RICHARD G. KOPF, Senior District Judge.
Plaintiff William Sedlak brings this action under Titles II and XVI of the Social Security Act, which provide for judicial review of "final decisions" of the Commissioner of the Social Security Administration. 42 U.S.C. § 405(g) (Westlaw 2019).
Sedlak filed an application for disability benefits on January 27, 2016, under Titles II and XVI. The claims were denied initially and on reconsideration. On March 21, 2018, following a hearing, an administrative law judge ("ALJ") found that Sedlak was not disabled as defined in the Social Security Act. (Filing No. 10-2.) On August 27, 2018, the Appeals Council of the Social Security Administration denied Sedlak's request for review. (Filing No. 10-2 at CM/ECF pp. 1-5.) Thus, the decision of the ALJ stands as the final decision of the Commissioner. Sims v. Apfel, 530 U.S. 103, 107 (2000) ("if . . . the Council denies the request for review, the ALJ's opinion becomes the final decision").
The material medical evidence related to Sedlak's impairments is undisputed and is described by the ALJ as follows
(Filing No. 10-2 at CM/ECF pp. 30-32.)
The ALJ gave "some weight" to the opinions of Sedlak's treating physicians, Dr. Piccione, a neurologist, and Dr. Hoeft. Dr. Piccione's opinions are undisputed and described by the ALJ as follows
(Filing No. 10-2 at CM/ECF pp. 33-34.) The ALJ also described and considered Dr. Hoeft's opinions:
(Filing No. 10-2 at CM/ECF p. 34.)
At his hearing before the ALJ, Sedlak testified that his myasthenia gravis is "the biggest problem affecting" him and his ability to work, and this medical condition causes ptosis of his eyelids (mostly the left and sometimes the right), blurriness, and headaches from trying to force his eyes to stay open; weakness in his arms and legs; reduced strength and ability to carry things; difficulty in manipulating his hands to, for example, open a Ziploc baggie; and difficulty standing and walking such that "if somebody was walking behind me, they would probably think I was drunk." (Filing No. 10-2 at CM/ECF pp. 75-78, 82, 90.)
Sedlak testified that he was released from his past job as a delivery driver for an auto-part shop because he could no longer lift heavy parts, his "eyes were just getting so bad," his arms are weak, he struggles to "walk a distance," and his Department of Transportation medical certification was rescinded because "[w]ith the drooping of the eyelid and stuff," Sedlak "couldn't do the driving anymore." (Filing No. 10-2 at CM/ECF pp. 67-68.) Sedlak also testified that he suffers "pain all day long" due to his 2012 surgery for a broken ankle that required the insertion of a "plate and three screws" and shoulder tendinosis. (Filing No. 10-2 at CM/ECF pp. 79, 81.)
Sedlak takes hydrocodone for pain in his ankle, left arm, and left shoulder. (Filing No. 10-2 at CM/ECF p. 91.) When the ALJ questioned Sedlak about why he tested negative for opiates in March and June of 2017 when he had been prescribed hydrocodone, he "couldn't explain that one" and he "do[es]n't understand why." (Filing No. 10-2 at CM/ECF pp. 91-92.)
Due to muscle weakness from Sedlak's myasthenia gravis and his ankle pain, it is "hard to stand for a good 15, 20 minutes at a time." (Filing No. 10-2 at CM/ECF pp. 88-89.) After standing for that length of time, Sedlak estimated he needs to sit for 45 minutes or longer before standing again. Sedlak claims he could be on his feet only two hours in an eight-hour day. (Filing No. 10-2 at CM/ECF p. 89.)
As far as daily activities, Sedlak testified that he lives with his mother and he "sometimes" cooks, keeps his own room clean, vacuums around his bed, gets groceries, and mows with a self-propelled mower with sitting breaks every two rows. (Filing No. 10-2 at CM/ECF pp. 93-94.)
Following the five-step sequential analysis
1. Sedlak has not engaged in substantial gainful activity since December 15, 2015, the alleged onset date.
2. Sedlak has the following severe impairments: median motor neuropathy of the left upper extremity; myasthenia gravis; left shoulder tendonosis; and status post right ankle open reduction internal fixation. Sedlak also has impairments that are less than severe (diabetes mellitus) and non-severe (hypertension, hyperlipidemia, sleep apnea, history of ulcerative colitis, obesity, borderline intellectual functioning).
3. Sedlak does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
4. Sedlak has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and 416.967(a), but with additional limitations. Specifically:
(Filing No. 10-2 at CM/ECF p. 29.)
5. Sedlak is unable to perform any past relevant work of a delivery driver and general laborer as actually or generally performed.
6. Sedlak was born on March 12, 1971, and was 44 years old on the alleged disability-onset date, making him a younger individual under the Code of Federal Regulations. Sedlak has at least a high school education and is able to communicate in English. Transferability of job skills is not an issue in this case because Sedlak's past relevant work is unskilled.
7. Considering Sedlak's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Sedlak can perform, such as a document preparer, call-out operator, and polisher of eye frames.
8. Sedlak was not under a disability, as defined in the Social Security Act, from December 15, 2015, through the date of the ALJ's decision.
Plaintiff argues that (1) the ALJ erred in failing to classify Sedlak's cognitive impairment as severe; (2) the ALJ erred in failing to provide good reasons for the weight afforded to the opinions of treating physicians Dr. Piccione and Dr. Hoeft and Plaintiff Sedlak's subjective report of his limitations; and (3) the ALJ was an "inferior officer not appointed in a constitutional manner." (Filing No. 14 at CM/ECF p. 20.)
The court may reverse the Commissioner's findings only if they are not supported by substantial evidence or result from an error of law. See Nash v. Comm'r, Soc. Sec. Admin., 907 F.3d 1086, 1089 (8th Cir. 2018); 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. . . .").
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations omitted).
In determining whether evidence is substantial, the court considers evidence that both supports and detracts from the Commissioner's decision. If substantial evidence supports the Commissioner's conclusion, the court may not reverse merely because substantial evidence also supports the contrary outcome and even if the court would have reached a different conclusion. Nash, 907 F.3d at 1089. The Eighth Circuit has repeatedly held that a court should "`defer heavily to the findings and conclusions of the Social Security Administration.'" Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015) (quoting Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010)). In other words, "[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision." Goff, 421 F.3d at 789.
Sedlak contends that the ALJ erred in classifying as "non-severe" his cognitive impairment—whether such impairment is "classified as a learning disorder or borderline intellectual functioning." (Filing No. 14 at CM/ECF p. 19.) Specifically, Sedlak argues that the ALJ "failed to provide sufficient weight to Mr. Sedlak's lifelong difficulties with learning and understanding tasks" and his "difficulty with listening memory and reading comprehension." (Id.) Sedlak claims that the ALJ did not pay enough attention to Sedlak's childhood education records and his hearing testimony that he is "not very computer smart"
Step two of the Commissioner's five-step evaluation to determine if a claimant is disabled states that a claimant is not disabled if his impairments are not "severe." 20 C.F.R. § 416.920(a)(4).
Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007) (internal citations omitted).
A severe mental impairment must "significantly" limit the claimant's "mental ability to do basic work activities," 20 C.F.R. § 416.920(c), such as understanding, carrying out, and remembering simple instructions; using judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. §§ 416.922(b)(1)-(6).
"Some of the factors an ALJ may consider when determining a claimant's mental impairments are (1) the claimant's failure to allege mental impairments in his complaint, (2) failure to seek mental treatment, (3) the claimant's own statements, and (4) lack of medical evidence indicating mental impairment." Partee v. Astrue, 638 F.3d 860, 864 (8th Cir. 2011) (mental impairment was not disabling when claimant did not allege impairment on application for benefits, claimant did not seek professional help for impairment, claimant did not report to physician history of mental or emotional problems that interfered with work, and doctors' reports mentioned no, or mild, symptoms).
In applying for Social Security benefits and in his Complaint in this court, Sedlak did not allege a learning disorder or borderline intellectual functioning as an illness, injury, or condition that caused his inability to work. (Filing No. 10-5 at CM/ECF p. 3 (1/27/16 application for benefits); Filing No. 1 (Complaint).) In an extensive discussion of Sedlak's alleged mental impairment, the ALJ noted that the last report evidencing a learning disability was from 1971 when Sedlak was in the ninth grade. (Filing No. 10-11 at CM/ECF pp. 57-58.) The ALJ correctly noted that this was years before Sedlak's alleged onset date; the medical evidence did not indicate that Sedlak has been diagnosed with a mental impairment or received treatment for any such impairment; and there were no medical source opinions indicating that Sedlak has mental limitations due to a mental impairment. Further, the ALJ pointed out that Sedlak worked for many years as a sewer cleaner and delivery driver despite an alleged mental impairment, and Sedlak testified that he had no trouble understanding or performing his duties at those prior jobs, nor has he "had any problems . . . adapting to life in the real world because of learning problems." (Filing No. 10-2 at CM/ECF p. 86.)
Under these circumstances, Sedlak failed to meet his burden to prove that a learning disorder or borderline intellectual functioning significantly limits his mental ability to do basic work activities, and the ALJ properly characterized this alleged mental impairment as non-severe.
Sedlak next argues that the ALJ did not give proper weight to certain opinions of his treating physicians and to Sedlak's own opinions regarding his limitations.
An ALJ will give a treating physician's opinion controlling weight only if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with the other substantial evidence. Myers v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013); House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007); 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). "[A]n ALJ may discount or even disregard the opinion of a treating physician where other medical assessments are supported by better or more thorough medical evidence, or where a treating physician renders inconsistent opinions that undermine the credibility of such opinions." Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (internal quotation marks and citation omitted). The ALJ is free to reject the opinion of any physician when it is unsupported in the physician's own treatment notes or other evidence of record. Myers, 721 F.3d at 525; Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007); Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006).
An ALJ should weigh treating-physician opinions using factors such as the nature and extent of treatment; the degree to which relevant evidence supports the physician's opinion; consistency between the opinion and the record as a whole; whether the physician is a specialist in the area in which the opinion is based; and other factors that support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). "Whether granting `a treating physician's opinion substantial or little weight,' Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000), the commissioner must `always give good reasons . . . for the weight' she gives." Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir. 2014) (citation omitted); 20 C.F.R. § 416.927(c)(2) ("We will always give good reasons in our notice of determination or decision for the weight we give your treating source's medical opinion.").
The ALJ described Dr. Piccione's opinions dated August 1, 2016
(Filing No. 10-2 at CM/ECF p. 31 (citations omitted).) As to Sedlak's purported inability to walk, the ALJ again cited Dr. Piccione's medical records:
(Filing No. 10-2 at CM/ECF p. 31 (citations omitted).)
It is evident the ALJ decided what weight to assign Dr. Piccione's opinions regarding disabling weakness and the inability to walk only after considering and citing the doctor's treatment notes and medical-source statements, thereafter accepting the opinions that were supported by the objective medical evidence and rejecting those that contradicted his own treatment notes, which referred to Plaintiff as having normal muscle tone, strength, and coordination. As stated above, an ALJ is free to reject the opinion of any physician when it is unsupported by the physician's own treatment notes, and where a treating physician renders inconsistent opinions that undermine the credibility of such opinions. Myers, 721 F.3d at 525; Travis, 477 F.3d at 1041; Hacker, 459 F.3d at 937; Wildman, 596 F.3d at 964.
Despite the fact that the ALJ properly explained why he disregarded Dr. Piccione's opinions as to Sedlak's alleged disabling weakness and inability to walk, the ALJ did err
While the ALJ may well have had an adequate medical basis on which to find that Sedlak had the ability to "frequently" handle, finger, and feel, he failed to identify and discuss such evidence, which he was bound to do. Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir. 2017) ("Because a claimant's RFC is a medical question, an ALJ's assessment of it must be supported by some medical evidence of the claimant's ability to function in the workplace. The ALJ may not simply draw his own inferences about plaintiff's functional ability from medical reports." (internal quotation marks and citations omitted)); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004) (because formulation of one's RFC is a medical question, "some medical evidence must support the determination of the claimant's RFC. . . ." (internal quotation marks, alteration, and citations omitted)).
Therefore, this matter must be remanded for analysis of Sedlak's ability to perform "frequent" handling, fingering, and feeling, including citation to, and discussion of, supporting medical evidence. Such discussion should include the ALJ's reason for disregarding Dr. Piccione's opinion that Sedlak is limited to "occasional" handling, fingering, and feeling in light of the ALJ's conclusion that such opinion "is generally consistent with the other evidence of record." (Filing No. 10-2 at CM/ECF p. 34.)
The ALJ described Dr. Hoeft's opinions that Sedlak would be unable to hold gainful and substantial employment due to his medical conditions; that Sedlak's opiate medications for his ankle pain could affect work performance; and that Sedlak is totally disabled. (Filing No. 10-2 at CM/ECF p. 34.) The ALJ properly explained his reason for rejecting Dr. Hoeft's opinions about total disability and Sedlak's inability to work because such findings are reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) ("treating physicians' opinions are not medical opinions that should be credited when they simply state that a claimant can not be gainfully employed, because they are merely opinions on the application of the statute, a task assigned solely to the discretion of the [Commissioner]" (internal quotation marks and citation omitted)). The ALJ also properly disregarded Dr. Hoeft's opinion that Sedlak's opiate medications would affect his work performance because Sedlak testified that he has not experienced side effects from the opiates. (Filing No. 10-2 at CM/ECF p. 91.)
The ALJ then stated, with no further discussion or detail, "To the extent Dr. Hoeft opined the claimant would have serious limitations, his opinion is given some weight; however, the extent of the asserted limitations is not supported by the objective findings of record." (Filing No. 10-2 at CM/ECF p. 34.) Sedlak argues that "[t]he ALJ's failure to cite what objective findings did not support Dr. Hoeft's opinions did not constitute a good reason for rejecting Dr. Hoeft's opinions concerning the severity of Mr. Sedlak's impairments." (Filing No. 10-2 at CM/ECF p. 17.) While it is true the ALJ must give good reasons, supported by substantial evidence, for assigning a certain weight to medical opinions, Sedlak fails to identify or describe any further opinions of Dr. Hoeft (other than the opinions discussed immediately above) that are at issue, making it impossible for the court to analyze this argument further.
Nor does Sedlak offer any discussion, analysis, or rationale beyond his stated broad proposition of law that an ALJ must give good reasons for assigning a particular weight to a physician's opinion. Therefore, Sedlak has waived any further argument related to Dr. Hoeft's unidentified opinions. Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (rejecting claimant's "listing" argument because "[the claimant] provides no analysis of the relevant law or facts regarding these listings"); see also Aulston v. Astrue, 277 F. App'x 663, 664 (8th Cir. 2008) (unpublished) (declining to consider social-security claimant's "undeveloped" argument and considering such argument waived); Michael S. v. Berryhill, No. 17-CV-5586, 2019 WL 1430138, at *9 (D. Minn. Mar. 29, 2019) (when social-security claimant did not give reason for assertion that ALJ improperly assessed consultants' opinions, court would not consider argument because "[u]ndeveloped arguments such as this are waived").
Sedlak next argues that the ALJ failed to give sufficient weight to his subjective report of his limitations. The ALJ found that Sedlak's "compaints of disabling symptoms [were] not fully supported by the record," and the only limitations supported by the record were those appearing in the ALJ's RFC. (Filing No. 10-2 at CM/ECF p. 33.) In support of his opinion that Sedlak's subjective complaints were not credible, the ALJ pointed to Sedlak's ability to do household chores, mow the lawn, care for his day-to-day needs, and read printed material on a box of Hamburger Helper and in text messages on his cellular telephone. The ALJ also found no reason for Sedlak to have stopped working after his Department of Transportation medical certification to drive was rescinded because "[t]he evidence of record does not support a finding that his condition significantly worsened at the time he lost of [sic] job"; "his testimony at the hearing did not clarify why he had been able to work with his conditions and then subsequently alleged that he could not"; Dr. Piccione's description of Sedlak's weakness in recent examinations "do not suggest difficulties to the extent now alleged"; and "it is not clear that the claimant stopped working at the time of the alleged onset date due to any disabling impairments." (Filing No. 10-2 at CM/ECF pp. 32-33.)
Sedlak complains that his condition was worse at the time of the hearing—February 12, 2018—than what was reflected in the doctors' notes referenced in the ALJ's opinion, and that his condition "had to be compared against the most recent notes, not the earlier notes." (Filing No. 10-2 at CM/ECF p. 17.) Specifically, Sedlak argues that the ALJ should have considered Dr. Piccione's December 8, 2017, treatment note, which most closely reflected Sedlak's condition at the hearing. The treatment note to which Sedlak refers is Exhibit 18F, which was referenced by the ALJ at least 13 times. Clearly, the ALJ considered the most recent treatment notes available.
Sedlak next asserts that the ALJ erred in "fail[ing] to notice that Mr. Sedlak's ptosis, while originally impacting his left eye, eventually worsened to the point it affected both eyes, as evidenced by the examination findings of Dr. Piccione." (Filing No. 10-2 at CM/ECF p. 18.) Sedlak argues the ALJ's RFC is incorrect because it "only accounts for one eye being impacted with the requirement that Mr. Sedlak not be required to regularly use depth perception." (Id.) Sedlak claims that by the time of the hearing, both of his eyes would have been partially closed during parts of the workday, and the RFC should have been adjusted accordingly.
As it concerns Sedlak's eyesight, the ALJ's RFC states, "He is unable to read small print in 10-point font or smaller. He cannot perform jobs that require a regular use of depth perception." (Filing No. 10-2 at CM/ECF p. 29.) Again, the ALJ considered Dr. Piccione's December 2017 treatment note—issued only two months prior to the hearing—which stated: "Currently he has left ptosis which seems to fluctuate."; "Vision is worse at night time. He cannot read well and also cannot drive at night. Denies worse drooping or double vision."; "bilateral ptosis that worsens with prolonged upgaze right more than left. Lateral gaze palsy, bilateral"; "Funduscopic normal discs/vessels"
Dr. Piccione's December 2017 report indicates that Sedlak has "fluctuating" ptosis that is worse at night, normal interior discs and vessels of the eyeball, a full visual field, full extraocular movements, and that Sedlak denied that his ptosis was getting worse or that he experienced double vision. Further, the ALJ specifically questioned Sedlak during the hearing about his eyesight, and he admitted he could read relatively small type on a packaged-food label and on a cellular telephone. Thus, the ALJ's RFC regarding Sedlak's eyesight is consistent with the evidence. See Nash, 907 F.3d at 1090 ("This court will not substitute its opinion for the ALJ's, who is in a better position to gauge credibility and resolve conflicts in evidence." (citation omitted)); Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) ("The ALJ bears the primary responsibility for determining a claimant's RFC and because RFC is a medical question, some medical evidence must support the determination of the claimant's RFC.").
Because this matter will be remanded for reconsideration, it is unnecessary to discuss Sedlak's argument that the ALJ "was an inferior officer not appointed in a constitutional manner" pursuant to the Appointments Clause of the United States Constitution. See U.S. Const. art. 2, § 2, cl. 2. (Filing No. 14 at CM/ECF p. 20; Filing No. 18 at CM/ECF p. 3.) See, e.g., Smith v. Saul, No. 8:18-CV-240, 2019 WL 2905671, at *8 (D. Neb. July 5, 2019) ("On remand, Smith may raise a challenge to the ALJ's appointment if she so elects. It will be up to the Commissioner whether to have the previous ALJ preside, or whether it would be prudent to assign a different ALJ and avoid any later challenge that may arise. . . ."); Schmitz v. Berryhill, No. 4:18CV3074, 2019 WL 1331724, at *17 (D. Neb. Mar. 25, 2019) (finding it unnecessary to discuss plaintiff's constitutional challenge to ALJ's authority to adjudicate her claim or Commissioner's waiver argument because case would be remanded for reconsideration of step-three errors); Mann v. Berryhill, No. 4:18-CV-3022, 2018 WL 6421725, at *8 (D. Neb. Dec. 6, 2018) (claimant could reassert Appointments Clause claim on remand, and Commissioner could decide whether to assign different ALJ to the case).
For the reasons discussed above, the ALJ's decision was not supported by substantial evidence on the record as a whole and must be remanded for analysis of Sedlak's ability to perform "frequent" handling, fingering, and feeling, including citation to, and discussion of, supporting medical evidence. Such discussion should include the ALJ's reason for disregarding Dr. Piccione's opinion that Sedlak is limited to "occasional" handling, fingering, and feeling in light of the ALJ's conclusion that Dr. Piccione's opinion was "generally consistent with the other evidence of record." (Filing No. 10-2 at CM/ECF p. 34.) Accordingly,
IT IS ORDERED:
1. The Clerk of the Court is directed to substitute Commissioner of Social Security Andrew Saul as the Defendant.
2. Plaintiff's Motion for an Order Reversing the Commissioner's Decision (Filing No. 13) is granted.
3. Defendant's Motion to Affirm Commissioner's Decision (Filing No. 15) is denied.
4. The Commissioner's decision is reversed pursuant to sentence four of 42 U.S.C. § 405(g), and the case is remanded for further proceedings consistent with the foregoing opinion.
5. Judgment will be entered by separate document.
(Filing No. 10-2 at CM/ECF pp. 82-83.)
