Dole v. Berryhill

Filing 20

ORDER denying 13 Motion to Reverse. Signed by US Magistrate Judge Daneta Wollmann on 3/30/19. (Wollmann, Daneta)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
GARY DOLE,

5:18-CV-05008-DW
Plaintiff,

ORDER

vs.
NANCY BERRYHILL, Acting
Commissioner, Social Security
Administration,
Defendant.

INTRODUCTION
On January 29, 2018, claimant Gary Dole filed a complaint appearing
the final decision of Nancy A. Berryhill, the acting Commissioner of the Social
Security Administration, finding him not disabled. (Doc. 1). Defendant denies
claimant is entitled to benefits. (Doc. 7). The court issued a briefing schedule
requiring the parties to file a joint statement of materials facts (“JSMF”). (Doc.
9). For the reasons stated below, claimant’s motion to reverse the decision of
the Commissioner (Doc. 13) is denied.
FACTS AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 10) is incorporated by reference. Further
recitation of the salient facts is incorporated in the discussion section of this
order.

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On March 15, 2015, Mr. Dole filed an application for Social Security
disability benefits alleging an onset of disability date of April 1, 2014. (Doc. 10
at ¶ 1). The claims were denied initially and on reconsideration, and Mr. Dole
filed a written request for a hearing. (Id.). An evidentiary hearing was held on
December 2, 2016. (Id. at ¶ 2). On February 15, 2017, the ALJ issued a
written decision denying benefits. (Id. at ¶ 3; see also AR p. 13–23). 1 Mr. Dole
subsequently sought appellate review; his request was denied, making the
decision of the ALJ final. (Id. at ¶ 3). It is from this decision that Mr. Dole
timely appeals.
The issue before this court is whether the ALJ’s decision of February 15,
2017, that Mr. Dole was not “under a disability, as defined in the Social
Security Act, from April 1, 2014, through [February 15, 2017]” is supported by
substantial evidence on the record as a whole. (AR at p. 23); see also Howard
v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001).
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); Howard, 255 F.3d at 580. 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.
1

The court will cite to information in the administrative record as “AR at p. ___.”

2

Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation
marks omitted).
The review of a decision to deny 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 decide 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, 901 (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)). Issues of law are reviewed de novo with deference given to the
Commissioner’s construction of the Social Security Act. See Smith, 982 F.2d
at 311.
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled and
entitled to benefits under Title XVI. 20 CFR § 416.920(a). If the ALJ
determines a claimant is not disabled at any step of the process, the evaluation

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does not proceed to the next step as the claimant is not disabled. Id. The fivestep 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); see also Boyd v.
Sullivan, 960 F.2d 733, 735 (8th Cir. 1992) (the criteria under 20 CFR
§ 416.920 are the same under 20 CFR § 404.1520 for disability insurance
benefits). The ALJ applied the five-step sequential evaluation required by the
Social Security Administration regulations. (AR at pp. 15–23). At step three of
the evaluation, the ALJ found that Mr. Dole does not have an impairment or
combination of impairments that meets or medically exceeds the severity of one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. At
step four, the ALJ found Mr. Dole is unable to perform past work; however, at
step five, the ALJ found there are jobs that exist in significant numbers in the
national economy that Mr. Dole can perform. Thus, the ALJ found that
Mr. Dole is not disabled. (AR at p. 23).
DISCUSSION
Mr. Dole identifies the following issues: (1) whether Mr. Dole meets Social
Security listing 104A; (2) whether treating Doctor Trevor Anderson’s opinions
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regarding Mr. Dole’s condition should have been accepted; (3) whether
Mr. Dole’s credibility should have been accepted; and (4) whether the case
should be reversed and remanded for calculation of benefits. The court will
discuss each issue in turn.
STEP ONE
At step one, the ALJ determined claimant “had not [been] engaged in
substantial gainful activity since April 1, 2014, the alleged onset date” of
disability. (AR at p. 15).
STEP TWO
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 CFR § 404.1520(c). A medically determinable impairment can
only be established by an acceptable medical source. 20 CFR § 404.1513(a).
Accepted medical sources include, among others, licensed physicians. Id. “It
is the claimant’s burden to establish that [his] impairment or combination of
impairments are severe.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
The regulations describe “severe impairment” in the negative. “An
impairment or combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do basic work activities.”
20 CFR § 404.1521(a). An impairment is not severe, however, if it “amounts to
only a slight abnormality that would not significantly limit the claimant’s
physical or mental ability to do basic work activities.” Kirby, 500 F.3d at 707.

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Thus, a severe impairment is one which significantly limits a claimant’s
physical or mental ability to do basic work activities.
The ALJ found Mr. Dole suffered from the following severe impairment:
degenerative disc disease of the cervical spine. (AR at p. 15).
STEP THREE
At step three, the ALJ must determine 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. 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 requirements
of 20 CFR § 404.1509, the claimant is considered disabled. A claimant has the
burden to show that his impairment meets all of the listing’s specified medical
criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “An impairment that
manifests only some of those criteria, no matter how severely, does not qualify.”
Id. “For a claimant to qualify for benefits by showing that his unlisted
impairment, or combination of impairments, is ‘equivalent’ to a listed
impairment, he must present medical findings equal in severity to all the
criteria for the one most similar listed impairment.” Id. at 531 (emphasis
added).
The ALJ determined that, although Mr. Dole “does have degenerative disc
disease in the cervical area of his spine, imaging studies failed to reveal any
evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal
stenosis sufficient to satisfy [the elements of Listing 104.]” (AR at p. 17).
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Therefore, the ALJ found Mr. Dole did not have the gravity of symptoms nor
medical documentation to establish an impairment of listing level severity.
(Id.). Mr. Dole challenges the ALJ’s finding of no nerve compression, stating
that the February 2016 MRI shows abutment of the exiting C4 nerve root, and
evidence of nerve root compression lasting for more than twelve months is
further shown by findings of neuroanatomic distribution of pain, limited
motion of the spine, and motor loss. (Doc. 13 at p. 3; Doc. 17 at p. 4–6).
The qualifications for Listing 1.04 are as follows:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the spinal cord. With:
A.

Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness
or muscle weakness) accompanied by sensory or reflex loss
and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine); or

B.

Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful
dysesthesia, resulting in the need for changes in position or
posture more than once every 2 hours; or

C.

Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate effectively, as
defined in 1.00B2b.

20 CFR Pt. 404, Subpt. P, Appx. 1, § 1.04. The physical impairments
considered under Listing 1.04 must be in existence for a continuous period of
at least twelve months. 20 CFR § 404.1509.
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Mr. Dole points to medical records showing limitations on his range of
motion and motor functions, pain distribution, 2014 MRI results revealing
“nerve impingement,” and 2016 MRI results showing nerve abutment. (Doc. 17
at p. 4; see Doc. 10 at ¶ 5). However, the issue “is not whether substantial
evidence exists to reverse the ALJ.” Vossen v. Astrue, 612 F.3d 1011, 1015
(8th Cir. 2010). Rather, the court asks “whether substantial evidence supports
the ALJ’s decision.” Id. Here, substantial evidence supports the ALJ’s decision
that Mr. Dole does not meet Listing 1.04’s requirements.
Mr. Dole underwent an MRI of the cervical spine on April 1, 2014, which
showed leftward nerve impingement. (Doc. 10 at ¶ 5). On April 3, 2014,
Dr. Watt noted Mr. Dole had full range of motion in cervical spine and upper
and lower extremities, straight-leg raises were negative, motor skills were
intact, and he was ambulate on heels and toes without difficulty. (Id.).
Dr. Watt performed neck surgery on May 15, 2014. (Id. at ¶ 20). The
day after the surgery, Mr. Dole reported the numbness and tingling in his arms
had disappeared. (Id.). In late May 2014, Mr. Dole’s physical therapist,
Mr. Bonar, noted Mr. Dole had significant loss of cervical spine range of motion
and loss of rotation in the left shoulder, although Mr. Dole’s pain had improved
since his surgery. (Id. at ¶ 21).
In June 2014, Mr. Bonar noted improved mobility of the upper segments
of the spine. (Id. at ¶¶ 23–25). That same month, Dr. Watt noted muscle
stiffness but no objective neurologic deficits. (Id. at ¶ 27).

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In July 2014, a cervical spine x-ray showed good alignment, good
hardware and graft position, and no abnormal motion across, above, or below
the fusion. (Id. at ¶ 30).
In September 2014, Dr. Watt ordered a cervical spine MRI which showed
good alignment, nicely-healing fusion, and no abnormal motion. (Id. at ¶ 35).
That same month, chiropractor Dr. Nicholas Krysl noted Mr. Dole
demonstrated improved range of motion following treatment. (Id. at ¶ 39).
In October 2014, Dr. Watt noted Mr. Dole appeared uncomfortable, with
limited range of motion secondary to discomfort, but that Mr. Dole did not have
any radicular symptoms or objective deficits in his arms or legs. (Id. at ¶ 41).
A lateral flexion/extension x-ray of Mr. Dole’s cervical spine showed good
alignment, fairly well-preserved lordosis, nicely-maturing bone, and that the
hardware and graft were in good position. (Id.). Dr. Watt also noted in October
2014 that the September 2014 MRI did not show anything that looked like a
surgical problem, and recommended continued physical therapy, chiropractic
treatment, and massage. (Id.). Throughout October 2014, Dr. Krysl,
Dr. Trevor Anderson, and Dr. Watt noted improvements in range of motion and
pain. (Id. at ¶¶ 41–52).
In November 2014, Mr. Dole periodically reported increased soreness,
stiffness, and limited range of motion after doing “heavy lifting” (piling wood),
snowblading, and driving in bad weather. (Id. at ¶¶ 53—58).

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In December 2014, Dr. Anderson released Mr. Dole to work six hours per
day, up to five days a week, lifting no more than ten pounds and with no
overhead use of the upper extremities. (Id. at ¶ 59).
In January 2015, physical therapist Myron Sorestad performed a
physical exam and concluded Mr. Dole could perform medium-level work for an
eight-hour day. (Id. at ¶ 63).
In February 2015, Dr. Anderson performed a physical exam which
showed “severe loss of range of motion in the neck. [Mr. Dole could] flex and
extend approximately 15 degrees and only [had] about 30 degrees of rotation
bilaterally.” (Id. at ¶ 66). Dr. Anderson noted strength through the bilateral
upper extremities was only minimally decreased. (Id.). Dr. Anderson
maintained the same work restriction that he provided in November 2014. (Id.
at ¶ 67).
In May 2015, Dr. Anderson did a physical examination which showed
severe loss of range of motion in the neck, and some tenderness in the
paraspinal muscles. (Id. at ¶ 70). Dr. Anderson limited Mr. Dole’s lifting to no
more than 50 pounds occasionally and 20 pounds frequently, and limited
bending/twisting to occasionally. (Id. at ¶ 71).
In September 2015, Dr. Anderson noted Mr. Dole had been obtaining
massages and chiropractic care, both of which seemed to be helping. (Id. at
¶ 80).
On February 3, 2016, Mr. Dole obtained another MRI of the cervical
spine. (Id. at ¶ 85). The MRI showed a shallow disc protrusion at C3-4 with
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“mild to moderate left foraminal narrowing secondary to uncinated process
hypertrophy” and “abutment of the exiting left C4 nerve root.” (Id.). At C4-5,
the MRI showed a disk-osteophyte complex resulting in borderline mild central
canal stenosis without cord compression, with mild right foraminal narrowing.
(Id.). The MRI also showed mild right foraminal narrowing at C5-6. (Id.).
When compared with the September 2014 MRI, this study showed there had
been no significant interval change in the cervical spine appearance. (Id.).
Dr. Anderson reviewed the February 2016 MRI in March 2016, and concluded
it showed no significant changes. (Id. at ¶ 86).
In October 2016, neurosurgeon Dr. Henk Klopper saw Mr. Dole for a
surgical evaluation. (Id. at ¶ 92). Dr. Klopper’s physical examination showed
no pain with active movement; limited range of motion in flexion, extension,
and rotation; 5/5 strength through upper and lower extremities; symmetric
deep tendon reflexes; and negative Hoffmann’s and Lhermitte’s signs. (Id.).
Dr. Klopper reviewed the MRI, which showed no ongoing spinal cord
compression, no signal change in the spinal cord, and mild foraminal stenosis
at C5-6. (Id.). Dr. Klopper recommended a CT scan, which was conducted on
October 26, 2016. (Id. at ¶ 93). The CT scan showed “no neurally compressive
lesion at surgical levels,” “no neurally compressive lesion throughout
remainder of cervical spine,” and “appearance of spine per CT is compatible
with appearance of spine per 9/1/16 MRI; end plate erosions more
conspicuous per CT.” (Id.).

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The ALJ found that Mr. Dole’s imaging studies did not show levels of
nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis
sufficient to satisfy the requirements of Listing 1.04. (AR at p. 17). The
medical evidence summarized above shows that although Mr. Dole suffered
from some nerve impingement, mild foraminal stenosis, and periodic limited
range of motion, he also experienced consistent improvement, good muscle
strength, no reflex loss, and no motor loss. The ALJ found later that the
majority of the diagnostic evidence indicated only mild level findings, and the
court finds this conclusion is supported by the record. (AR at p. 21).
Furthermore, medical records show that Mr. Dole suffered from
increased pain and limited range of motion sporadically, rather than for the
required twelve-month period. Although Mr. Dole complained of intense pain,
treating doctors observed multiple times that Mr. Dole did not appear to be in
pain. The ALJ did not find Mr. Dole’s statements concerning the effects of his
symptoms credible when evaluated against objective medical evidence. (AR at
p. 21). The court likewise does not find Mr. Dole’s statements regarding his
pain levels credible when compared to objective medical evidence. For these
reasons, the court finds substantial evidence supports the ALJ’s decision.
Vossen, 612 F.3d at 1015. Mr. Dole’s objection to step three is overruled.
STEP FOUR
Before considering step four of the evaluation process, the ALJ must
determine a claimant’s residual functioning capacity (“RFC”). 20 CFR §§
404.1520(a)(4)(iv) & 404.1545. RFC is a claimant’s ability to do physical and
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mental work activities on a sustained basis despite any limitations from his
impairments. 20 CFR § 404.1545(a)(1). In making this finding, the ALJ must
consider all of the claimant’s impairments, including those which are not
severe. 20 CFR § 404.1545(e). All of the relevant medical and non-medical
evidence in the record must be considered. 20 CFR § 404.1513.
In determining a claimant’s RFC, the ALJ considers any medical opinions
and claimant’s degree of functional limitation. 20 CFR § 404.1545(a)(1), (4).
“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, and prognosis, and what [claimant] can still do despite the
impairment(s), and . . . physical or mental restrictions.” 20 CFR § 404.1527(b).
In weighing medical opinion evidence, the ALJ must consider the factors set
forth in the regulations. 20 CFR § 404.1527(c). An ALJ is not required to
discuss every piece of evidence, and his failure to cite specific evidence does not
mean he did not consider it. Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000).
The next step in the analysis of mental impairments requires a
determination as to the “degree of functional limitation resulting from the
impairment(s).” 20 CFR § 404.1520a(b)(2). Rating of functional limitation
evaluates the extent to which impairment “interferes with [claimant’s] ability to
function independently, appropriately, effectively, and on a sustained basis.”
20 CFR § 404.1520a(c)(2).

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“The ALJ is in the best position to determine the credibility of the
testimony and is granted deference in that regard.” Johnson v. Apfel, 240 F.3d
1145, 1147 (8th Cir. 2001) (referencing Polaski v. Heckler, 739 F.2d 1320 (8th
Cir. 1984)). “Where adequately explained and supported, credibility findings
are for the ALJ to make.” Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000).
The court must “defer to an ALJ’s credibility finding as long as the ALJ
explicitly discredits a claimant’s testimony and gives a good reason for doing
so.” Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007) (internal quotation
marks and citations omitted). The court will not disturb the decision of an ALJ
who seriously considers but for good reason expressly discredits a claimant’s
subjective complaints. See Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir.
1999).
Here, the ALJ concluded Mr. Dole’s RFC permitted him “to perform
medium work 2 except for the limitations set forth above.” (AR at p. 21). The
ALJ stated Mr. Dole can walk and stand for one hour at a time each; he can be
on his feet with breaks for seven hours in an eight hour workday; he can sit for
one hour at a time, and with breaks he can sit for at least six hours in an eight
hour workday; he can lift 50 pounds occasionally and 20 pounds frequently; he
can only occasionally reach overhead bilaterally and with weights that do not
exceed five pounds; he would have no postural limitations; and he should avoid
concentrated exposure to extreme cold and vibrations. (AR at p. 17).

“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine
that he or she can also do sedentary and light work.” 20 CFR § 404.1567(c).

2

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To arrive at this conclusion, the ALJ made a credibility determination of
Mr. Dole’s submissions and testimony, and considered the opinions of treating
physician Dr. Trevor Anderson, the State agency physical and psychological
consultants, and psychological examiner Dr. Swenson. (Id. at p. 21).
A.

Mr. Dole’s Credibility

Mr. Dole contends the ALJ erred by determining Mr. Dole was not
credible, specifically regarding Mr. Dole’s statement to Dr. Anderson that he
needed to recline for one to two hours after working on his feet for one hour.
(Doc. 13 at p. 17–20; Doc. 10 at ¶ 98). For the following reasons, the court
concludes the ALJ properly considered Mr. Dole’s subjective complaints and
discredited those complaints for good reason. Therefore, the court will defer to
the ALJ’s finding that Mr. Dole was not credible.
The ALJ discussed in depth Mr. Dole’s medical records and contrasted
that objective evidence with Mr. Dole’s subjective complaints of pain and
limitations. (Id. at p. 18–21). The ALJ concluded that Mr. Dole’s “medically
determinable impairments could reasonably be expected to cause the alleged
symptoms[.]” (Id. at p. 21). However, the ALJ determined that Mr. Dole’s
“statements concerning the intensity, persistence, and limiting effects of these
symptoms are not supported to the extent they are inconsistent with the above
residual functional capacity assessment[,]” that is, Dr. Anderson’s finding that
Mr. Dole could perform medium work. (Id.). The ALJ elaborated that “[t]he
treatment notes, examination findings and objective diagnostic testing results
simply do not support the degree of limitation that [Mr. Dole] alleges. In
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addition, there are a number of inconsistencies which detract from [Mr. Dole’s]
argument that his conditions are disabling.” (Id.).
In discrediting Mr. Dole’s statements, the ALJ found it significant that
medical records showed Mr. Dole benefitted from steroid injections, massage,
and physical therapy. (Id.). Further, the majority of diagnostic evidence
indicated only mild-level findings. (Id.). Mr. Dole’s own treatment provider,
Dr. Anderson, opined in September 2016 that Mr. Dole was capable of
performing medium work. (Id.). Finally, the ALJ found Mr. Dole’s behavior
inconsistent with his alleged limitations: “[Mr. Dole] is certainly much more
active by way of lifestyle from an individual who alleges that he cannot work
due to neck pain and other limitations. The fact that [Mr. Dole] still carries out
activities of daily living and leisure activities, such as mowing the lawn, fishing,
hunting, cleaning, cooking, shopping, etc., suggests that [he] is less limited
than he has alleged.” (Id.). “In sum, the functional restrictions alleged by the
claimant are disproportionate to the clinical findings in the medical evidence of
record.” (Id.).
After reviewing the record, the court finds no independent medical
support for Mr. Dole’s assertion that he needed to recline for one to two hours
after working on his feet for one hour. The medical records conflict with
Mr. Dole’s subjective complaints. Additionally, Mr. Dole testified at the hearing
that he vacuums, makes the bed, takes dishes out, and brings wood in for the
fireplace every other day: he brings in two to three armloads of wood in a
wheelbarrow, weighing 15–20 pounds. (Doc. 10 at § 121). The court finds that
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the ALJ seriously considered Mr. Dole’s subjective complaints, but for good
reason expressly discredited those complaints. See Haggard, 175 F.3d at 594.
The court therefore must defer to the ALJ’s credibility determination. Schultz,
479 F.3d at 983. For these reasons, the ALJ was not required to rely on
Mr. Dole’s statement that he needed to recline for one to two hours after
working on his feet for one hour.
B.

Dr. Anderson’s Opinion

Mr. Dole additionally claims the ALJ erred by rejecting Dr. Anderson’s
opinion regarding Mr. Dole’s need to recline, noted in a Medical Source
Statement of Ability to do Work Related Activities (Physical) on September 2,
2016. (Doc. 13 at p. 13; Doc. 10 at ¶ 98). Mr. Dole argues the ALJ erred by
“omit[ing] Dr. Anderson’s restriction that ‘after one hour of working on his feet,
patient reports severe pain that is only relieved by reclining 1-2 hours.” (Doc.
13 at p. 16) (emphasis omitted). Further, the ALJ did not provide any reasons
for rejecting Dr. Anderson’s opinions about Mr. Dole’s need to recline. (Id.).
The court finds the ALJ did not err by rejecting Mr. Dole’s own
statement—recorded by Dr. Anderson—that he needed to recline. Contrary to
Mr. Dole’s argument, Dr. Anderson’s note recorded Mr. Dole’s own opinion
about his abilities. Mr. Dole’s argument is belied by the fact that in the same
Statement of Ability, Dr. Anderson opined that Mr. Dole “could sit at one time
for four hours and for six hours in a work day, could stand for one hour at a
time and four hours during a work day, and could walk for one hour at a time
or four hours in a work day.” (Doc. 10 at ¶ 98). The ALJ gave great weight to
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Dr. Anderson’s opinion, stating it was “generally consistent” with Mr. Dole’s
RFC. (AR at p. 21). Because the ALJ properly did not find Mr. Dole credible,
he was not required to accept Mr. Dole’s statement to Dr. Anderson regarding
his need to recline. The ALJ properly determined Mr. Dole’s RFC. Mr. Dole’s
objection to the ALJ’s RFC finding is overruled.
STEP FIVE
At step five, the ALJ determines whether the claimant is able to do any
other work considering his RFC, age, education, and work experience. If the
claimant is able to do other work, he is not disabled. If the claimant is not able
to do other work and meets the duration requirement, he is disabled. 20 CFR
§ 404.1520(a)(4)(v). At step five, the burden shifts to the Commissioner to
establish that the claimant maintains the RFC to perform a significant number
of jobs within the national economy. Banks v. Massanari, 258 F.3d 820, 824
(8th Cir. 2001).
The ALJ considered Mr. Dole’s age, education, work experience, and
residual functional capacity and determined there are jobs that exist in
significant numbers in the national economy that Mr. Dole can perform. (AR at
p. 22). The available jobs include working as a hand packager, a laundry
worker, and a machine operator. (Id.). Therefore, the ALJ found that Mr. Dole
is not disabled. (Id. at p. 23).
Mr. Dole generally objects to the ALJ’s finding of no disability, arguing
that “the total record convincingly establishes benefits.” (Doc. 13 at p. 20). It
is not the court’s role to re-weigh the evidence and, even if the court would
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decide the case differently, it cannot reverse the ALJ’s decision if the decision is
supported by good reason and is based on substantial evidence. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). Without restating the evidence of
the record above, the court finds that the ALJ’s decision in this case is based
on substantial evidence and is supported by good reason. Mr. Dole’s general
objection to step five is overruled.
ORDER
Based on the above analysis, it is hereby
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Doc. 13) is denied. It is further
ORDERED that the decision of the Commissioner dated February 15,
2017, is affirmed.
DATED this 30th day of March, 2019.
BY THE COURT:

DANETA WOLLMANN
UNITED STATES MAGISTRATE JUDGE

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