Opinion
4:20-cv-49 RP-SBJ
2021-03-05
Mary ROGERS, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant.
Kristin Elaine Olson, United States Attorney's Office - DSM, 110 E Court Ave, Suite 286, Des Moines, IA 50309, 515-473-9309, 515-473-9298 (fax), kristin.olson@usdoj.gov, for Defendant. Gail Lynn Barnett, Abendroth Russell & Barnett P.C., 2560 73rd Street, Urbandale, IA 50322, 515-278-0623, 515-276-1563 (fax), gbarnett@arpclaw.com, for Plaintiff.
Kristin Elaine Olson, United States Attorney's Office - DSM, 110 E Court Ave, Suite 286, Des Moines, IA 50309, 515-473-9309, 515-473-9298 (fax), kristin.olson@usdoj.gov, for Defendant.
Gail Lynn Barnett, Abendroth Russell & Barnett P.C., 2560 73rd Street, Urbandale, IA 50322, 515-278-0623, 515-276-1563 (fax), gbarnett@arpclaw.com, for Plaintiff.
MEMORANDUM OPINION AND ORDER
ROBERT W. PRATT, U.S. DISTRICT JUDGE
Plaintiff, Mary Rogers, filed a Complaint in this Court on February 11, 2020, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. This Court may review a final decision by the Commissioner following a hearing before an Administrative Law Judge (ALJ). 42 U.S.C. § 405(g).
Plaintiff filed an application for benefits March 30, 2017. Tr. at 201-02. Plaintiff was 60 years old at the time of the hearing on October 29, 2018, before Administrative Law Judge (ALJ) Robert A. Kelly Tr. at 60-93. The ALJ issued a Notice of Decision – Unfavorable on January 14, 2019. Tr. at 12-26. On December 16, 2019, the Appeals Council declined to review the ALJ's decision. Tr. at 1-7. Thereafter, Plaintiff commenced this action.
ALJ's FINDINGS
Before beginning the sequential evaluation ( 20 C.F.R. § 416.920(a)(4) ), the ALJ noted that Plaintiff was insured for benefits through December 31, 2021. At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity after December 30, 2016, the amended alleged onset of disability. At the second step, the ALJ found that Plaintiff has the following medically determinable impairments: vestibular system disorder, migraines, depression/bipolar, anxiety. The ALJ went on to find that none of the medically determinable impairments significantly limited the ability to perform basic work-related activities for 12 continuous months. The ALJ found that Plaintiff does not have a severe impairment or combination of impairments. Tr. at 17. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 26.
WORKER'S COMPENSATION PERMANENT PARTIAL IMPAIRMENT RATING
On November 22, 2016, Irving L. Wolfe, D.O. of Central Iowa Neurology, assigned a permanent partial impairment or 15% of the whole person. Tr. at 224-26. The doctor wrote:
As a result of a mild traumatic brain injury on 11/13/2015, Ms. Rogers has developed Neuro-Ocular Vestibular dysfunction (Ocular Vertigo ) in which her inability to manage visual motion, due to hypersensitivity to visual motion, results in variable degrees/severity of nausea, fatigue, pressure head pain, and thought pauses. Activities such as computer work; the observing of scrolling movements on the screen, driving a car, riding in a car, rapid movement of objects visually observed, or/and eye movement intensifies or brings about her symptoms. When severe Ms. Rogers functionally has loss of awareness of her surroundings and is unable to function. In response to her current impairments Ms. Rogers has developed anxiety for which she is under the care of Dr. Ara Robinson and Ms. Jessica Romey.
Tr. at 24. In addition to avoiding activities noted above, the doctor wrote that Plaintiff's functional restrictions include the requirement of a five-minute break after 20 minutes of activity. The doctor noted that Plaintiff had been working from home 6 hours per day. The doctor wrote that Plaintiff could attempt to increase to an 8-hour day, but "fatigue may not allow her to do so." Working from home allowed Plaintiff to avoid driving to and from work. The doctor noted that Plaintiff required the medication Zofran and was also taking Clonazepam. Tr. at 225.
MEDICAL EVIDENCE
On September 15, 2015, Plaintiff saw Jeffrianne S. Young, M.D., at Physician's Eye Clinic. Tr. at 329-31. After an examination, Plaintiff was given a prescription for new glasses. Tr. at 330.
On October 1, 2015, Plaintiff saw Shari J. Stone, ARNP for anxiety. Tr. at 424-25. Plaintiff reported that in the past she had been treated with alprazolam (which she found helpful), and Lexapro (which she did not find helpful). Plaintiff reported stress related to taking care of a family member who had recently been diagnosed with alcohol-induced dementia. Plaintiff also reported that for two and a half years she had been unhappy with her high stress job. Symptoms included nervousness, dizziness, lightheadedness, chest pressure, shortness of breath, palpitations, and frequent tearfulness, insomnia, diminished appetite, irritability, and problems focusing and processing information. Tr. at 424. Plaintiff was given prescriptions for alprazolam (Xanax ), and for Zoloft. Tr. at 425.
On November 23, 2015, Plaintiff saw Julia Jenkins, D.O. Tr. at 421-23. Plaintiff requested a release to return to work following the motor vehicle accident. Plaintiff also asked to stop taking Zoloft because it was causing dizziness and nausea. The doctor wrote: "[Plaintiff] was in a motor vehicle accident 11/13/2015. She was the belted driver of a work vehicle. The air bags did deploy. She hit a deer." The doctor reported that after being seen in a walk-in clinic, Plaintiff was given a ten-pound lifting restriction which she wanted removed so she could return to work. Plaintiff reported feeling dizzy in the morning but was unsure if it was because of the accident or tubes in her ears. Tr. at 422. The doctor discontinued the Zoloft and referred Plaintiff to an ear, nose, and throat physician for bilateral chronic secondary otitis media. The doctor also provided Plaintiff with a document so she could return to work without restriction. The doctor reassured Plaintiff that it would take several weeks before she recovered from the effects of the accident. Tr. at 423.
On November 30, 2015, Plaintiff saw Nurse Stone (the nurse is at the same clinic as Dr. Jenkins), for evaluation of dizziness. Plaintiff reported that the ENT examination was normal. Plaintiff reported that attacks of dizziness come daily and last a few minutes. Tr. at 420. On examination, no abnormalities were noted. Tr. at 421.
Plaintiff saw Dr. Young again on January 5, 2016. Plaintiff reported that on November 13, 2015, she had been in a car that hit a deer at 65 mile per hour. Plaintiff hit the windshield because the air bag didn't deploy. Plaintiff reported flickers in vision, that she sees vibrations in objects. Tr. at 327. In addition to the previously diagnosed conditions, diagnoses included head trauma and cystoid macular edema. Tr. at 328.
On December 1, 2015, Plaintiff saw Paul Babikian, M.D. at Mercy Ruan Neurology Clinic. Tr. at 366-69. Plaintiff was seen for evaluation for post concussion syndrome. Plaintiff complained of headaches and dizziness following a November 13 incident when her car is struck by a deer. After the accident, Plaintiff began to experience recurrent bouts of vertigo accompanied by nausea. Plaintiff also reported some forgetfulness. Tr. at 366. The doctor wrote that Plaintiff appeared to have had a concussion without loss of consciousness, and that Plaintiff was reporting post concussive symptoms. "Overall she reports that her symptoms have improved, her neurological examination is entirely normal at this time." The doctor told Plaintiff that she should recover over the ensuing few weeks. Tr. at 368.
On December 8, 2015, Plaintiff saw Nurse Practitioner Meghan Kinnetz at Mercy Ruan Neurology Clinic. Tr. at 362-65. Plaintiff reported that she forgot to tell Dr. Babikian that she has been experiencing double vision and blurred vision while in the shower. Plaintiff also reported mood lability, difficulty with focus, insomnia, and difficult with concentration. Tr. at 362. Nurse Kinnetz reported that Plaintiff had undergone a CT scan of her brain on December 7 (Tr. at 389) and that the results were normal. The Nurse recommended an MRI of the brain. Tr. at 365.
On December 29, 2015, Plaintiff saw Nurse Kinnetz. Tr. at 358-61. Plaintiff reported that she had been to physical therapy where she learned vestibular exercises which she found helpful. Plaintiff was frustrated that vertigo had returned – she reported feeling very dizzy with positional changes. Plaintiff reported that since being off work, her mood had stabilized. Tr. at 358. Nurse Kinnetz recommended that Plaintiff return to vestibular therapy. The nurse also prescribed clonazepam. Tr. at 360.
On January 12, 2016, Plaintiff saw Christopher F. Blodi, M.D. at Iowa Retina Consultants. Plaintiff's visual acuity was 20/60 and 20/70 with spectacle correction. In a letter to Dr. Young, Dr. Blodi wrote that he agreed with her that Plaintiff had suffered a blunt trauma injury which caused macular edema. The doctor told Plaintiff that her vision may never fully recover but there might be slow improvement in visual function over the next three to twelve months. Dr. Blodi concluded his letter: "There is certainly nothing we can do about this from a treatment point of view, unfortunately." Tr. at 501.
On January 28, 2016, Plaintiff saw Nurse Kinnetz. Tr. at 355-57. The nurse noted that the MRI dated January 6, 2016, (Tr. at 371) showed non-specific white matter disease. Regarding Plaintiff's symptoms, Nurse Kinnetz wrote:
She continues to have "pauses" throughout the day which last for less than a second. There is no twitching or loss of consciousness. She feels there is just a break in reality. Her vision is improving in her right eye but still has intermittent cloudy vision. She has been seeing a counselor and feels that her emotions are labile still. She finds clonazepam helpful for dizziness. She feels very nauseated in the [morning]. She feels this is related to her vision and eye movement. Headaches are daily. Pounding like in nature. Located holocephalically but will center in the occipital area. She has no new neurological complaints. She has been having good and bad days.
Tr. at 355. The nurse advised Plaintiff to remain in vestibular rehabilitation and to remain off work. Plaintiff was given a prescription for Meloxicam for headaches and Ondansetron for nausea. Tr. at 357.
On February 18, 2016, Plaintiff saw Nurse Kinnetz. Tr. at 351-54. The nurse noted that since the accident, Plaintiff "suffered Berlin's edema of fovea bilaterally. She has residual macular edema and quite a few visual complaints that include flashing lights and central vison loss. She has also struggled with dizziness, headaches, neck pain, and emotional lability since the accident." The nurse noted that both the CT scan and MRI of Plaintiff's head and brain were unremarkable. Tr. at 351.
Rudolf Berlin, German ophthalmologist, 1833-1897. Stedmans Medical Dictionary 100090
Berlin's edema: Retinal edema after blunt trauma to the globe. Stedmans Medical Dictionary 279160
fovea: any natural depression on the surface of the body ... Syn: Pit. Stedmans Medical Dictionary 351920
On February 29, 2016, Plaintiff saw Nurse Kinnetz. Tr. at 347-50. Plaintiff reported having an episode of dizziness that was more profound than previous ones. Plaintiff said she struggled with cognitive issues such as word finding and difficulty with articulation. Plaintiff expressed concern that her employer was not going to allow her to return to her job. Tr. at 347. Plaintiff was reassured that she would have waxing and waning of symptoms but would improve over time. Plaintiff was given a prescription for Nortriptyline for headaches. The nurse wrote: "... The goal is to get her back to working. I believe this will eventually be possible." Referrals were made for counseling and for mental health management. Tr. at 349.
On March 30, 2016, Plaintiff saw Dr. Babikian. Tr. at 342-46. Plaintiff reported continued headaches and positional vertigo. Plaintiff was seeing a counselor for mental health care. Tr. at 342. On neurological exam, Plaintiff's mental status was described: "patient is alert. Language is fluent and logical. Speech is normal. Good attention span and good concentration." Plaintiff's gait was steady and normal. Tr. at 344. At the conclusion of the report, the doctor made several recommendations for exercise and medication. The doctor wrote: "She should remain off work until follow-up visit and if there is improvement, she may be able to go on a limited hours. Tr. at 345.
On April 18, 2016, Plaintiff saw Dr. Wolfe for an initial evaluation. Tr. at 471-72. The doctor noted that Plaintiff was injured when she was driving between Marshalltown and Des Moines going 65 miles per hour when a deer hit the van causing her to strike her head against the window on the driver's side. The doctor wrote: "As a result of the injury she is has (sic) nausea and has lost 30 lbs., she has daily left sided headaches, she is dizzy and forgetful, with difficulty with attention and concentration. She has a left sided retinal tear for which she has been followed by Ophthalmology." It was noted that Plaintiff was not working. Tr. at 471. Diagnoses were: Concussion without loss of consciousness; post-concussional syndrome ; chronic post-traumatic headache, intractable; Other amnesia. The doctor recommended neuropsychological testing as well as adjustments in Plaintiff's medications. Tr. at 472.
On May 2, 2016, Christopher Schooley, PT, DPT wrote that Plaintiff's was being discharged from physical therapy due to a change in the physician's plan of care. Tr. at 394. Between December 3, 2015 and February 25, 2016, Plaintiff saw Mr. Schooley seven times. Tr. at 395-408.
On May 4, 2016, Plaintiff saw Dr. Wolfe. Tr. at 470-71. The doctor noted that Plaintiff has limited ability to drive due to her vision and her medication. Headaches were under good control. Plaintiff reported difficulty with attention, concentration, and memory. Tr. at 470. The doctor wrote that Plaintiff could work 6 hours per day for a week then 8 hours per day, five days a week on light duty from home. Tr. at 471.
On May 18, 2016, Plaintiff saw Dr. Wolfe. Tr. at 468-70. Plaintiff was working five hours per day, but not more due to eye strain. Headaches and abnormal sensations of the head were reported to be under good control. Plaintiff was not driving due to visual issues. Tr. at 468.
On May 20, 2016, Plaintiff saw Nurse Stone. Tr. at 215-16. Plaintiff continued to struggle with dizziness. Tr. at 215. Nurse Stone wrote that Plaintiff appeared to be doing "ok", but was anxious. Plaintiff was instructed to reduce the dosage of Clonazepam by 0.5 every week and then discontinue. Tr. at 416.
On June 2, 2016, Plaintiff saw Dr. Wolfe. Tr. at 467-68. Plaintiff was working 6 hours per day with difficulty. Plaintiff reported episodes of heaviness in the head and episodes of tinnitus. Tr. at 467.
On June 22, 2016, Plaintiff saw Christopher Blodi who wrote a report addressed to Dr. Wolfe. After his examination, the doctor opined that a neuropsychiatric illness might be present or possibly some form of absence seizures. Tr. at 498.
On June 23, 2016, Plaintiff saw Dr. Wolfe. Tr. at 465-67. Plaintiff reported the following symptoms:
Mental pauses, nausea, headaches, head itching and burning, head does not feel connected, depression, eye blurring in the middle of her vision, forgetfulness, eye discomfort, everything seems more difficult, getting tired easy, difficulty with computer work, when she drives she gets nauseous driving over bridges and when looking at an oncoming semi truck, or looks at a fence as she drives by. She does not feel well, she can't do not even close to do before the accident. Difficulty walking with her glasses.
Tr. at 466. The doctor reiterated that he had recommended neuropsychological testing since he first saw Plaintiff April 18, 2016.
On June 30 and July 16, 2016, Plaintiff underwent a neuropsychological evaluation by Bruce Dawson, Psy.D. Tr. at 516-19. The evaluation was "to assist in diagnostic, elucidation, and treatment planning." Symptoms reported by Plaintiff were nausea, expressive language changes (brief pauses in speech), blurred vision down the middle of the visual field, memory issues, tearfulness, vestibular changes, burning scalp pain, dull constant headaches, depression, and fatigue. Tr. at 516. Tests administered were Wechsler Adult Intelligence Scale-IV, Minnesota Multiphasic Personality Inventory-2, California Verbal Learning Test, Rey Complex Figure Test; Wide Range Achievement Test-3, Controlled Oral Word Association Test, Boston Naming Test, and Grooved Pegboard Test. Tr. at 517-18. Plaintiff's intelligence falls in the average range. Plaintiff performs in the average range of functioning across measures of reading, spelling, and arithmetic. Plaintiff demonstrated normal immediate and delayed recall for visual information but was less efficient for verbal information at immediate and delayed testing. Plaintiff performed below normal across measures of expressive language for visual-spatial integration – she was less efficient when manual construction was required. On measures of fine motor coordination and speed were slightly below normal bilaterally. Tr. at 518. On the MMPI, the doctor wrote that Plaintiff's "clinical scales were consistent with some conversion symptoms, although given her experience of post concussion symptoms a Conversion Disorder would not be likely be valid." Rather, wrote the doctor, some somatization in response to stress should be considered. Tr. at 518-19. Based on the evaluation, Plaintiff met the criteria for a cognitive disorder, not otherwise specified, although the doctor wrote that testing showed Plaintiff was making good recovery from her mild brain injury. From an emotional standpoint, the doctor opined that Plaintiff is depressed and anxious and that "emotional issues take the longest to resolve in Post Concussion Syndrome. Regarding the ability to work, Dr. Dawson opined that Plaintiff should remain on light duty for the time being as she works on some of the adjustment issues noted in treatment. Finally, the psychologist wrote that Plaintiff "could be re-evaluated in 6 months to a year to determine if she has fully recovered." Tr. at 519.
On August 3, 2016, Plaintiff saw Dr. Wolfe. Tr. at 464-65. The doctor discussed the findings made by the neuropsychologist. The doctor wrote: Nausea and fatigue/exhaustion appear to be limiting factors in Ms. Rogers' ability to meet occupational and social task demands and obligations. Tr. at 464.
On September 13, 2016, Plaintiff saw Dr. Wolfe. Plaintiff reported nausea, difficulty with visual focus and light sensitivity, anxiety, and fatigue. Plaintiff reported that she had seen her psychiatrist and psychologist three times. Tr. at 462.
On October 25, 2016, Plaintiff was seen by Randy H. Kardon, M.D., at the University of Iowa Hospitals and Clinics neuro-ophthalmology clinic. Tr. at 440-44. Symptoms included increased floaters, vertigo objects in her vision, and pauses during which everything stops for a few seconds. Tr. at 441. The Dr. wrote that Plaintiff's symptoms were consistent with a post concussive syndrome the symptoms of which were improving and would continue to improve. Tr. at 443.
On October 27, 2016, Plaintiff saw Dr. Wolfe. Tr. at 459-61. Plaintiff reported worsening nausea and continued fatigue. Plaintiff reported that symptoms of mental pauses, itching scalp and blurry vision had improved. The doctor wrote that Plaintiff had difficulty performing tasks such as computer work, cleaning, walking, mowing the yard, and yard work. Tr. at 460.
On November 16, 2016, Plaintiff saw Dr. Wolfe. Tr. at 457-59. The doctor noted that it had been a year since Plaintiff's injury. Tr. at 457. The doctor wrote:
Permanent restrictions/limitations/tolerances. Ms. Rogers' functional abilities will continue to be limited by activities which predispose and cause her nausea and fatigue. Ms. Rogers should avoid/limit circumstances, activities, and environments that precipitate her symptoms. Examples of which are such are driving, the observation of movement such as the scrolling movements on a computer screen and changes in body position and eye movement. Ms. Rogers will continue to require 5 minute breaks every 20 minutes. Ms. Rogers has been able to perform work satisfactorily from her home working 6 hours a day. While Ms. Rogers may attempt to advance her work day to a traditional 8 hour day, from her current 6 hour work day, fatigue may not allow her to do so.
Work Recommendations based on symptom tolerances: I would recommend that Ms. Rogers current work accommodations of working 6 hours a day with 5 minute breaks every 20 minutes be continued. Hopefully her employer will be able to continue with these accommodations. This will allow her to limit/avoid driving and allow her to work at a pace in which she can tolerate fatigue and nausea. Ms. Rogers has been able to satisfactorily perform work product for her employer with these accommodations.
Tr. at 459.
Irving L. Wolfe, D.O., wrote a letter to the Iowa District Court for Polk County. The doctor expressed his opinion that Plaintiff was not up to the cognitive, emotional, and physical demands of jury duty for the term of service beginning December 5, 2016. Tr. at 450.
On February 13, 2017, Plaintiff saw Dr. Wolfe. Tr. at 454-57. The doctor noted that Plaintiff's Worker's Compensation case had been closed and she was no longer working for the employer. Tr. at 455.
On April 24, 2017 Christopher F. Blodi, M.D., wrote to the Social Security Administration. Tr. at 496-97. Dr. Blodi saw Plaintiff January 12, February 22 and June 22, 2016. After the first visit, the doctor opined that Plaintiff had a post-concussion symptom affecting her visual function. The doctor recommended a complete neurologic work up. The doctor wrote that Plaintiff was seen in the Neuro-Ophthalmology Clinic at University of Iowa Hospitals and Clinics on October 25, 2016. Dr. Blodi noted that Plaintiff did not return for follow up appointments at his clinic. Tr. at 497.
On May 3, 2017, Plaintiff saw Dr. Wolfe. Plaintiff complained of nausea, but reported that she was job searching. Tr. at 505.
On May 24, 2017, Plaintiff told Dr. Wolfe she had recently undergone surgery on her left knee. Tr. at 510.
On June 5, 2017 Mark Becker, Ph.D., a State agency psychological consultant opined that Plaintiff has medically determinable mental impairments – adjustment disorder, depressive episode, and anxiety unspecified – however, she reports a wide range of multistep activities of daily living and that any limitations were physical rather than mental. Dr. Becker determined that Plaintiff's mental impairments were non-severe. Tr. at 105.
On June 8, 2017, Matthew Byrnes, D.O., a State agency medical consultant opined that Plaintiff has no severe physical medically determinable impairments. Tr. at 101.
The State Agency consultants acknowledged the opinion rendered by Dr. Wolfe on November 22, 2016, but noted that the opinion relies heavily of subjective report of symptoms provided by Plaintiff's and the totality of evidence does not support the opinion. The consultants wrote: "The medical opinion is without substantial support from the medical source who made it, which renders it less persuasive." Tr. at 107.
On July 10, 2017, State Agency medical consultant Michael Finan, M.D. reviewed the case file and affirmed the findings made by Dr. Byrnes at the initial stage. Dr. Finan noted that Plaintiff neither reported a change in her condition nor submitted new evidence. Tr. at 115.
On July 10, 2017, State Agency psychological consultant, Aidaluz Tirado, Psy.D. reviewed the case file and affirmed the findings made by Dr. Becker. Dr. Tirado noted that no change of condition was reported, nor was any new evidence submitted. Tr. at 117.
On July 27, 2017, Plaintiff was seen at Iowa Psychiatry. Plaintiff complained of nausea. Plaintiff denied any anxiety but complained of frustration. The doctor noted that Plaintiff walked slower and looked upset compared to previous encounters. Diagnosis was anxiety disorder, unspecified. Plaintiff was to continue taking clonazepam. Tr. at 515.
On November 3, 2017, Plaintiff saw Dr. Wolfe. The doctor wrote that Plaintiff's symptoms were stable but not resolved. The major medical issue was nausea. Tr. at 512.
On January 30, 2018, Plaintiff saw Dr. Robinson. Plaintiff said that she felt horrible. Plaintiff reported an exacerbation of nausea which she said prevented her from driving. Plaintiff said she was frustrated that she had to depend on friends to drive her. Tr. at 514.
On August 1, 2018, Plaintiff saw Dr. Robinson. Plaintiff reported continued difficulties with "knowledge and vision." The doctor considered a change of medication, but Plaintiff was not interested so the doctor continued the prescription for clonazepam. Tr. at 513.
On August 8, 2018, Plaintiff saw Dr. Wolfe. Plaintiff reported that she had undergone gallbladder surgery (cholecystectomy ) on July 17. Plaintiff continued to complain of episodes of nausea and difficulty with driving due to ocular/vestibular impairment. After examination, diagnoses were post concussional syndrome, concussion without loss of consciousness, and motion sickness, sequela. Tr. at 520. The doctor wrote: "Impression: Continued sequla from head injury of November 2015’’. Tr. at 521.
HEARING TESTIMONY
Plaintiff testified that after the accident she continued working from home from April 2016 until December 30, 2016. For that reason, the alleged onset of disability was amended. Plaintiff testified that she had been trained as a radiologic technologist and worked as such for 30 years. Tr. at 64. After the accident, she worked from home filing reports and working on a computer. Tr. at 65. Plaintiff was asked if she had difficulty doing the work at her home to which she responded: "Yes, I did, I became very nauseous. I have these pauses, and they're just for an instant, but when I was working, I had trouble scrolling, and I became very nauseous. And I would get upset and I called Biotech ... I talked to a gal there, and she said, "it's okay, Mary, just go ahead and just relax and do what you can." Tr. at 66. Plaintiff testified that the job came to an end because she couldn't do the work. Plaintiff testified: "The job wasn't that hard, they just – I'm trying to remember. I just couldn't get the reports on time and – yeah, I was slow. And I had to go – and I couldn't even complete a lot of it, everybody else was taking over for me.: Tr. at 67. Plaintiff was asked again about the severity of the nausea to which she responded: "Oh, I get sick ... it lasts for quite a while afterwards ... it's like I don't even want to do anything, but go lay down ... I feel like I have to vomit, but I don't ... but I feel like I have to." Tr. at 69.
Plaintiff was asked about mental pauses. She said that for a second or less, her brain stops functioning: "When I, you know, when I – it's like your synapse in your brain, it just doesn't -- it stops for an instant. I'll stop for an instant, it's not even a second. And I've probably and one or two of them since I've been here. And it just stops. It – I can't explain, I call it pauses because things just – I would say it's not even half a second." When asked how that affected her ability to do her job, she said that her job required her to drive, and she was afraid that because of the mental pauses, she could go through a red light. Plaintiff said she drove, but not very often, at all. Tr. at 74. Plaintiff testified that the mental pauses make difficult to concentrate. Tr. at 75.
After Plaintiff testified, the ALJ called Randall Harding to testify as a vocational expert. Tr. at 84. The vocational expert was asked to consider a hypothetical individual of the same age, education, and work experience, who can perform work at all exertion levels. The hypothetical individual has no computer work, no more than occasional reading, no more than occasional occupational driving or riding in a vehicle, no more than occasional climbing of stairs or ramps, and the person may work at a slow pace up to 10 percent of the work day. Tr. at 84-85. In response, the vocational expert testified that none of Plaintiff's past relevant work would be possible. Tr. at 85. The vocational expert testified that the limitation of "occasional reading", would mean "there would be no positions ... because occasional reading is 33 percent or less, and anything that I'd be looking at would require at least 33 percent ... whether it be reading books or reading bottles, whether it'd be custodial, or whether it would be anything." Tr. at 86.
The ALJ clarified that he meant: "... so if you have an eight-hour shift, a third of the day would be two and a half hours, sprinkled over eights, ..." Tr. at 87. In response, the vocational expert testified that Plaintiff's past relevant work would still be precluded but that there would be some unskilled jobs available such as housecleaning, laundry worker II, and hand packagers. Tr. at 88-89.
Plaintiff was asked if she had any difficulty lifting between 20 and 50 pounds. Plaintiff responded that the difficulty was not the lifting but the bending over to pick up the object. The vocational expert was then asked to include an occasional bending as an additional limitation to the hypothetical question. Tr. at 91. The vocational expert testified that the cited jobs would remain relevant. Tr. at 92.
ALJ'S DECISION
As noted above, the ALJ found that while Plaintiff had not engaged in substantial gainful activity since her alleged onset of disability – December 30, 2016. Also as noted above, the ALJ found that Plaintiff's medically determinable impairments do not limit her ability to perform basic work-related activities for a continuous period of 12 continuous months as required by the Commissioner's regulations. Tr. at 17. The ALJ noted six examples of basic work-related activities: 1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; 2) capabilities for seeing, hearing, and speaking; 3) understanding, carrying out, and remembering simple instructions; 4) use of judgment; 5) responding appropriately to supervision, co-workers, and usual work situations; and 6) dealing with changers in a routine work setting. The ALJ wrote that he considered all symptoms to the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence in the record. Tr. at 18.
The ALJ found the opinions of Dr. Wolfe unpersuasive because they were inconsistent with Plaintiff's testimony that she continued driving and using a computer as well as her daily activities reported in her function report. The ALJ found Dr. Wolfe's opinions unsupported by objective medical findings. The ALJ noted that Dr. Wolfe continually reported normal neurological evaluations. The doctor also noted that Plaintiff was looking for work. The ALJ wrote: "In addition, no other sources indicated the claimant would be limited as to needing five-minute breaks every 20 minutes throughout the day." The ALJ found the doctor's opinion was inconsistent with the normal neurologic findings during all of his evaluations. The ALJ noted that Dr. Wolfe was not an objective source "but, rather, was a paid source hired for purposes of supporting a legal position in a contested worker's compensation claim." Tr. at 23.
The ALJ found the opinions of the State Agency consultants opinions persuasive because they are supported by objective medical findings and consistent with the weight of the evidence of record, including a thorough evaluation of the medical findings. The opinions were also supported by the CT and MRI scans of Plaintiff's head and brain, which were unremarkable.
Because Plaintiff has medically determinable mental impairments, the ALJ considered the four broad areas of mental functioning set forth in the regulations for the evaluation of mental disorders. 1) understanding, remembering, or applying information; 2) interacting with others; 3) concentrating, persisting, or maintaining pace; 4) adapting or managing oneself. In the first and fourth areas, the ALJ found no limitation, and in the second and third areas the ALJ found mild limitations. Tr. at 25-26.
The ALJ found that Plaintiff's physical and mental impairments, considered singly as well as in combination, do not significantly limit her ability to perform basic work activities. The ALJ found that Plaintiff does not have as severe impairment and did not proceed any further along the sequential evaluation. Tr. at 26.
STANDARD OF REVIEW
In his brief, the Commissioner cites Nasrallah v. Barr , ––– U.S. ––––, 140 S.Ct. 1683, 207 L.Ed.2d 111 (2020) for the proposition that the agency's findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. This Court disagrees that this is the correct standard in judicial review of a Social Security disability case. In Ahearn v. Saul , 988 F.3d 1111 (9th Cir. February 17, 2021) the Court explained that the standard of review established by Congress for review of immigration cases differs from what Congress established for Supplemental Security Income cases . In review of a Social Security disability case, the Court must apply the test known as "substantial evidence on the record as a whole." The test, explained by Judge Fletcher in Ahearn , requires the reviewing court to determine if the Commissioner's decision is supported by substantial evidence on the record as a whole, including substantial evidence which detracts from the decision as well as that which supports it. Judge Fletcher's analysis is consistent with numerous statements in cases from the Eighth Circuit, examples of which follow.
In Bowen v. Yuckert , 482 U.S. 137, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987), the Court explained that Title II of the Social Security Act provides for the payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or mental disability. The Court went on to explain that Title XVI of the Act provides for the payment of disability benefits to indigent persons under the Supplemental Security Income (SSI) program. The two programs define disability in the same manner. If administrative remedies have been exhausted, a claimant may seek review in the federal district court. Id. at 2291. The judicial standard of review is the same under both Title II and Title XVI of the act.
We will affirm the ALJ's decision "[i]f the ALJ's findings are supported by substantial evidence on the record as a whole," an inquiry that requires us to consider evidence in the record that detracts from the ALJ's decision. Wagner v. Astrue , 499 F.3d 842, 848 (8th Cir. 2007). "Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the decision." Reutter ex rel. Reutter v. Barnhart , 372 F.3d 946, 950 (8th Cir. 2004).
We will not reverse the ALJ's "denial of benefits so long as the ALJ's decision falls within the ‘available zone of choice.’ " Bradley v. Astrue , 528 F.3d 1113, 1115 (8th Cir. 2008) (quoting Nicola v. Astrue , 480 F.3d 885, 886 (8th Cir. 2007) ). The decision of the ALJ "is not outside the ‘zone of choice’ simply because we might have reached a different conclusion had we been the initial finder of fact." Id. (quoting Nicola , 480 F.3d at 886 ). Rather, "[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 v. Barnhart , 421 F.3d 785, 789 (8th Cir. 2005).
Owen v. Astrue , 551 F.3d 792, 798 (8th Cir. 2008). In Brand v. Secretary of Dep't of Health, Education and Welfare , 623 F.2d 523, 527 (8th Cir. 1980), Chief Judge Lay wrote that Universal Camera Corp. v. NLRB , 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951), is "the guideline for the evaluation of the standard of review." In Universal Camera , the Court wrote:
We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the
worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.
340 U.S. at 490, 71 S.Ct. 456. In reviewing disability decisions from the Social Security Administration, the Court sits in an appellate capacity and is responsible for giving the agency decision a scrutinizing analysis. This requires the Court to determine the substantiality of the evidence by determining if the ultimate decision is supported by substantial evidence on the record as a whole. Gavin v. Heckler , 811 F.2d 1195, 1199 (8th Cir. 1987). In Gavin , the Court wrote:
In the review of an administrative decision, "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.
Id. (citations omitted).
In Lucus v. Saul , 960 F.3d 1066, 1068 (8th Cir. 2020), the Court wrote that it is the task of a reviewing court "... to determine whether the ALJ's decision complies with the relevant legal standards and is supported by substantial evidence in the record as a whole. The Court, quoting Collins v. Astrue , 648 F.3d 869, 871 (8th Cir. 2011) continued: "Legal error may be an error of procedure, the use of erroneous legal standards, or an incorrect application of the law."
In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Wilcutts v. Apfel , 143 F.3d 1134, 1136-37 (8th Cir. 1998) (citing Brinker v. Weinberger , 522 F.2d 13, 16 (8th Cir. 1975) ).
For reversal, Plaintiff asserts three errors, the first of which has two parts: 1) The ALJ erred in finding no severe impairment – 1a) medical evidence supports Ms. Roger's diagnosis of severe impairments & 1b) Ms. Rogers' subjective statements are consistent with a finding of severe impairments; 2) The ALJ's determination of Ms. Rogers residual functional capacity is not substantial evidence; 3) Mary Rogers meets the requirements of medical vocational grid rule 201.06. ECF No. 10 at 1
Plaintiff argues that she saw ten health care providers since the accident of November 13, 2015. Id. at 16. Plaintiff argues that, contrary to the ALJ's assertions, Plaintiff reported symptoms which were observed by health care providers. Id. at 18. Plaintiff argues that physical therapist Schooley observed Plaintiff dizziness and the need to take frequent breaks. Id. at 18. Plaintiff argues that Dr. Blodi and Dr. Dawson opined that while Plaintiff does not meet the criteria of a conversion disorder, she may experience some somatization of symptoms. Id. at 19. Plaintiff notes that Dr. Blodi reported changes to the fovea of each eye caused by macular edema which resulted from the concussion and post concussion syndrome. Plaintiff notes that Dr. Kardon found white matter lesions and hypodense area of the left hemisphere could be sequelae of the concussion. Id. at 20. Plaintiff notes that Dr. Dawson opined that Plaintiff suffers from a cognitive disorder supported by below average performance on multiple metrics. Id. at 21. Plaintiff argues that Dr. Wolfe saw Plaintiff twelve times and had access to the testing results of other physicians. Furthermore, contrary to the ALJ's assertions, Plaintiff notes that Dr. Wolfe was paid by the worker's compensation insurance company to be an objective party to investigate the validity of Plaintiff claims. Id. at 22.
In the second part of her argument Plaintiff argues that the ALJ mischaracterized "much of the subjective substantial evidence of the record as a whole." Plaintiff points out that while Plaintiff sought a medical release to return to work shortly after her injury, she was not able to return to work until April of 2016, but that her work was not satisfactory, in spite of it being less demanding and in spite of accommodations. On December 22, 2016, Plaintiff's employment was terminated due to poor performance. Id. at 24. Plaintiff argues that Plaintiff's daily activities do not support a finding that she does not have a severe impairment. Id. at 24. Plaintiff argues: [T]he standard for a severe impairment is not a complete inability to survive, but those that significantly limit a claimant's ability to complete basic work tasks." Id. at 26.
On the other hand, the Commissioner argues that the ALJ's finding that Plaintiff does not have a severe impairment is supported by the evidence in the record. ECF No. 11, 5-12.
In Bowen v. Yuckert , 482 U.S. 137, 107 S.Ct. 2287, 2293, 96 L.Ed.2d 119 (1987), the Court wrote: "The severity regulation requires the claimant to show that he has an ‘impairment or combination of impairments which significantly limits’ ‘the abilities and aptitudes necessary to do most jobs’ " The Court continued: "If the impairments are not severe enough to limit significantly the claimant's ability to perform most jobs, by definition the impairment does not prevent the claimant from engaging in any substantial gainful activity." Id. at 2293-94. In a concurring opinion, Justice O'Connor wrote:
Step two on it's face required only that the claimant show that he or she suffers from "an impairment or combination of impairments ... [that] significantly limit[s] ... physical or mental ability to do basic work activities." 20 CFR § 404.1521(a) (1986). "Basic work activities," the regulation says, include "walking, standing, sitting, lifting, pulling, reaching, carrying, or handling[,] ... seeing, hearing, and speaking, ... [u]nderstanding, carrying out, or remembering simple instructions[,] .... [u]se of judgment ... [r]esponding appropriately to supervision, co-workers and usual work situations[.] ... [d]ealing with changes in a routine work setting."
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I have no doubt that the Act authorizes the Secretary to weed out at an early stage of the administrative process those individuals who cannot possibly meet the statutory definition of disability.
Id. at 2298. At the conclusion of the concurring opinion, Justice O'Connor reminded the Secretary, now the Commissioner, of the admonition stated in Social Security Ruling 85-28, that great care should be taken when stopping the sequential evaluation at the second step. "Only those claimants with slight abnormalities that do not significantly limit any "basic work activity" can be denied benefits without undertaking this [step 4 and step 5] vocational analysis." Id. at 2300.
The record establishes that Plaintiff sustained a concussion when a deer hit her car on the night of November 13, 2016. Thereafter, Plaintiff consistently complained of nausea and dizziness that interfered with both physical and mental functioning. Soon after the accident, Plaintiff expressed the desire to resume working. Her employer allowed her to work from home, but apparently her work was inadequate because she was fired at the end of December 2016. Plaintiff has been diagnosed by physicians, including one chosen by her former employer, with post-concussion syndrome. Neurologist, Irving L. Wolfe, D.O. assigned a permanent partial impairment rating of 15% of the whole person. The doctor recommended permanent work restrictions, including activities and circumstances that precipitate or worsen Plaintiff's symptoms. Examples noted by Dr. Wolfe include driving, the observation of movement such as the scrolling movement on a computer screen and changes in body position and eye movement. Tr. at 225.
The ALJ wrote that he found Dr. Wolfe's opinion unpersuasive because "... Dr. Wolfe is not an objective source but, rather, was a paid source hired for purposes of supporting a legal position in a contested worker's compensation claim." Tr. at 23. That statement is contradicted by substantial evidence in the record. Although Plaintiff considered him to be her treating physician, Plaintiff testified that Dr. Wolf was assigned to her by the worker's compensation insurance company. Tr. at 67. The report written by Dr. Wolfe assigning a permanent partial impairment rating was addressed to a "claim professional" at The Travelers. Tr. at 224. Furthermore, regardless of who paid Dr. Wolfe for his professional services, there is no evidence in this record to support the assertion that the doctor based his opinion on anything other than sound medical practice.
After the administration of a battery of psychological tests, Dr. Dawson diagnosed cognitive disorder, not otherwise specified, and recommended psychotherapy. Dr. Dawson opined that Plaintiff is depressed and anxious and may have "some issues of somatization." Dr. Dawson wrote: "It should be noted that emotional issues take the longest to resolve in a Post Concussion Syndrome." Regarding the ability to work, Dr. Dawson opined that Plaintiff should be limited to "light duty" until such time as it is determined if she has fully recovered. Tr. at 519.
In the opinion of the Court, Plaintiff has met her burden at step two of the sequential evaluation and the ALJ's contrary finding is not supported by substantial evidence on the record as a whole. Whether or not Plaintiff will meet her burden at steps three and four requires further fact finding which is the province of the Commissioner. The Case, therefore, must be remanded to the Commissioner for completion of the sequential evaluation.
Plaintiff argues that she should be found disabled on the basis of the Medical Vocational rules. Because the Commissioner has not made findings regarding steps three through five of the sequential evaluation, it is not possible for this Court to rule on the substantiality of to the evidence as it relates thereto. For that reason, the Court will not address the Plaintiff's remaining arguments.
CONCLUSION AND DECISION
The Court has considered the evidence that supports, as well as the evidence that detracts, from the decision made by the ALJ. After applying the balancing test noted in Gavin , 811 F.2d at 1199, and cases cited therein, this Court holds that the final decision of the Commissioner is not supported by substantial evidence on the record as a whole. The case is reversed and remanded for further administrative findings and a new decision.
The judgment to be entered will trigger the running of the time in which to file an application for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B). See McDannel v. Apfel , 78 F. Supp. 2d 944, 950–54 (S.D. Iowa 1999) (discussing, among other things, the relationship between the EAJA and fees under 42 U.S.C. § 406(b)(1) and LR 54.A(b)); see also Gisbrecht v. Barnhart , 535 U.S. 789, 794, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) ; Mitchell v. Barnhart , 376 F. Supp. 2d 916 (S.D. Iowa 2005).
Counsel is reminded that Local Rule 54.A(b), states that an EAJA application "must specifically identify the positions taken by the government in the case that the applicant alleges were not substantially justified."
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IT IS SO ORDERED.