STEVEN E. RAU, Magistrate Judge.
Pursuant to 42 U.S.C. § 405(g), Plaintiff Lisa Jean Isham ("Isham") seeks review of the Acting Commissioner of Social Security's ("Commissioner") denial of her application for Supplemental Security Income ("SSI"). See (Compl.) [Doc. No. 1]. The parties filed crossmotions for summary judgment [Doc. Nos. 20, 28] that have been referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and District of Minnesota Local Rule 72.1. For the reasons set forth below, the Court recommends that Isham's Motion for Summary Judgment be granted in part and the Commissioner's Motion for Summary Judgment be denied.
Isham filed her application for SSI on April 28, 2011. (Admin. R.) [Doc. No. 18 at 195].
At the AOD, Isham was 47, making her a younger person. (Admin. R. at 88); 20 C.F.R. § 416.963(c). Her highest grade of school completed is 11th grade, and she previously worked as a cleaner and floor installer. (Admin. R. at 61-63, 69, 240, 251).
Isham believed she was incapable of performing any of her previous jobs. (Id. at 73). Isham testified she could not concentrate and pay attention to things. (Id. at 68). She cannot read very well or follow written instructions at a job, and she cannot start something, stay on task, and get it done. (Id. at 69-70). Isham reported that if she is under pressure or stress, she screams and is mean to herself, which happens almost every day. (Id. at 71). Usually, she has someone else cook her breakfast, and she does not shower every day. (Id. at 72). Isham can do housework, laundry, take care of herself, and keep herself clean if she needs to. (Id. at 73). She testified that she cannot deal with things like the mail and bills. (Id. at 73).
Isham experiences pain in her ankles, but braces help. (Id. at 74). She can stand for five to ten minutes at a time. (Id. at 74-75).
Isham testified she did poorly in school. (Id. at 76). She went to a special school where she worked at her own pace, and was in special education. (Id. at 77). Her therapist or case worker helped her fill out the forms required for her Social Security filing. (Id. at 78).
At the second hearing, Isham testified that her floor layer job required her to run liquid flooring back and forth. (Id. at 36). She did not receive any vocational or job rehabilitation assistance to do this job. (Id. at 38). She worked with at least ten other workers, and there was a supervisor for all employees on the shift, plus an additional supervisor just for her, who was also her boyfriend. (Id. at 38-39).
Certain records in the Administrative Record concern impairments and illnesses that neither of the parties nor the ALJ base their analysis on, and that the Court does not find relevant—such medical records will not be summarized.
On December 25, 2003, William K. Gitar, MD ("Dr. Gitar"), evaluated Isham at the Essentia Health emergency room for left ankle pain. (Id. at 517). Isham stated that she fell out of the upstairs window of her residence and admitted to drinking at the time of the incident. (Id.). Upon reviewing the x-rays, Dr. Gitar diagnosed Isham with a left ankle sprain and gave her an Ace wrap and crutches to use on an as-needed basis. (Id. at 518).
Leslie Gibbs, MSEd ("Gibbs"), saw Isham on August 4, 2005, for a Mental Health Diagnostic Assessment. (Id. at 489). Isham reported feeling depressed and continuing to grieve the loss of her son approximately three years before. (Id.). She also reported appetite disturbance, sleeping problems, short-term memory difficulties, crying for no reason, severe mood swings, loss of enjoyment in activities, nightmares, panic attacks, and auditory and visual hallucinations. (Id.). Gibbs noted that Isham was "weepy in assessment" and that her "[t]hought process seemed fragmented." (Id. at 490). Gibbs diagnosed Isham with recurrent and severe major depressive disorder with psychotic features, bereavement, and polysubstance dependence, and assigned a GAF score of 50.
On August 22, 2005, Laura Stresow, RN, CNP ("Stresow"), evaluated Isham for a physical. (Id. at 463). Isham told Stresow she was anxious, depressed, fearful, and irritable. (Id. at 464). She also said she attempted suicide twice after the death of her son. (Id.). Upon physical examination, Stresow noted bursitis on the anterior surface of Isham's right ankle that was neither hot, red, nor tender.
Greg Goodrich, LPC, NCC ("Goodrich"), provided therapy to Isham on January 6, 2006. (Id. at 493). Goodrich diagnosed Isham with recurrent severe major depressive disorder, with bereavement and polysubstance abuse, and assigned a GAF score of 50. (Id.). Goodrich recommended Isham see her medical personnel for evaluation for antidepressants. (Id.). In his May 26, 2006 termination summary, Goodrich noted that Isham's final diagnosis was depression and alcohol dependence, and her GAF score was 50. (Id. at 497). He noted that Isham did not follow through with the following: attendance at grief groups, psychotropic medication referral, Alcoholics Anonymous ("AA") meetings, Rule 25 Assessment, or the recommendation that she meet with a native spiritual person.
On August 18, 2006, Isham saw David O. Jorde, MD ("Dr. Jorde"), for acute emotional distress. (Id. at 468). Isham reported she had been crying frequently, had poor concentration, was eating little, getting poor sleep, and had multiple crying spells per day. (Id.). Dr. Jorde diagnosed Isham with depression and prescribed Zoloft.
Hall saw Isham on August 18, 2006, for an individual therapy appointment. (Id. at 494). Hall diagnosed Isham with acute stress disorder, PTSD, history of recurrent and severe major depressive disorder, polysubstance dependence, and personality disorder, and assigned Isham a GAF score of 40. (Id.). Isham reported she was continuing to drink alcohol to the point of intoxication and sometimes had blackouts. (Id.). She also reported having thoughts such as "I deserve to die," difficulty concentrating, and difficulty sleeping. (Id.). Hall recommended a Rule 25 Assessment, supportive psychotherapy, eye movement desensitization and reprocessing ("EMDR") trauma work, and possibly obtaining an advocate.
Lorraine L. T. Turner, MD ("Dr. Turner"), treated Isham on January 27, 2007. (Id. at 470). Dr. Turner noted that Isham had a history of hearing loss in her left ear, depression, alcohol abuse, and migraines. (Id.). Isham reported drinking six to twelve beers daily and marijuana use. (Id.). Isham also reported chronic daily headaches and vague pain with the popping of her knee and ankle joints when walking or doing other activities. (Id. at 471). Dr. Turner's physical examination of Isham was normal overall. See (id. at 472-73). Dr. Turner recommended Isham continue with therapy and follow up in one month. (Id. at 473).
Isham was seen by Robert W. Stubenvall, MD ("Dr. Stubenvall"), on May 30, 2007, for history of hearing loss. (Id. at 507). The audiogram showed "mild high frequency neurosensory hearing loss in the right ear with profound left neurosensory hearing loss."
When Hall left her position, she completed a termination summary. (Id. at 498). Her final diagnosis of Isham was bereavement; history of mild, recurrent major depressive disorder; polysubstance dependence; and personality disorder. (Id.). Hall opined Isham had made progress in therapy and recommended Isham attend her scheduled medical appointments, consider a Rule 25 Assessment and follow those recommendations made based on the assessment. (Id.).
On July 2, 2007, Isham was again seen by Stresow. (Id. at 476). Isham complained of anxiety and difficulty concentrating, headaches, dyspnea, and bilateral ankle pain that had worsened over the last year.
On December 31, 2007, Isham was seen by Ellie Schoenfeld, MSW, LICSW ("Schoenfeld"), for therapy. (Id. at 499). Isham continued to be diagnosed with bereavement, polysubstance dependence, recurrent and chronic major depressive disorder, anxiety disorder, physical abuse, and history of personality disorder. (Id.). At the time of this appointment Isham's GAF score was 30, with the highest GAF score in the past year being 63. (Id.). Isham reported daily and frequent crying, depressed mood, inability to think, recurrent thoughts of death and suicidal ideation without a specific plan, and anxiety attacks. (Id.). Further, Isham reported drinking every day, smoking a lot of marijuana, and periodically using other drugs. (Id.). Schoenfeld recommended a Rule 25 Assessment and follow through with any recommendations. (Id. at 500). Schoenfeld further encouraged Isham to leave her abusive relationship and call a crisis line and/or go to the hospital if she was feeling suicidal, and to keep medical appointments. (Id.).
On January 11, 2008, Patrick Boyle, CNP ("Boyle"), saw Isham for a medication check. (Id. at 480). Isham reported it was very difficult for her to meet home, work, and social obligations. (Id.). She reported feeling anxious, experiencing fearful and compulsive thoughts and behavior, irritable moods, feelings of guilt or worthlessness, sleep disturbances, fatigue and loss of energy, poor concentration, and indecisiveness. (Id.). Isham also reported that she drank twelve to eighteen beers daily and smoked marijuana occasionally. (Id.). Boyle talked at length with Isham about alcohol abuse and its depressant effects. (Id.).
Mollie A. Stapleton, MD ("Dr. Stapleton"), saw Isham on February 22, 2008, for depression. (Id. at 482). Isham reported she had been off her medications since July and had been hearing voices. (Id.). Additionally, Isham stated she was drinking daily and had memory and attention problems. (Id.). Upon examination, Dr. Stapleton noted Isham was agitated, positive for anhedonia, anxious, exhibited compulsive behaviors, had deficient fund of knowledge and language, was fearful, had flight of ideas, was forgetful, had for auditory hallucinations, and had a poor attention span and concentration.
On March 7, 2008, Dr. Stapleton saw Isham for follow-up and a medication check. (Id. at 484). Isham reported she started taking Effexor and Buspar, but stopped quickly because they made her feel more depressed and "sick." (Id.). Isham also reported continued drinking and hearing voices. (Id.). Dr. Stapleton asked Isham to return for a follow-up visit in two weeks and encouraged her to make a therapy appointment. (Id. at 485).
On September 25, 2008, Isham was seen in the emergency room of St. Mary's Medical Center with a cut to her left forearm. (Id. at 528). She reported cutting herself three days before because she was depressed and frustrated. (Id.). John E. Slettedahl, RN, CNP, gave her Cephalexin to help the infection and referred her to a social worker for her depression issues and self-injurious behavior.
Dr. Stapleton saw Isham on April 27, 2009, for a rash and cough. (Id. at 366). Isham reported being assaulted two weeks earlier and was still having headaches. (Id.). She stopped taking her medications again because they made her hallucinations worse. (Id.). Dr. Stapleton noted that Isham smelled of alcohol and Isham reported drinking to manage her pain. (Id.). Upon examination, Dr. Stapleton found Isham to have a depressed affect. (Id. at 367). Isham appeared to be agitated, was had anhedonia, was anxious, and exhibited compulsive behavior and poor judgment. (Id.). Her auditory hallucinations continued. (Id.). Dr. Stapleton prescribed Seroquel.
Dr. Stapleton saw Isham on May 11, 2009, for a follow-up to headaches that arose after the assault, and to treat Isham's depression. (Id. at 369). Isham reported that Seroquel was helping her sleep, but that she felt groggy in the morning; she was advised to cut the dosage in half. (Id.). Upon examination, Isham was not agitated, but was anxious and said she was feeling disconnected from reality. (Id. at 368).
On May 19, 2009, Dr. Kimberly Schmidt ("Dr. Schmidt") called Dr. Stapleton to inform her Isham was currently in Dr. Schmidt's office and was talking about taking Seroquel to commit suicide. (Id. at 487). Dr. Schmidt further reported that Isham admitted to drinking three beers and a shot of hard liquor before seeing Dr. Schmidt. (Id.). Dr. Stapleton spoke to Isham on speaker phone and Isham agreed to bring her medications into the clinic for disposal. (Id.).
On June 19, 2009, Isham was seen by Dr. Turner at St. Mary's Medical Center's intensive care unit ("ICU"). (Id. at 335). Isham was brought to the emergency room by her partner because he thought her behavior was "funny" and thought her mental status was abnormal. (Id.). Isham was transferred to the ICU. (Id.). The partner reported that he and Isham had an argument earlier in the day and she left. (Id.). When she returned, her partner noted that she was behaving "funny" and her speech was slurred. (Id.). Dr. Turner noted Isham was difficult to arouse in the emergency room and had a seizure on the floor in the ICU. (Id. at 335-36). Upon examination, Dr. Turner noted it was difficult to get any reliable history from Isham as she was intermittently dozing with slurred speech. (Id.). Isham admitted to taking some of her father's sleeping pills and drinking some alcohol, but denied taking other drugs. (Id. at 336). Isham's urine toxicology screen was positive for amphetamines, tricyclics, and THC.
On December 26, 2009, Francis W. Nelson, MD ("Dr. Nelson"), saw Isham at St. Mary's Medical Center's emergency room, when she presented with nausea, vomiting, and abdominal pain. (Id. at 535). Lab tests revealed alcoholic gastritis.
On February 1, 2010, Dr. Schmidt saw Isham for intake at Arrowhead Psychological Clinic. (Id. at 343, 349). Dr. Schmidt's initial diagnosis was bipolar type of schizoaffective disorder, PTSD, alcohol dependence, dependent personality features, and ankle, knee, and hip problems, and Isham's GAF score was 38. (Id.). Isham reported she was "super suicidal" and that she had tried to kill herself three times. (Id.). She further reported that she was no longer taking any of her medications because they made her "feel stupid." (Id. at 334). Dr. Schmidt noted that during the intake, Isham acted like a young child, was hard to keep on track, and had difficulty with boundaries and a tendency to be impulsive. (Id.). Dr. Schmidt opined that Isham's IQ was likely low. (Id.). Isham reported that she had been drinking more frequently and that she wanted to be dead to be with her son Eric, who passed away several years ago. (Id. at 345). Isham reported that she did not believe she could work, saying "I would probably sit down and cry." (Id. at 345).
Dr. Schmidt opined that Isham's symptomatology included: angry outbursts; anxiety upon exposure to stimuli symbolizing trauma; auditory hallucinations; avoidance of situations that elicit memories of trauma; depressed mood; difficulty falling asleep; difficulty reading and writing; diminished ability to feel pleasure; distressing and intrusive memories of trauma; feelings of detachment from others; feelings of hopelessness; impaired concentration; low selfesteem; poor comprehension; poor concentration; poor judgment; racing thoughts; difficulty being alone and functioning independently; recurrent dreams of trauma; suicidal ideation without intent to act; and visual hallucinations. (Id. at 346). Dr. Schmidt further opined a "learning disability is evident." (Id.). Dr. Schmidt reported Isham's thought content was characterized by preoccupation with external stressors and her son's death. (Id. at 347). Further, Dr. Schmidt found Isham's attention and concentration to be characterized by a below-average ability to attend and maintain focus. (Id.). Dr. Schmidt recommended Isham attend individual therapy and chemical dependency treatment. (Id.).
Between April 21, 2010, and September 12, 2011, Isham saw Schoenfeld for twenty-two individual therapy appointments at Fond du Lac Human Services.
On December 6, 2010, Schoenfeld completed a treatment update regarding Isham. (Id. at 501). Schoenfeld noted that Isham's diagnoses were alcohol dependency, cannabis dependency, recurrent major depressive disorder, anxiety disorder, and victim of physical abuse, and assigned Isham a GAF score of 50. (Id.). Isham continued to describe ongoing issues of low mood, feelings of worthlessness, recurrent thoughts of suicide, diminished ability to concentrate, and fatigue. (Id.). Additionally, Isham reported she continued to drink alcohol and smoke marijuana, even though she was participating in outpatient treatment. (Id.). Schoenfeld recommended Isham continue with individual therapy, continue with sobriety and treatment, utilize community supports such as mental health case management and other stabilization programs, and increase her sober support system. (Id. at 502).
Dr. Turner saw Isham on December 21, 2010, regarding the hearing loss in Isham's left ear, lower abdominal pain, and headaches. (Id. at 374). Isham reported she had been sober for two months and was attending outpatient treatment. (Id.). Isham was referred to audiology for her hearing loss. (Id. at 377).
On January 19, 2011, Schoenfeld completed a Social Security Medical Opinion form. (Id. at 513). In the report, Schoenfeld indicated Isham was diagnosed with major depressive disorder, substance dependency, and anxiety. (Id.). She indicated that Isham had mental illness, learning disability, and chemical dependency. (Id.). She opined that Isham would not be able to perform any employment in the foreseeable future and that it was unknown if Isham would still have a disabling condition if she stopped her addictive behavior. (Id.). Schoenfeld completed a second Social Security Medical Opinion form on April 15, 2011. (Id. at 514). Schoenfeld's opinion was the same, except that she opined that if Isham stopped her addictive behaviors, there would still be a disabling condition. (Id.). Schoenfeld completed a third Social Security Medical Opinion form on December 3, 2011. (Id. at 515). Her findings were the same as her April 15, 2011 opinion. (Id.); see also (id. at 514).
On March 9, 2011, Isham was seen by George L. Horvat, PhD, LP ("Dr. Horvat"), for a mental health status evaluation and testing. (Id. at 380). Dr. Horvat observed that Isham was restless, depressed, and tearful at times and displayed difficulty finding the words she wanted to use. (Id. at 381). Isham stated she was suicidal and had "extreme depression." (Id.). She also said her head and ankles were painful, rating the pain as a six. (Id.). Isham reported anxiety attacks and said she has to work hard not to hyperventilate. (Id.). She further explained she had heard voices since grade school that tell her not to do different things and that she sees vague faces. (Id.). Isham told Dr. Horvat she could not follow written instructions because she did not read, but if the instructions were given verbally in basic language, she is able to follow them. (Id. at 382). Upon examination, Dr. Horvat noted that Isham was distracted and her concentration was scattered. (Id.). Dr. Horvat opined that Isham's mood and affect were depressed and that she was preoccupied with thoughts of suicide. (Id. at 383). When Dr. Horvat asked Isham if she thought she was impaired, she replied, "Yes, my feet. I can't stand on them for long and I can't walk very far. I can't focus. I'm easily bored." (Id. at 384). Dr. Horvat diagnosed Isham with alcohol dependence, bereavement, PTSD, ADHD, bipolar II, and delusional disorder.
On June 30, 2011, Sue Solomon, LSW, LADC ("Solomon"), completed a Discharge Narrative for Isham. (Id. at 393). Isham was being discharged from outpatient treatment as she had been referred to residential treatment to help stabilize her potential use of alcohol and drugs and gain sobriety. (Id.).
Isham presented to Kirsten Kortesma, CNP ("Kortesma"), on August 1, 2011, for a physical. (Id. at 361). Isham told Kortesma she was in alcohol treatment and that it was going well. (Id.). Isham stated she had previously taken Effexor and Buspar for depression and anxiety, but that she had not taken any medications since 2009 and asked that she be put on an alternative medication. (Id.). Isham complained of ankle pain from falling out of a window ten years earlier. (Id.). She said the pain was getting worse, especially when she stood in one spot for too long. (Id.). She was prescribed Celexa.
On August 8, 2011, Isham was discharged from the Center for Alcohol & Drug Treatment after successfully completing the program. (Id. at 412).
Tina M. Posch, MA ("Posch"), saw Isham on September 14, 2011, for a hearing evaluation. (Id. at 450). The evaluation revealed no usable hearing in the left ear with very poor word recognition. (Id.). Posch opined that Isham would benefit from some type of amplification. (Id.).
On January 23, 2012, Isham presented to St. Mary's Medical Center's emergency room complaining of lumbar back and coccyx pain after slipping and falling on ice.
On March 14, 2012, Schoenfeld completed a Mental Functional Limitations form. (Id. at 552). She opined that Isham had little or no difficulty remembering locations and work-like procedures, but was frequently unable to understand and remember detailed instructions. (Id.). Additionally, Schoenfeld found Isham had occasional difficulty carrying out short and simple instructions; was frequently unable to carry out detailed instructions; was frequently unable to maintain attention and concentration for extended periods of time; was occasionally unable to perform activities within a schedule; was frequently unable to maintain regular attendance; was occasionally unable to sustain an ordinary routine without special supervision; was frequently unable to work in coordination with or proximity to others without being distracted by them, make simple work-related decisions, complete a normal workday and workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. (Id. at 552-53). Schoenfeld noted that Isham had a difficult time with concentration and with "frustrations tolerance." (Id. at 553).
Regarding social interaction and adaption, Schoenfeld found Isham was occasionally unable to interact appropriately with the general public and to ask simple questions or request assistance; had occasional difficulty accepting instructions and responding appropriately to criticism from supervisors, getting along with coworkers or peers without distracting them or exhibiting behavioral extremes, and maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness; was occasionally unable to respond appropriately to changes in the work setting; had occasional difficulty being aware of normal hazards and precautions, and traveling in unfamiliar places or using public transportation; and was occasionally or frequently unable to set realistic goals or make plans independently. (Id. at 554). Schoenfeld noted Isham "would likely have a difficult time with change and would have a very difficult time working with people who are difficult for her to be around." (Id.).
On March 27, 2012, Jeanne Nelson, MSW ("Ms. Nelson") completed a Mental Functional Limitations form.
Regarding sustained concentration and persistence, Ms. Nelson found Isham had occasional difficulty carrying out short and simple instructions; was frequently unable to carry out detailed instructions; was frequently unable to maintain attention and concentration for extended periods of time; was occasionally unable to perform activities within a schedule; was frequently unable to maintain regular attendance; was occasionally unable to be punctual within customary tolerance; was occasionally unable to sustain an ordinary routine without special supervision; was frequently unable to work in coordination with or proximity to others without being distracted by them, to make simple work-related decisions, complete a normal workday and workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. (Id. at 559). Ms. Nelson noted that Isham often demonstrated difficulty in maintaining concentration and focusing within longer periods of time, and occasionally demonstrated difficulty performing activities within a schedule. (Id.). She displayed frustration and was closed off from performing routine tasks and would have difficulty making work-related decisions because she is easily distracted by others and her psychologically based symptoms. (Id.).
Regarding social interaction and adaption, Ms. Nelson found that Isham was occasionally unable to interact appropriately with the general public; was frequently unable to ask simple questions or request assistance; had occasional difficulty accepting instructions and responding appropriately to criticism from supervisors, getting along with coworkers or peers without distracting them or exhibiting behavioral extremes, and maintaining socially appropriate behavior, and adhering to basic standards of neatness and cleanliness; was occasionally unable to respond appropriately to changes in the work setting and to be aware of normal hazards and precautions; had occasional difficulty traveling in unfamiliar places or using public transportation; and was frequently unable to set realistic goals or make plans independently of others. (Id. at 560). Ms. Nelson noted Isham would have difficulty setting realistic goals and making plans independently of others. (Id.).
On July 15, 2012, Isham arrived at St. Mary's Medical Center's emergency room via ambulance. (Id. at 566). Karen A. Lushine, MD ("Dr. Lushine"), reported Isham was found passed out on a sidewalk by a passerby who started CPR.
Dr. Stapleton saw Isham on December 19, 2012, for a physical. (Id. at 580). Isham complained of chronic pain in both ankles. (Id.). Upon examination, Isham's affect was normal, she was not agitated, and she did not have anhedonia or suicidal ideation. (Id. at 582). Dr. Stapleton recommended physical therapy for her ankle pain. (Id.).
On January 25, 2013, Dean C. Anderson, PT ("Anderson"), saw Isham for a rehabilitation evaluation. (Id. at 602). Isham presented with left shoulder and bilateral ankle pain. (Id.). Isham reported the ankle pain began ten years earlier after she fell from a window and had been worsening. (Id.). She said she felt limited in what she was able to do and rated the pain a seven out of ten. (Id.). Isham had difficulty putting weight on her feet and ankles in the morning and after being off her feet for a period of time. (Id.). She reported that the shoulder pain limited her ability to lift, reach overhead, and to sleep comfortably on her side. (Id.). Upon examination, Anderson found Isham had difficulty transferring from a sitting position to standing, but the transition was otherwise normal. (Id. at 603). Her gait activity was normal after some painreducing steps initially, and there was no noticeable swelling or tissue inflammation noted in her left shoulder or ankles. (Id.). Impingement testing and a supraspinatus test was positive and the isometric strength of Isham's ankles were 4+/5 and her left shoulder was 4-/5.
Isham presented to Anderson for physical therapy on January 28, 2013, and again on February 4, 2013. (Id. at 605-06). She was given bilateral ankle braces and was fitted with Powerstep orthotic inserts and a theraband for her shoulder.
On March 13, 2013, Anderson completed a discharge summary. (Id. at 606-07). He noted that Isham was seen for three visits, cancelled twice, and did not show for two appointments. (Id. at 607). As a result, treatment goals were not met and there was no significant improvement. (Id.).
On April 4, 2013, Dr. Neil Johnson, MD ("Dr. Johnson"), conducted a physical examination of Isham. (Id. at 615-29). After going through Isham's family and medical history, Dr. Johnson performed a physical and neurological examination and concluded that Isham's sensory functions are intact, her reflexes are symmetrical, and noted no disorientation. (Id. at 617). He concluded that Isham's breath sounds were clear, and he expected her to be able to walk more than her self-reported limitation of one-fourth of a block. (Id.). Isham's hearing in her left ear was damaged and hearing in her right ear was mildly damaged. (Id.). Dr. Johnson noted she can talk on the phone using her right ear but not her left ear, and she has trouble in a group setting. (Id.). Although a crossover microphone hearing aid was suggested, she was not using one at the visit. (Id.). Isham could "hear conversational speech at [six] feet without trouble." (Id.). Dr. Johnson found discomfort on motion of her ankles and "minimal crepitus of her knees." (Id. at 618).
Although Isham reported being able to stand less than one minute and walk only onefourth of a block, Dr. Johnson stated that "[p]hysical examination would suggest she should be able to do more than this." (Id.). Dr. Johnson found that Isham cannot sit for very long because she likely has ADHD. (Id.). Dr. Johnson also noted that Isham has a number of mental health issues, "which appear[] to be her biggest problem in terms of gainful employment." (Id.). Isham was pleasant, cooperative, and "maybe a little hyperactive[]" during the exam. (Id.).
On March 28, 2013, Dr. Marlin Trulsen, PhD, LP ("Dr. Trulsen"), examined Isham's mental status. (Id. at 608-14). Dr. Trulsen concluded:
(Id. at 612-13). Dr. Trulsen assigned Isham a GAF score of 55. (Id. at 612).
Due to Isham's physical and mental impairments, state agency consultants assessed Isham's physical residual functional capacity ("RFC") and mental RFC. See (id. at 96-101).
On June 17, 2011, Gerald Klyop, MD ("Dr. Klyop"), completed a physical RFC assessment. (Id. at 96-97). After reviewing Isham's medical file, Dr. Klyop opined that Isham could occasionally lift or carry fifty pounds, could frequently lift or carry twenty-five pounds, could stand or walk with normal breaks for about six hours in an eight-hour workday, could sit with normal breaks for about six hours in an eight-hour workday, and could push or pull an unlimited amount of weight. (Id.). Dr. Klyop opined that Isham had no postural, manipulative, visual, or communicative limitations. (Id. at 97). Dr. Klyop opined that Isham had environmental limitations, finding that she had asthma and should avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation, etc. (Id.).
At the reconsideration level on October 6, 2011, state agency consultant Gregory H. Salmi, MD ("Dr. Salmi"), reviewed the updated medical evidence record. (Id. at 458-60). Dr. Salmi affirmed Dr. Klyop's RFC, but noted that "the RFC should have environmental limitations to avoid concentrated exposure to loud noise." (Id. at 459).
On June 28, 2011, Maura Clark, PhD ("Dr. Clark"), reviewed the medical record and completed a mental RFC assessment. (Id. at 97-99). With respect to memory and understanding, Dr. Clark concluded Isham's ability to remember locations and work-like procedures and her ability to understand and remember very short and simple instructions were not significantly limited. (Id. at 98). Her ability to understand and remember detailed instructions was moderately limited. (Id.). Dr. Clark based her assessment on Isham's history of cognitive scores in the "BIF" range, and a work history of unskilled tasks.
With respect to concentration and persistence limitations, Dr. Clark found Isham was not significantly limited in her ability to carry out very short and simple instructions, to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, work in coordination with or in proximity to others without being distracted by them, make simple work-related decisions, complete a normal workday and workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. (Id.). Her ability to carry out detailed instructions and her ability to maintain attention and concentration for extended periods were moderately limited. (Id.). Dr. Clark's narrative stated that Isham's "[a]ttention and concentration are moderately impacted." (Id. at 98-99).
Dr. Clark also reported that Isham had social interaction limitations. (Id. at 99). Her ability to interact appropriately with the general public was limited moderately. (Id.). Isham's abilities to ask simple questions or request assistance; to accept instructions and respond appropriately to criticism from supervisors; to get along with coworkers or peers without distracting them or exhibiting behavioral extremes; to maintain socially appropriate behavior; and to adhere to basic standards of neatness and cleanliness were not limited significantly. (Id.). Dr. Clark explained these findings by stating,
(Id.).
Dr. Clark stated that Isham has no adaption limitations and opined that Isham was able to: understand, carry out, and remember simple instructions; make judgments commensurate with functions of unskilled work; respond appropriately to brief supervision and interactions with coworkers and work situations; and deal with changes in the work setting. (Id.).
At the reconsideration level on October 4, 2011, state agency consultant Mary X. Sullivan, PhD ("Dr. Sullivan"), reviewed the updated medical evidence record. (Id. at 454-56). Dr. Sullivan affirmed Dr. Clark's RFC. (Id. at 455).
Edward Utities ("Utities") testified as a vocational expert ("VE") before the ALJ at the hearing on January 11, 2013. See, e.g., (id. at 79). He holds a BS degree from Northland College and a MS degree in counseling from the University of Wisconsin. (Id. at 156). Utities identified Isham's past employment as a cleaner, which is listed as a heavy and unskilled occupation, but he classified the job as light as Isham performed it. (Id. at 79). He also identified her past work as a flooring laborer, which is listed as very heavy and unskilled work but was performed at medium by Isham. (Id. at 79). Utities testified that a person who did not have the mental capacity to understand, remember, and follow instructions would not be able to work. (Id. at 80). Isham's attorney asked Utities the following hypothetical question:
(Id. at 80-81). Utities responded no. (Id. at 81).
Mary Harris ("Harris") testified as a VE before the ALJ on May 1, 2013. See, e.g., (id. at 40). She holds a BS degree in psychology from St. Cloud State University and a MS degree in counseling, both from St. Cloud State University. (Id. at 193). Harris agreed with Utities that Isham's past employment as a cleaner is listed as a heavy and unskilled occupation. (Id. at 40). She disagreed with Utities's description of Isham's past employment as a floor installer; she stated that this position is listed as a medium and semi-skilled occupation with an SVP of 4, both as listed and as performed.
(Id. at 40-41). Harris answered that the hypothetical individual would be able to do the work of a cleaner, as performed. (Id. at 41).
In response to questioning from the ALJ, Harris testified that the cleaning materials used to do the cleaning job would be non-toxic. (Id. at 48).
The ALJ asked Harris the following hypothetical question:
(Id. at 49). Harris answered no, meaning that the hypothetical individual would be able to perform the job of a cleaner, as performed. (Id.).
Isham's attorney asked Harris if the hypothetical individual could work as a cleaner if the hypothetical individual could only tolerate exposure to humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme cold, extreme heat, and vibrations for up to one-third of the time. (Id. at 42). Harris answered that the hypothetical individual could not be a cleaner with these limitations. (Id.).
Isham's attorney asked Harris if the hypothetical individual could work as a cleaner if the hypothetical individual needed to work in a quiet environment, like a library. (Id. at 43). Harris answered that cleaners do not necessarily work with noisy machinery. (Id.). Harris testified that if Isham could only perform her flooring job with her boyfriend's supervision, that employment would be considered supportive, not competitive. (Id.).
Isham's attorney asked Harris the following question:
(Id. at 44). Harris answered that there would be no work available. (Id.).
Harris testified that if a person can stand or walk for four hours out of eight, occasionally balance and stoop, never be exposed to unprotected heights or moving mechanical parts or operate motor vehicles, carry eleven to twenty pounds occasionally, and lift twenty to fifty pounds occasionally, these restrictions would constitute a restricted range of work at the light exertional level. (Id. at 44-45). These restrictions are consistent with being a cleaner. (Id. at 45). Harris testified that a cleaner requires a reading ability of 2, which means "[r]ecognizing the meaning of 2,500 two or three-syllable words, reading at a rate of 95 to 120 . . . words per minute, print[ing] simple sentences, [and] mak[ing] simple sentences." (Id.). Harris testified that someone who is functionally illiterate would be able to perform that job, based on her experience placing non-English-speaking people in cleaning jobs. (Id. at 46). She acknowledged that her testimony differs from the DOT in this respect. (Id.).
Isham's attorney asked Harris if there would be competitive employment for someone who missed work more than two times per month because of their mental impairments. (Id. at 47). Harris responded that, if these specific attendance problems were consistent every month, there would be no competitive employment for such an individual. (Id.).
Isham's attorney then asked Harris if an individual could work any of Isham's previous jobs if this individual needed more breaks than the usual fifteen-minute break in the morning, fifteen-minute break in the afternoon, and thirty- to sixty-minute break for lunch. (Id.). Harris responded that the individual could do the cleaning job, as performed, because of the casual atmosphere, variable hours and responsibilities, allowed breaks, and being on and off feet as needed. (Id.).
On May 17, 2013, the ALJ issued a decision finding Isham was not disabled. (Id. at 22-23). The ALJ reached his conclusion after evaluating this case based on the five-step process. See 20 C.F.R. § 416.920(a); see also (Admin. R. at 10-12). The ALJ considered: (1) whether Isham was engaged in substantial gainful activity; (2) whether Isham had a severe medically determinable impairment or a severe combination of impairments; (3) whether Isham's impairment or combination of impairments meets the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"); (4) whether Isham could perform the requirements of her past work; and (5) whether Isham could do any other work in light of her residual functional capacity, age, education, and work experience. See 20 C.F.R. § 416.920(a)-(g); (Admin. R. at 10-12).
At the first step, the ALJ found that Isham had not engaged in any substantial gainful activity since the AOD. (Admin. R. at 12). The ALJ found that Isham had no recorded earnings since 2006. (Id.).
At the second step, the ALJ found that Isham had the following severe impairments: "severe pulmonary impairment, history of ankle injuries, left-sided sensorineural hearing loss, affective and learning-related disorders, and history of drug and alcohol abuse." (Id.).
At the third step, the ALJ determined Isham did not have an impairment or combination of impairments that met or medically equaled one of the Listings. (Id.). The ALJ found that Isham's ankle injuries did not meet or medically equal Listing 1.02, and her hearing impairments did not meet or medically equal Listing 2.10. (Id. at 12-13). The ALJ similarly found that Isham's pulmonary impairment did not meet or medically equal Listing 3.02. (Id. at 13).
The ALJ considered Isham's mental impairments, singly and in combination, but found that these impairments did not meet or medically equal the required criteria in Listings 12.02, 12.03, 12.04, 12.06, and 12.09.
Because the ALJ did not find Isham's mental impairments caused at least two marked limitations or a marked limitation and repeated episodes of decompensation of extended durations, he found that the "paragraph B" criteria were not satisfied. (Id.). The ALJ then considered whether "paragraph C" criteria were satisfied.
(Id. at 14). To make the RFC determination, the ALJ considered objective medical and opinion evidence, as well as Isham's symptoms that could reasonably be accepted as consistent with such evidence. (Id.).
The ALJ applied the requisite two-step test for considering Isham's symptoms. (Id.). First, the ALJ must determine "whether there is an underlying medically determinable physical or mental impairment(s) . . . that could be expected to produce [Isham's] pain or other symptoms." (Id.). Second, the ALJ must "evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit [Isham's] functioning." (Id.). When "statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence," the ALJ must determine the credibility of the statements based on the entire record. (Id.).
Following the above process, the ALJ found that Isham's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but her "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." (Id.). The ALJ noted that Isham testified about her mental health problems as a child and her several suicide attempts. (Id. at 15). The ALJ also noted that Isham testified that she feels sad every day; she has problems sleeping; her ankles cause her problems, and she can only be on her feet for five to ten minutes at a time; and she has problems concentrating, reading, and following instructions. (Id.).
The ALJ highlighted the following objective physical medical evidence to support his determination. Isham's ankle pain improved with the use of braces, and she had an aboveaverage activity level with regular exercise. (Id. at 16). In October 2010, Isham was sober, and she reported her overall health was good. (Id.). A few months later, she reported headaches and shortness of breath and wheezing, but had a normal examination with normal respiratory effort and intact balance and gait. (Id.). She received medicine for her asthma. (Id.). In August 2011, Isham had a "normal physical evaluation with [a] normal respiratory system, full range of motion (ROM) and no deformity or swelling of her feet, and normal extremities." (Id.). In January 2012, after complaining of lower back pain, Isham had some "tenderness and decreased ROM in her back, but she had an otherwise normal physical examination with intact lower extremity mobility, strength, and sensation." (Id.). In July 2012, Isham had unremarkable computed tomography scans ("CT") of her head and cervical spine.
The ALJ noted that Isham had a history of hearing loss. (Id.). Specifically, in 2007, Isham had sensorineural hearing loss on the left side. (Id.). In September 2011, Isham had "bilateral hearing loss with nerve-type damage on the left side and mild nerve-type damage on the right side" that a hearing aid may help. (Id.). Isham may have difficulty in noisy environments or with soft voices. (Id.).
The ALJ stated that Isham underwent a psychological consultative examination in April 2013. (Id. at 17). The examiner found that Isham "had average gait with no difficulties negotiating stairs, sitting, walking, or standing; she had average ability to hear and produce normal conversation and sustain speech." (Id.).
The ALJ considered Isham's physical consultative examination with Dr. Johnson from April 2013. "Dr. Johnson noted that [Isham] had no problems communicating with him from six to eight feet away." (Id.). Dr. Johnson found that Isham was cooperative and walked normally, but she had moderate difficulty with tandem walking and squatting. (Id.). He determined Isham "should be able to walk more than [one-fourth] of a block." (Id.). Dr. Johnson reported that Isham could lift fifty pounds occasionally and twenty pounds frequently; she could carry twenty pounds occasionally and ten pounds continuously. (Id.). Dr. Johnson opined that Isham could sit for eight hours, stand for four hours, and walk for four hours in an eight-hour workday. (Id.). He opined that Isham could "occasionally perform postural adjustments and should avoid unprotected heights, moving mechanical parts, and operation of a motor vehicle." (Id.). Dr. Johnson opined that Isham should "only have occasional exposure to humidity, irritants, vibration, or extreme temperatures"; she needs to work in a quiet environment, but she could "perform all identified activities of daily living." (Id.).
The ALJ gave "weight" to Dr. Johnson's opinions because they are consistent with the record. (Id.). However, the limitations related to only occasional exposure to humidity, wetness, dust, odors, fumes, pulmonary irritants, extreme temperatures, and vibrations were given "little weight" because the record showed Isham's breathing difficulties are minor. (Id.). Based on the record, the ALJ stated that Isham is "more appropriately restricted from using [toxic] cleaners . . ., cause difficulty breathing, or require someone to wear a mask, and [she] should not work in an environment with concentrated exposure to irritants or gasses." (Id.).
The ALJ highlighted the following objective mental medical evidence to support his determination. First, the ALJ described Isham's history and treatment of alcohol abuse and noted that she functioned well when she was sober. See (id. at 18).
In March 2011, Isham had a mental health evaluation with Dr. Horvat. (Id. at 19). Isham underwent cognitive testing and received a full-scale IQ score of 72, which is in the borderline range of intellectual functioning. (Id.). Dr. Horvat diagnosed Isham with "alcohol dependence; bereavement; PTSD; ADHD; bipolar disorder; and delusional disorder." (Id.). He opined that Isham was "not capable of handling funds, but she could do routine, repetitive, labor-intensive work" and "can tolerate routine stresses and brief and superficial interaction with others." (Id.). He opined that Isham's ADHD likely interferes with her attention and concentration and that she was unable to understand, remember, and follow instructions. (Id.).
The ALJ gave "weight" to Dr. Horvat's opinions because his opinions are consistent with the record. (Id.). The ALJ gave "little weight" to Dr. Horvat's opinion that Isham cannot understand, remember, and follow instructions because the record shows that Isham functions well when sober and had normal mental status examinations. (Id.).
At the April 2013 mental consultative examination, Dr. Trulsen reported Isham's "memory was adequate, and her intellectual functioning was estimated to be in the borderline range." (Id.). Dr. Trulsen diagnosed Isham with "panic disorder; anxiety disorder, NOS; dysthymic disorder; personality disorder, NOS; bereavement, provisional; and alcohol dependence, in sustained partial remission." (Id.). Dr. Trulsen noted that Isham had "no general impairment in understanding, remembering, and carrying out instructions and sustaining attention and concentration." (Id.). He opined that Isham had "moderate impairment with mental capacity for work activities, but she was capable of completing the requirements for independent living as needed." (Id.). The ALJ gave "significant weight" to Dr. Trulsen's opinions because his opinions are consistent with the record. (Id.).
The ALJ considered the statement from Ms. Nelson, who reported that Isham struggles with chemical dependency and she struggles with memory recall even during sobriety. (Id.). Ms. Nelson opined that Isham was "unable to maintain concentration, persistence, or pace or complete a normal workday or workweek." (Id.). She noted that Isham had "difficulty with concentration, remembering instructions, and performing activities within a schedule." (Id.). She stated that Isham could follow "work-like procedures with expectations clearly defined on a regular and routine basis." (Id.).
From April 2010, to September 2011, Isham received treatment from Schoenfeld. (Id. at 18). She stated that Isham's mental health problems were prominent even during sobriety. (Id. at 20). Schoenfeld noted that Isham had "extreme limitations in concentration, persistence, and pace." (Id.). She diagnosed Isham with major depressive disorder; anxiety; and substance dependence, and believed Isham to be disabled. (Id.). She reported that Isham had no "limitation performing activities of daily living, mild difficulties maintaining social functioning, and extreme limitation with concentration, persistence, or pace." (Id.).
The ALJ gave "little weight" to Ms. Nelson and Schoenfeld's opinions because their opinions were influenced by "self-report[s] of an unreliable historian and [were] not supported by standardized psychological testing." (Id.). The ALJ noted that Isham had no history of inpatient mental health treatment, and Ms. Nelson's and Schoenfeld's opinions are contradicted by the opinions of the state agency psychological consultants, who are acceptable medical sources. (Id.).
The ALJ found that Isham's "activities of daily living, social functioning, and concentration, persistence, and pace are . . . not as limited as she alleges." (Id.).
With respect to activities of daily living, Isham showed an ability to independently initiate and sustain many activities, such as household chores, preparing her own meals, performing her own personal care, cleaning, doing dishes, cooking, doing laundry in the bathtub, rake, shovel, and completing lawn care. (Id.). The ALJ determined she only has "moderate limitations in activities of daily living." (Id.).
With respect to social functioning, the ALJ found Isham can interact with others as necessary and has an adequate social life. (Id.). Isham shops when fewer people are present, but prefers to shop with someone to reduce her anxiety. (Id.). Isham's doctors describe her as cooperative, pleasant, and able to interact and answer questions without great difficulty. (Id.). Because she showed her mental impairments limit some social interactions, the ALJ determined she has "moderate limitations in social functioning." (Id.).
With respect to concentration, persistence, and pace, the ALJ found there is evidence Isham participates in activity that is suggestive of good concentration and persistence, such as saying the alphabet, telling time, counting to 100, and completing financial transactions when necessary. (Id.). The ALJ noted Isham's difficulty handling stress due to her anxiety, and determined she has moderate limitations in concentration, persistence, and pace. (Id. at 21).
The ALJ noted that the state agency psychological consultants supported his findings with respect to activities of daily living; social functioning; and concentration, persistence, and pace, which, in turn, were consistent with the record. (Id.). The ALJ concluded that Isham
(Id.).
At step four, the ALJ determined, based on Isham's RFC, that she was capable of performing her past relevant work as a cleaner. (Id.). The ALJ noted that Isham's past jobs did not exceed the exertional level of her RFC because all of Isham's past work was performed at the light level and none exceeded the RFC's limitations. (Id.). The ALJ relied on Harris's testimony to determine Isham could perform past work as actually and generally performed.
At step five, the ALJ concluded that there are other jobs existing in the national economy that Isham is able to perform considering her age, education, work experience, and RFC, relying on Harris's testimony. (Id. at 21-22). Therefore, the ALJ found that Isham was not disabled under 20 C.F.R. § 416.920(f). (Id. at 22-23).
The standards governing the award of Social Security benefits are congressionally mandated: "The Social Security program provides benefits to people who are aged, blind, or who suffer from physical or mental disability." Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992). "Disability" under the Social Security Act 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 [twelve] months." 42 U.S.C. § 423(d)(1)(A). A claimant's impairments must be "of such severity that 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 work which exists in the national economy. . . ." Id. § 423(d)(2)(A).
If a claimant's initial application for benefits is denied, he may request reconsideration of the decision. 20 C.F.R. § 416.1409(a). A claimant who is dissatisfied with the reconsidered decision may seek an ALJ's administrative review. 20 C.F.R. § 416.1429. If the claimant is dissatisfied with the ALJ's decision, then an Appeals Council review may be sought, although that review is not automatic. Id. § 416.1467. If the request for review is denied, then the Appeals Council or ALJ's decision is final and binding upon the claimant, unless the matter is appealed to a federal district court within sixty days after notice of the Appeals Council's action. 42 U.S.C. § 405(g); 20 C.F.R. § 416.1481.
If "substantial evidence" supports the findings of the Commissioner, then these findings are conclusive. 42 U.S.C. § 405(g). The Court's review of the Commissioner's final decision is deferential because the decision is reviewed "only to ensure that it is supported by `substantial evidence in the record as a whole.'" Hensley v. Barnhart, 352 F.3d 353, 355 (8th Cir. 2003) (quoting Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002)). A court's task is limited to reviewing "the record for legal error and to ensure that the factual findings are supported by substantial evidence." Id.
The "substantial evidence in the record as a whole" standard does not require a preponderance of the evidence but rather only "enough so that a reasonable mind could find it adequate to support the decision." Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). Yet this Court must "consider evidence that detracts from the Commissioner's decision as well as evidence that supports it." Burnside v. Apfel, 223 F.3d 840, 843 (8th Cir. 2000). Thus a "notable difference exists between `substantial evidence' and `substantial evidence on the record as a whole.'" Wilson v. Sullivan, 886 F.2d 172, 175 (8th Cir. 1989) (internal citation omitted).
Id. (citation and internal quotation marks omitted).
In reviewing the ALJ's decision, the Court analyzes the following factors: (1) the ALJ's findings regarding credibility; (2) the claimant's education, background, work history, and age;
(3) the medical evidence provided by the claimant's treating and consulting physicians; (4) the claimant's subjective complaints of pain and description of physical activity and impairment; (5) third parties' corroboration of the claimant's physical impairment; and (6) the VE's testimony based on proper hypothetical questions that fairly set forth the claimant's impairments. Brand v. Sec'y of the Dep't of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980). Proof of disability is the claimant's burden. 20 C.F.R. § 416.912(a). Thus, "[t]he burden of persuasion to prove disability and to demonstrate RFC remains on the claimant, even when the burden of production shifts to the Commissioner at step five." Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
Reversal is not appropriate "merely because the evidence is capable of supporting the opposite conclusion." Hensley, 352 F.3d at 355. If substantial evidence on the record as a whole permits one to draw two inconsistent positions and one of those represents the Commissioner's findings, then the Commissioner's decision should be affirmed. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). The Court's task "is not to reweigh the evidence, and [the Court] may not reverse the Commissioner's decision merely because substantial evidence would have supported an opposite conclusion or merely because [the Court] would have decided the case differently." Harwood v. Apfel, 186 F.3d 1039, 1042 (8th Cir. 1999).
Isham makes the following arguments: (1) the ALJ failed to evaluate Schoenfeld's and Ms. Nelson opinions according to the law and failed to explain the weight given to their opinions; (2) the ALJ failed to find borderline intellectual functioning was a severe impairment; (3) the ALJ's conclusion that Isham does not meet Listing 12.05C, addressing intellectual disability, is not supported by substantial evidence in the record as whole;
Isham argues the ALJ did not evaluate Schoenfeld's and Ms. Nelson's (collectively, the "Social Workers") opinions as required by the SSA. (Id.). Specifically, Isham argues the ALJ should have given their opinions more weight and their opinions do not contradict the nonexamining state agency consultants' opinions. (Id. at 31). Isham also argues their opinions are consistent with disability, specifically relying on Isham's GAF scores, history of suicide attempts, and Dr. Horvat's finding that Isham could not understand, remember, and follow directions. (Id. at 31-32). The Commissioner argues the length of the Social Workers' treating relationships with Isham do not "rehabilitate otherwise unsupported opinions from `other' sources," and Isham has not made a compelling argument that the state agency consultants' review of the Social Workers' opinions would have changed their mind. (Comm'r's Mem. in Supp. of Mot. for Summary J., "Comm'r's Mem. in Supp.") [Doc. No. 29 at 13]. Finally, the Commissioner argues that Isham's GAF scores and suicide attempts do not support a finding of disability, and the ALJ properly discredited Dr. Horvat's finding regarding Isham's concentration, persistence, and pace. (Id. at 14-15).
According the SSA, the Social Workers are not "acceptable medical sources." See 20 C.F.R. § 416.913(a) (listing types of acceptable medical sources); Titles II and XVI: Considering Opinions & Other Evidence From Sources Who Are Not "Acceptable Medical Sources" in Disability Claims; Considering Decisions on Disability by Other Governmental and Nongovernmental Agencies, SSR 06-3p, 71 Fed. Reg. 45593-03, 45594 (Aug. 9, 2006) (listing licensed clinical social workers as a medical source within the broader category of "other sources," i.e., not acceptable medical sources). Nonetheless, the SSA considers all the evidence in the record, including opinions of medical sources who are not "acceptable medical sources." SSR 06-3p, 71 Fed. Reg. at 45595. The SSA determined that an ALJ should consider the same factors when evaluating both "acceptable medical sources" and medical sources who are not "acceptable medical sources." Id. These factors include:
Id. The record "should reflect the consideration of opinions from medical sources who are not `acceptable medical sources.'" Id. at 45596. Additionally, "the adjudicator generally should explain the weight given to opinions from these `other sources[.]'" Id. Not all factors apply in each case, and "[t]he evaluation of an opinion from a medical source who is not an `acceptable medical source' depends on the particular facts of the case." Id. at 45595-96.
Here, the ALJ did not explain his decision to give the Social Workers' opinions little weight by explaining each factor identified in SSR 06-3p. See (Admin. R. at 19-20). Instead, the ALJ explained that he gave the Social Workers' opinions little weight for the same reasons: "they were apparently influenced by self-report[s] of an unreliable historian and are not supported by standardized psychological testing. Additionally, [Isham] has no history of inpatient mental health treatment and these opinions are contradicted by the opinions of the state agency psychological consultants, acceptable medical sources." (Id.) (discussing Ms. Nelson's opinion that Isham is "unable to maintain concentration, persistence, or pace or complete a normal workday or workweek" and "had difficulty with concentration, remembering instructions, and performing activities within a schedule."); see also (Admin. R. at 20) (discussing Schoenfeld's opinion that Isham has "extreme limitations in concentration, persistence, and pace"). Where, as here, the ALJ did not explicitly discuss all factors, this Court's task is to determine whether "the ALJ's explanation provides sufficient justification for his decision to give little weight" to Schoenfeld's and Ms. Nelson's opinions. See Dew v. Comm'r of Soc. Sec., Civil No. 09-1986 (JMR/JJK), 2010 WL 3033779, at *19 (D. Minn. July 9, 2010), report and recommendation adopted by 2010 WL 3033772 (July 26, 2010).
The ALJ's analysis takes into consideration some of the factors articulated by the SSA. See SSR 06-3p, 71 Fed. Reg. at 45595. First, the ALJ noted whether the Social Workers' opinions are consistent with other evidence, namely the state agency psychological consultants' opinions. (Admin. R. at 19-20). Second, the ALJ considered "[t]he degree to which [the Social Workers] present[ed] relevant evidence to support [their] opinion[s,]" i.e., the Social Workers relied on Isham's self-reports. (Id.); SSR 06-3p, 71 Fed. Reg. at 45595. Elsewhere in his decision, the ALJ described Isham's "statements concerning the intensity, persistence and limiting effect of [her] symptoms" as "not entirely credible." (Admin. R. at 14). Isham does not dispute the ALJ's credibility determination with respect to her own statements. See generally (Isham's Mem. in Supp.). Third and finally, the ALJ considered "other factors that tend[ed] to. . . refute the opinion," namely, that Isham had "no history of inpatient mental health treatment." SSR 06-3p, 71 Fed. Reg. at 45595; (Admin. R. at 19-20).
Isham argues the Social Workers' opinions are entitled to "more weight than the opinions of an `acceptable medical source'" under SSR 06-3p because they were treating mental health professionals. (Isham's Mem. in Supp. at 31). While an ALJ may certainly consider this treating relationship as a factor in evaluating opinions, the ALJ was not
Isham argues Schoenfeld's and Ms. Nelson's opinions could not "`contradict'" the state agency consultant's opinion because the state agency consultant had not reviewed "treating source evidence." (Isham's Mem. in Supp. at 31). In support, Isham cites SSR 96-6p for the following statement: "`the opinions of State agency . . . (medical consultants) can be given weight only insofar as they are supported by evidence in the case record . . .
Finally, Isham argues Schoenfeld's and Ms. Nelson's opinions are consistent with the record. (Isham's Mem. in Supp. at 31). Isham specifically refers to her GAF scores in the range of 30 to 50, her history of suicide attempts, and Dr. Horvat's finding, as an acceptable medical source, that Isham "did not have the mental capacity to understand, remember[,] and follow instructions." (Id. at 31-32) (citing Admin. R. at 386). Isham's argument ignores the fact that the ALJ's evaluation specifically relied on the Social Workers' findings about Isham's functionality, and contrasted it with one specific inconsistency: the state agency psychological consultants' opinions. See (Admin. R. at 19-20). Where the state agency psychological consultant found only moderate limitations in functional areas, Schoenfeld and Ms. Nelson found extreme limitations in concentration, persistence, and pace. See (id. at 98-99, 552-53, 558-59).
Specifically, Dr. Clark, the state agency consultant who provided a mental RFC assessment, found moderate limitations in the categories of ability to understand and remember detailed instructions; ability to carry out detailed instructions; ability to maintain attention and concentration for extended periods; and ability to interact appropriately with the public. (Id. at 98-99). She found no significant limitations in the other categories. See (id. at 98-99). In contrast, Schoenfeld found Isham was frequently unable to do the following: understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods of time; maintain regular attendance; work in coordination with or proximity to others without being distracted by them; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms; and perform at a consistent pace without an unreasonable number and length of rest periods. See (id. at 552-53). Ms. Nelson found Isham was frequently unable to do the following: understand and remember detailed instructions; carry out detailed instructions; maintain regular attendance; work in coordination with or proximity to others without being distracted by them; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; ask simple questions or request assistance; and set realistic goals or make plans independently of others. See (id. at 558-60). Therefore, the ALJ's determination that Schoenfeld's and Ms. Nelson's opinions contradict the state agency consultant's opinions with respect to the above areas of functioning is supported by the record.
The Court finds that the ALJ gave sufficient explanation as required by SSR 06-3p. See 71 Fed. Reg. at 45596; Dew, 2010 WL 3033779, at *19. Therefore, the ALJ did not err in giving Schoenfeld's and Ms. Nelson's opinions little weight.
Isham argues that the ALJ failed to include her borderline intellectual functioning as a severe impairment, and that the ALJ's decision cannot be affirmed because "[t]he hypothetical to the vocational expert failed to describe the concrete consequences of [Isham's] borderline intellectual functioning[.]" (Isham's Mem. in Supp. at 29-30). In her reply, Isham points to several places in the record where she was diagnosed with borderline intellectual functioning. (Pl.'s Reply to Def.'s Mem. in Supp. of Mot. for Summary J., "Isham's Reply") [Doc. No. 30 at 2-3]. The Commissioner argues the ALJ implicitly rejected Isham's IQ score based on her activities of daily living and by finding she had a learning-related disorder, and this decision was supported by the record. (Comm'r's Mem. in Supp. at 5-6). The Commissioner also argues the RFC and questions to the VE are supported by substantial evidence because the ALJ explicitly considered Isham's functional illiteracy and incorporated it in making his determination that Isham was capable of her past relevant work and work in the national economy. (Id. at 6-7).
"A diagnosis of borderline intellectual functioning should be considered severe when the diagnosis is supported by sufficient medical evidence." Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007). When this diagnosis is supported by the record, a claimant is entitled to have a vocational expert consider borderline intellectual functioning with her other impairments to determine how it affects her RFC. Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997); Pickney v. Chater, 96 F.3d 294, 297 (8th Cir. 1996).
The record reflects medical evidence that Isham was diagnosed with borderline intellectual functioning. See (Admin. R. at 384, 611). First, in March 2011, Dr. Horvat found Isham had a full-scale IQ score of 72. (Id. at 384). The ALJ found this score means she had borderline intellectual functioning. (Id. at 19); see also DSM-IV 684 (stating that "borderline intellectual functioning" is "an IQ in the 71-84 range."). The ALJ found Dr. Horvat's opinions were "given weight," except with respect to his opinion about Isham's ability to understand, remember, and follow instructions. (Admin. R. at 19). Second, in April 2013, Isham had a consultative exam with Dr. Trulsen, who estimated Isham's IQ to be in "the borderline range," based on his review of historical documents and Isham's general use of language skills. (Id. at 611). The ALJ found Dr. Trulsen's opinions consistent with the record and assigned them "significant weight." (Id. at 19). In other words, the ALJ did not discredit any of the sources that diagnosed Isham with borderline intellectual functioning. Cf. (Comm'r's Mem. in Supp. at 6) ("[T]he ALJ implicitly rejected the IQ scores when he found Plaintiff had a learning-related disorder, but not borderline intelligence."). Thus, the record reflects diagnoses of borderline intellectual functioning. Under Eighth Circuit law, borderline intellectual functioning should have been considered a severe impairment, and a vocational expert should have considered Isham's borderline intellectual functioning, along with Isham's other impairments, in making a determination about Isham's ability to perform past relevant work or work in the national economy. See Nicola, 480 F.3d at 887; Lucy, 113 F.3d at 909; Pickney, 96 F.3d at 297.
As discussed in further detail below, the Court recommends remanding this case for consideration of Listing 12.05C, which should have occurred at step three of the ALJ's analysis. Whether or to what extent the ALJ erred in his RFC determination or hypothetical to the VE is an analysis that occurs during the Court's review of later steps in the process. See 20 C.F.R. § 416.920(e); see, e.g., Johnson v. Comm'r of Soc. Sec., Civil No. 11-cv-1268 (JRT/SER), 2012 WL 4328413, at *21 (D. Minn. July 11, 2012) (citing Bondurant v. Astrue, No. 09cv328 (ADM/AJB), 2010 WL 889932, at *2 (D. Minn. Mar. 8. 2010)) report and recommendation adopted by 2012 WL 4328389 (Sept. 20, 2012) ("[T]he failure to find additional impairments at Step Two does not constitute reversible error when an ALJ considers all of a claimant's impairments in the remaining steps of a disability determination."). Because a person who meets a Listing is disabled and no further analysis is necessary, any analysis of these issues may become moot if, on remand, the ALJ finds Isham meets Listing 12.05C. 20 C.F.R. § 416.920(a)(iii). For this reason, the Court does not determine whether the ALJ's error was harmless.
Isham argues the ALJ erred in his determination that her impairments do not meet or equal Listing 12.05C. (Isham's Mem. in Supp. at 32-34). Specifically, Isham argues her adaptive functioning was impaired before age 22 and the ALJ found that she had other impairments that impose significant work-related limitations. (Id. at 33). Additionally, she argues the ALJ should have considered the SSA's Program Operations Manual System ("POMS") instruction on medical equivalence for Listing 12.05C. (Id. at 33-34). The Commissioner contends Isham does not develop her argument regarding 12.05C's requirement that she suffer limitations as a result her additional impairments, the POMS section specifies that "a medical equivalence determination would very rarely be required," the ALJ implicitly rejected Isham's IQ score of 72, and her evidence does not support the deficient level of adaptive functioning required by Listing 12.05C. (Comm'r's Mem. in Supp. at 9-12).
The administrative hearing is not an adversarial proceeding. Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994). A plaintiff has the burden of proof to establish that he or she meets or equals a listed impairment. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004) (citing Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990)). The ALJ has a duty to fully develop the record and that duty is independent of the claimant's burden to press his case. Scott ex rel. Scott v. Astrue, 529 F.3d 818, 824 (8th Cir. 2008) (quoting Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)).
At the time of the ALJ's decision, Listing 12.05C stated:
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C (2012). The Eighth Circuit held the introductory language is mandatory, and therefore, the impairment must have begun before the age of 22. Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006). In other words, the following four elements are required: "(1) deficits in adaptive functioning; (2) evidence of initial manifestation before age 22; (3) a valid verbal, performance or full-scale IQ score between 60 and 70; and (4) `a physical or other mental impairment imposing an additional and significant work-related limitation of function.'" Contreras v. Astrue, Civil No. 08-1196 (DWF/JJK), 2009 WL 5252828, at *6 (D. Minn. Aug. 26, 2009) (quoting 20 C.F.R. Pt. 404, Subpt. P, App.1, § 12.05C). With respect to the connection between intellectual disability and the ability to work, "the issue is not whether the claimant can perform gainful activity; rather, it is whether he has an . . . impairment, other than his conceded mental impairment, which provides significant work-related limited function." Maresh, 438 F.3d at 901 (omission in original) (internal quotation marks omitted). "An impairment imposes significant limitations when its effect on a claimant's ability to perform basic work is more than slight or minimal." Cook v. Bowen, 797 F.3d 687, 690 (8th Cir. 1986). An impairment that is severe under step two meets the "significant limitations" standard in Listing 12.05C. Id. at 690-91; see also Monroe v. Astrue, 848 F.Supp.2d 961, 980-84 (D. Minn. 2011) (MJD/JSM) (thoroughly analyzing the Eighth Circuit's history of interpreting the "significant limitations" portion of Listing 12.05C and concluding that "an impairment will be deemed to impose an additional and significant work-related limitation of function if the impairment is `severe' as defined by [20 C.F.R.] § 416.920(c).").
An impairment is medically equivalent to a Listing when "it is at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 416.926(a). The POMS provides specific instructions with respect to the medical equivalence of Listing 12.05C:
POMS DI § 24515.056, at D1, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424515056 (last visited Jan. 28, 2015). The Eighth Circuit has instructed ALJs to consider POMS. Shontos v. Barnhart, 328 F.3d 418, 424 (8th Cir. 2003) (citing Berger v. Apfel, 200 F.3d 1157, 1161 (8th Cir. 2000); List v. Apfel, 169 F.3d 1148, 1150 (8th Cir. 1999)).
Isham did not specifically claim intellectual disability as a disabling illness, injury, or condition.
This Court's task is to determine whether substantial evidence supports the ALJ's decision, and "an ALJ's failure to adequately explain his factual findings is not a sufficient reason for setting aside an administrative finding where the record supports the overall determination." Scott, 529 F.3d at 822 (internal quotation marks omitted); see also 42 U.S.C. § 405(g). Reversal is not appropriate "merely because the evidence is capable of supporting the opposite conclusion." Hensley, 352 F.3d at 355. But here, the ALJ did not consider Listing 12.05C, and therefore, the ALJ's findings are insufficient to allow the Court to conclude that substantial evidence supports the ALJ's decision. See Chunn v. Barnhart, 397 F.3d 667, 672 (8th Cir. 2005) ("The ALJ failed to support his finding on step three that Chunn's impairments did not equal a listed impairment, and it is not clear from his decision that he even considered whether Chunn met the requirements for listing 12.05C. For these reasons, the case must be remanded for further consideration and findings. . . .").
The medical evidence suggests at least circumstantial evidence that Isham's impairments might meet or be medically equivalent to Listing 12.05C. See A.R.M. ex rel. Morlock v. Astrue, Civil No. 12-cv-322 (DWF/SER), 2013 WL 785627, at *16 (D. Minn. Jan. 10, 2013) (remanding for further consideration when there was "circumstantial medical evidence" that the claimant met Listing 12.05C and the ALJ's decision did not "mention Listing 12.05, nor . . . otherwise indicate that [the ALJ] considered the listing to be relevant to [the claimant's] disability claim), report and recommendation adopted by 2013 WL 785756 (Mar. 1, 2013).
The record reflects that Isham has deficits in adaptive functioning as required by Listing 12.05C. The ALJ found that Isham has moderate limitations in the "paragraph B" areas of activities of daily living; social functioning; and concentration, persistence, and pace. (Admin. R. at 20-21). While this finding is not dispositive of Isham's deficits in adaptive functioning, "paragraph B" criteria are important considerations in whether Isham meets the requirement of Listing 12.05C. See Contreras, 2009 WL 5252828, at *6-7 (citing Durden v. Astrue, 586 F.Supp.2d 828, 832 (S.D. Tex. 2008)).
The evidence demonstrates that Isham went to school through 11th grade. (Admin. R. at 69, 251). She was in special education and attended a special school where she could work at her own pace. (Id. at 77). Even with these accommodations, she did poorly in school. (Id. at 76). These facts demonstrate the possibility that Isham's "deficits in adaptive functioning" manifested before age 22, which is a required element of Listing 12.05C. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C; Maresh, 438 F.3d at 899 (stating that one of the requirements to meet Listing 12.05C is "onset of the impairment before age 22[.]"); Springer v. Colvin, Civil No. 12-3115 (MJD/JSM), 2014 WL 702138, at *14 (D. Minn. Feb. 24, 2014) (finding the claimant's deficits in adaptive functioning were present before age 22 when claimant was "enroll[ed] in special education from first grade through high school, and notes in her school records establish[] she was very slow in all response modalities").
Isham's full-scale IQ score is 72, and, as discussed above, the ALJ did not discredit this score. (Admin R. at 19, 384). This IQ score does not satisfy Listing 12.05C on its face because that Listing requires an IQ score of 60 through 70. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C. But it does suggest the possibility that Isham's impairment is medically equivalent to Listing 12.05C under the POMS. POMS DI § 24515.056, at D1. While medical equivalence should be "very rarely" required, the POMS states that an IQ between 70 and 75, along with "the presence of other physical or mental disorders that impose additional and significant workrelated limitation of function may support an equivalence determination." Id.
Listing 12.05C requires, inter alia, "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function[.]" 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C. An impairment that is severe under step two meets the "significant limitations" standard in Listing 12.05C. Cook, 797 F.3d at 690-91. The ALJ found Isham has the following severe impairments: "severe pulmonary impairment; history of ankle injuries; left-sided sensorineural hearing loss; affective and learning-related disorders; and history of drug and alcohol abuse . . . ." (Admin. R. at 12) (citing 20 C.F.R. § 416.920(c)). The ALJ stated that these impairments are severe "because they cause more than minimal limitation in the claimant's ability to perform basic work activities." (Id.). Arguably, the ALJ's determination that Isham has "affective and learningrelated disorders" may overlap with the potential intellectual disability. See (id.). But even if the severe mental impairments are excluded, the ALJ's determination shows that Isham has "other physical . . . disorders that impose additional and significant work-related limitation of function," namely, "severe pulmonary impairment; history of ankle injuries; left-sided sensorineural hearing loss; . . . and history of drug and alcohol abuse . . . ." POMS DI § 24515.056, at D1; (Admin. R. at 12) (internal citation omitted); see also Lott v. Colvin`, 772 F.3d 546, 550 (8th Cir. 2014) (finding the claimant satisfied the "additional severe impairments" requirement in 12.05C because the ALJ found additional severe impairments and cited 20 C.F.R. §§ 404.1520(c) and 416.920(c)); Monroe, 848 F. Supp. 2d at 984 (finding that when the ALJ expressly found that PTSD was a severe impairment and stated "that it caused more than minimal functional limitation, the ALJ was acknowledging that the PTSD significantly limited Monroe's ability to perform basic work activities" (internal quotation marks omitted)). As in Monroe, the ALJ in this case specifically said the severe impairments "cause more than minimal limitation in [Isham's] ability to perform basic work activities." (Admin. R. at 12). Additionally, the ALJ appears to have specifically incorporated Isham's severe pulmonary impairment into the RFC because he prohibited Isham from "us[ing] cleaners that would be toxic, cause difficulty with breathing, or require someone to wear a mask . . . ." (Id. at 14).
Isham asks the Court to reverse the ALJ's decision and award benefits. (Isham's Mem. in Supp. at 39). Isham's argument is focused on medical equivalence, and the standard under the POMS says only that certain criteria, if met, "
Isham raises several additional arguments, all of which relate to the ALJ's RFC determination. (Isham's Mem. in Supp. at 34-38). Specifically, Isham contends the ALJ erred in finding that: (1) Isham's work as a cleaner was past relevant work; (2) Isham has marginal education and is not illiterate; and (3) the VE's testimony was consistent with the DOT. (Id.). Because the Court concludes that remand is necessary due to the ALJ's failure to consider Listing 12.05C at step three of the analysis, and these issues all relate to later steps in the ALJ's analysis, the Court need not and does not make a recommendation regarding these additional claims of error. See 20 C.F.R. § 416.920(a); see, e.g., Travis v. Astrue, No. 11-cv-1808 (TNL), 2012 WL 4339107, at *26 (D. Minn. Sept. 18, 2012) (concluding that because the court was remanding the case for an error at step three, analysis of alleged errors at step five was unnecessary); Cunningham v. Astrue, No. CV 11-144 JC, 2011 WL 5103760, at *6, 6 n.4 (C.D. Cal. Oct. 27, 2011) (remanding for "further consideration and clarification on the ALJ's step three finding" and declining to "adjudicate[] plaintiff's other challenges to the ALJ's decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate.").
The Court does find it appropriate, however, to discuss what appears to be a procedural problem with the ALJ's decision, as this discussion may be informative should the ALJ reach the latter steps of the analysis on remand. As noted, Isham asserts that the ALJ erred in finding that the VE's testimony was consistent with the DOT. (Isham's Mem. in Supp. at 37-38). In making this argument, Isham contends that the ALJ "failed to resolve [a] conflict" between the VE's testimony and the DOT regarding the reading level required for the job of cleaner that was discussed by the VE and relied on by the ALJ in concluding that Isham is not disabled. (Id.).
The VE, Harris, testified that under the DOT, work as a cleaner requires a reading ability of 2, which means "[r]ecognizing the meaning of 2,500 two or three-syllable words, reading at a rate of 95 to 120 . . . words per minute, print[ing] simple sentences, [and] mak[ing] simple sentences." (Admin. R. at 45). Isham's counsel asked Harris if someone who was "functionally illiterate" would be able to perform the job of cleaner. (Id. at 46). Harris testified that such an individual could perform the work based on her experience placing non-English-speaking people in cleaning jobs. (Id.). In follow-up questions, Harris explained that the "DOT gives maximum ability" rather than "minimum ability." (Id.). Harris stated that the "DOT is just a resource" and that she had "seen many . . . non-English[-speaking] people" performing cleaning jobs. (Id.). Harris acknowledged that her testimony differs from the DOT in this respect. (Id.).
"When a VE . . . provides evidence about the requirements of a job or occupation" the ALJ "has an affirmative responsibility to ask about any possible conflict between that VE . . . evidence and the information provided in the DOT." Titles II & XVI: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000); see also Renfrow v. Astrue, 496 F.3d 918, 920-21 (8th Cir. 2007) (discussing requirements established in SSR 00-4p). The ALJ must not only "ask the expert whether there was a conflict," but must also "obtain an explanation for any such conflict." Renfrow, 496 F.3d at 921. In addition, "[w]hen vocational evidence provided by a VE . . . is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE . . . evidence to support a determination or decision that the individual is or is not disabled." SSR 00-4p, 2000 WL 1898704, at *4. The ALJ "must explain the resolution of the conflict irrespective of how the conflict was identified." Id.
Id. at *2.
Here, the ALJ noted that the DOT requires a reading level of 2 for the job of cleaner. (Admin. R. at 22). The ALJ also noted that Harris testified that "a person with functional illiteracy could perform [cleaning] jobs based on her experience placing people in those jobs who could not speak English." (Id.). The ALJ then stated, "Pursuant to SSR 00-4p, the undersigned has determined that the [VE]'s testimony is
As Isham points out, Harris specifically testified that, with regard to the reading level required for cleaning jobs, her testimony differed from the DOT. (Id. at 46); (Isham's Mem. in Supp. at 37). The Commissioner does not dispute this testimony, agreeing with Isham that Harris's "testimony . . . differed from the [DOT]" with regard to reading level requirements. (Comm'r's Mem. in Supp. at 16). In discussing Harris's explanation as to why she believed someone who was functionally illiterate could perform work as a cleaner, it seems that the ALJ was attempting to express his determination that Harris's explanation was a reasonable one that provided a basis for relying on her testimony, rather than the requirements in the DOT. See SSR 00-4p, 2000 WL 1898704, at *4. The issue is confused, however, by the ALJ's ultimate conclusion that Harris's testimony was "consistent with" the DOT. (Admin. R. at 22). Thus, while the parties agree that Harris's testimony presented a conflict for the ALJ's resolution, it is not clear whether the ALJ recognized the conflict and failed to clearly explain the resolution of the conflict as required by SSR 00-4p, or failed to recognize the conflict and therefore did not consider how to resolve any apparent conflict.
Based on all the files, records, and proceedings herein,
Tricyclic antidepressant is "a chemical group of antidepressant drugs that share a threeringed nucleus." Stedman's Medical Dictionary, Tricyclic antidepressant (27th ed. 2000).
THC is the abbreviation for tetrahydrocannabinols, which are "the psychoactive isomers present in Cannabis, isolated from marijuana." Stedman's Medical Dictionary, Tetrahydrocannabinols (27th ed. 2000).
Maalox is the brand name for simethicone, which is "used to relieve the painful symptoms of too much gas in the stomach and intestines."
Zofran is the brand name for ondansetron, which is "used to prevent nausea and vomiting that is caused by cancer medicines (chemotherapy) or radiation therapy. It is also used to prevent nausea and vomiting that may occur after surgery."
Phenergan is the generic name for promethazine, which "is used to relieve or prevent the symptoms of hay fever, [eye inflammation], and other types of allergy or allergic reactions.
The supraspinatus is the "intrinsic . . . muscle of shoulder joint, the tendon of which contributes to the rotator cuff[] . . . ." Stedman's Medical Dictionary, Supraspinatus (27th ed. 2000).
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00A.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05D. Listing 12.05D did not change between 2012 and 2013.
The Commissioner cites Sherrod v. Astrue, No. 10-C-0451, 2011 WL 284349, at *6, 11 n.12 (E.D. Wis. Jan. 25, 2011), for the proposition that "substantial evidence supported [the] ALJ's determination that Plaintiff did not experience deficits in adaptive functioning—even though `[s]he did not have a driver's license and never did.'" (Comm'r's Mem. in Supp. at 11) (quoting Sherrod, 2011 WL 284349, at *6). Isham has never obtained a driver's license. (Admin. R. at 15) (citing id. at 280 (Isham's function report)). That neither the claimant in Sherrod nor Isham obtained a driver's license is not instructive in this case because in Sherrod, the ALJ expressly considered Listing 12.05C.
(Comm'r's Mem. in Supp. at 11-12) (quoting Senne, 198 F.3d at 1067). The Eighth Circuit went on to say that "the conclusory form of the ALJ's decision
Under D. Minn. LR 72.2(b), any party may object to this Report and Recommendation by filing with the Clerk of court, and serving all parties by
