Waddell v. Astrue

Filing 15

ORDER granting 9 Motion to reverse the decision of the Commissioner. Signed by U. S. District Judge Jeffrey L. Viken on 12/7/11. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
STEVEN J. WADDELL,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CIV. 10-5043-JLV
ORDER REVERSING
DECISION OF THE
COMMISSIONER AND
REMANDING FOR
CALCULATION AND
AWARD OF BENEFITS

INTRODUCTION
On January 25, 2006, plaintiff Steven J. Waddell protectively filed an
application for supplemental security income (“SSI”) pursuant to Title XVI of
the Social Security Act, 42 U.S.C. §§ 1381-83f (2006). (Administrative Record,
pp. 88-911 and joint statement of material facts (“JSMF”) (Docket 8, p. 1)).
After denial of his application, an Administrative Law Judge (“ALJ”) held an
evidentiary hearing on February 21, 2008. Id. On February 26, 2008, the ALJ
concluded Mr. Waddell was not disabled and denied benefits. Id. The Appeals
Council denied plaintiff’s request for review. Id. at p. 3. The decision of the
ALJ became the final decision of the Commissioner. Id. Plaintiff timely filed
his complaint in district court. (Dockets 1, ¶ 8 and 5 ¶ I)).

1

The court will cite to information in the administrative record by
referencing “AR, p. ____.”

The court issued a briefing schedule requiring the parties to file a JSMF.
(Docket 7). If there were any disputed facts, the parties were required to attach
a separate joint statement of disputed facts. Id. The parties filed their JSMF.
(Docket 8). Plaintiff then filed a motion for an order reversing the decision of
the Commissioner. (Docket 9). Following briefing, the motion is ripe for
resolution.
For the reasons stated below, the motion is granted and the decision of
the Commissioner is reversed.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 8) is incorporated by reference. Further
recitation of salient facts is included in the discussion section of this order.
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006). The court reviews the
Commissioner’s decision to determine if an error of law was committed. Smith
v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
“Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal
citation and quotation marks omitted). Substantial evidence is evidence that a

2

reasonable mind might accept as adequate to support the Commissioner’s
decision. Choate, 457 F.3d at 869 (quoting Ellis v.Barnhart, 392 F.3d 988, 993
(8th Cir. 2005)). The review of a decision to deny disability benefits is “more
than an examination of the record for the existence of substantial evidence in
support of the Commissioner’s decision . . . [the court must also] take into
account whatever in the record fairly detracts from that decision.” Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258
F.3d 742, 747 (8th Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this
court would have decided the case differently, it cannot reverse the
Commissioner’s decision if that decision is supported by good reason and is
based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th
Cir. 2005). A reviewing court may not reverse the Commissioner’s decision
“ ‘merely because substantial evidence would have supported an opposite
decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484,
486 (8th Cir. 1995)).
DISCUSSION
“Disability” is defined as the inability “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment [or combination of impairments] which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Although SSI is not
payable prior to the month following the month in which the application was
3

filed, the ALJ is required to consider a claimant’s complete medical history.
20 CFR §§ 416.335 and 416.912(d).
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled.2
20 CFR §§ 404.1520(a)(4) and 416.920(a)(4).3 If the ALJ determines a claimant
is not disabled at any step of the process, the evaluation does not proceed to
the next step as the claimant is not disabled. Id. The five-step sequential
evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe impairment–
one 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 (if so, the claimant is disabled
without regard to age, education, and work experience); (4) whether
the claimant has the residual functional capacity to perform . . . past
relevant work; and (5) if the claimant cannot perform the past work,
the burden shifts to the Commissioner to prove there are other jobs
in the national economy the claimant can perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). The ALJ applied the
five-step sequential evaluation required by the Social Security Administration
regulations. (Docket 8 at pp. 1-2).

2

The same five-step analysis determines eligibility for disability insurance
benefits (“DIB”) as well as for SSI benefits. House v. Astrue, 500 F.3d 741, 742
n.1 (8th Cir. 2007).
3

All references will be to part 416, which addresses SSI claims under
Title XVI of the Act.
4

THE FIRST STEP
At step one, the ALJ must determine if the claimant is engaging in
substantial gainful activity (“SGA”). 20 CFR § 416.920(b). SGA is defined as
“work activity that is both substantial and gainful.” 20 CFR § 416.972.
“Substantial work activity is work activity that involves doing significant
physical or mental activities.” 20 CFR § 416.972(a). “Gainful work activity is
work activity that . . . is . . . usually done for pay or profit, whether or not a
profit is realized.” 20 CFR § 416.972(b). If a claimant is not engaging in SGA,
the analysis proceeds to step two.
The ALJ determined Mr. Waddell had not been engaged in substantial
gainful activity since January 25, 2006, the date he applied for SSI benefits.
(Docket 8 at p. 3). Thus, the evaluation proceeds to step two.
THE SECOND STEP
At step two, the ALJ must decide whether the claimant has a medically
determinable impairment that is severe or a combination of impairments that
are severe. 20 CPR § 416.920(c). A medically determinable impairment can
only be established by an acceptable medical source. 20 CFR § 416.913(a).
Accepted medical sources include, among others, licensed psychologists.
20 CFR § 416.913(a)(2). An impairment or combination of impairments is
severe if it significantly limits an individual’s ability to perform basic work
activities. 20 CFR § 416.921. Basic work activities focus on “the abilities and

5

aptitudes necessary to do most jobs.” Id. at subsection (b). Examples of those
abilities and aptitudes are:
(1)

Physical functions such as walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, or handling;

(2)

Capacities for seeing, hearing, and speaking;

(3)

Understanding, carrying out, and remembering simple
instructions;

(4)

Use of judgment;

(5)

Responding appropriately to supervision, co-workers
and usual work situations; and

(6)

Dealing with changes in a routine work setting.

Id. If a claimant has a severe impairment or combination of impairments
which are severe, the analysis continues to step three.
At step two, the ALJ found Mr. Waddell had right knee arthritis, obesity,
depression, and a personality disorder, all “severe” impairments under the
regulations. (Docket 8 at p. 3). The evaluation then proceeds to step three.
THE THIRD STEP
At step three, the ALJ determines whether claimant’s impairment or
combination of impairments meets or medically equals the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. 20 CFR
§§ 416.920(d), 416.925 and 416.926. If a claimant’s impairment or
combination of impairments meets or medically equals the criteria for one of
the impairments listed and meets the duration requirement of 20 CFR
6

§ 416.909, claimant is considered disabled. If not covered by these criteria, the
analysis is not over and the ALJ proceeds to the next step.
The ALJ determined Mr. Waddell did not have an impairment or
combination of impairments which met or were medically equal to one of the
impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. (Docket 8 at
p. 3). Mr. Waddell does not challenge that conclusion. (Docket 10).
THE FOURTH STEP
Before considering step four of the evaluation process, the ALJ is
required to determine a claimant’s residual functional capacity (“RFC”).
20 CFR § 416.920(e). RFC is a claimant’s ability to do physical and mental
work activities on a sustained basis despite any limitations from his
impairments. 20 CFR § 416.945(a). In making this finding, the ALJ must
consider all of the claimant’s impairments, including those which are not
severe. 20 CFR § 416.945(e). All of the relevant medical and non-medical
evidence in the record must be considered. 20 CFR §§ 416.920(e) and 416.945.
Mr. Waddell is 5' 11" tall and his weight remained in the 311-313 pounds
range throughout the relevant time period. (AR, pp. 114, 357 and 516). He
has a tenth grade education and his past work experience was as a cook, fast
food worker, and dish washer. (Docket 8 at p. 3). Mr. Waddell was 46 years

7

old as of the date of his application and 49 years old as of the date of the ALJ’s
decision.4 Id.
At step four, the ALJ found Mr. Waddell had the RFC for sedentary work.
Id. at p. 2. “Sedentary work involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles like docket files, ledgers, and small
tools.” 20 CFR § 416.967(a). The ALJ specifically found Mr. Waddell’s RFC
allowed him to engage in the following work-related physical activities:
[C]an lift and/or carry 20 pounds occasionally and 10 pounds
frequently, stand and/or walk (with normal breaks) for a total of at
least [two] hours in an [eight]-hour workday, sit (with normal breaks)
for a total of about [six] hours in an [eight]-hour workday, [was]
unlimited in push and/or pull activities (including operation of hand
and/or foot controls) other than as stated above for lift and/or carry,
occasionally climb ramps and stairs but should not be required to
climb ladders, ropes or scaffolds, occasionally balance, stoop, kneel,
crouch and crawl, and has moderate limitations (i.e., there is more
than slight limitation in this area, but [Mr. Waddell was] still able to
function satisfactorily) in an ability to interact appropriately with the
public, interact appropriately with supervisors, interact appropriately
with co-workers, and respond to usual work situations and to
changes in a routine work setting.
(Docket 8, p. 2).
At step four, the ALJ found Mr. Waddell could not perform any of his
past relevant work. Id. at p. 3. The evaluation then proceeds to step five.

4

The ALJ mistakenly reported Mr. Waddell was 27 years of age on the
date of his application and never corrected his age in any other part of the
decision. (AR, p. 14).
8

THE FIFTH STEP
At step five, “the burden shifts to the Commissioner to prove there are
other jobs in the national economy the claimant can perform.” Baker, 159 F.3d
at 1144. “[T]he Commissioner’s burden is to demonstrate that . . . jobs are
available in the national economy, realistically suited to the claimant’s residual
functional capabilities.” Id. “In determining the availability of such jobs, the
claimant’s exertional and nonexertional impairments, together with his age,
education, and previous work experience, must be considered.” Id. The
Commissioner may satisfy this burden of proof by use of a hypothetical
question, posed to a vocational expert, which “fairly reflects the abilities and
impairments of the claimant as evidenced in the record.” Id.
At step five, the ALJ found Mr. Waddell could perform a significant
number of jobs in the national economy, including jobs as a telephone
information clerk and a stone setter. (Docket 8 at p. 3). Based on this finding,
the ALJ concluded Mr. Waddell was not disabled and denied benefits. Id. at
p. 1.
PLAINTIFF’S ISSUES ON APPEAL
Plaintiff’s brief in support of his motion to reverse the decision of the
Commissioner identifies two issues. (Docket 10). Those are:
1.

The Commissioner’s finding that plaintiff’s subjective
complaints of symptoms and functional limitations are
not credible is not supported by substantial evidence in

9

that the Commissioner improperly evaluated and
discredited plaintiff's subjective complaints; and
2.

The Commissioner’s unfavorable decision is not
supported by substantial evidence in that the
Commissioner improperly failed to grant controlling
weight to the treating psychologist’s assessment of
plaintiff’s functional restrictions.

Id. Each issue will be addressed separately. Because the second issue
impacts on the resolution of the first, the analysis begins with the second
issue.
DISCUSSION
2.

The Commissioner’s unfavorable decision is not supported by
substantial evidence in that the Commissioner improperly failed to
grant controlling weight to the treating psychologist’s assessment of
plaintiff's functional restrictions.
The ALJ spent only three pages of his seven-page opinion identifying and

addressing Mr. Waddell’s physical and mental conditions. (AR, pp. 11-14). By
contrast, the parties laid out Mr. Waddell’s medical history from July 12, 2005,
through February 5, 2008, over 22 pages in the JSMF. (Docket 8, pp. 3-25).
“Medical opinions are statements from physicians and psychologists or
other acceptable medical sources that reflect judgments about the nature and
severity of [claimant’s] impairment(s), including [claimant’s] symptoms,
diagnosis, prognosis, what [claimant] can still do despite the impairment(s),
and . . . physical or mental restrictions.” 20 CFR § 416.927(a)(2). In weighing
medical opinion evidence, the ALJ must consider the factors set forth in the
regulations. 20 CFR § 416.927(d).
10

Medical opinions are considered evidence which the ALJ must evaluate
in determining whether a claimant is disabled, the extent of the disability, and
the claimant’s RFC. 20 CFR § 416.927(a)(2). All medical opinions are
evaluated according to the same criteria, summarized as follows:
1.

Whether the opinion is consistent with other evidence
in the record;

2.

Whether the opinion is internally consistent;

3.

Whether the person giving the medical opinion
examined the claimant;

4.

Whether the person giving the medical opinion treated
the claimant;

5.

The length of the treating relationship;

6.

The frequency of examinations performed;

7.

Whether the opinion is supported by relevant evidence,
especially medical signs and laboratory findings;

8.

The degree to which a non-examining or non-treating
physician provides supporting explanations for their
opinions and the degree to which these opinions
consider all the pertinent evidence about the claim;

9.

Whether the opinion is rendered by a specialist about
medical issues related to his or her area of specialty;
and

10.

Whether any other factors exist to support or
contradict the opinion.

See 20 CFR § 416.927(a)-(f); Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir.
2007).

11

“[A] treating physician’s opinion is given controlling weight if it is well
supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.”
Medhaug v. Astrue, 578 F.3d 805, 815 (8th Cir. 2009) (quoting Goff v.
Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (internal quotation marks
omitted). The length of the treating relationship and the frequency of
examinations of the claimant are also factors to consider when determining the
weight to give a treating physician’s opinion. 20 C.F.R. § 416.927(d)(2)(i).
“An ALJ may discount or even disregard the opinion of a treating
physician where other medical assessments are supported by better or more
thorough medical evidence, or where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions.” Id. However, “while
entitled to special weight, it does not automatically control, particularly if the
treating physician evidence is itself inconsistent.” House v. Astrue, 500 F.3d
741, 744 (8th Cir. 2007) (citations and internal quotation marks omitted). “A
treating physician’s opinion should not ordinarily be disregarded and is entitled
to substantial weight.” Jenkins v. Apfel, 196 F.3d 922, 924-25 (8th Cir. 1999).
If the treating physician’s opinion is not given controlling weight under
20 CFR § 416.927(d)(2), it must be weighed considering the factors in 20 CFR
§ 416.927(d)(2)-(6). See Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir.
2003) (“Where controlling weight is not given to a treating source’s opinion, it is

12

weighed according to the factors enumerated. . . .”). When opinions of a
consulting psychologist conflict with opinions of a treating psychologist, the
ALJ must resolve the conflict. Wagner, 499 F.3d at 849. The ALJ must “give
good reasons for discounting a treating physician’s opinion.” Dolph v.
Barnhart, 308 F.3d 876, 878-79 (8th Cir. 2002) (internal quotation marks
omitted).
Mr. Waddell argues the ALJ erred by failing to give controlling weight to
Dr. Herbel’s opinions. (Docket 10, p. 15). Dr. Herbel is a clinical psychologist
who first saw Mr. Waddell on November 8, 2005, at the Veterans
Administration Medical Center (“VAMC”) on referral for his anger problem.
(Docket 8 at p. 5). Dr. Herbel recommended Mr. Waddell proceed with
psychological testing to formulate a diagnosis and individual therapy. Id. Dr.
Herbel wrote: “[b]ecause [Mr. Waddell] easily anger[ed] and may threaten others
[Dr. Herbel] w[ould] monitor for homicidal ideation, contract with the patient as
necessary, and alert the appropriate people (supervisor, law enforcement,
potential victim) if there is imminent danger.” Id. Dr. Herbel counseled Mr.
Waddell on a monthly basis through February of 2008. (Docket 8, passim).

13

The ALJ chose to accept the testimony of Dr. Robert Pelc, Ph.D.,5 a
psychological medical expert. (AR, p. 11). The ALJ wrote:
[T]he record on a whole supports a conclusion that Dr. [Atkin’s]
opinions are reasonable. . . . [he] has a thorough amount of
understanding of the disability program and the evidentiary
requirements and is familiar with the other information in a
claimant’s case record, and he has considered all of the pertinent
evidence in this claim, including opinions of treating and other
examining sources, and he provided explanations at the hearing and
was available for cross-examination.
Id. at p. 13. The ALJ “accord[ed] Dr. [Atkin’s] opinions with substantial
weight.” Id. The ALJ gave “less weight” to the opinions of Dr. Herbel. Id. at p.
14. The ALJ made the following comment to support his conclusion.
[T]he undersigned notes Dr. Herbel only sees the claimant once a
month, and in review of those notes the undersigned notes the
claimant presents with ups and down, and it appears Dr. Herbel has
strictly chosen the “down” complaints as support for her
assessments, and fails to include the claimant’s “up” periods.
Accordingly, the undersigned finds Dr. Herbel’s opinions are
inconsistent with her treatment notes and the record as a whole
....
Id. at p. 14.
Dr. Atkin completed a medical records review, prepared a Psychiatric
Review Technique (“PRT”) form and a Medical Source Statement of Ability to do
Work-Related Activities (Mental) (“MSS”), and testified at the hearing. (Docket

5

Dr. Pelc does not appear in the administrative record. The court
presumes the ALJ meant to reference the work of Dr. Thomas C. Atkin who
completed a review of Mr. Waddell’s records and testified at the hearing. See
AR, p. 9. For clarity, the court will reference the work of Dr. Atkin.
14

8 at p. 25). In addition to treating Mr. Waddell on a monthly basis for over two
years, Dr. Herbel also completed two separate MSS forms. Id. at pp. 17-18 and
24-25.
The MSS6 uses the following terms in describing a claimant’s ability to
perform various activities:
None - Absent or minimal limitations. If limitations are present, they
are transient and/or expected reactions to psychological stresses.
Mild - There is slight limitation in this area, but the individual can
generally function well.
Moderate - There is more than a slight limitation in this area but the
individual is still able to function satisfactorily.
Marked - There is serious limitation in this area. There is substantial
loss in the ability to effectively function.
Extreme - There is major limitation in this area. There is no useful
ability to function in this area.
(AR, p. 934). A comparison of Dr. Herbel’s MSS of February 5, 2008, and the
PRT and MSS of February 20, 2008, prepared by Dr. Atkin is enlightening.
ACTIVITY

DR. HERBEL

DR. ATKIN

Remember locations and worklike procedures

Moderate

Understand and remember short,
simple instructions

Moderate

No
limitation

Understand and remember
detailed instructions

Marked

No
limitation

Carry out short, simple
instructions

Moderate

6

The MSS forms completed by Dr. Herbel and Dr. Atkin are slightly
different, but essentially focused on the same activities.
15

ACTIVITY

DR. HERBEL

DR. ATKIN

Carry out detailed instructions

Marked

No
limitation

Maintain attention and
concentration for extended
periods

Extreme*

Difficulties in maintaining
concentration, persistence, or
pace

Mild

Perform activities within a
schedule, maintain regular
attendance, and be punctual

Marked

Sustain an ordinary routine
without special supervision

Marked

Work with or near others without
being distracted by them

Marked

Make simple work-related
decisions

Moderate

Ability to make judgments on
complex work-related decisions

No
limitation
No
limitation

Complete a normal workday and
workweek without interruptions
from psychologically based
symptoms

Extreme

Perform at a consistent pace
without an unreasonable number
and length of rest periods

Extreme

Interact appropriately with the
public

Marked

Ask simple questions or request
assistance

Moderate

Moderate

*Dr. Herbel wrote “Pain interferes–short periods, only &
exacerbates Mental Health Symptoms”
16

ACTIVITY

DR. HERBEL

Accept instructions and respond
appropriately to criticism from
supervisors

DR. ATKIN

Marked

Interact appropriately with
supervisors

Moderate

Get along with co-workers or
peers without distracting them or
exhibiting behavioral extremes

Extreme

Interact appropriately with coworkers

Moderate

Maintain socially appropriate
behavior

Marked

Adhere to basic standards of
neatness and cleanliness

Moderate

Moderate

Restrictions of activities of daily
living

Mild

Respond appropriately to changes Marked
in the work setting

Moderate

Be aware of normal hazards and
take appropriate precautions

Moderate

Travel in unfamiliar places or use
public transportation

Marked

Set realistic goals or make plans
independently of others

Extreme

See AR, pp.934-36 compared to pp. 937-53.

17

Dr. Herbel diagnosed Mr. Waddell as suffering from an antisocial
personality disorder.7 (Docket 8 at p. 22). Dr. Durso, a VAMC psychiatrist who
Mr. Waddell saw approximately five times during 2007, diagnosed Mr.
Waddell’s condition as depression, not otherwise specified,8 and an impulse
control disorder.9 (Docket 8 at pp. 19-23). He prescribed Paxil (an antidepressant), Risperidone (an anti-psychotic), and therapy. Id. at pp. 19 and
22. Dr. Atkin testified Mr. Waddell’s diagnosis was an affective disorder10 and a
personality disorder.11 (Docket 8 at p. 25).
7

Antisocial Personality Disorder is “an enduring and pervasive pattern
characterized by continuous and chronic antisocial behavior with disregard for
and violation of the rights and safety of others . . . [usually beginning in the
early teens] and continuing in adulthood.” Stedman’s Medical Dictionary
116700 (27th ed. 2000).
8

Dr. Durso thought Mr. Waddell’s depression might be chronic
dysthymia. (Docket 8 at p. 19). Dysthymia is “[a] chronic mood disorder
manifested as depression for most of the day, more days than not,
accompanied by” other symptoms. Stedman’s Medical Dictionary 122470 (27th
ed. 2000).
9

An impulse control disorder is “a group of mental disorders
characterized by a person's failure to resist an impulse to perform some act
harmful to self or to others . . . .” Stedman’s Medical Dictionary 116700 (27th
ed. 2000).
10

An affective disorder is “a group of mental disorders characterized by a
disturbance in mood.” Stedman’s Medical Dictionary 116700 (27th ed. 2000).
11

A personality disorder is a “general term for a group of behavioral
disorders characterized by usually lifelong ingrained maladaptive patterns of
subjective internal experience and deviant behavior, lifestyle, and social
adjustment, which patterns may manifest in impaired judgement, affect,
impulse control and interpersonal functioning.” Stedman’s Medical Dictionary
116700 (27th ed. 2000).
18

A review of the transcript of the administrative hearing discloses a
number of comments and observations by VA staff members which Dr. Atkin
acknowledged supported Dr. Herbel’s mental assessment of Mr. Waddell.
Those comments and observations were as follows:
Q

A

Q

Jason [Chipman], the vocational rehabilitation
counselor, whose name appears through this [record]
. . . quite frequently, says at this time [Mr. Waddell] does
remain substantially unemployable. He continues to
show instability in the work place experiencing intra and
interpersonal conflicts. Is that consistent with the
treating psychologist’s assessment?
...
Yeah, I’d say that’s largely consistent, . . . I have a little
bit of trouble with the extreme limitation on [get along
with co-workers or peers without distracting them or
exhibiting behavioral extremes].
...
Jason [Chipman], vocational rehab counselor . . . says
[Mr. Waddell] continues to struggle with interpersonal
issues and does not appear to be able to see future
consequences for his behavior. This ongoing behavior,
interpersonal disruption at work, poor planning,
difficulty with authority all of which appear to be lifelong,
along with his work history, makes it doubtful that he
will return to work to a . . . significant extent. . . . is that
observation from a voc rehab counselor consistent with
[Dr. Herbel’s] assessment?

A

That’s . . . more consistent, yes.

Q

Dr. [Herbel]. [Mr. Waddell] physically displays cutting on
himself . . . indicating traits of borderline personality
disorder as well. . . . all jobs have some contact with
people even if it is just one boss. And that also has been
proven to be . . . an extremely tenuous relationship
within the highly supportive compensated work therapy
program under the auspices of the VA. He is now with
the [Incentive Therapy (“IT”)] program which is less
19

stressful and demanding and quite protective in terms of
meeting his needs. Such work sites are not likely to
exist in the community. Is that kind of observation
consistent with [Dr. Herbel’s] assessment?
A
Q

A
Q

Yeah, that’s consistent . . . with . . . her assessment.
...
[Dr. Herbel] says [Mr. Waddell] has longstanding
irreparable emotional damage . . . rendering it impossible
for him to function appropriately on a job. This man has
persistent unstable inappropriate difficulty controlling
his anger and frequently displays temper, more likely
than not an outgrowth of his almost constant underlying
anger since childhood.
Thus he is rendered
unemployable and has been downsized from the
[Compensated Work Therapy (“CWT”)] program within
the VA to the IT Program which is less stressful and
demanding and most likely is not representative of a
typical community job that would be available to [Mr.
Waddell]. Is that observation consistent with her . . .
assessment form?
Yes.
...
August 28, 2007, a note from Dean [Schoenberner] . . .
a work incentive worker . . in relation to the IT job, [Mr.
Waddell] appears to be maintaining at work with a lot of
support and intervention from the staff. . . [he] appears
to be increasing the number of difficult interactions with
others. Would that be consistent with Dr. [Herbel’s]
assessment form?

A

Roughly, yes

Q

Same gentlemen . . . on October 18, 2007, . . . [Mr.
Waddell] continues to have a difficult time maintaining
acceptable interactions with others, along with his
hygiene and dress. [He] appears to be having more . . .
difficulty maintaining his work schedule and stability
with others . . . he will continue working in the
greenhouse at this time. Is that consistent with Dr.
[Herbel’s] assessment?
20

A.

Yeah.

(AR, pp. 24-27 ). Dr. Atkin sought to clarify his dispute with the opinions of
Dr. Herbel.
I don’t dispute . . . you can go through and find comments in the
record such as handed out by Claimant’s representative. But there
are plenty of . . . comments consistent with . . . what I pointed out as
well. . . . [Mr. Waddell] is currently working in the Ft. Meade incentive
therapy program four days per week. [His] participation is aimed to
help [him] maintain structure, create self-worth, and social
interaction. [Mr. Waddell] is in the CWT/IT greenhouse where he has
been observed doing an outstanding job. [He] consistently shows
good motivation and is maintaining stability. He appears to be doing
well in all areas with only limited periods of difficulty . . . interactions
with others, customers purchasing, seems to feel good about his job
. . . . That was by Mr. [Schoenberner].
Id. at pp. 28-29. Dr. Atkin testified the person best situated from a
psychological point of view to determine whether Mr. Waddell is able to adjust
to the competitive work place would be the treating physician and the person
working with Mr. Waddell vocationally. (Docket 8, p. 26).
While plaintiff’s attorney only focused on a few of the comments of the VA
staff, the record is replete with counseling notes regarding Mr. Waddell’s
interpersonal difficulties. On August 5, 2005, Mr. Waddell was admitted to the
VA’s CWT program to work in the Ft. Meade laundry. Id. at p. 4. The notes of
Mr. Chipman, a vocational rehabilitation counselor with the VA, reflect his
observations which are summarized as follows:
September 16, 2005: Mr. Waddell seems prone to impulsive
behavior, especially when challenged or threatened by others who
he perceives as having power over him. He appears to display
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some criteria for borderline personality disorder, antisocial
personality disorder, and schizotypal personality disorder. Id.
February 1, 2006: Mr. Waddell showing more tolerance this week
in the work place and using discretion more often rather than
reacting to other peoples’ comments. He reports some mild
interpersonal conflicts at his apartment. He appears to be making
progress, his employability continues to be unclear, both due to
his knee issues and an apparent lifelong pattern of having
interpersonal issues in all areas, including work. Id. at p. 6.
February 10, 2006: Mr. Waddell continues to struggle with
interpersonal issues in the work place. Id.
February 17, 2006: Mr. Waddell uses sarcastic humor and reports
no serious issues with his work environment that week. He
reports minor conflicts that put him at risk for loss of employment
or interpersonal relationships. He does not appear fully
employable at this time both due to physical limitations and
ongoing limitations in his interpersonal functioning. Id. at p. 7.
February 22, 2006: Mr. Waddell was dressed casually with
adequate personal hygiene and grooming. He used humor through
his interview and was progressing slowly toward more stability. It
is unclear if he is employable. He has a long history of
interpersonal disruption in work environments, as well as
problems with his right knee. Id.
March 8, 2006: Mr. Waddell reports a better relationship with his
supervisor. He has a better than average quality of work and
ability to learn, average quantity of work, application of work,
attendance and punctuality, ability to handle supervision, and
personal grooming and hygiene. He has below average ability to
work with others. Mr. Waddell’s assessment reflects a historical
pattern of having difficulty with interpersonal interactions and with
his CWT job. Id. at p. 8.
March 22, 2006: Mr. Waddell is unable to work consistently due
to his knee problem. Id.
March 27, 2006: Mr. Waddell appears to use assertiveness in his
supportive environment, but does not appear to be employable. Id.
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April 28, 2006: Mr. Waddell met with his CWT supervisor, who
stated the quality of work was better than average and the quality
and application of his work were industry level. He had better
than average ability to learn and work with others. He had average
punctuality. He had industry level ability to handle supervision.
He had better than average personal grooming. Mr. Waddell
remained substantially unemployable and continues to show
instability in the workplace, experiencing intra and interpersonal
conflicts, which have been controlled with weekly case
management and psychotherapy. Id. at pp. 8-9.
May 3, 2006: Mr. Waddell continued to struggle with some
interpersonal disruptions. He reports participation in the CWT
transitional employment in the laundry facility where he struggles
with interpersonal issues. However, he states he made attempts at
curbing his behavior. Mr. Waddell remained substantially
unemployable. Id. at p. 9.
May 22, 2006: Mr. Waddell reports he felt he was doing well. He
reports improvement at work and experienced less external
problems. Mr. Waddell continued to have intra-personal
difficulties and reactions to work stress. Id.
May 25,2006: Mr. Waddell met with his CWT supervisor who rated
the quantity of his work, quality of his work, application of his
work, ability to work with others, attendance and punctuality, and
ability to handle supervision as better than average. His personal
grooming and hygiene was industry level. Id. at pp. 9-10.
May 31,2006: Mr. Waddell reports some interpersonal difficulties
at his work, characterized as mild to moderate. He struggles with
perceived slights from co-workers. Id. at p. 10.
June 26, 2006: Mr. Waddell is doing well, but has disruptive
behavior disorder. He appears stable and has made progress while
in CWT. He had some ups and downs interpersonally, but gaining
some stability in this area. Id. at p. 11.
June 30, 2006: Mr. Waddell has better than average quantity of
work, quality of work, ability to learn, and ability to handle
supervision. He has average application of work, ability to work

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with others, attendance and punctuality, personal grooming and
hygiene. Id. at p. 12.
July 12, 2006: Mr. Waddell continues to struggle with some
interpersonal disruptions in his life and feelings of irritability at the
laundry. He remains substantially unemployable. Id.
July 19, 2006: Mr. Waddell continues to struggle with
interpersonal issues and does not appear to be able to see future
consequences for his behaviors. This ongoing behavior–
interpersonal disruption at work, poor planning, difficulty with
authority, all of which appear to be lifelong–along with his very
poor work history make it doubtful he will return to work to a
significant extent. Given the fact that employment looks doubtful,
he will be transferred to IT on August 15. Id.
July 24, 2006: Mr. Waddell doing well and appears stable and
making progress in CWT. He had some “ups” and “downs”
interpersonally and did not appear ready for employment. Id.
August 2, 2006: Mr. Waddell continues to struggle with some
interpersonal disruptions in his life, including feelings of
irritability. He will most likely not return to employment. Id.
On August 9, 2006, Mr. Lanning, another social worker affiliated with
the VAMC, reported the goal of maintaining Mr. Waddell’s CWT transitional
employment was no longer appropriate because he was unemployable in the
competitive job market. Id. at p. 13. As a result of that decision, Mr. Waddell
was transferred into the IT program to work in the VA greenhouse. Id.
On October 6, 2006, Mr. Lanning reported Mr. Waddell loved working at
the greenhouse. Id. at p. 15. This surprised Mr. Lanning because he reported
when Mr. Waddell was screened and accepted into CWT, the VAMC “felt [it was]
really going out on the limb” that he “might not be able to cope with this

24

program.” Id. That report continued, Mr. Waddell had “done very well!” . . .
Mr. Waddell “really ha[d] exceeded [their] expectations.” Id.
Mr. Schoenberner, another therapist at the VAMC, began to see Mr.
Waddell after his transition to the IT program. His reports contain comments
summarized as follows:
October 20, 2006: Mr. Waddell is in a good mood, dressed
appropriately, and has good eye contact and fluent speech. He has
disruptive behavior, not otherwise specified, and it is
recommended he continue working in the greenhouse in the IT
program. Id.
October 30, 2006: Mr. Waddell is doing well in the CWT [IT]
program and it has gone a long way toward helping him feel more
stable and productive. Id. at p. 16.
June 28, 2007: Mr. Waddell works in the greenhouse where he is
doing an outstanding job. He consistently shows good motivation
and appeared to be maintaining stability. He appears to be doing
well with only limited periods of difficult interaction with others.
Mr. Waddell reports feeling good about his job and living situation.
Id. at p. 20.
August 28, 2007: Mr. Waddell’s work attendance remains
inconsistent, due to his medical issues. He is maintaining at work
with a lot of support and intervention from staff, but he appears to
be increasing the number of difficult interactions with others. Id.
at p. 21.
September 26, 2007: Mr. Waddell is scheduled to work five days
per week but rarely achieved that, instead working on average
three days per week. He continues to have a difficult time
maintaining acceptable interactions with others. He also has
difficulty maintaining his hygiene and dress. Id. at pp. 21-22.
Dr. Herbel’s opinions are consistent with Mr. Waddell’s other treating
medical sources and non-medical sources. Dr. Herbel’s opinions are
25

contradicted only by Dr. Atkin, who is not a treating psychologist, never
examined Mr. Waddell, and performed only a medical records review. The
length of the treating relationship and the frequency of examinations of the
claimant are also factors to consider when determining the weight to give a
treating physician’s opinion. 20 C.F.R. § 416.927(d)(2)(i). Dr. Herbel’s opinions
are not inconsistent with her own notes and her opinions are not inconsistent
with the other medical and non-medical sources providing counseling and
therapy to Mr. Waddell. 20 CFR § 416.927(a)-(f).
For the ALJ to suggest Dr. Herbel “strictly chose[] the ‘down’ complaints
as support for her assessments, and fail[ed] to include the claimant’s ‘up’
periods,” fails to consider the full measure of her analysis of Mr. Waddell’s
mental health condition. (AR, p. 14). The IT program is not a competitive work
environment, but rather, a therapeutic, highly supervised program designed to
assist veterans back into the work force. All of the other treating mental health
professionals acknowledged Mr. Waddell’s longstanding explosive and
confrontational personality, a problem which made it impossible for him to
perform consistently even in the highly restricted and supervised environment
of the IT work program. Because of Mr. Waddell’s personality disorders, the IT
program was not successful in moving him to the end goal.
Throughout the fall of 2007, Mr. Schoenberner reported Mr. Waddell was
maintaining at work with a lot of support and intervention from staff, but he

26

appeared to be increasing the number of difficult interactions with others and
was only working an average of three days a week. (Docket 8 at p. 21). Mr.
Waddell’s public conflicts even went so far as acknowledging he struck a
former neighbor. Id. at p. 23. When Dr. Herbel completed the MSS on
February 5, 2008, just two weeks before the administrative hearing, her
conclusions regarding Mr. Waddell’s mental status were consistent with his
distant and immediate history of a severe personality disorder.
The review of an ALJ decision is “more than an examination of the record
for the existence of substantial evidence in support of the Commissioner’s
decision . . . [the court must also] take into account whatever in the record
fairly detracts from that decision.” Reed v. Barnhart, 399 F.3d 917, 920 (8th
Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)).
The ALJ erred, both factually and as a matter of law, when he chose to give
substantial weight to the opinions of Dr. Atkin over the opinions of Dr. Herbel.
The Commissioner’s findings on this issue are not supported by substantial
evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v. Barnhart, 457
F.3d 865, 869 (8th Cir. 2006).
Dr. Herbel’s opinions are entitled to controlling weight. “[A] treating
physician’s opinion is given controlling weight if it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence.” Medhaug v. Astrue, 578

27

F.3d 805, 815 (8th Cir. 2009) (quoting Goff, 421 F.3d at 790) (internal
quotation marks omitted).
1.

The Commissioner’s finding that plaintiff’s subjective complaints of
symptoms and functional limitations are not credible is not
supported by substantial evidence in that the Commissioner
improperly evaluated and discredited plaintiff's subjective complaints.
Plaintiff objects to the ALJ’s decision asserting he failed to properly

consider Mr. Waddell’s subjective allegations under the Polaski standards.
(Docket 10 at p. 5). See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984) (To assess a claimant’s credibility, the ALJ must consider all of the
evidence, including prior work records and observations by third parties and
doctors regarding daily activities, the duration, frequency, and intensity of
pain, precipitating and aggravating factors, the dosage, effectiveness, and side
effects of medication, and functional restrictions.).
Rather than identify how Mr. Waddell’s testimony concerning the
intensity, persistence and limiting effects of his physical and mental
impairment were inconsistent with the record, the ALJ simple declared:
[T]he claimant’s medically determinable impairments could
reasonably be expected to produce the alleged symptoms; however,
the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not credible to the extent they
are inconsistent with the residual functional capacity assessment for
the reasons explained below.
(AR, p. 13). The ALJ then made a determination of Mr. Waddell’s physical RFC,
adopting the assessment completed by Dr. Erickson, a state agency physician,

28

in June 2006. Id.; see also Docket 8 at pp. 12-13. Dr. Erickson concluded Mr.
Waddell could perform light work. (Docket 8 at p. 13). “Light work” by
definition is work which “involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R.
§ 416.967(b). The ALJ did not accept Dr. Erickson’s opinion, however, as the
ALJ concluded Mr. Waddell could perform only sedentary work. (Docket 8 at p.
2). “Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small
tools.” 20 CFR § 416.967(a). After making the determination that Mr. Waddell
could do only sedentary work, the ALJ mistakenly declared Mr. Waddell could
“lift and/or carry 20 pounds occasionally,” a physical capability reserved for
light work. See AR, p. 12 and § 416.967(b).
“The ALJ was required to make an express credibility determination
explaining why he did not fully credit [claimant’s] complaints.” Lowe v. Apfel,
226 F.3d 969, 971 (8th Cir. 2000). That finding must be “adequately explained
and . . . supported by the record as a whole.” Id. at p. 972. The ALJ is “not
required to discuss methodically each Polaski consideration, so long as he
acknowledged and examined those considerations before discounting [a
claimant’s] subjective complaints.” Lowe, 266 F.3d at 972. The ALJ made no
specific or generalized findings regarding the Polaski factors.

29

It is not necessary to remand the case to the Commissioner for further
findings on Mr. Waddell’s subjective complaints because of the testimony of the
vocational expert. Testimony from a vocational expert constitutes substantial
evidence when the testimony is “based on a properly phrased hypothetical
question . . . .” Goff v. Barnhart, 421 F.3d 785, 794 (8th Cir. 2005) (citing
Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999)). The hypothetical
question should include all of the claimant’s impairments that are supported
by substantial evidence in the record as a whole. Id. “A hypothetical question
. . . is sufficient if it sets forth impairments supported by substantial evidence
in the record and accepted as true.” Id. (internal citation and quotation marks
omitted).
Mr. Tysdal, a vocational expert, testified the psychological restrictions
identified by Dr. Herbel in her February 5, 2008, opinion would preclude the
performance of all jobs. (Docket 8, p. 28). Since Dr. Herbel’s opinion is
entitled to controlling weight, the hypothetical question posed to Mr. Tysdal
was proper and his answer constitutes substantial evidence. Because Mr.
Waddell is unable to make an adjustment to any work, he is disabled. 20 CFR
§ 416.920(g). The ALJ erred as a matter of law in concluding otherwise.
The court finds substantial evidence in the record as a whole does not
support the Commissioner’s decision. Choate, 457 F.3d at 869. The court

30

further concludes an error of law was committed and the decision of the
Commissioner should be reversed. Smith, 982 F.2d at 311.
The court may affirm, modify, or reverse the Commissioner’s decision,
with or without remand to the Commissioner for a rehearing. 42 U.S.C.
§ 409(g). If the court determines that the “record overwhelmingly supports a
disability finding and remand would merely delay the receipt of benefits to
which the plaintiff is entitled, reversal is appropriate.” Thompson v. Sullivan,
957 F.2d 611, 614 (8th Cir. 1992).
CONCLUSION
The ALJ erred in not giving the opinion of Dr. Herbel controlling weight.
Dr. Herbel’s opinion is that Mr. Waddell has extreme limitations in his ability to
(1) maintain attention and concentration for extended periods, (2) complete a
normal workday and workweek without interruptions from psychologically
based symptoms, (3) perform at a consistent pace without an unreasonable
number and length of rest periods, (4) get along with co-workers or peers
without distracting them or exhibiting behavioral extremes, and (5) set realistic
goals or make plans independently of others. These extreme psychological
limitations, by the testimony of Mr. Tysdal, preclude Mr. Waddell from working
in any job, regardless of his physical RFC. Mr. Waddell is disabled and entitled
to benefits.

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ORDER
Based upon this analysis, it is hereby
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 9) is granted.
IT IS FURTHER ORDERED that pursuant to sentence four of 42 U.S.C.
§ 405(g) the decision of the Commissioner is reversed and the case is remanded
to the Commissioner for the purpose of calculating and awarding benefits to
plaintiff to which he is entitled under the Act.
Dated December 7, 2011.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

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