Opinion
4:19-cv-88 RP-SBJ
2020-08-12
Melody D. SIMMERS, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant
Kristin Elaine Olson, UNITED STATES ATTORNEY'S OFFICE, DES MOINES, IA, for Defendant. Wes Lance Kappelman, KAPPELMAN LAW FIRM, AMES, IA, for Plaintiff.
Kristin Elaine Olson, UNITED STATES ATTORNEY'S OFFICE, DES MOINES, IA, for Defendant.
Wes Lance Kappelman, KAPPELMAN LAW FIRM, AMES, IA, for Plaintiff.
MEMORANDUM OPINION AND ORDER
ROBERT W. PRATT, Judge
Plaintiff, Melody D. Simmers, filed a Complaint in this Court on March 22, 2019, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).
Plaintiff filed applications for benefits on May 3, 2015. Tr. at 203-04; 217-24. At all times pertinent to this case, Plaintiff was classified as a younger individual, 18-49. See 20 C.F.R. § 404.1563. Plaintiff appeared at an administrative hearing on January 25, 2018, before Administrative Law Judge (ALJ) Mikel Lupisella. Tr. at 31-50. The ALJ issued a Notice of Decision – Unfavorable on June 13, 2018. Tr. at 8-30. On January 30, 2019, the Appeals Council declined to review the ALJ's decision. Tr. at 1-5. Thereafter, Plaintiff commenced this action. Both Plaintiff and the Commissioner have filed briefs and Plaintiff filed a reply brief. At the direction of the Court, the parties filed supplemental briefs.
ALJ's DECISION
At the outset of the decision, the ALJ noted that Plaintiff was insured for purposes of Title II benefits until March 31, 2018. At the first step of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity after August 1, 2015, the amended alleged disability onset date. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)
At the second step of the sequential evaluation, the ALJ found that Plaintiff has the following severe impairments: degenerative joint disease, status-post right total hip arthroplasty, obesity, and degenerative disc disease. Tr. at 13. The ALJ found that there are medically determinable impairments (adjustment disorder with mixed anxiety and depressed mood, and alcohol abuse) which do not cause more than minimal limitations and, therefore, are not severe. Tr. at 14-16. The ALJ noted Plaintiff's history of several episodes of mental health exacerbation requiring emergency psychiatric care and/or hospitalization, but not during the relevant period of time. During the relevant period, Plaintiff reported to the doctors that prescribed medication was effectively controlling her mental health symptoms. Treating source mental status examination showed signs of depression and anxiety but intact memory. The ALJ discussed the report of a psychological consultative examination by Timothy E. Wahl, Ph.D., who saw Plaintiff August 24, 2015. Tr. at 497-501. The ALJ also considered the four broad areas of mental functioning found at 20 C.F.R., § Pt. 404, Subpt. P, App. 1. In support of this finding, the ALJ cited Dr. Wahl's report, treatment records from River Hills Community Health Center, and a functional report completed by Plaintiff on June 24, 2015. The ALJ found no more than mild limitation in any of the functional areas and determined that the impairments are non-severe. Tr. at 15-16.
Dr. Wahl diagnosed Adjustment Disorder with mixed anxiety and depressed mood. He opined that Plaintiff was considered to have an average intellect; intact cognitive abilities – occasionally variable due to pain or emotional factors; adequate interpersonal skills but that others may find her sad, isolative, overwhelmed and/or irritable at times. Plaintiff's judgment appeared intact, and she appeared capable of responding appropriately to changes in the work place. Tr. 499.
The ALJ found that Plaintiff's impairments were not severe enough to qualify for benefits at the third step of the sequential evaluation. Tr. at 16. At the fourth step, the ALJ found:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she cannot climb ladders, ropes, or scaffolds, and can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch or crawl. The claimant can no more than frequently push and/or pull with the right lower extremity, which includes the use of foot controls. The claimant can tolerate only occasional exposure to extreme cold, and can have no exposure to hazards, such as unprotected heights or dangerous, moving machinery.
Tr. at 17. The ALJ wrote that his residual functional capacity finding took into consideration all of Plaintiff's symptoms and the extent to which the "symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" including opinion evidence. Id. The ALJ summarized Plaintiff's testimony:
At the hearing, the claimant presented the following allegations: The claimant suffers from back pain and left foot numbness, which limits her to sitting 30-45 minutes, standing 20-30 minutes, and walking 15-30 minutes at a time. She uses a cane to walk. She can lift the weight of a gallon of milk with one hand, but is not certain that she could lift as much as twenty pounds, as it would increase her back pain. The claimant has a driver's license but can only drive 30-45 minutes at a time due to back pain, so she typically drives only short distances. She lives with her spouse, her adult son, and her fifteen-year-old son in a single-level house. She has health insurance through the state. She performs housework such as laundry and dishes, but can only do them for a limited time before needing to stop to rest. She typically lies down for 30-45 minutes several times a day due to pain and fatigue, and takes a nap for one and a half hours each afternoon. About three days a week, she has a "bad day" during which she largely stays in bed because of her intense pain. She takes oxycodone for pain, which provides only partial relief, and she has received injections, but no surgery. She takes medication for depression
and anxiety, which provide some relief.
Tr. at 17-18. The ALJ gave partial weight to the opinion of Dr. Wahl finding that his conclusion that Plaintiff would experience mild-to-moderate cognitive variability or that others might find her sad, isolated, overwhelmed or irritable were at odds with his observation of adequate comprehension, alertness, intact attention, memory, short and long-term recall, concentration, cognition, normal thought processes, general knowledge, simple mathematic abilities, and abstract reasoning. Dr. Wahl's finding was also contrary to treatment records which indicate Plaintiff's symptoms have remained under good control with conservative, non-specialized treatment. Tr. at 20.
The ALJ gave little weight to an opinion expressed by a consultative examiner – Dr. Brindley – who opined that Plaintiff cannot work and that her pain prevents her from physical activities. The ALJ found the opinion unsupported by Plaintiff's testimony, and by observations at other medical examinations. The ALJ also found that Dr. Brindley's opinion that Plaintiff cannot work is an opinion reserved to the Commissioner. Id.
The ALJ gave little weight to an opinion rendered by an independent medical examiner, Theron Q. Jameson, D.O. because it predated the amended alleged onset of disability date by many years. Id.
Great weight was given to the State agency medical and psychological consultants who are familiar with Social Security policies and regulations. The ALJ found their opinions consistent with and supported by the medical record. Tr. at 21.
The ALJ gave limited weight to a third-party function report submitted by Plaintiff's husband. The ALJ found the husband's statements at odds with the medical evidence of record.
The ALJ found that Plaintiff is unable to perform her past relevant work. Id. Based on the testimony of a vocational expert, the ALJ found that there are a significant number of jobs in the national economy which Plaintiff can perform. Tr. at 22-23. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 24.
DISCUSSION
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. 200[8]) 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 Department 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 Biestek v. Berryhill , ––– U.S. ––––, 139 S.Ct. 1148, 1153, 203 L.Ed.2d 504 (2019) the Court wrote: "On judicial review, an ALJ's factual findings ... ‘shall be conclusive’ if supported by ‘substantial evidence’. The Court continued:
And whatever the meaning of "substantial" in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is "more than a mere scintilla." It means – and means only – "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See Dickinson v. Zurko , 527 U.S. 150, 153, [119 S.Ct. 1816, 144 L.Ed.2d 143] (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).
Id. (quoting Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229, [59 S.Ct. 206, 83 L.Ed. 126] (1938) ).
In reviewing disability decisions from the Social Security Administration, this 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. (internal citations omitted).
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, 136-37 (8th Cir. 1998).
The most important issue in any disability case that proceeds beyond step three of the sequential evaluation is that of residual functional capacity:
Probably the most important issue will be the question of [residual functional capacity] ... The RFC that must be found ... is not the ability merely to lift weights occasionally in a doctor's office; it is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.
McCoy v. Schweiker , 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc).
For reversal Plaintiff argues: (1) the ALJ did not adequately consider the combined effects of Plaintiff impairments, including an apparent conversion disorder, leading the ALJ to improperly evaluate Plaintiff's credibility regarding the limiting effects of her impairments; (2) the ALJ did not fully and fairly develop the record concerning right hip-related limitations; (3) the ALJ did not provide good reasons for the weight afforded the consultative examiners opinions; (4) the ALJ was an inferior officer not appointed in a constitutional manner, which requires the ALJ's decision to be vacated and remanded to be decided by a new ALJ who was properly appointed.
ISSUE I: DID THE ALJ CONSIDER THE COMBINED EFFECTS OF IMPAIRMENTS
Within this claim of error, Plaintiff raises two sub-issues: (1) the ALJ did not consider a conversion disorder to be a severe impairment; and (2) the ALJ failed to make credibility findings.
CONVERSION DISORDER
Plaintiff argues: (1) The 1984 amendments to the Social Security Act require a determination of whether the combined effect of a claimant's impairments render the claimant disabled; (2) where the record indicates the possibility that the perception of pain is exacerbated by a psychological impairment, that possibility should be investigated; (3) the ALJ should have considered an apparent conversion disorder. ECF No. 8 at 13. Plaintiff goes on to argue that the ALJ improperly evaluated her credibility by finding her statements were not supported by the objective medical evidence. Id. at 15.
The Commissioner argues that the ALJ did not consider an alleged conversion disorder because no physician diagnosed such an impairment. The Commissioner notes that Plaintiff testified that her medication helped control her symptoms of anxiety and depression. The Commissioner argues that impairments that can be controlled by medication are not disabling. The Commissioner points to the report of a consultative examination which found an intact mental status with no evidence of cognitive dysfunction or impaired attention, memory, concentration or judgment.
In support of this argument, Plaintiff points to two medical reports. The first is a medical report submitted by Joseph J. Chen, M.D., at the University of Iowa Hospitals & Clinics dated March 27, 2017. Tr. at 835-48. The second report to which Plaintiff points is from River Hills Community Health Center and Ottumwa Medical dated June 9, 2917. Tr. at 855-62.
When seen by Dr. Chen, Plaintiff complained of chronic left-sided low back pain without sciatica. Treatment had consisted of two epidural steroid injections, physical therapy, and medication. Plaintiff had undergone a right total hip replacement after a fall. It was noted that an EMG had been negative for radiculopathy or peripheral neuropathy. An MRI showed possible degenerative changes in facet and possible infection, neither of which were seen on a CT scan. Plaintiff reported pain at level nine on a ten point-scale. The pain was mostly in the left buttock and described as aching and stabbing. Tr. at 835. On examination, Dr. Chen noted that Plaintiff had a normal mood and affect. Her behavior was normal and her judgment and thought content were normal. The doctor diagnosed chronic left-sided low back pain without sciatica, and lumbar facet arthropathy – stable. The doctor assured Plaintiff that her pain was real and that there was more which could be done to manage the pain. Tr. at 837. The doctor recommended improving Plaintiff's overall physical fitness level and learning some additional cognitive-behavioral techniques, such as coping skills, medication, and mindfulness-based exercises, to not over-respond to the pain signals. Plaintiff was to be evaluated by the Spine Rehab Team, and "if the team thinks she has sufficient motivation to make some difficult behavioral changes she may be a candidate to return to the Spine Rehabilitation Program. Tr. at 838.
The second report to which Plaintiff points in support of her argument is from River Hills Community Health Center and Ottumwa Medical dated June 9, 2917. Tr. at 855-62. The report was signed by Juanita Obrien (initials indicating professional status do not appear on this report). Tr. at 862. It was noted that Plaintiff had finished with the pain management team at the University of Iowa Hospitals and Clinics. Plaintiff reported that her pain was about the same. Plaintiff and Ms. Obrien discussed how anxiety affects her pain – "which is what the pain management team was trying to get across to her." Plaintiff complained of depression, anxiety and feeling stressed. She denied memory loss, mental disturbance suicidal ideation, and homicidal ideation. Tr. at 856. Mild improvement in anxiety was noted, and Plaintiff said she tries to consider anxiety when having pain. Plaintiff was to continue taking escitalopram. Tr. at 858. Plaintiff was advised to increase her walking and to lose at least ten pounds of weight. Tr. at 862.
Plaintiff cites Anderson v. Heckler , 805 F.2d 801, 805 (8th Cir. 1986), for the proposition that the combined effect of Plaintiff's impairments must be considered in determining whether or not she is disabled. The Court in Anderson was asked to consider whether the ALJ had properly evaluated Anderson's impairments at the second step of the sequential evaluation. The ALJ had evaluated each impairment and determined that it did not constitute a severe impairment and denied the claim because Anderson had not established a severe impairment. Id. In the case before the Court, the ALJ found that Plaintiff has both severe and non-severe impairments and proceeded through the steps of the sequential evaluation.
Next, Plaintiff cites Delrosa v. Sullivan , 922 F.2d 480, 485 (8th Cir. 1991), for the proposition that when the record indicates the possibility of a claimant's perception of pain is exacerbated by a psychological impairment, the ALJ should consider and investigate that possibility. The ALJ in Delrosa found that the record failed to support a doctor's diagnosis of chronic anxiety depression, the subjective complaints of pain were not credible and the remaining impairments either individually or in combination did not constitute a severe impairment. The application was denied on that basis at the second step. Id. at 483. In the case at bar, as noted above, the ALJ found that Plaintiff has a combination of severe and non-severe impairments all of which were considered through the remaining steps of the sequential evaluation.
Plaintiff's cites Easter v. Bowen , 867 F.2d 1128, 1131 (8th Cir. 1989), for the proposition that the ALJ erred by focusing unduly on the objective physical data rather than determining Plaintiff's credibility. In Easter , the claimant had been under the care of a psychiatrist for several years. The psychiatrist diagnosed somatoform disorder and a long-standing atypical personality disorder for which she took several psychotropic medications. The treating psychiatrist opined that Easter was not employable. After an evaluation, a psychologist diagnosed conversion disorder, psychological factors affecting physical condition and, histrionic disorder. The psychologist identified treatment necessary before Easter might be able to work. Id. at 1129. In the case at bar, a conversion disorder has never been diagnosed by any physician or other mental health professional.
Plaintiff cites Nowling v. Colvin , 813 F.3d 1110, 1114-15 (8th Cir. 2016), for the proposition that the ALJ did not provide sufficient reasons for rejecting Plaintiff's subjective limitations. Nowling suffered from conversion disorder manifesting as somatoform, non-epileptic pseudo-seizures. In addition, Nowling suffered from migraine headaches, mood disorder, anxiety disorder, and personality disorder. Id. at 1113. Nowling received treatment from a general practitioner, a psychiatrist, and a licensed social worker all of whom consistently diagnosed and treated Nowling for conversion disorder manifesting as non-epileptic/pseudo-seizures. Id. at 1115. Nowling took medication for anxiety and personality disorder as well as for headaches. Physicians frequently changed her medication in an attempt to better control the conditions. Nowling's testimony was consistent with what was reported in the medical records. Id. at 1116. Nowling's psychiatrist opined that Nowling was seriously limited or unable to meet competitive standards in several significant vocational functional areas. Id. at 1117. The Court held the ALJ committed several reversible errors among which was that the ALJ was unclear as to which of Nowling's symptoms were believed and what, if any, effect the conversion disorder had on Nowling's ability to work. The Court also held that the ALJ failed to follow the procedures for the evaluating Nowling's mental impairments when assessing her residual functional capacity. Id. at 1120.
In the case at bar, in contrast to the cases cited by Plaintiff, the ALJ noted Plaintiff's medically determinable mental impairments – adjustment disorder with mixed anxiety and depressed mood, and alcohol abuse – but because those impairments do not cause more than minimal limitations, they were found to be non-severe. In support of that finding, the ALJ pointed to medical records indicating Plaintiff's medication was effective in controlling her mental health symptoms. The ALJ relied on Dr. Wahl's evaluation. The ALJ used the "four areas of mental functioning" as the criteria to evaluate the severity of Plaintiff's impairments. The ALJ found the mental impairments to be non-severe and moved on to the remaining steps of the sequential evaluation. In the opinion of the Court, the ALJ did not err by failing to consider a conversion disorder. The ALJ's findings regarding the evaluation of Plaintiff's mental impairments are supported by substantial evidence on the record as a whole.
In Noerper v. Saul , 964 F.3d 738, 745 n.3 (8th Cir. 2020), the Court noted that Social Security Ruling 16-3p eliminated the term "credibility" in favor of an examination of the level of consistency between subjective assertions and the balance of the record as a whole. These are largely changes in terminology rather than substance.
Plaintiff argues that the ALJ's residual functional capacity finding is not supported by substantial evidence because Plaintiff's subjective complaints were disregarded without consideration of the credibility factors set out in Polaski v. Heckler , 739 F.2d 1320, 1322 (8th Cir. 1984). The regulations state that the Commissioner recognizes that symptoms are sometimes more severe than the objective medical evidence would indicate. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3)
We will consider all of the evidence presented, including information about your prior work record, your statements about your symptoms, evidence submitted by your medical sources and observations by our employees and other persons. ... Factors relevant to your symptoms, such as pain, which we will consider include: (i) your daily activities; (ii) the location, duration, frequency, and intensity of your pain or other symptoms; (iii) precipitating and aggravating factors; (iv) the types, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms; (v) treatment, other than medication, you receive or have received for relief of your pain or other symptoms; (vi) Any measures you use or have used to relieve your pain or other symptoms (e.g.) lying flat on your back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (vii) other factors concerning your functional limitations and restrictions due to pain or other symptoms.
Id.
In Schwandt v. Berryhill , 926 F.3d 1004, 1012 (8th Cir. 2019), the Court noted that when evaluating a claimant's subjective complaints, the ALJ must consider objective medical evidence, the claimant's work history, and other evidence relating to the aforementioned factors. Although the Court held that an ALJ need not explicitly discuss each factor, the credibility determination will be upheld if supported by good reasons and substantial evidence. The ALJ found Schwandt's testimony not entirely credible. The objective medical evidence undermined Schwandt's testimony; the ALJ pointed to evidence undermining Schwandt's reports of significant cognitive side effects, including daily activities that cast doubt on her claim. The Court wrote: "Viewing the record as a whole, good reasons and substantial evidence support the ALJ's decision to discount Schwandt's credibility." Schwandt , 926 F.3d at 1012.
In Guilliams v. Barnhart , 393 F.3d 798, 801-802 (8th Cir. 2005), the Court wrote:
A claimant's subjective complaints may be discounted if there are inconsistencies in the record as a whole. 20 C.F.R. §§ 404.1529, 416.929 ; McKinney v. Apfel , 228 F.3d 860, 864 (8th Cir. 2000) ; Polaski v. Heckler , 739 F.2d 1320, 1322 (8th Cir. 1984). In evaluating subjective complaints, however, the ALJ must consider objective medical evidence, as well as any evidence relating to the so-called Polaski factors ... In rejecting a claimant's complaints of pain as not credible, we expect an ALJ to "detail the reasons for discrediting the testimony and set forth the inconsistencies found." Lewis v. Barnhart , 353 F.3d 642, 647 (8th Cir. 2003).
In Guilliams , the Court held that the ALJ did detail legally sufficient reasons for discrediting the testimony. The ALJ noted objective medical evidence, including a normal MRI and a physician's opinion that there were suggestions of symptom magnification. Other medical evidence noted a discrepancy between Guilliams' diminished grip strength and the maintenance of muscle mass in his arm. The ALJ noted that a physician observed Guilliams' hands were calloused and greasy indicating significant daily activities. The ALJ noted that Guilliams testified that his medication was effective in relieving his pain. The ALJ noted that Guilliams did not take advantage of a physician's offer to refer him to a podiatrist in response to complaints of heel pain. The ALJ considered functional restrictions, namely his numerous household chores which were inconsistent with debilitating back pain. The Court wrote: "The inconsistencies between Guilliams's allegations and the record evidence provide sufficient support for the ALJ's decision to discredit Guilliams's complaints of pain.
In Lewis v. Barnhart , 353 F.3d 642, 647 (8th Cir. 2003), the Court wrote: "The ALJ's express credibility determination must detail the reasons for discrediting the testimony and set forth the inconsistencies found." Lewis testified to a long list of problems: severe back pain which limited her ability to perform various exertional activities such as standing and lifting; problems with muscle spasms in the legs and back which forced her to lie down several times per day for an hour at a time; problems using her hands; she testified to difficulty reaching; swelling in her feet, knees and hands; headaches which last one to four hours, three to four times per week; problems with memory; respiratory difficulties due to asthma and bronchitis ; side effects of medication, several of which made her drowsy; crying spells once a week; thoughts of suicide and problems coping with recent deaths of family members; difficulty concentrating and finishing tasks; anger; she claimed that she would sweat and tremble two or three times per day. Lewis testified she did not go to the grocery store or go fishing as often as in the past. Lewis claimed daily activities consisted of washing dishes, doing laundry, cooking, watching television and reading. The ALJ found the assertions of disabling pain "not fully credible." Id. at 644. The Court held that substantial evidence on the record as a whole supported the ALJ's decision to discount the complaints. The Court listed the substantial evidence which supported the credibility findings made by the ALJ: 1) opinions of two physicians that Lewis could reduce her pain and effects of asthma if she stopped smoking and exercised daily – advice Lewis failed to follow; 2) medical opinion that Lewis could perform routine job duties in an environment which did not offer stimuli which would divert Lewis' attention; 3) evidence which showed normal results on physical examination. Id. at 647. The Court held that substantial evidence on the record as a whole supported that ALJ's decision that Lewis was able to return to her past relevant work. Lewis. at 648,.
In Strongson v. Barnhart , 361 F.3d 1066, 1072 (8th Cir. 2004), the Court stated that the ALJ is not required to explicitly discuss each Polaski factor so long as "[the ALJ] acknowledges and considers those factors before discounting a claimant's subjective complaints." The Court noted that the ALJ stated that the factors were being considered and then went on to discuss in detail why Strongson's testimony was not consistent with the medical evidence. The Court noted that the ALJ did not reject Strongson's testimony solely because of her demeanor, "but analyzed the evidence." The ALJ's found Strongson's testimony inconsistent with the reports of her routine daily activities and with medical and clinical findings which did not support a diagnosis of fibromyalgia or other rheumatological disorders. The ALJ noted that Strongson had been able to help remodel her own home. The ALJ noted that Strongson was living with her boyfriend while receiving alimony and that she was lacking in her motivation to return to the work force. The Court wrote: "We conclude that the ALJ's determination of Strongson's RFC incorporated the relevant medical evidence and that his credibility analysis took into account all appropriate factors." Strongson. at 1072-73,.
In the case at bar, Plaintiff argues the ALJ did not discuss any of the factors set forth in the regulation beyond the medical evidence, nor did the ALJ make any credibility findings or evaluate the testimony as provided for in the Polaski agreement and in the regulations. The ALJ need not discuss every factor, but without any mention whatsoever of credibility or the factors being considered the Court is unable to determine if the ALJ found good reasons to discount the testimony or if those reasons are supported by substantial evidence on the record as a whole. Although the ALJ summarized Plaintiff's testimony (Tr. 17-18), thereafter the only factor cited by the ALJ is the objective medical evidence. The ALJ wrote that Plaintiff's complete medical history was reviewed and considered. Tr. 18. The ALJ considered the injury to Plaintiff's hip but noted that "the objective findings at physical examination indicate a less severe degree of limitations than the claimant's subjective complaints might suggest." Id. After a complete summary of the medical evidence, the ALJ wrote that the medical evidence supported restricting Plaintiff to light work activities with the additional postural and environmental limitations described in the RFC finding. "However, greater limitations are not supported, considering the medical evidence of record discussed above, particularly the findings at physical examinations, at which the claimant typically exhibited normal gait and muscle strength and tone, and was able to walk adequately without a cane." (citations omitted) (emphasis added) . That statement stands in contrast to the regulatory recognition that symptoms are sometimes more severe than the objective medical evidence would indicate, necessitating consideration of the other factors. In each of the cases cited above, the ALJ pointed to evidence of daily activities, symptom magnification, calloused and greasy hands, the ability to remodel a home, etc, etc., which indicated that the actual symptoms were not as severe as claimed during the testimony. Those Administrative Law Judges cited evidence other than objective medical evidence and the courts affirmed their findings regarding credibility/consistency. As Justice Kagan wrote regarding substantial evidence, the bar is not high, but it is a bar which must be cleared.
Although the ALJ clearly erred by not addressing the issue of credibility, the next question is, does it make a difference, i.e., is the error harmless? In Lucus v. Saul , 960 F.3d 1066, (8th Cir. 2020), the issue was whether an ALJ's failure to state specific reasons for the weight given to a treating medical source opinion was harmless error or not. The Court noted that the ALJ's decision must contain specific reasons for the weight given to the opinion of a treating source, that the reasons must be supported by the evidence in the record, and must be sufficiently specific to make clear to subsequent reviewers the reasons for the decision. Lucus , 960 F.3d at 1068. Next, the Court addressed the question of whether such error is harmless. The Court wrote:
An error is harmless when the claimant fails to "provide some indication that the ALJ would have decided differently if the error had not occurred." Byes v. Astrue , 687 F.3d 913, 917 (8th Cir. 2012).
***
The failure to comply with SSA regulations is more than a drafting issue, it is legal error. Brueggemann v. Barnhart , 348 F.3d 689, 694 (8th Cir. 2003) (contrasting a "mere drafting oversight" with the "failure to follow ... [t]he Commissioner['s] duly promulgated Regulations"); Walker [v. Comm'r, Soc. Sec. Admin. , 911 F.3d 550, 553 (8th Cir. 2018).
Lucus. at 1069-70,. Likewise, in Draper v. Barnhart , 425 F.3d 1127, 1130 (8th Cir. 2005) the Court held that while a deficiency in opinion writing was not sufficient reason to set aside an ALJ's finding, incomplete analyses and unresolved conflicts of evidence were among the reasons which can serve as a basis for remand. In the case at bar, Plaintiff testified she is unable to work because she can only sit or stand for limited periods of time without needing to change position. Tr. at 30. Plaintiff said she is able to sit for thirty-to-forty-five minutes, can walk for fifteen-to-thirty minutes, can lift a gallon of milk but was unsure of anything heavier. Plaintiff testified that she is unable get out of bed because of pain about three days a week. Tr. at 42-43. The vocational expert testified that being absent from work twenty percent of a work day, or for more than two days a month "due to pain, fatigue, and/or psychiatric symptoms," eliminates the possibility of competitive work. Tr. at 48-49.
In other words, if Plaintiff's testimony is believed, and if it is found that the deficits in the ability to function are due to medically determinable impairments, severe or non-severe, according to the vocational expert no competitive work would be possible. See 20 C.F.R. § 404.1545(a)(2) ("We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe,’ when we assess your residual functional capacity."). On the other hand, if Plaintiff's testimony is not believed for some reasons which pass muster under Polaski and the regulations then the ALJ's decision is supported by substantial evidence on the record as a whole. Without a credibility finding, judicial review is impeded. For that reason, it cannot be said the omission of a credibility finding is harmless. See Nowling v. Colvin , 813 F.3d 1110, 1121 (8th Cir. 2016) (holding an ALJ's "arguable deficiency in opinion-writing technique," does not require remand if it has no bearing on the outcome of the case). In the opinion of the Court, the failure to address Plaintiff's credibility requires remand.
In making the finding that the case must be remanded, the Court is aware that the ALJ wrote 17 that the decision was being made "... based on the requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p ..." Tr. at 17. Nevertheless, the Court can find no indication in the remainder of the ALJ's decision that any factor other than the medical evidence was considered when Plaintiff's testimony was evaluated. As noted above, while the ALJ must consider objective medical evidence, evidence relating to the Polaski factors must also be considered and the ALJ must detail the reasons for discrediting the testimony and set forth the inconsistencies found. See Guilliams v. Barnhart , 393 F.3d 798, 801-802 (8th Cir. 2005). In other words, simply reciting the regulation is insufficient to comply with the 36 years of Polaski analysis, whether one calls it credibility or consistency. Because the ALJ is in a better position to evaluate credibility, Courts defer to the ALJ's determination as long as the determination is supported by good reasons and substantial evidence, but the ALJ must consider the aforementioned factors. Adamczyk v. Saul , 817 Fed.Appx. 287, (8th Cir. 2020).
ISSUE II: FAILURE TO DEVELOP THE RECORD
Plaintiff argues that the ALJ breached his duty to fully and fairly develop the record by failing to obtain the reports of functional capacity evaluations conducted in April 2013 and August 2013. Plaintiff cites a report of an examining orthopedist who on June 15, 2013, wrote that he would agree with the April 9, 2013 permanent restrictions.
The Commissioner argues that the ALJ did not err because the ALJ noted the absence of the FCE and Plaintiff's attorney told the ALJ that he would obtain it from the attorney who represented Plaintiff during the Worker's Compensation case. At the hearing, the ALJ asked Plaintiff's attorney if the functional capacity evaluation referred to in Dr. Jameson's report was available. The ALJ said that if the Attorney could find the report it would be admitted into the record, but the record would not be held open because the FCE was dealing with the right hip issue and occurred prior to the amended onset of disability date. Tr. at 44-45. Earlier in the hearing, the attorney explained that the onset of disability date was amended to reflect that Plaintiff became disabled in August 2015 when the back condition acutely flared up. Tr. at 35.
In Buford v. Colvin , 824 F.3d 793, 797 (8th Cir. 2016), the Court wrote that an ALJ's duty to develop the record is not a never-ending obligation and that the ALJ's duty does not include the obligation to disprove every possible impairment. The Court wrote that the ALJ is required to order additional medical examinations only if the existing medical record does not provide sufficient evidence to determine whether the claimant is disabled. Id. (citing Martise v. Astrue , 641 F.3d 909, 926-27 (8th Cir. 2011) ).
In the case at bar, the ALJ noted the missing reports and afforded counsel the opportunity to add them to the record. On remand, counsel is again free to submit the reports and make any argument regarding their relevancy to the period at issue. Because the case is being remanded, Plaintiff is free to produce the missing reports and provide them to the ALJ.
ISSUE III: DID THE ALJ GIVE GOOD REASONS TO DISCOUNT THE OPINIONS OF CONSULTING PHYSICIANS
Plaintiff argues that the ALJ's residual functional capacity finding must ordinarily be supported by a treating or examining source opinion to be supported by substantial evidence. Plaintiff cites Nevland v. Apfel , 204 F.3d 853, 858 (8th Cir. 2000), in which the Court wrote that the opinions of doctors who have not examined a claimant ordinarily do not constitute substantial evidence on the record as a whole to support a residual functional capacity finding. Plaintiff also cites Social Security Ruling ( SSR) 96-5p, 1996 WL 374183 (July 2, 1996) and 20 C.F.R. §§ 404.1527 and 416.927 which set out the factors for deciding the weight to be given to "any medical opinion". Those factors include: (1) examining relationship; (2) treatment relationship; (3) supportability; (4) consistency; (5) specialization; (6) whether or not the opinions address issues reserved to the Commissioner.
JACK BRINDLEY, M.D.
Plaintiff takes issue with the ALJ's evaluation of the opinion rendered by Dr. Brindley who examined Plaintiff for the purpose of determining her work limitations. Tr. at 493-95. Dr. Brindley recited a history of Plaintiff's injuries which led to a total hip replacement. The doctor also noted a very recent onset of sciatica for which Plaintiff had been referred to an orthopedic surgeon. Tr. at 493. The doctor reviewed Plaintiff current medication, her past medical history, her social history, her smoking and drinking habits. The doctor reviewed the medical reports supplied to him, including the June 15, 2014 report from Dr. Jameson. Dr. Brindley wrote: "[Dr. Jameson] agreed with the functional capacity examination of 4/9/13 that felt her functional status activity level was she had difficulty performing significant carrying, pushing and pulling as well as prolonged standing, walking reaching, bending, squatting and climbing." Id. Doctor Brindley conducted a physical examination. Tr. at 494-95. The doctor's assessment was that Plaintiff had recently developed sciatica in her left leg possibility the result of a herniated disc on the left, and "she has a lot anxiety and depression over this whole chain of events." The doctor concluded his report:
I feel she does have sciatica in her left leg which has just occurred. She did have an injury at work where she had a subchondral fracture in the right hip which occurred at Cargill on March 7, 2012. She had a total hip and was able to return to work but after a while she had pain again in her hip. This led to more restrictions placed on her employment and the company could no longer honor these restrictions and she was no longer employed. She saw a lawyer and had independent exams done and that information is enclosed. At this point it does not appear that she can work. She continues to have a lot of pain in the right leg which keeps her from being able to sit, stand, bend, squat, etc. I think she needs to see a total hip specialist that is more knowledgeable in this area. I hope his answers your questions.
Tr. at 495. Of this statement, the ALJ wrote:
Little weight is given to the opinion of consultative examiner Jack Brindley, M.D., stating that the claimant cannot work, and that her pain prevents her from being able to perform activities such as to sit, stand, bend, or squat (6F). The degree of exertional and postural limitation that Dr. Brindley described are greater than those that the claimant herself described in her testimony. Most significantly, the degree of limitation described is at odds with the medical evidence of record discussed above, particularly the findings at physical examinations, at which the claimant typically exhibited normal gait and muscle strength and tone, and was able to walk adequately without a cane (see, e.g. 10F; 12F; 15F; 20F; 21F; 22F). Moreover, the question of whether the claimant can perform work is an issue reserved to the Commissioner, and there is no indication that Dr. Brindley is a qualified vocational expert (20 [C.F.R. §§] 404.1527(d) and 416.927(d)).
Tr. at 20. Thus the ALJ provided four reasons why he gave little weight to Dr. Brindley's opinion: (1) the degree of exertional and postural limitations described are greater than those described by the claimant during her testimony; (2) the degree of limitation described is at odds with the medical evidence; (3) the question of whether the claimant can work is an issue reserved to the Commissioner; (4) there is no indication that Dr. Brindley is a vocational expert.
TIMOTHY WAHL, PH.D.
Next, Plaintiff asserts that the ALJ did not provide sufficient reasons for disregarding the opinion expressed by Dr. Wahl regarding the impact variable mental limitations have on performing competitive work.
Dr. Wahl saw Plaintiff on August 25, 2015. Tr. at 496-501. After reviewing Plaintiff's historical background the psychologist conducted a mental status examination. See Tr. at 497-98. On mental status exam, there was no evidence of cognitive dysfunction, and no evidence of thought disorder. Plaintiff's affect "appeared a little restricted." Plaintiff reported being depressed because she is unable to work. The psychologist wrote:
Based on a standard MSE, overall mental status appears grossly intact, and there was no evidence of cognitive dysfunction. Melody was fully oriented in all phases, including time, person, place and situation. Attention and immediate memory were adequate, and Melody was able to recall 6 digits forward and 4 digits backwards. She was able to spell "WORLD" backwards. Short-term recall was good, and she was able to recall 3 of 3 words after 10 minutes. Long-term recall appeared adequate, as evidenced
by her ability to recall details from her past. Knowledge of general factual information was good, and Melody was able to name large cities in the United States, name presidents, as well as discuss famous people and events. Calculation abilities were good, and she was able to complete simple problems of addition, subtraction, multiplication, and division. Serial 7's were completed successfully, the fair/good pace of response.
Tasks measuring abstract thinking and reasoning were completed adequately, and Melody was able to describe the meanings of common proverbs. When asked what "the grass is always greener ..." meant, she replied "life looks better somewhere else." She was able to describe the similarities and differences between common objects. Language abilities were adequate, and Melody was able to construct a grammatically correct sentence (The weather is beautiful outside.), name common objects, read a short phrase, repeat a simple phrase, and follow a three-step command correctly. Construction of simple drawings were within normal limits. Judgment appears adequate, and Melody was able to provide appropriate behavioral responses to hypothetical situations.
Tr. at 499-500. Dr. Wahl opined that Plaintiff met the diagnostic criteria for an adjustment disorder with mixed anxiety and depressed mood. Plaintiff was considered to be of average intellect, capable of comprehending basic vocational demands; while her cognitive abilities appeared to be intact, the psychologist opined that Plaintiff will likely experience mild/moderate cognitive variability due to distracting pain and emotional factors; Plaintiff appears capable of responding appropriately to changes in the workplace. Regarding interacting appropriately with co-workers, supervisors and the public, Dr. Wahl wrote that Plaintiff appears to have adequate interpersonal skills for vocational success: "however considering current health issues, pain, depression, and anxiety, others may find her sad, isolative, overwhelmed, and/or even irritable at times. Tr. at 500.
The ALJ gave partial weight to Dr. Wahl's opinion. The ALJ wrote that the evidence does not support the psychologist's conclusion that Plaintiff would experience mild-to-moderate cognitive variability or that others might find her sad, isolated, overwhelmed or irritable. In addition to Dr. Wahl's conclusion being at odds with his observations of adequate comprehension, alertness, intact attention, memory, short and long-term recall, concentration and cognition, normal thought process, general knowledge, simple mathematic abilities, and abstract reasoning, the ALJ found the conclusion unsupported by treatment records indicating that Plaintiff's symptoms have remained under good control with conservative, non-specialized treatment.
It must be kept in mind that the ALJ did not reject Dr. Wahl's opinion out of hand. The opinion was given partial weight. The ALJ's findings regarding the psychologist's opinion are supported by, and consistent with the findings made by the State agency psychological consultants. Aaron Quin, Ph.D., a State agency psychological consultant considered Dr. Wahl's opinion on September 11, 2015, and, based on that report and other evidence in the record, opined that Plaintiff's mental impairments are non-severe in that the overall evidence shows no more than mild limitations secondary to her mental impairments. Tr. at 58. On December 17, 2015, Myrna Tashner, Ed.D., a State agency psychological consultant found, at the reconsideration stage that Plaintiff's medically determinable mental impairments were not severe. Tr. at 106.
The Court finds no error in the weight given by the ALJ to the opinions of either Dr. Brindley or to Dr. Wahl. ISSUE IV: IS THE ALJ AN INFERIOR OFFICER NOT APPOINTED IN A CONSTITUTIONAL MANNER
Plaintiff argues that the ALJ was not properly appointed by a Department Head or the President, and Social Security Administration Administrative Law Judges are inferior officers, the denial of benefits should be vacated and remanded for a new hearing before a constitutionally appointed Administrative Law Judge. Plaintiff argues that an Appointment Clause challenge may be raised for the first time in federal court.
The U.S. Court of Appeals for the Eight Circuit addressed this question in Davis v. Saul , 963 F.3d 790, (8th Cir. 2020). The court held that because the issue was not raised before the ALJ, it had been waived. Id. at 794. The court wrote:
[W]e do not believe this is "one of those rare cases in which we should exercise our discretion" to consider a non-exhausted claim. Freytag , 501 U.S. 866, 879, [111 S.Ct. 2631, 115 L.Ed.2d 764] (1991). Freytag resolved a constitutional challenge to the appointment of Special Trial Judges of the United States Tax Court. The Court noted that although the petitioner did not raise the issue before the Tax Court, the claim implicated "the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers." Id. (quoting Glidden Co. v. Zdanok , 370 U.S. 530, [536, 82 S.Ct. 1459, 8 L.Ed.2d 67] (1962) ). This court, however, has not understood Freytag to mean that all Appointments Clause challenges are exempt from the typical requirements of issue exhaustion. [ N.L.R.B. v. RELCO Locomotives, Inc. , 734 F.3d 764, 798 (8th Cir. 2013).] We consider here the practicalities of potentially upsetting numerous administrative decisions because of an alleged appointment flaw to which the agency was not timely alerted. We also recognize the perverse incentives could be created by allowing claimants to litigate benefits before an ALJ without objection and then, if unsuccessful, to secure a remand for a second chance based on an unexhausted argument about how the ALJ was appointed. See Freytag , 501 U.S. at 895, (Scalia, J., concurring in part and concurring in the judgment). Under all the circumstances, we do not view this as a rare situation in which a federal court should consider an issue that was not presented to the agency.
Id.
In the case at bar, that resolves the question. Plaintiff's argument is foreclosed.
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 because of the absence of a credibility finding. The case is reversed and remanded for further proceedings 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 28 U.S.C. § 2412(d)(1)(B) (Equal Access to Justice Act). See McDannel v. Apfel , 78 F. Supp. 2d 944, 950-54 (S.D. Iowa 1999) (discussing, among other things, the relationship between the Equal Access to Justice Act 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).
N.B. Counsel is reminded that LR 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."
IT IS SO ORDERED.