitations, such as not being able to dress herself or bend down

to put on her shoes or socks, although she did bathe herself. AR 42. Reinhardt testified that she
drives, but spends no more than 20 minutes at a time maximum behind the wheel. AR 43. The
hobbies she listed included working on a computer and watching television. AR 43. She attributed
her disability due to excruciating left knee pain that prevented her from standing, and depression,

together with COPD, being overweight, arthritis, and low back pain. AR 45^6. Reinhardt
identified Dr. Kelchen as her primary care physician and psychologist Hohm as treating her mental
health issues. AR 47-49.

Reinhardt did not have problems getting along with others and had a social circle of her
neighbors. AR 50-51. Reinhardt testified to concentration problems, but said that she read medical,

self-help, and daily affirmation books, and used the internet to look up things and to receive and send
emails. AR 51-53. Reinhardt testified to severe limitations in lifting, walking, sitting, and dexterity.
AR 54-57; AR 59.

James Miller testified as a vocational expert at the evidentiary hearing. AR 61. When asked

hypothetical questions about limitations described in the physical and mental RFCs. in the
Administrative Record, Miller said that such a person could work as a telephone solicitor. AR

63—64. The telephone solicitor position is sedentary. AR 65. When asked a final question more
closely in line with what Reinhardt had described as her limitations. Miller said that such a person
could not do the telephone solicitor work full-time. AR 65.

"If Reinhardt's date is accurate, she worked for three months' time after her alleged disability onset
date.
16

E. ALJ's Decision

The ALJ issued a decision denying Reinhardt's application for SSI benefits. AR 11-24. In
doing so, the ALJ used the sequential five-step evaluation process in 20 C.F.R. §§ 404.1520(a) and
416.920(a). Under the "'familiar five-step process' to determine whether an individual is disabled, ..

. [t]he ALJ 'eonsider[s] whether:(1) the claimant was employed;(2) she was severely impaired;(3)
her impairment was, or was comparable to, a listed impairment;(4) she could perform past relevant
work; and if not,(5) whether she could perform any other kind of work.'" Martise v. Astrue. 641
F.3d 909, 921 (8th Cir. 2011) (quoting Halverson v. Astrue. 600 F.3d 922, 929 (8th Cir. 2010))
(alteration in original); see also 20 C.F.R. § 416.920(a) (detailing the five-step process used in
evaluating claims for SSI).

At the first step, the ALJ determined that Reinhardt had engaged in no substantial gainful
activity since July 31, 2012, Reinhardt's alleged date of disability. AR 13. The ALJ did not mention

Reinhardt's testimony at the hearing that she had worked in 2013 for "not quite three months"
cleaning offices. See AR4L

At step two, the ALJ concluded that Reinhardt's severe impairments included degenerative
joint disease in her left knee, carpal tunnel of the left hand, residual carpal tunnel in the right hand

post release, fibromyalgia, obesity, COPD, anxiety disorder, and bipolar disorder. AR 13. The
inclusion of carpal tunnel issues appears to have been a bit generous to Reinhardt in that there is no
medical evidence in the record about recent treatment for or limitations associated with carpal turmel
or residual carpal tuimel. The ALJ reviewed other reported problems, but did not mention either
ADD or ADHD among the severe impairments. See AR 13.

At step three, the ALJ determined that Reinhardt's severe impairments do not singly or in
combination meet any. of the listed impairments." AR 14-16. The ALJ then determined that
Reinhardt had the residual functional capacity to perform sedentary work with a sit/stand option,
such that she could alternate 30 minutes of sitting with 5 minutes of standing and deal with other
17

,

limitations. AR 16—17. The ALJ then considered at greater length the effect of Reinhardt's severe

impairments on her functioning, including discussion of fibromyalgia and certain credibility issues.
AR 18-20. The ALJ deemed Reinhardt's limitations on some activities of daily living "to be more
self-imposed than actually precluded by her impairments." AR 21. The ALJ discussed the
psychologists' reports, including mention of ADD. AR 21-22. The ALJ concluded that there were

no findings consistent with ADD and that Reinhardt did not have apparent memory or attention

problems. AR 21-22. The ALJ discussed that her treating physician. Dr. Kelchen, thought that
Reinhardt should seek out work, and that the consulting examiner. Dr. List, believed that Reinhardt
could do sedentary work. AR 22-23. The ALJ noted that the vocational expert believed that a

person of Reinhardt's limitations could work as a telemarketer. AR 24. Accordingly, the ALJ found
that Reinhardt was not disabled because she was capable of performing her past relevant work as a
telemarketer. AR24.
III.

Standard of Review

When considering whether the Commissioner properly denied social security benefits, a court
must "determine whether the decision is based on legal error, and whether the findings of fact are
supported by substantial evidence in the record as a whole." Collins v. Astrue. 648 F.3d 869, 871

(8th Cir. 2011)(quoting Lowe v. Apfel. 226 F.3d 969, 971 (8th Cir. 2000)); see also Nowling v.
Colvin. 813 F.3d 1110, 1119-20 (8th Cir. 2016). "Legal error may be an error of procedure, the use
of erroneous legal standards, or an incorrect application ofthe law," and such errors are reviewed de
novo. Collins, 648 F.3d at 871 (internal citations removed).

The Commissioner's decision must be supported by substantial evidence in the record as a
whole. Evans v. Shalala. 21 F.3d 832, 833 (8th Cir. 1994); see Nowling. 813 F.3d at 1119; Chanev
V. Colvin. 812 F.3d 672, 676 (8th Cir. 2016). "Substantial evidence is more than a mere scintilla,"

Consol. Edison Co. of N.Y. v. NLRB. 305 U.S. 197, 229 (1938), but "less than a preponderance,"
Maresh v. Bamhart. 438 F.3d 897, 898 (8th Cir. 2006)(quoting McKinnev v. Apfel. 228 F.3d 860,
18

863 (8th Cir. 2000)); see also Nowling. 813 F.3d at 1119. It is that which "a reasonable mind would

find adequate to support the Commissioner's conclusion." Miller v. Colvin. 784 F.3d 472, 477 (8th
Cir. 2015)(quoting Davis v. Anfel. 239 F.3d 962, 966(8th Cir..2001)); accord Nowling. 813 F.3d at
1119; Burress v. Anfel. 141 F.3d 875, 878 (8th Cir. 1998); Jones v. Chater. 86 F.3d 823, 826 (8th
Cir. 1996). The '"substantial evidence in the record as a whole' standard is not synonymous with the
less rigorous 'substantial evidence' standard." Burress. 141 F.3d at 878. "'Substantial evidence on

the record as a whole' . .. requires a more scrutinizing analysis." Gavin v. Heckler. 811 F.2d 1195,
1199(8th Cir. 1987).

A reviewing court must "consider evidence that supports the [Commissioner's] decision

along with evidence that detracts from it." Siemers v. Shalala. 47 F.3d 299, 301 (8th Cir. 1995);^
also Nowling. 813 F,3d at 1119. In doing so, the court may not make its own findings of fact, but
must treat the Commissioner's findings that are supported by substantial evidence as conclusive. 42

U.S.C. § 405(g); see also Benskin v. Bowen. 830 F.2d 878, 882 (8th Cir. 1987) (noting that
reviewing courts are "governed by the general principle that questions of fact, including the
credibility of a claimant's subjective testimony, are primarily for the [Commissioner] to decide, not

the courts"). "If, after undertaking this review, [the court] determine[s] that 'it is possible to draw
two inconsistent positions from the evidence and one of those positions represents the
[Commissioner's] findings, [the court] must affirm the decision' of the [Commissioner]." Siemers.
47 F.3d at 301 (quoting Robinson v. Sullivan. 956 F.2d 836, 838 (8th Cir. 1992)); see also Chanev.
812 F.3d at 676. The court "may not reverse simply because [it] would have reached a different

conclusion than the ALJ or because substantial evidence supports a contrary conclusion." Miller.
784 F.3d at 474 (citing Blackburn v. Colvin. 761 F.3d 853, 858 (8th Cir. 2014)); see also Nowling.
813 F.3dat 1119.

19

IV.

Discussion

Reinhardt argues that the ALJ's deeision, and in turn the Commissioner's decision, is not

supported by substantial evidence on the record as a whole and is not free from legal error.
Reinhardt raises four issues on appeal:

I.

Whether the Commissioner failed to properly evaluate [Reinhardt's] severe
fibromyalgia impairment?

II.

Whether the Commissioner failed to properly identify and incorporate

[Reinhardt's] attention deficit disorder in her residual functional capacity?
III.

Whether the Commissioner's determination of [Reinhardt's] residual

functional capacity is supported by substantial evidence?
IV.

Whether the Commissioner erred in evaluating the opinions of [Reinhardt's]
treating provider and consulting examiners?

Doc. 14 at 1. The Court addresses each ofthose four arguments in turn.
A. Evaluation of Reinhardt's Fibromyalgia Impairment

Reinhardt's first argument is that the ALJ failed to follow Social Security Ruling 12-2p in

evaluating Reinhardt's fibromyalgia. See Social Securitv Ruling 12—2p: Evaluation of Fibromvalgia,
77 Fed. Reg. 43,640 (July 25, 2012) (setting forth the policy interpretation ruling of the Social
Security Administration on the evaluation of fibromyalgia claims for SSI cases)(hereinafter SSR 12-

2p). Reinhardt points out that SSR I2-2p calls for evaluation of fibromyalgia based on criteria
including widespread pain, positive tender points upon exam, and exclusion of other causes. Doc. 14
at 31. Reinhardt notes that SSR 12-2p defines fibromyalgia symptoms, signs and co-occurring

conditions to include "fatigue, cognitive memory problems or fibro fog, waking unrefreshed,

depression, anxiety disorder, irritable bowel syndrome, irritable bladder syndrome, interstitial

cystitis, TMJ disorder, reflux disorder, migraines, and restless leg syndrome." Doc. 14 at 31; see also
SSR 12-2p, 77 Fed. Reg. at 43,642 & n.9-10. Reinhardt does not argue that her fibromyalgia or
other conditions meet any listing, singly or in combination. See Doc. 14 at 30-34. Rather,

Reinhardt's argument appears to be that it is per se error for the ALJ not to refer to SSR 12-2p, and

20

that the ALJ insufficiently evaluated fibromyalgia when determining Reinhardt's RFC. ^Doc. 14

at 32(twice mentioning RFC in connection with the argument about failure to apply SSR 12-2p).
Reinhardt argues, based on Haiek v. Shalala. 30 F.3d 89 (8th Cir. 1994), that the ALJ's
failure to consider and properly apply SSR 12-2p is an abuse of discretion. Doc. 14 at 31;^Haiek.

30 F.3d at 92.'^ In Haiek. the United States Court of Appeals for the Eighth Circuit reversed and
remanded a denial of benefits because the ALJ had concluded that the claimant could perform his
past relevant work as a janitor (a medium exertional requirement job) despite the fact that his
walking limitations precluded him from medium exertional requirements as defined by SSR 83-10.
Id at 92. The Eighth Circuit stated,"This ruling [SSR 83-10] is as binding on the [Commissioner] as
the regulation on which it is based." Id (citing Carter v. Sullivan. 909 F.2d 1201, 1202 (8th Cir.
1990)); see also Grebenick v. Chater. 121 F.3d 1193, 1200 (8th Cir. 1997). If the ALJ's evaluation
of Reinhardt's fibromyalgia conflicts with SSR 12-2p, then reversal and remand would be justified.
Much of SSR 12-2p concerns how to evaluate whether a fibromyalgia claim is a medically
determinable impairment. Here, the ALJ in step two recognized fibromyalgia as one of Reinhardt's

severe impairments. AR 13. The ALJ then mentioned Reinhardt's fibromyalgia as a factor for why
she was not a good candidate for left knee surgery. AR 20. The ALJ believed that fibromyalgia
restricted her from reaching overhead and, in combination with the knee issues, from certain
mobility. AR 20. The ALJ drew information from Reinhardt's treating physician. Dr. Kelchen, and
from the state examining physician. Dr. List, in evaluating Reinhardt's RFC. AR 22-23. The ALJ

The Commissioner's brief dismissively responds in one sentence to this argument: "Plaintiff notes
the ALJ did not mention SSR 12-2p, but fails to cite any authority suggesting that an ALJ must
mention SSR 12-2p when evaluating fibromyalgia. Henderson v. Sullivan. 930 F.2d 19, 21 (8th Cir.
1991)(failure to cite regulation for non-severe impairment harmless where opinion shows that ALJ
applied correct standard)." Doc. 17 at 4—5. The Henderson case does not stand for the proposition
cited by the Commissioner, dealing instead with legal standards, not the citation of SSI regulations or
rulings. Although Haiek does not explicitly deal with SSR 12-2p and fibromyalgia, it does stand for
the proposition that an SSR is binding and failure to consider an SSR may be abuse of discretion.
See Haiek. 30 F.3d at 92.
21

also discussed Reinhardt's "good pain relief with the use of narcotic pain relievers" and her history
of being prescribed methadone and other drugs to deal with the fibromyalgia. AR 20.
The ALJ did not cite to or mention SSR 12-2p in evaluating Reinhardt's fibromyalgia.
However, an ALJ's mere failure to cite a pertinent regulation is not per se grounds for reversal or
remand when the ALJ's analysis is consistent with the regulation. See Henderson v. Colvin. No.

C15-0081-CJW, 2016 WL 4599920, at *17 (N.D. Iowa Sept. 2, 2016)(finding no error where the
ALJ complied with the substance of an SSR, but failed to explicitly reference the SSR); Allen v.
Sullivan, 977 F.2d 385, 390 (7th Cir. 1992)(distinguishing a case where the ALJ was unaware of an

SSR and failed to follow its guidelines entirely). Here, the ALJ's discussion of fibromyalgia is not
inconsistent with SSR 12-2p. The ALJ did refer to certain symptoms discussed in SSR 12-2p, such
as Reinhardt's widespread pain, but not to other fibromyalgia symptoms Reinhardt did not exhibit.
See AR 18—20. For example, the ALJ did not reference positive tender points upon exam, but there

is little evidence in the record of such positive tender points on exam of Reinhardt. S^ SSR 12-2p,
77 Fed. Reg. at 43,6432. Similarly, the ALJ did not discuss irritable bladder syndrome, interstitial
cystitis, and TMJ disorder because they did not apply at all to Reinhardt.

id. at 43,6432 n.9-10.

Other fibromyalgia factors listed in SSR ,12-2p do find their way into the ALJ's decision. S^ AR
18-20.

The ALJ's analysis was not inconsistent with the substance of SSR 12-2p. SSR 12-2p in its
introduction contemplates a need for objective medical evidence by stating:
As with any claim for disability benefits, before we find that a person with
[fibromyalgia] is disabled, we must insure there is sufficient objective evidence to
support a finding that the person's impairment(s) so limits the person's functional
abilities that precludes him or her fi om performing any substantial gainfiil activity.
:
SSR 12-2p, 77 Fed. Reg. at 43,641. When evaluating the intensity and persistence of the claimant's
pain or other symptoms, the Commissioner is to determine first whether objective medical evidence
"substantiate[s] the person's statements about the intensity, persistence, and functionally limiting
s

22

effects of symptoms." Id at 43,643. If the evidence does not support the claimant's allegations, the
ageney is to consider ail relevant evidence and make "a finding about the credibility of the person's
statements regarding the effects of his or her symptoms on functioning." Id This evidence is to

include "the person's daily activities, medications or other treatment the person uses" and similar
factors. Id

SSR I2-2p explicitly outlines the five-step sequential evaluation process to determine
whether a person with a medically determined impairment of fibromyalgia is disabled. Id at 43,643-

44. The ALJ considered all such matters and applied the five-step process. AR 11-24. SSR 12-2p
discusses somewhat briefly the RFC assessment in a fibromyalgia ease, but reaffirms that "[i]f the

person is able to do any past relevant work, we find that he or she is not disabled." SSR I2-2p, 77
Fed. Reg. at 43,644. In short, SSR I2-2p, when read in full, does not countermand the approach that
the ALJ took here. The reasons why the RFC is supported by substantial evidence are discussed
further in Part C below. In brief, the failure of the ALJ to cite, discuss, or rely upon SSR I2-2p in

evaluating Reinhardt's fibromyalgia is not a reason for reversal or remand under these eireumstances.
B. Attention Deficit Disorder Effect on the RFC

Reinhardt next argues that the Commissioner failed to properly identify and incorporate
Reinhardt's attention deficit disorder in her RFC. Doc. 14 at 34-37. The ALJ in fact did not include

ADD or ADHD in listing Reinhardt's severe impairments in step two. AR 13. The ALJ, however,
noted that Reinhardt had reported memory and eoneentration issues, among other issues, AR 18, and
discussed that ADD had been listed among Reinhardt's psychological or psychiatric issues, AR 21.
The ALJ then reasoned:

While the undersigned accepts the diagnoses for bipolar disorder and a generalized
anxiety disorder, there are no other findings eonsistent with ADD within the medical
evidence of record. The claimant had alleged these issues to treatment providers and
had been given medications which generally treat it, but there were no findings
documenting the impairment. The claimant's ability to maintain concentration to
read medical and self-help books, in addition to watching television, do not reflect a
problem with understanding or remembering instructions. Her alleged memory
23

problems are simply inconsistent with findings from treatment providers which

suggest she has good attention and concentration. On the whole, Dr. Sandbulte's'^,
opinion is at odds with the suggestion from her treating physician, Phillip Kelchen,
M.D., that she should seek employment.
AR 21-22.

There is inconsistency in the psychological records about whether Reinhardt has ADD or
ADHD. Counselor LaVelle described in a report co-signed by Dr. Sandbulte that ADD was

noticeable in her manner with trouble focusing, but only saw Reinhardt on one occasion. AR

377-78. Other counselors listed psychological or psychiatric issues without mentioning ADD or
ADHD, including counselor Hohm, whom Reinhardt saw the most. See AR 331—32. Dr. All
diagnosed various psychological and psychiatric issues, but was hesitant on ADD or ADHD, noting
"rule out ADHD" despite Reinhardt reporting to him a past diagnosis of ADD or ADHD. AR 472.
Dr. Nuss did not mention ADD in his evaluation of Reinhardt. AR 517-19. At times, mental status

examinations of Reinhardt specifically noted that her attention and concentration were good or fair.
AR 453; AR 459; AR 472; AR 518. As the ALJ noted, "progress notes from Southeastern Direction

show that she has good attention and concentration." AR 20—21. Reinhardt, to be sure, has made
various statements that she has memory and concentration issues. However, she has said that her

ability to pay attention "depends on day & pain level," indicating that maybe her pain causes part of
her attention problems. AR 253. When asked about her problems with concentration at the
administrative hearing, Reinhardt responded "I have a problem with my memory. I'm not sure if
that's so much concentrating." AR51.

The ALJ, despite not finding ADD or ADHD among her severe impairments, discussed and
considered Reinhardt's possible ADD in assessing her RFC. AR 21-22. Thus, the failure to identify
Reinhardt's possible ADD in step two,if error at all, was harmless, as the ALJ continued to consider

" The ALJ was referring to a report authored by coimselor LaVelle and co-signed by Shelley
Sandbulte, Ed.D. AR 379.
24

the ADD in the context of the RFC?" CfTovev. Astme. No. C11-3035-MWB, 2012 WL 1969224,
at *10(N.D. Iowa June 1, 2012). Although the ALJ could have weighed the evidence differently on

ADD,this Court is to determine whether "substantial evidence in the record as a whole" supports the
ALJ's determination. Collins. 648 F.3d at 871; Evans. 21 F.3d at 833. This Court cannot conclude

that there is an absence of substantial evidence supporting how the ALJ regarded and considered
Reinhardt's possible ADD.
C. Whether the RFC is Supported by Substantial Evidence
1. Physical RFC

Reinhardt's primary argument that the ALJ erred in determining her physical RFC was the
absence of discussion about her severe carpal tunnel impairment in the left hand, and residual carpal
tunnel syndrome in the right hand post release. Doc. 14 at 38-41. First, it was charitable for the ALJ
to determine that carpal turmel of the left hand and residual carpal tunnel of the right hand were
severe impairments in step two. AR 13. The medical records are nearly silent as to any ongoing

carpal tunnel,issues suffered by Reinhardt. The only record evidence of carpal tunnel, other than
Reinhardt's reports of having past problems, are her mentions ofleft-sided carpal tunnel issues to Dr.
Kelchen in October and November of 2013. AR 552-55. Dr. Kelchen referenced a prior EMG,

"which shows moderate carpal tunnel." AR 554. The ALJ was mindfiil of these records and

observed that, despite the findings of pins and needles and a positive Tinel's sign in the left hand,
Reinhardt's grip strength was reduced only to four-and-a-half out of five, and that most of her
problems occurred while she was sleeping. AR 19 (citing AR 551-55). The ALJ therefore
concluded that her carpal tunnel syndrome limited her to frequent handling and fmgering, and limited
her lifting at a sedentary level. AR 19. The physical RFC used by the ALJ is consistent with
substantial evidence in the record as a whole, and consistent with Reinhardt's own treating

If Reinhardt has ADD or ADHD, that condition presumably is longstanding and existed during
times before July 2012, when she was able to work in telemarketing and other jobs.
25

physician's view that she could work and would experience health benefits from getting a job. AR
549.

2. Mental RFC

Reinhardt's main criticism of the ALJ's determination of her mental RFC is elevating the

state agency expert Dr. Soule's assessment at the reconsideration level over that of other providers.
Doc. 14 at 42-45. This is a closer issue than concerns the physical RFC. After all, there are treating
mental health providers—^Dr. Fuller,and counselor Hohm—who opined that Reinhardt was incapable

of gainful emplojment due to her physical and psychological problems. Neither, however, did a
record review of her physical problems, and both were relying upon the accuracy of Reinhardt's

reports of physical problems. As to those who conducted physical examinations of Reinhardt, both
her treating physician Dr. Kelchen and the state examining physician Dr. List opine that she was able
to work, although with limitations. This is consistent with the physical RFC. Thus, if Reinhardt is

disabled, it would be based primarily on psychological issues.
A claimant's RFC "is defined as the most a claimant can still do despite his or her physical or
mental limitations." Martise v. Astrue. 641 F.3d 909, 923 (8th Cir. 2011) (quoting Leckenbv v.

Astrue. 487 F.3d 626, 631 n.5 (8th Cir. 2007)). "Because a claimant's RFC is a medical question, an
ALJ's assessment of it must be supported by some medical evidence of the claimant's ability to

function in the workplace." Cox v. Astrue. 495 F.3d 614, 619(8th Cir. 2007). "The ALJ determines
a claimant's RFC based on all relevant evidence, including medical records, observations of treating

physicians and others, and the claimant's own descriptions of his or her limitations." Eichelberger v.
Bamhart. 390 F.3d 584, 591 (8th Cir. 2004).

The Eighth Circuit has reversed when an ALJ relied exclusively on "opinions of non-treating,
non-examining physicians who reviewed the reports of the treating physicians to form an opinion of

[the claimant's] RFC." Nevland v. Aofel. 204 F.3d 853, 858 (8th Cir. 2000). In doing so, the Eighth
Circuit observed that opinions of doctors "who have not examined the claimant ordinarily do not
26

constitute substantial evidence on the record as whole." Id. Unlike in Nevland. however, the ALJ,

while drawing from a non-treating, non-examining physician's mental RFC, did not base the decision
of her mental RFC solely on that information. AR 21-23.
The examining psychologist in developing the mental RFC recognized that Reinhardt has

psychologieal issues and limitations. AR 99-101; AR 118-19. The ALJ examined the record as a
whole and discussed this in his findings. The ALJ specifically addressed and discounted Dr. Fuller's

opinion, because it was "based in part upon her physical impairments for which he has provided no
treatment and are outside of his area of expertise." AR 21. The ALJ deemed Dr. Fuller's opinion to
be "quite conclusory and it sets forth no specifie limitations related to her mental impairments which

impact her ability to work." AR21. These statements by the ALJ are supported by the record.
AR 99-100; AR 118-21; AR 464-65; see also Hamman v. Berrvhill. No. 16-1216, slip op. at 3 (8th
Cir. Feb. 24, 2017)(per curiam) (finding no reversible error where the ALJ discounted a treating

physician's assessment because "the majority of his assessment consisted of checked boxes and
conclusory statements" and record supported the ALJ's differing assessment). Dr. Fuller appeared to
have seen Reinhardt just once prior to completing the form supplying his opinions, and appears to
have relied exclusively on Reinhardt's own reports of physical issues.

AR 464-65. Dr.

Kelchen, who prescribed antipsychotic medications for Reinhardt's mental health issues and treated
her over many months for physical issues, was of the opinion that Reinhardt could and should work,
and indeed that her mental health would improve if she were to work. AR 423-24; AR 548-49. The
ALJ relied on not just Dr. Soule's mental RFC, but also on Dr. Kelchen's opinion in assessing

Reinhardt's psychological issues and mental RFC. AR 20-24. This case presents an instance where
substantial evidence in the record as a whole would support either conclusion—^that Reinhardt has or
does not have a mental RFC that allows sedentary work as a telemarketer. In such a situation, this
Court is to affirm the ALJ. Blackburn. 761 F.3d at 858.

27

D. Alleged Error in Evaluating Certain Opinions

Finally, and related to the argument on the mental RFC, Reinhardt argues that the ALJ failed
to afford proper and controlling weight to opinions of Reinhardt's treating physicians. Doc. 14 at
44-47. The Commissioner is to give controlling weight to the findings of the treating physician on
the severity of an impairment, if those findings are well supported by medically accepted clinical and
laboratory diagnostic techniques, and are not inconsistent with other substantial evidence in the
record. 20 C.F.R. § 404.1527(c)(2); Reed v. Bamhart. 399 F.3d 917, 920-21 (8th Cir. 2005). An
ALJ must "always give good reasons" for the weight afforded to a treating physician's evaluation.
Reed. 399 F.3d at 921 (citing 20 C.F.R. § 404.1527(c)(2)). If controlling weight is not given to the

opinions of treating physicians, deference must still be granted, with weighing of the factors set forth
in 20 C.F.R. § 404.1527.

Social Security Ruling 96-2r): Giving Controlling Weight to Treating

Source Medical Opinions. 61 Fed. Reg. 34,490 (July 2, 1996). However, a treating physician's

opinion is not automatically controlling. Smith v. Colvin. 756 F.3d 621, 627(8th Cir. 2014), and the
ALJ is to resolve conflicts among various treating and examining physicians, Wagner v. Astrue. 499
F.3d 842, 848 (8th Cir. 2007). An ALJ may disregard or discount a treating physician's opinion if

medical evidence supports a different conclusion, or if the treating physician renders inconsistent

opinions that undermine the credibility of the opinion. Smith. 756 F.3d at 627. In evaluating a
treating physician's opinions, the ALJ is to consider factors such as the examining relationship,
treatment relationship, length of treatment relationship and frequency of examination, nature and
extent of the treatment relationship, supportability, consistency with the record as a whole,
specialization, and other relevant factors;. 20 C.F.R § 416.927(c)(l)-(6).

Reinhardt argues that the ALJ failed to give proper weight to the opinions of Dr. Fuller. Doc.
14 at 44. In discussing the opinions of Dr. Fuller, the ALJ stated:

As for the opinion evidence, the undersigned considered the opinions of William
Fuller, D.Q. from September of 2011. He opined that the claimant's multiple
illnesses "make almost any job not feasible because of her physical pain & mood &
28

behavioral problems concurrently." His opinion, however, is based in part upon her
physical impairments for which he has provided no treatment and are outside of his
area of expertise. Little weight has been given to his assessment for that reason.
Additionally, Dr. Fuller's opinion is quite conelusory and it sets forth no specific
limitations related to her mental impairments which impact her ability to work.
AR 21 (citations omitted). Dr. Fuller was practicing at Southeastern Directions for Life at the time
he expressed that opinion. Dr. Fuller had apparently seen Reinhardt for the first time on August 9,

2012, and was seeing Reinhardt for the second time when he expressed the opinions in question in

September 2012. AR 464-69. Reinhardt previously had been seeing Dr. Ali, who apparently was a
resident at the time, and Dr. Ali expressed no opinion, either way, about Reinhardt's employability.

Dr. Fuller had provided no treatment for Reinhardt's physical conditions at all, nor did he apparently
conduct any record review in expressing his opinion.
The ALJ also discounted the opinion of a state examining psychologist and explained why
Reinhardt's global assessment of function (GAF) scores were given little weight. AR 21-22. The

ALJ chose to give great weight to the state agency psychological consultant and to the opinion of
Reinhardt's treating family praetiee doctor, who had treated Reinhardt on a number of oeeasions—

including prescribing medications to address Reinhardt's psychiatric issues. AR 22. That family
practice doctor. Dr. Kelchen, opined that Reinhardt ought to be working and recorded that she was
looking for a job in February of 2014 that would be 15 to 20 hours per week where she could
alternate standing and sitting in a way she could tolerate. AR 22; AR 547. The ALJ's determination

that the psychological opinions were inconsistent with Dr. Kelchen's opinion is sensible, especially
given that Dr. Kelchen not only was aware of Reinhart's psychological issues but also had treated

them through prescriptions. AR 422-23. Again, this is a point where the evidence pointed in
opposite directions and where the ALJ could have decided the matter either way. However,
substantial evidence in the record as a whole exists for the marmer in which the ALJ decided to

discount Dr. Fuller and the other opinions in favor of the opinion of Dr. Kelehen and Dr. Soule's
mental RFC. See Blackburn. 761 F.3d at 858.
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V.

Conclusion and Order

For the reasons explained above, it is hereby
ORDERED that the Commissioner's decision is affirmed.

i
DATED this j.s'" day of March, 2017.
BY THE COURT:

ROBERTO A. LANGI

UNITED STATES DISTRICT JUDGE

30