C. J. WILLIAMS, Magistrate Judge.
Plaintiff, Mary Henderson (claimant), seeks judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying claimant's application for disability insurance benefits (DIB) and supplemental security income (SSI) under Title II and XVI of the Social Security Act (Act), 42 U.S.C. §§ 405(g), 423, 1383(c)(3). Plaintiff contends the administrative record (AR) does not contain substantial evidence to support the Commissioner's decision. For the reasons that follow, the court affirms the Commissioner's decision.
Claimant was born in 1959, has completed high school and one year of college, and has past work as nurse's aide, cook, custodian, and medication technician. AR 27 & 82. Claimant filed applications for DIB and SSI on June 1, 2012, alleging a disability onset date of May 31, 2012. AR 13. She contends she is disabled due to the following impairments: diabetes mellitus; osteoarthritis; depressive disorder; peripheral neuropathy; right shoulder strain with tendinitis; and quadruple bypass. AR 16 & 91. Her claims were denied on September 17, 2012, and again on reconsideration on November 5, 2012. AR 13.
Claimant then requested a hearing before an Administrative Law Judge (ALJ) on November 21, 2012. AR 13. ALJ Jo Ann L. Draper conducted a hearing on December 19, 2013, at which claimant, claimant's attorney, Danny L. Cornell, and vocational expert, Julie A. Svec, testified. AR 13 & 36-88. On February 24, 2014, the ALJ issued a decision denying claimant's claims. AR 10-29. On April 22, 2014, claimant sought review from the Appeals Council, which denied her request on June 26, 2015. AR 1-4 & 7. The ALJ's decision, thus, became the final decision of the Commissioner. AR 1; 20 C.F.R. § 404.981.
Claimant filed a complaint (Doc. 3) in this court on August 26, 2015, seeking review of the ALJ's decision. With the consent of the parties, the Honorable Linda R. Reade transferred this case to a United States magistrate judge for final disposition and entry of judgment (Doc. 7—signed by the court on November 13, 2015, and filed on the docket on November 16, 2015). The parties have briefed the issues and the matter is now fully submitted.
A disability is defined as "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. An individual has a disability when, due to his physical or mental impairments, he "is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). If the claimant is able to do work which exists in the national economy but is unemployed because of inability to get work, lack of opportunities in the local area, economic conditions, employer hiring practices, or other factors, the ALJ will still find the claimant not disabled. 20 C.F.R. §§ 404.1566(c)(1)-(8), 416.966(c)(1)-(8).
To determine whether a claimant has a disability within the meaning of the Act, the Commissioner follows the five-step sequential evaluation process outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007). First, the Commissioner will consider a claimant's work activity. If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). "Substantial" work activity involves physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). "Gainful" activity is work done for pay or profit, even if the claimant does not ultimately receive pay or profit. 20 C.F.R. §§ 404.1572(b), 416.972(b).
Second, if the claimant is not engaged in substantial gainful activity, then the Commissioner looks to the severity of the claimant's physical and mental impairments. If the impairments are not severe, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is not severe if "it does not significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. § 404.1521(a); see also 20 C.F.R. §§ 404.1520(c), 416.920(c), 416.921(a); Kirby, 500 F.3d at 707.
The ability to do basic work activities is defined as having "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities and aptitudes include: "(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." 20 C.F.R. §§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
Third, if the claimant has a severe impairment, then the Commissioner will determine the medical severity of the impairment. If the impairment meets or equals one of the presumptively disabling impairments listed in the regulations, then the claimant is considered disabled regardless of age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant's impairment is severe, but it does not meet or equal one of the presumptively disabling impairments, then the Commissioner will assess the claimant's residual functional capacity (RFC) and the demands of her past relevant work. If the claimant can still do her past relevant work, then she is considered not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). Past relevant work is any work the claimant has done within the past 15 years of her application that was substantial gainful activity and lasted long enough for the claimant to learn how to do it. 20 C.F.R. §§ 404.1560(b)(1), 416.960(b)(1). "RFC is a medical question defined wholly in terms of the claimant's physical ability to perform exertional tasks or, in other words, what the claimant can still do despite his or her physical or mental limitations." Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation omitted); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The RFC is based on all relevant medical and other evidence. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The claimant is responsible for providing the evidence the Commissioner will use to determine the RFC. Id. If a claimant retains enough RFC to perform past relevant work, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant's RFC as determined in Step Four will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to show there is other work the claimant can do, given the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1512(f), 416.912(f), 404.1520(a)(4)(v), 416.920(a)(4)(v). The Commissioner must show not only that the claimant's RFC will allow him or her to make the adjustment to other work, but also that other work exists in significant numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant can make the adjustment, then the Commissioner will find the claimant not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). At Step Five, the Commissioner has the responsibility of developing the claimant's complete medical history before making a determination about the existence of a disability. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The burden of persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
Also an ALJ must consider claimant's obesity when evaluating his or her disability. SSR 02-1P, 2002 WL 34686281 (Sept. 12, 2002). For adult men and women, obesity is defined as having a Body Mass Index (BMI) of 30 or over. Id. Generally a physician's opinion will establish obesity. Id. A claimant is considered obese "as long as his or her weight or BMI shows essentially a consistent pattern of obesity." Id. For an adult claimant, the ALJ is instructed to consider obesity at the following stages of the sequential evaluation process: whether the claimant has medically determinable impairments; if any of the impairments are severe; if any of claimant's severe impairments are disabling impairments listed in the regulations; and if claimant's impairments allow him or her to do past relevant work or work that exists in the national economy in significant numbers. Id.
The ALJ made the following findings:
AR 15-28. To render her decision regarding claimant's RFC, the ALJ stated that she considered the findings of the "State Agency medical physicians and other consultants. The opinions are weighed as statements from non-examining sources.
Dr. Vernon is a family practitioner at Anamosa Family Practice. AR 501-601. Dr. Vernon has been claimant's treating source since the mid-1990s. AR 43.
On May 15, 2015, Dr. Vernon wrote in his treatment notes that claimant "was wondering about applying for disability. She certainly has sufficient medical problems as well as discomfort when she attempts to work such that it would be reasonable to inquire about disability determination. She will think about this, and she may choose to go ahead with disability evaluation." AR 513.
On October 12, 2012, Dr. Vernon saw claimant for the last routine follow-up visit on the record. AR 627. From this visit, Dr. Vernon's treatment notes list claimant's active problems as the following:
AR 627-28. Furthermore, Dr. Vernon's same treatment notes from October 12, 2012, list claimant's current medications as the following:
AR 627. Lastly, on October 14, 2013, Dr. Vernon saw claimant for a follow-up of her anemia, and relatedly he saw claimant on November 13, 2013, for her continued "rectal bleeding." See AR 724-36. Claimant was taking Colace at 100 mg bid to control rectal bleeding and stool softeners. AR 734. On November 13, 2013, claimant reported being in "not acute distress." AR 735. Dr. Vernon's treatment notes from November 13, 2013, state: "[w]e will see how soon we can get her into a surgeon so that they can see this inflammatory [hemorrhoidal] mass as well." AR 736.
This statement is dated October 15, 2012. Dr. Vernon lists claimant's symptoms as including: "fatigue, difficulty walking, excessive thirst, swelling of joints, psychological problems-depression, vascular disease/leg cramping, extremity pain and numbness, loss of manual dexterity, difficulty thinking/concentrating, hypoglycemic attacks." AR 636. Dr. Vernon writes that claimant's impairments have lasted or will last for at least 12 months, that claimant cannot even tolerate "low-stress" work, and that claimant would miss at least 4 days a month or more from any full-time job due to her impairments. AR 636-37.
This statement is dated October 15, 2012. Dr. Vernon writes that he has been treating claimant for "multiple visits per year" since the "mid 1980s." AR 640. In response to a question about the clinical findings that demonstrate the severity of claimant's mental problems, Dr. Vernon writes "she is chronically anxious, tearful, unable to focus, perseveration, flight of ideas." AR 640. Dr. Vernon also writes that claimant is in "[t]oo much pain. . . . She is unable to make decisions, unable to concentrate. This is due to pain as well as distraction due to symptoms of her medical illness . . . . Depression make [sic] chronic pain worse and interferes with her ability to manage diabetes, hypertension and other medical problems optimally." AR 640-41.
Overall, the ALJ found that Dr. Vernon's statements that claimant is disabled "do not constitute a sufficient basis for a finding of disability within the meaning of the Social Security Act . . . . Opinion evidence from Dr. Vernon encroaches on an area reserved to the Commissioner and is beyond the scope of these assessments of physical and mental impairments [completed by Dr. Vernon]." AR 23. The ALJ found the remainder of Dr. Vernon's statements were based largely on claimant's subjective complaints of pain and were contradicted by claimant's self-reported activities and other medical reports on the record. AR 23-24. The ALJ determined that Dr. Vernon's opinion deserved little weight. AR 24.
Dr. Stientjes is a State agency consultant and a licensed psychologist.
The ALJ found that "[t]he opinions of the psychologist [Harlan J. Stientjes, PhD] are considered as those from an examining, non-treating medical source. Because the findings were based on objective findings and appeared consistent with the claimant's longitudinal medical history, the undersigned has given the opinions significant weight." AR 22.
Dr. Tedesco is a non-examining State agency consultant. Dr. Tedesco's opinion is dated September 17, 2012. AR 100. In regard to Dr. Stientjes' opinion described above, Dr. Tedesco writes:
AR 113 (emphasis added). Dr. Tedesco found claimant's symptom statements were partially credible. AR 96. Furthermore, Dr. Tedesco found that claimant could: occasionally lift/or carry 20 pounds, frequently lift/or carry 10 pounds, stand and/or walk for about 6 hours in an 8-hour workday, sit for about 6 hours in an 8-hour workday, push/or pull unlimited except for limitations mentioned above on lift and/or carry abilities. AR 96-97. Also, claimant can occasionally climb ramps/stairs, never climb ladders/ropes/scaffolds, occasionally balance, occasionally stoop, occasionally kneel, occasionally crouch, never crawl, has limited right overhead reach, unlimited handling (gross manipulation), unlimited fingering (fine manipulation), and unlimited feeling (skin receptors). AR 97-98.
Dr. Weis is a non-examining State agency consultant. Dr. Weis' opinion dated August 21, 2012, precedes Dr. Stientjes' opinion. Dr. Weis finds that although claimant alleges that she cannot lift a gallon of milk nor sit/stand for prolonged periods of time, she "does not quantitate this." AR 98. Furthermore, claimant "remains capable of full self-care needs, prepare[s] some meals and perform[s] some light households tasks. She also continues to drive a car, shops and runs some errands." Id. Claimant has "good use and strength in [her] arms and legs." AR 102. Dr. Weis finds claimant has diabetes mellitus but no evidence on the record supports her "allegations of neuropathy nor is there evidence of organ system involvement or management complications requiring intensive intervention." AR 98. Despite claimants past heart surgery, claimant experiences no heart failure at this time. AR 102. Clinic notes on the record do not support a finding that claimant has severe arthritis. Id. In regard to claimant's credibility, Dr. Weis concludes that claimant's "credibility is eroded to a degree due to lack of evidence supporting impairment related to some of her allegations which are discussed above." AR 98. Overall, Dr. Weis finds that claimant is "capable of performing simple, routine types of work that is less strenuous in nature and does not require frequent overhead reaching with [her] right arm." AR 102.
Dr. John May is a non-examining, State agency consultant. Dr. May's opinion is dated November 5, 2012. AR 143. Dr. May's opinion is for reconsideration of claimant's applications. AR 143. On reconsideration, Dr. May affirms the initial finding on August 21, 2012, by stating:
AR 143. Lastly, Dr. May concluded that claimant shows no signs of muscle wasting or severe nerve damage, has limitations and needs to avoid strenuous activities, and is capable of performing "simple, routine types of work that is less strenuous in nature and does not require frequent overhead reaching with [her] right arm." AR 147.
Dr. Scott Shafer, PhD, is a non-examining, State agency consultant. Dr. Shafer's opinions are dated October 31, 2012, and November 2, 2012. AR 140 & 145. On reconsideration, Dr. Shafer affirms the initial finding from September 17, 2012, and states:
AR 145.
There were no medical records from Dr. Chandra, employed by St. Luke's Hospital in Cedar Rapids, "for the dates requested" to document claimant's DIB and SSI claims. AR 608.
There were no medical records from Dr. LeVett "for the dates requested" to document claimant's DIB and SSI claims. AR 500. Dr. LeVett has not seen claimant from "2010 to present [June 28, 2012—the date the record invoice was signed]." AR 500.
Greg S. Henderson is claimant's husband. AR 274. He resides with claimant. AR 274. Mr. Henderson completed a Third Party Function Report on June 29, 2012. See AR 274-81. In this report, Mr. Henderson writes that he spends every hour with claimant, except for 20 hours a week. AR 274. Mr. Henderson also writes that he helps the claimant take baths, but she can shower without his help. AR 275. Mr. Henderson writes that: he takes care of their two dogs; he reminds claimant to take her pain medication; claimant prepares food "except complete meals with several courses of which I [Mr. Henderson] help;" claimant does sweeping and dusting for about "30-60 minutes daily;" claimant goes grocery shopping for two hours weekly with help; claimant is able to handle her finances independently; claimant makes jewelry daily but "limits time spent on making jewelry;" claimant uses the phone daily to socially interact with others but she does not go anywhere for social interaction on a regular basis; claimant no longer camps, fishes, or plays outside with grandchildren; claimant is depressed as she is "unable to do things that she used to do;" claimant can walk for 20 minutes without stopping and resting; claimant tries to walk twice daily but "sometimes she can't do this;" claimant's insulin disrupts her sleep cycle and makes her nauseous." AR 276-81.
At the hearing, Mr. Henderson submitted additional testimony dated December 19, 2013, which is approximately 18 months after the Third Party Function Report described above. AR 379. In this handwritten statement from Mr. Henderson, he writes that: claimant's conditions have significantly worsened; she needs to be under supervision when she watches her grandchildren; and when he is away at his nearby part-time job twice a week claimant calls him, four to five times a day, crying due to her depression. AR 379.
The ALJ gave Greg Henderson's cumulative testimony little or no weight. The ALJ found that Mr. Henderson lacks medical training, is an interested third party witness, and his statements from December 19, 2013, are irrelevant to the pertinent time frame at issue. AR 18.
Holly Methaly
Jonas S. Swan, DO
AR 695. On October 13, 2013, claimant underwent a colonoscopy screening, endo-esophagogastroduodenoscopy, and biopsy. AR 698. The findings post-surgical procedure were "2 focal areas mild gastritis, mild pandiverticulosis [sic] of colon, external hemorrhoids." AR 698. On November 14, 2013, Kevin R. Kopesky, MD, concluded that "[i]mpressions: bleeding with possible Internal hemorrhoids[.] There are no active problems to display for this patient." AR 703. Lastly, UPH Jones Regional's medical records reflect that Dr. Vernon requested testing from "Lab In Sunquest Edi" on September 20, 2013 (AR 703) and December 2, 2013 (AR 717). See AR 703-23. The record also reflects documentation from Unity Point Health Community Network of claimant's testing order by Dr. Vernon and performed by UPH Jones. See AR 737-42.
Claimant self-supplied the record with Exhibits 19E, 1F, 10F, 11F, 12F, 14F, 16F, 17F, 18F. Exhibit 19E consists of a calendar covering: March 2013, July 2013, September 2013, and October 2013. AR 363-66. Claimant handwrote a daily entry for each calendar day covered (e.g., "Good day[,] fingers sore/headache" or "Awake most of night[,] leg pain/knees"). AR 363-64. Exhibits 10F, 11F, 12F,14F, 16F, 17F, and 18F also display monthly calendars where claimant wrote down her symptoms/feelings for each day (respectively the months covered include: October, November, December of 2012 and January, April, May, and June of 2013). AR 646-48, 659, 663-65. Exhibit 1F consists of 103 pages (AR 397-499) and contains various medical reports from Allscripts (dated March 2012 and June 2012), Anamosa Family Practice's medical records signed by Dr. Vernon (dated November 2006 to June 2012), and St. Luke's Hospital in Cedar Rapids (dated June 2010 and December 2006). AR 397-499.
Claimant attached three post-hearing exhibits to her appeal (Exhibits 24E, 25E & 26E). This supplemental evidence is described below.
A letter dated on April 22, 2014, from Danny L. Cornell, claimant's counsel, to the Appeals Council appealing the ALJ's notice of unfavorable decision. AR 381. Mr. Cornell asks the Appeals Council for an extension "of 60 days after her [claimant's] receipt of the recording to submit additional evidence and/or arguments." AR 381. Also, Mr. Cornell argues that the ALJ's decision was unsupported by substantial evidence, in noncompliance with both relevant regulations and Social Security Reports, and in violation of Eighth Circuit Court of Appeals' case law. AR 382.
A letter dated on November 24, 2014, from Mr. Cornell addressed to Ms. Sherika Bryant, Legal Assistant of the Appeals Council. See AR 383-90. The letter contains a non-exhaustive list of arguments alleging that the ALJ's decision contains errors, contradicts the substantial evidence on the record, and should be reversed. AR 390. The letter cites to several portions of the record. See AR 383-90.
Claimant submitted a photograph of her right thumb (AR 391), left hand (AR 392), left hand with the caption "middle finger locks down-very painful" (AR 393), and psoriasis on her arm with the caption "arm-psoriasis caused by arthritis" (AR 394-96).
The Commissioner's decision must be affirmed "if it is supported by substantial evidence on the record as a whole." Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006); see 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). "Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion." Lewis, 353 F.3d at 645. The Eighth Circuit Court of Appeals explains the standard as "something less than the weight of the evidence and [that] allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal." Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (internal quotation omitted).
In determining whether the Commissioner's decision meets this standard, the court considers "all of the evidence that was before the ALJ, but we do not re-weigh the evidence." Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005) (internal citation omitted). The court considers both evidence which supports the Commissioner's decision and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must "search the record for evidence contradicting the [Commissioner's] decision and give that evidence appropriate weight when determining whether the overall evidence in support is substantial." Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Sec'y of Health & Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not "reweigh the evidence presented to the ALJ," Baldwin, 349 F.3d at 555 (citing Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or "review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if after reviewing the evidence, the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the court] must affirm the [Commissioner's] denial of benefits." Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). This is true even in cases where the court "might have weighed the evidence differently." Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)). The court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (internal citation omitted) ("[A]n administrative decision is not subject to reversal simply because some evidence may support the opposite conclusion.").
Ultimately, the court finds the ALJ did not legally err and her decision was supported by substantial evidence on the record as a whole. The court now turns to address claimant's specific objections about the ALJ's decision. Namely, the claimant has authored two argumentative documents. The first document is plaintiff's brief (Doc. 13) and the second document is the Representative brief dated November 24, 2012 (submitted as Exhibit 25E on appeal). The court will address both documents below.
Claimant raises two arguments in her brief. These arguments center on claimant's hands (her osteoarthritis in her fingers) and claimant's mental limitations (whether she can perform semi-skilled or unskilled work). Specifically, claimant argues that: (1) the ALJ erred in determining claimant's RFC included "frequent" handling and fingering when the record only supports a finding of "occasional" handling and fingering under which the ALJ would have found claimant was disabled; and (2) the ALJ erred in determining that claimant could perform "semi-skilled" work when the record only supports a finding of "unskilled" work under which the ALJ would have found claimant was disabled. Doc. 13.
In regard to her hands, claimant argues that "[t]he ALJ's Residual Functional Capacity Assessment is Flawed as the ALJ Failed to Evaluate Properly [Her] Subjective Complaints Regarding Her Ability to Handle and Finger." Doc. 13, at 9. Claimant further argues that "[t]he vocational expert testified that if the claimant could reach and handle on only an occasional basis, she could not perform past work or any other work. (A.R. 86) . . . . Had the ALJ credited [her] allegations and limited the claimant to occasional handling and fingering, the ALJ would have found her disabled." Doc. 13, at 6 & 10.
The court finds that substantial evidence supports the ALJ finding that claimant was less than fully credible. Thus, the ALJ made a correct credibility determination in regard to claimant's subjective pain complaints about her hands. The court finds the ALJ correctly considered the relevant Polaski factors in determining claimant's credibility. Under the Polaski factors, an ALJ must consider the "claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as: (1) claimant's daily activities; (2) duration, frequency and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5) functional restrictions." Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). In Lowe, the Eighth Circuit Court of Appeals stated, "[t]he ALJ was not required to discuss methodically each Polaski consideration, so long as he acknowledged and examined those considerations before discounting [claimant's] subjective complaints." Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (internal citation omitted). If the ALJ gives a good reason for discrediting a claimant's credibility, then the court will defer to the ALJ's judgment "even if every factor is not discussed in depth." Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001).
Also "[a]lthough the ALJ may disbelieve a claimant's allegations of pain, credibility determinations must be supported by substantial evidence." Jeffery v. Sec'y of Health & Human Servs., 849 F.2d 1129, 1132 (8th Cir. 1988) (internal citation omitted). "Moreover, the ALJ must make express credibility determinations and set forth the inconsistencies in the record that lead him to reject the claimant's complaints." Id. "Where objective evidence does not fully support the degree of severity in a claimant's subjective complaints of pain, the ALJ must consider all evidence relevant to those complaints." Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) (internal citation omitted). In evaluating a claimant's subjective complaints of pain, an ALJ may rely on a combination of her/his personal observations and a review of the record to reject such complaints. Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008) ("While the ALJ's observations cannot be the sole basis of his decision, it is not an error to include his observations as one of several factors."). However, the ALJ may not solely rely on his personal observations to reject such claims. Id. Thus "[s]ubjective complaints can be discounted [by the ALJ], however, where inconsistencies appear in the record as a whole." Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003) (citing Polaski). In sum, "[t]he Commissioner must determine a claimant's RFC based on all of the relevant evidence, including the medical records, observations of treating physicians and others, and an individual's own description of his limitations." McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).
The ALJ determined claimant's RFC included the following relevant limitations in regard to claimant's hands:
AR 17 (emphasis added). In this context, frequent means a condition or an activity that "exists between one-third and two-thirds of the time [in an occupation]," while constant means a condition or an activity that "exists two-thirds or more of the time in an occupation." Hulsey v. Astrue, 622 F.3d 917, 924 (8th Cir. 2010) (citing 2 Dictionary of Occupational Titles, app. C, at 1013 (4th ed. 1991)). Overall, the ALJ found that:
AR 26.
Commissioner argues there is substantial evidence to support the ALJ's decision to not add greater restrictions in the RFC assessment given claimant's osteoarthritic fingers. Doc. 14, at 6. Commissioner admits that "[a]lthough the ALJ did not offer significant elaboration about inconsistencies between her manipulative complaints
Here the court agrees with the Commissioner. In the ALJ's decision, the ALJ pointed to the record that claimant: dusted and swept, made daily simple meals, could drive, sewed, made bracelets, painted and drew, sometimes did dishes. AR 17-18. The ALJ gave little weight to the testimony of claimant's husband, Greg Henderson, as she found him to be not medically trained and an interested third party witness. AR 19. The ALJ pointed to Dr. Vernon's treatment notes that on April 27, 2011, claimant had Heberden's nodes
Upon a thorough examination of the record, the court finds that the record does support the ALJ finding that claimant is able to frequently bilaterally handle and finger. On claimant's self-completed Function Report dated June 29, 2012, claimant writes that on a daily basis, she "dust[s], sweep[s] . . . fix my lunch . . . daily and weekly I may dust and sweep 30 to 60 minutes [,] dishes take me about ½ hr . . . my husband and I do the shopping together weekly 1 ½ hrs breaks in between stores . . . pays bills, count change, handle a saving account, use a checkbook/money orders . . . work on sewing and making bracelets a few minutes daily limit to how long I can do these things" AR 295-98. On claimant's self-completed Personal Pain/Fatigue Questionnaire dated June 29, 2012, claimant writes that she "may sweep floors do dusting, do my hobbies like sewing/painting drawing depending on hand and finger pains . . . taking care of my small grandchildren." AR 305. On claimant's self-completed Function Report-Adult dated October 13, 2012, she writes that she: ". . . try dusting, I vacume [sic] about 5 mins no carpet-wood floors . . . [cooks] hamb [sic] patties pre made chicken pre cut . . . I put laundry in washer if its by the washer, wash dishes (sit in chair or stool); sweep slowly vacume for 5 min . . . drive[s] a car." AR 322-24. At the hearing, claimant testified that her "fingers on [her] left hand have osteoarthritis in them." AR 61. On June 29, 2012, Dr. Vernon's treatment notes indicate that "[w]hile her joints are hurting [she told Dr. Vernon she was in pain] she does not have any acutely inflamed or swollen joints." AR 507. On October 14, 2013, Dr. Vernon's treatment notes read that claimant "has no acutely swollen or inflamed joints, but some chronic swelling and chronic discomfort." AR 727. On a visit to UPH Jones in relation to claimant's bleeding with defecation issue, Dr. Kevin R. Kopesky, MD, writes that claimant's "[m]usculoskeletal-no obvious deformity or swelling" on November 11, 2013. AR 702. Also, Dr. May writes: "[a]gain there is no evidence in file to support the clmt's allegations of significant restrictions due to arthritis etc. At this time [August 21, 2012] the [statements by Dr. Vernon describing claimant as only being able to stand and sit for 15-20 minutes due to pain] would be given little weight as it is not supported by the medical evidence in file. At this time the prior determination dated 8-21-12 would be affirmed as written." AR 143. Overall, the court finds this constitutes substantial evidence to support the ALJ's finding.
Claimant alleges that the ALJ erred in finding that she could perform semi-skilled work as the record supports that she can only perform unskilled work. Doc. 13, at 14. Claimant further alleges, if the ALJ had properly found only a capacity for unskilled work then the ALJ would have found her disabled. Doc. 13, at 17. This error, argues claimant, made both the RFC assessment and the hypothetical question asked by the ALJ inaccurate. Doc. 13, at 14. Specifically, claimant states: "[t]he medical evidence consistently demonstrated [she] could handle only simple to mildly complex tasks. The ALJ, however, found [claimant] was able to perform jobs requiring up to 6 months to learn. This description of the claimant's mental abilities does not accurately reflect her limitations." Id. In support of this argument, claimant alleges that the medical opinions from Dr. Stientjes, Dr. Vernon, Dr. Tedesco, and Dr. Shafer support that she can only perform unskilled work. Doc. 13, at 15.
The court finds that there is substantial evidence on the record to support the ALJ's determination that claimant is capable of semi-skilled work. In the RFC assessment, the ALJ determined that claimant "is precluded from highly detailed and highly complex tasks, but can understand, remember and carry out 3-4 SVP tasks."
Under the regulations of the Social Security Administration (SSA), unskilled work is the least complicated type of work and "needs little or no judgment to do simple duties that can be learned on the job in a short period of time." 20 C.F.R. §§ 404.1568(a), 416.968(a). Unskilled work "correspond[s] to a specific vocational preparation (SVP) level of one or two in the DOT [Dictionary of Occupational Titles]." Hulsey, 622 F.3d at 923 (citing SSR 00-4P, 2000 WL 1898704 (Dec. 4, 2000)). Further, "[t]he SVP level listed for each occupation in the DOT connotes the time needed to learn the techniques, acquire the information, and develop the facility needed for average work performance. At SVP level one, an occupation requires only a short demonstration, while level two covers occupations that require more than a short demonstration but not more than one month of vocational preparation." Hulsey, 622 F.3d at 923 (internal citation omitted). At SVP level three, an occupation mandates "preparation exceeding one month up to and including three months." Berry v. Colvin, 74 F.Supp.3d 994, 999 n. 1 (N.D. Iowa 2015) (citing DOT). The SSA's regulations define semi-skilled work as follows,
20 C.F.R. §§ 404.1568(b), 416.968(b).
The court now reviews the evidence on the record. During the consultative examination, Dr. Stientjes determined that claimant "is capable of understanding and remembering simple to mildly complex oral and written instructions, but seems to require some repetition and is slower to pick up on tasks than would be anticipated. Carryover from day to day is believed to be very good. Interactions with coworkers and supervisors will be pleasant. Safety judgment is typical. Response to change will not be difficult." AR 618. Also, Dr. Tedesco found: "[f]rom a mental standpoint, she is capable of sustaining a 40-hour work week. She may have some difficulty with concentration on more complex tasks due to her depressive symptoms. The claimant maintains the cognitive abilities to work at occupations that are simple to mildly complex on a sustained basis." AR 113. Dr. Shafer found "[o]n reconsideration the clmt [claimant] does not allege any worsening of her mental condition. Notes from the clmt's family doctor indicates that she is still being treated for depression at this time. Mental Medical Source Statement sent in by the clmt's family doctor shows that she is unable to meet competitive standards and seriously limited in several areas. However, medical records and employment history do not support such limitations. She worked until about 5 months ago and record does not reflect a deteioration [sic] in her condition." AR 145.
At the hearing, the vocational expert testified that claimant acquired transferable skills at her past work as a nurse's aide and medication technician. AR 85. Namely, the skills of "documenting and following written directions or communications." AR 85. Specifically, at the hearing the ALJ asked the vocational expert if claimant has "acquired any skills that can be transferred to other jobs within the residual functional capacity?" AR 83-85. The vocational expert answered:
AR 85. The ALJ mentioned these "acquired work skills from past relevant work" in her opinion. AR 27.
On the other hand, there is some evidence on the record that supports a finding of only unskilled work capacity. First, Dr. Weis deems claimant "capable of performing simple, routine types of work that is less strenuous in nature" and states her maximum capability is "unskilled light work with additional restrictions to avoid frequent reaching right upper extremity." AR 102 & 115. Also, Dr. May affirms Dr. Weis' opinion. AR 143. Furthermore, Dr. Vernon finds that claimant "can't concrete, [she is] unable to continue activity as a result . . . . She is unable to make decisions, unable to concentrate. This is due to pain as well as distraction due to symptoms of her medical illness." AR 640-41.
Despite Dr. Vernon's status as a treating source, the ALJ found the above statements from Dr. Vernon about claimant's inability to concentrate deserved little weight. A treating source is an acceptable medical source who has an ongoing treatment relationship providing medical treatment or evaluation to the claimant; however, such relationship may not exist solely to establish claimant's disability. 20 C.F.R. § 404.1502. Under agency regulations, an acceptable medical source includes licensed physicians, either medical or osteopathic doctors. Id. § 404.1513(a). An ongoing treatment relationship is generally established when the medical evidence is consistent that the claimant has seen "the source with a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for your medical condition(s)." Id. § 404.1502.
Generally, a treating source gets controlling weight. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (internal quotations and citation omitted) ("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."). But, a treating source's opinion does "not automatically control, since the record must be evaluated as a whole." Id. (internal citation omitted). Furthermore, there is a category of opinions, even if authored by treating sources, which gets little controlling weight; namely, opinions by treating medical professionals stating that an applicant is "unable to work" or "disabled" do not count as medical opinions. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). An ALJ may give limited weight to a treating source's opinion if such opinion only provides conclusory statements or is inconsistent with the substantial evidence on the record. Chamberlain v. Shalala, 47 F.3d 1489, 1489-94 (8th Cir. 1995).
Here, the ALJ concluded about Dr. Vernon's opinion the following: a portion of Dr. Vernon's statements on the record were nonmedical statements that deserved little weight; and the remaining portion of Dr. Vernon's statements relied on claimant's subjective complaints and were inconsistent with claimant's reported activities, Dr. Vernon's own treatments, and other medical reports on record that again deserved little weight. AR 24. Specifically, the ALJ said that Dr. Vernon's statements finding claimant disabled were "[o]pinion evidence [that] encroaches on an area reserved to the Commissioner and is beyond the scope of these assessments of physical and mental impairments [completed by Dr. Vernon]." AR 23. The court agrees with ALJ's finding that these statements constituted nonmedical opinion evidence that deserve little weight. In regard to Dr. Vernon's medical statements, the ALJ also stated that she recognizes "a treating physician's obligation to his patient, a physician's desire to treat his patient in the most effective manner possible, and the necessity to accept the patient's symptomatic allegation of impairment as worthy of belief in order to appropriately treat the patient." AR 23. The ALJ found Dr. Vernon's statements about claimant's limitations, however, were contradicted by claimant's self-reported activities and other medical evidence on the record, and were based on claimant's subjective complaints. AR 24. See Vandenboom v. Barnhart, 421 F.3d 745, 749-50 (8th Cir. 2005) (upholding the ALJ's decision to deny controlling weight to the treating source's opinion where such opinion was "based largely on [claimant's] subjective complaints with little objective medical support" and relied on a medical report inconsistent with whole record.); see also Renstrom, 680 F.3d at 1064-65 (concluding ALJ's decision to give treating source non-controlling weight was reasonable as treating source based his findings "largely . . . on [claimant's] subjective complaints" and his finding was inconsistent with other medical experts on the record who found claimant capable of light work). When a treating physician bases his opinion largely on claimant's subjective complaints, and there is substantial, contrary medical and other evidence on the record, the ALJ may reasonably give the treating physician's opinion non-controlling weight. Lastly, the ALJ noted "[a]lso inconsistent with [Dr. Vernon's] opinion, while noting significant mental health limitations, the doctor subsequently weaned the claimant off of her medications." AR 24. Upon reflection of the entire record, the court finds the ALJ giving Dr. Vernon non-controlling weight is reasonable and supported by substantial evidence on the record. Also, the court notes that Dr. Vernon mentioned to claimant, initially, that she ought to consider applying for disability benefits. See AR 513.
Overall, it is not the court's role to reweigh the evidence; rather, the court must affirm the Commissioner's decision if substantial evidence on the record as a whole supports it. See Lewis, 353 F.3d at 645 ("Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion."). The court finds that substantial evidence on the record as a whole supports the ALJ finding claimant capable of semi-skilled work. The ALJ gave the opinion of Dr. Stientjes great weight. AR 22.
On a final note, as the court finds the record supports that claimant can perform semi-skilled work, thus, the court finds the RFC assessment and hypothetical question posed by the ALJ were proper. See Lewis, 353 F.3d at 646 (The RFC determination "is a medical question defined wholly in terms of the claimant's physical ability to perform exertional tasks or, in other words, what the claimant can still do despite his or her physical or mental limitations."); see also Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012) (internal quotation and citation omitted) (The hypothetical question "needs to include only those impairments that the ALJ finds are substantially supported by the record as a whole.").
Here claimant presents additional arguments. First, claimant points to an inconsistent statement in the ALJ's decision. At step two of the sequential evaluation process, the ALJ classified claimant's osteoarthritis both as a severe impairment (causing significant limitation in claimant's capacity to perform activities) and as a nonsevere impairment (causing no functional limitations on claimant). AR 16. Claimant argues "[t]he inherent inconsistency of these findings substantially erodes the ALJ's findings of fact and conclusions of law." AR 383. The court acknowledges this clear inconsistency and finds this to be a typographical error. The ALJ included osteoarthritis in the heading of section three: "The claimant has the following severe impairments: . . . osteoarthritis." AR 16. The ALJ likely failed to delete "osteoarthritis" from the section beneath the heading, which lists the nonsevere impairments. Id. It is regrettable that such an error exists in the ALJ's decision. Nonetheless, the court finds that the ALJ did in fact treat osteoarthritis as a severe impairment. This is based on the court's review of the ALJ's decision as a whole and the hypothetical question posed by the ALJ. The ALJ embodied claimant's osteoarthritis into the hypothetical question by finding that the claimant could only frequently (not constantly) bilaterally finger and handle, and the ALJ extensively discussed claimant's osteoarthritic complaints when she assessed claimant's credibility. See AR 83 & 17-27. Also, Dr. Shafer listed claimant's osteoarthritis as a severe impairment. AR 139 (finding "severity: severe."). As did Dr. Tedesco. AR 95. The ALJ's decision remains supported by the substantial evidence on the record as a whole.
Next, claimant argues as follows: ALJ failed to follow the "slight abnormality" standard in determining claimant's heart disease and psoriasis to be nonsevere; furthermore, the medical evidence on the record supports finding these impairments severe. AR 384.
In her penultimate argument, claimant alleges that the ALJ's finding that claimant can perform the full range of sedentary work is unsupported. AR 384. Sedentary work is defined as "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools . . . [j]obs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. §§ 404.1567(a), 416.967(a). There is an overall consensus among the State agency medical professionals that claimant can indeed perform full sedentary work as by the above cited regulation. See AR 97 & 102 (Dr. Weis found claimant can sit with normal breaks for about 6 hours in an 8 hour workday and stand/walk with normal breaks for about 6 hours in an 8 hour workday and claimant has good use and strength in arms and legs with no sever nerve damage or muscle wasting); AR 128 (on reconsideration, Dr. May found that despite claimant's assertion of overall worsening of her conditions, there is no evidence to support such assertion, and he affirms the initial finding by Dr. Weis); and, AR 130 (on reconsideration Dr. Shafer affirmed Dr. Weis' assessment).
Last, claimant alleges that the ALJ did not give claimant's treating source—Dr. Vernon—proper weight (namely controlling weight). AR 384. The court has already discussed above that the ALJ was reasonable in giving little weight to Dr. Vernon's statements. See Section III, C; see also Section VI, A (2) and note 14. There is no need to repeat this same analysis here.
The court sympathizes with claimant for the difficulties associated with her depression and other ailments. Yet, the court's task is to act in a deferential capacity and to affirm the ALJ's decision if such decision is supported by substantial evidence on the record as a whole. After a thorough review of the entire record, the court concludes that the ALJ's decision to deny claimant's application for DIB and SSI is indeed supported by such evidence. Accordingly, the court
