Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Kerry Kim Voegele, 	)
)
Plaintiff, 	) 	ORDER DENYING PLAINTIFF’S
) 	MOTION FOR SUMMARY JUDGMENT,
) 	GRANTING COMMISSIONER’S
) 	MOTION FOR SUMMARY JUDGMENT
) 	AND AFFIRMING COMMISSIONER’S
) 	DECISION
vs.
CommissioneroftheSocialSecurity
)
) 	Case No. 1:20-cv-217
Defendant. 	)
Plaintiff Kerry Kim Voegele (“Voegele”) seeks judicial review of the Social Security
Commissioner's denial of his applications for Disability Insurance Benefits (“DIB”) under Title II
of the Social Security Act. This court reviews the Commissioner's final decision pursuant to 42
U.S.C. § 405(g). For the reasons that follow, the Commissioner’s decision is affirmed.
I. 	BACKGROUND
A. 	Personal History
Voegele was 56 years old on the alleged onset date of disability and 58 years old at the time
of his administrative hearing. Doc. No. 18-2 at p. 32; Doc. No. 18-5 at p. 22. 	He has completed
one year of college. 	Doc. No. 18-2 at p. 33. 	He lives in rural North Dakota with his ex-
wife/girlfriend. Id. at p. 38. He has a valid driver’s license. Id. at p. 34. Over the relevant period
he worked as a driller helper, floor hand, roustabout, seismograph laborer, and survey helper. Doc.
No. 18-2 at p. 43; Doc. No. 18-3 at p. 13; and Doc. No. 18-6 at pp. 2, 18, 19, 40, and 51.
Voegele sustained a traumatic brain injury, hip fractures, a jaw fracture, and a broken
wrist/thumb in a 1986 motorcycle accident. 	Doc. No. 18-2 at p. 37; Doc. No. 18-5 at p. 22; Doc.
No. 18-7 at p. 40. He lost vision in his left eye, some range of motion in his right wrist, and the
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B. 	Relevant Medical Records
1. 	Dr. Ed Kehrwald
Ed Kehrwald, PhD/LAC, conducted a psychological consultative examination of Voegele
on September 12, 2009. Doc. No. 18-7 at p. 5-8. His impressions were as follows. In addition to
Voegele’s physical problems, there was evidence of visual memory difficulty and suggestion of
possible disinhibition and personality change after his head injury. Id. at p. 8. Voegele’s sequencing
ability appeared to remain intact but there was evidence of some decay in memory after a delay. Id.
Voegele appeared to have the skills to manage, perhaps with some assistance, any benefits he may
receive. Id. Voegele also appeared to have the cognitive skills to manage a variety of work-related
tasks involving repetitive work and limited public contact. 	Id. 	However, Voegele’s reduced
tolerance for frustration and reduced persistence created additional complications with respect to
managing work stress. Id.
Based upon the information available to him, Dr. Kehrwald made the following diagnosis:
Axis I: 	Adjustment Disorder with Anxietty
Cognitive and Personality changes due to heady injury
Axis II: 	Mixed Personality Traits
Axis III: 	Left eye, hand, should[er] problems, neck problems, past CHIA
GAF = 58
R/O Alcohol Abuse by hx
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abilitytofullyopposehisrightthumb. Doc.No.18-2atp.34;Doc.No.18-7atp.40. Healso
developedneurocognitiveandadjustmentdisorders. Doc.No.18-2atpp.34-35.
In May 2009, the ring and pointer fingers on Voegele’s left hand were amputated at or
slightlybelowthesecondknuckleinawork-relatedaccident. Doc.No.18-2atp.35;Doc.No.18-5
atp.17. Voegele’sarmwasalsoinjuredintheaccident. Doc.No.18-6atp.39.
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(Id.).
2. 	Dr. D.J. Erikson
Voegele treated with D.J. Erikson, D.C., from February 24, 2016, until February 8, 2017, at
Erikson chiropractic. Id. at pp. 66-67. Progress notes reflect positive cervical compression on both
sides, mild to moderate decrease in cervical range of motion (“ROM”), segmental dysfunction and
palpable tenderness, and a mild to moderate decrease in lumbar ROM with flexion and extension.
Id. at p. 66. They further reflect that Voegele had a positive straight leg raise test; left leg flexion
was to 60 degrees associated with pain in his left low back, mild left-sided lower back pain with
Patrick Faber test, and a positive scope reading with segmental restriction over the sacrum. Id. at
p. 67.
3. 	Coal Country Community Health Center
Voegele treated at Coal Country Community Health Center from February 7, 2017, until
January 1, 2019. Id. at pp. 21-28, 47-56, 71-87.
a. 	Dr. Aaron Garman
Voegele presented to Dr. Aaron Garman on February 7, 2017, with complaints of pain in his
chest and mid back. Id. at p. 25. According to Dr. Garman’s notes, Voegele had been experiencing
chest and back pain since shoveling snow at work five days earlier. 	Id. 	Voegele’s physical
examination was unremarkable; his vital signs were good, his chest x-ray was negative, an EKG
showed sinus bradycardia but no ST elevation or depression and looked pretty good, his Troponin
was normal, his Thyroid was normal, and his CBC and Chem-8 were unremarkable. Id. Attributing
Voegele’s pain to strained muscles as opposed to any cardiac-related event, Dr. Garman instructed
Voegele to continue with chiropractic and massage, anti-inflammatories, stretching, and heat. Id.
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VoegelereturnedtoDr.GarmanonMarch13,2018,forageneralcheckup. Id.atp.21.
According to Dr. Garman’s notes of this visit, Voegele had ongoing problems with back pain,
bilateralarmpain,andjawpain,lossofvisioninhislefteye,anddecreasedvisioninhisrighteye.
Id. Physicalfindingwereunremarkable. Id.atp.23-24. Dr.Garmansuggestedlabs,medication,
avisitwithaneyedoctor,andaCTscanofVoegele’schest,towhichVoegelerespondedthathe
couldnotaffordit. Id.
VoegelenextpresentedtoDr.GarmanonApril6,2018,withleftkneepain. Id.atp.54.
AccordingtoDr.Garman’snotes,Voegelewasshovelingsnowonunevengroundtheweekprior,
feltatwistandapopinhisknee,andhadbeenexperiencingpain. Id. Dr.Garmansuspectedthat
Voegelemayhavetornhismeniscus. Id. Aftersomediscussion,thedecisionwasmadetoholdoff
onasurgicalconsultandinsteadcontinuewithacombinationofrest,ice,andibuprofenandseehow
thingsdeveloped. Id.
Voegele returned to Dr. Garman on April 20, 2018, with a “Medical Source Statement
(Physical)”forDr.Garmantofillout. Id.atp.53. Inhisnotes,Dr.GarmanstatedthatVoegele’s
knees,hips,andleftshoulderwerebad,andthatVoegelestruggleddoingday-to-dayactivitieson
accountofhispainandimmobility. Id.
Dr.Garmancompleteda“MedicalSourceStatement(Physical)”onApril20,2018. Id. at
p.34. Answeringpre-printedquestionsbycheckingtheappropriatebox,heindicatedthatVoegele:
wouldmiss4daysofworkpermonthduehismedicationconditions;couldsitinfrequently,stand,
stoop,andclimb;couldoccasionallywalk,couldfrequentlyliftuptotenpounds,couldoccasionally
lift eleventotwentypounds,andinfrequentlylifttwentypoundsofmore.Id. Hefurtherindicated
thatVoegelecouldneverraisehisleftarmoverhisshoulderorusehishandsforfinemanipulation,
couldonlyoccasionallyusehishandsforgrossmanipulation,butcouldfrequentlyraisehisright
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arm over his shoulder. Id. 	With respect to Voegele’s pain, he stated that it was severe and
estimatedthatVoegelewouldspendthirtypercentofaneight-hourworkdayofftaskbecauseofit
andwouldneedtoliedownapproximatelyonetotwohours. Id.atp.35.
OnJuly31,2018,VoegelereportedtoDr.Garmanwithcomplaintsofheelpain. Id.atp.
80. ConcludingthathelikelyhadAchillestendonitis,Dr.Garmanimmobilizedhiminabootand
referredhimtoaphysicaltherapist,EricKlindworth,MPT,forfurtherevaluationandtreatmentof
hisrightankleandAchilles. Id.
VoegelenextpresentedtoDr.GarmanonJanuary1,2019,withcomplaintsofleftkneepain
that, on a scale of one to ten, he rated a four. Id. at p. 71. According to Dr. Garman’s notes,
Voegelewaskickedbycalfaboutamonthpriortohisvisitandwascontinuingtoexperiencepain,
especiallywhenbendinghisknee.Id. X-rayswerenegative. Id.atpp.71,87. HisMCLandLCL
appearedtobeintact.Id. Attributingthepaintomusclestrainortendernessbecauseofacontusion,
Dr.Garmanadvisedhimtorest,ice,useibuprofen,andfollowupasnecessary. Id. atp.71. Dr.
Garmanalsoofferedhimphysicaltherapybutherefused. Id.
b. 	PABurtonMollman
VoegelepresentedtoBurtonMollman,PA,onFebruary7,2017,withcomplaintsofpain
inhischestandmidback. Doc.No.18-7atpp.25-26. AccordingPAMollman’snotes,Voegele
hadbeenexperiencingchestandbackpainsinceshovelingsnowfiveworkdaysprior. Id.atp.26.
Voegele’svitalswerenormal,hischestx-raywasnegative,hisphysicalexamwasunremarkable,
EKG showed sinus bradycardia but no ST elevation or depression and looked pretty good. Id.
AttributingVoegele’spaintomusclestrainasopposedtoacardiacevent,PAMollmaninstructed
Voegeletocontinuewithchiropracticandmassage,anti-inflammatories,stretching,andheat. Id.
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4. 	PhysicalTherapistEricKlindworth
Asnotedabove,Dr.GarmanreferredVoegeletoPTKlindworthfortherapyonhisright
ankleandheel. Id.atp.80.
VoegelefirstreportedtoPTKlindworthonAugust6,2018. Id.atp.79.AccordingtoPT
Klindworthnotesofthisfirstsession,Voegelepresentedwithwhatappearedtobeahealedpartial
Achillestear. Id. PTKlindsworthperformedsomemanualtherapy,guidedVoegelethroughsome
therapeuticexercises,andinstructedVoegeletowearhiswalkingbootatalltimeswhenleaving
home,useiceforswellingandpaincontrol,andtocontinuewithhisexercises. Id.
VoegelereturnedtoPTKlindworthfivemoretimesinAugust2018fortherapy. Id.atp.75-
78. 	In his notes of sessions held August 9, 14, 17, and 21, 2018, PT Klindworth documented
Voegele’ssteadyprogress. InnotesofasessionheldonAugust24,2018,PTKlindworthobserved
that, two days prior, Voegele had reportedly walked two to three miles without his boot while
rounding up some calves, was periodically wearing the walking boot while outside, and had
generally discontinued using the walking boot while at home. Id. Noting Voegele’s apparant
improvement, PT Klindworth left it to Voegele’s discretion as to when and where to wear the
walkingboot. Id.
VoegelehadtwomoresessionswithPTKlindworthinSeptember2018. Id.atp.73. Inhis
notes of a session held on September 4, 2018, PT Klindworth observed that Voegele was not
wearing the walking boot much at all, did not have a lot of ankle pain, and had continued to
improve. Id.InhisnotesforasessionheldonSeptember9,2018,PTKlindworthobservedVoegele
stillhadabitofsorenesswithoveractivitywhencametoweightbearingandambulationbuthad
prettymuchreturnedbacktonormal,nolongerrequiredregulartherapy,andneedonlyreturnas
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needed. Id. at p. 72.
5. 	Dr. Jacinta Klindworth
Voegele reported to Jacinta Klindworth, M.D, on May 29, 2018, for physical consultative
examination. Doc. No. 18-2 at pp. 39-45, 49-51. On a “Brief Mental Status Exam (MSE) Form,”
Klindworth indicated that Voegele’s affect was reactive, mood congruent, and in the normal range.
Id. at p. 39. She further indicated that Voegele was oriented and that he sometimes had trouble
remembering things but that his short term and long term memory were intact and that his insight
and judgment were good. Id.
In her treatment notes, Dr. Klindworth initially noted that Voegele’s history included: near
complete vision loss in his left eye that affected his depth perception; the loss of parts of the index
and middle fingers on his left hand; pain, weakness, and decreased grip strength in his right hand;
decreased ROM in his right wrist; and bilateral hip pain that came and went. Id. at pp. 40, 49. She
then went on to note that Voegele was able to focus during their conversation, had a normal to
slightly decreased attention span, but had some trouble sitting still due in part to his hip pain. Id.
With respect to Voegele’s fingers, Dr. Klindworth observed the amputations on Voegele’s
left hand, a right thumb deformity that left him unable to fully grip, Herberden’s nodes on his right
hand, and questionable synovitis in the second and third MPCs (joints) on his right hand. Id. at pp.
42, 51. With respect to Voegele’s hands, she observed there was moderately decreased extension
and mildly decreased flexion in his right wrist, normal supination and pronation, the ability to pick
up a pen without difficulty with the right hand, and the ability with some effort to grasp between his
thumb and remaining portions of his index and middle fingers on his left hand. Id.
With respect to Voegele’s hips, the radiology reports of x-rays ordered by Dr. Klindworth
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statedthereweremildarthriticchangesintheleftandverymildarthriticchangesintheright. Id.
atpp.44-45,55-56.
VoegelereturnedtoDr.KlindworthonJune11,2018,forareevaluationofhisfingersand
anevaluationofswellingofhisleftneck. Id.atp.49. Dr.Klindworthorderedsomelabwork,
prescribedhimwithRocephrinandCefdinir,andinstructedhimtoreturnattheendoftheweekfor
areevaluationofhisneck. Id.
VoegelereturnedtoDr.KlindworthonJune15,2018,forfurtherevaluationofhisneck. Id.
atp.47,82. Notingthathislabsactuallylookedprettygood,shecontinuedhimonmedicationsshe
haspreviouslyprescribed–RocephinandCefdiniar–withinstructionstoreturnthefollowingweek.
Id.
6 	Dr.OrlonJackson
VoegelereportedtoOrlonJackson,D.O.,onAugust20,2019,foraphysicalconsultive
examination. Id. atpp.91-93. Dr.Jacksonnotedthefollowinginhisreport. Voegelewasinjured
ina1986motorcycleaccidentanda2017workplaceaccident. Id.atp.99.Voegelerelatedthathe
hasdifficultyperformingcertainmaneuvers,suchasusinghisnondominantlefthandforfinemotor
skills. Id. Voegeledescribedproblemsjudgingdistanceduetohismonocularvisionandthusdid
notfeelcomfortabledrivinginthesnow,drivinglargevehicles,orperformingactivitiesthatrequire
binocularvision. Id.atpp.99-100. Voegelecomplainedofbilateralpain. Id.atp.100. While
Voegelewasabletoperformunlimitedwalking,stoopingandstanding,hereportedhavingdifficulty
withactivitiessuchasprolongedsittingandneededtoshiftpositionsfrequently. Id. Voegelehad
beenbotheredbysomeanxietyaswellasfrustrationwithhisabilities,andhadsomeangerissues.
Id.atpp.100-101.
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With respect to Voegele’s ability to use his hands, Dr. Jackson opined that Voegele could
9
Dr.Jacksonmadethefollowingobservationsfollowinghisexamination. Voegelehada
deformityoftheIPjointoftherightthumb,amputationsofthe indexandlongfingersonhisleft
hand,amildlydecreasedrangeofmotionintherightwrist. Id.atpp.101-102. Hehadnormal
reflexes,nodifficulty maneuveringaroundtheexamroom,adequatebalance,theabilitytowalk
on his heels and toes without difficult, and the ability to assume a full squat and arise from a
squattingpositionusinghislefthandforsupportandbalance. Id. Hisshoulderrangeofmotionwas
normal. Id.atp.102. Hisleftwristwas“sympomatic,”withdecreased flexionandextension. Id.
Hisgripstrengthwasmildlyasymmetric–normalonhisrightsideandmildlydecreasedonhisleft--
duetotheamputationsoffingersonhislefthand. Id. Hewasabletopickupasmallscrapofpaper
easily withhisrighthandandwilladifficultywithhisleft. Id.Hehadnodifficultyambulatingand
usednoassistancedevicesotherthanawalkingstickthathisgirlfriendhadgivenhimandthathe
usedwhenperforminglonghikes. Id.at.pp.101-102.
Ina“MedicalStatementofAbilitytodoWork-RelatedActivities(Physical),”Dr.Jackson
indicated that Voegele could lift and carry up to ten pounds frequently, eleven to fifty pounds
frequently,and fifty-onetoone-hundredpoundsoccasionally.Id.atp.91. Next,heindicatedthat
Voegele could sit for thirty minutes, stand for two hours, and walk for eight-hours without
interruption. Id.atp.92. Healsoindicatedthat,inatypicalworkday,Voegelecouldsitand/or
standforeighthourswithfrequentchangesofpositionandwalkforatotalofeighthourswithout
difficulty.Id.
Withrespecttoanyparticularmedicalorclinicalfindings,Dr.Jacksonnotedthatx-rayshad
shownmildosteoarthriticchanges. Id.
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C. 	Procedural History
1. 	Application for DIB
Voegele filed an application for DIB on March 19, 2018, alleging a disability onset date of
February 15, 2018. Doc. No. 18-5 at pp. 2-5. His application was denied initially on June 28, 2018,
and upon reconsideration on August 21, 2018. Doc. No. 18-4 at pp. 6-8, 11-13.
2. 	Administrative Hearing
On August 29, 2018, Voegele requested a hearing before an Administrative Law Judge
(“ALJ”). Doc. No. 18-4 at pp. 14-15. The Social Security Administration (“SSA”) acknowledged
the request in a letter dated September 24, 2018. Id. at p. 16.
10
continuallyhandle,finger,feelandpush/pullwithright. Id.atp.93. Dr.Jacksonfurtheropined
that, with his left hand, Voegele could continuously reach provided that it was not overhead,
occasionallyreachoverhead,handle,finger,andfeel,andcouldfrequentlypush/pull.	. 	Id.
With respect to Voegele’s performance of postural activities, Dr. Jackson opined that
Voegelecouldclimb,balance,stoop,knee,crouch,andcrawl. Id.atp.94.
WithrespecttoVoegele’vision,Dr.Jacksonopined,that,inspiteoftheblindnessinhisleft
eye,Voegeleretainedtheabilitytoreadverysmallprint,readordinarynewsprintorbookprint,
differentiatetheshapeandcolorofsmallobjects,andavoidordinaryworkplacehazzards,suchas
boxesonthefloor,opendoors,orapproachingpeopleorvehicles. Id.
Withrespectenvironmentallimitations,Dr.JacksonopinedthatVoegelecouldcontinuously
tolerateallenvironmentalconditionssaveunprotectedheights,whichhecouldtoleratefrequently.
Id.atp.95. HeaddedthatVoegelewouldhavedifficultydrivingininclementweatheronaccount
ofhismonocularvision. Id.atp.96.
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On September 13, 2019, the ALJ convened an administrative hearing. Doc. No. 18-2 at pp.
28-47. Voegele appeared with counsel. A Vocational Expert was also present.
a. 	Voegele’s testimony
Voegele testified that, while he remains capable of driving, he does not always feel
comfortable doing so on account of the vision loss in his left eye and the resulting lack of depth
perception. Doc. No. 18-2 at p. 31-34. He further testified that, since suffering his traumatic brain
injury, he is easily frustrated, disinhibited, leaving him more prone to say things that others may not,
and sometimes has problems getting along with people. 	Id. at pp. 34-45, 41. 	When asked to
elaborate about his vision issues, he testified that he cannot see well in low light, that he constantly
trips or runs into things, the corner of a chair being an example, due to his lack of depth perception.
Id. at pp. 41-42.
With respect to this hands, Voegele testified that he continues to use both but that he drops
things all the time with his left and that the arthritis in his right has been steadily getting worse. Id.
at pp. 35-36. He added that he lost some ROM in his wrist in the wake of his motorcycle accident
that has affected his hand strength. Id. at pp. 37. When asked how much he remained capable of
lifting, he responded that he could lift twenty pounds so long as he did not have to carry it far. Id.
With respect to his hips, Voegele testified that he is in constant pain, that he has to “loosen
them up” before walking, and that his level of discomfort can fluctuate depending upon the weather.
Id. at pp. 37-38. When asked whether he has received treatment for his hips, he responded that he
has been to chiropractors but that there is little that they can do for him. Id. at p. 38. When asked
whether he takes medication for pain, he responded that he takes aspirin and/or ibuprofen. Id.
With respect to his responsibilities around his home, Voegele testified that he does some
chores, such as washing dishes or tending to the garden, but that his girlfriend mows the lawn. Id.
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atp.39. Hefurthertestifiedthathekeepsaneyeonhisbrother’scattleandthatinthecourseof
doingsohehadrecentlyfixedfence,knowingthathewouldfeelitlater. Id. Whenaskedhowhe
spendshisfreetime,herespondedthathewatchesalotoftelevision,triestowalkaroundasmuch
ashecanforexercise,andmaygoontheoccasionalroadhuntbutseldomfishesanymore. Id.at
p. 40.
b. 	VE’stestimony
TheALJaskedtheVEwhetherahypotheticalpersonofVoegele’sageandwiththesame
educationandworkhistoryasVoegelecouldperformVoegele’spastworkifhe:(a)couldliftand/or
carry50poundsoccasionallyand25poundsfrequently;(b)couldfrequentlyclimbrampsandstairs
butonlyfrequentlyclimbladders,ropes,orscaffolds;(c)couldoccasionallybalanceandfrequently
stoop,kneel,crouch,andcrawl;(d)limitedfingerbilaterallytoanoccasionalbasis;(e)couldonly
have occasional exposure to hazardous machinery and unprotected heights; (f) required work
environmentwithnomorethanmoderatenoiselevels;and(g)couldnotperformtasksthatrequire
morethanoccasionaluseofdepthperception. Id.atp.44. TheVErespondedinthenegative. Id..
WhenaskedbytheALJwhethertherewouldbeotherjobsinthenationaleconomythispersoncould
perform, the VE responded in the affirmative and cited kitchen helper and sweeper/cleaner as
examplesofsuchjobs. Id.atpp.44-45. WhenaskedbytheALJwhetherVoegelewouldhaveany
transferrableskillstoarangeoflightorsedentarywork,theVErespondedinthenegative. Id.at
p. 45.
WhenaskedbycounseltoconsiderwhetherahypotheticalpersondescribedbytheALJ
couldperformthejobsofkitchenhelperorsweeper/cleanerifunabletoavoidnormalhazardsata
worklocation,theVErespondedthatsuchaninabilitywouldeliminatealljobs. Id.
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The first functional area is understanding, remembering, or applying information. In
this area, the claimant has a mild limitation. Treatment providers have not
documented problems with the claimant's memory during the relevant period (6F/6;
7F/5). He is able to manage his personal care needs, prepare meals, do dishes, do
laundry, mow the yard, garden, shop, drive short distances, care for a dog, help
watch cattle and mend barbed wire fencing (6E; hearing testimony). All of these
activities require an ability to understand, remember and apply information, such as
sequencing steps or using tools. He has a mild limitation.
The next functional area is interacting with others. In this area, the claimant has a
mild limitation. The claimant lives with his girlfriend with no documented difficulty
13
3. 	ALJ’sDecision
OnOctober10,2019,theALJissuedawrittendecision. Id.atpp.11-21. Employingthe
five-stepsequentialevaluationmandatedby20C.F.R.§404.1520,heconcludedthatVoegelewas
“notdisabledundersections216(i)and223oftheSocialSecurityAct.” Id.atp.21.
Specifically,atstepsoneandtwo,theALJ recognizedthatVoegelemettheinsuredstatus
requirementsoftheSocialSecurityAct,hadnotengagedinsubstantialgainfulactivitysincethe
allegedonsetdateofhisdisability. Id.atp.13.
Atstepstwoandthree,theALJdeterminedthatVoegelesufferedfromthefollowingsevere
determinableimpairmentsthatlimitedhisabilitytoperformbasicworkactivities:“visionloss,left
eye;osteoarthritis,righthand;lefthandfingeramputations;anddengerativejointdisease,bilateral
hips.” Id.atp.13-14. HefurtherdeterminedthatVoegele’smedicallydeterminable impairments
did not alone or in combination meet or medically equal any of the presumptively disabling
impairmentslistedat20C.F.R.§404,SubpartP,Appendix1. Id.atp.14.
Notably,theALJfoundVoegele’sneurocognitiveandadjustmentdisorderstobenonsevere
astheycausednomorethan“mild”limitationsinanyofthefourfunctionalareassetoutinthe
disabilityregulationsforevaluatingmentaldisordersandthelistingofimpairmentsat20C.F.R.§
404,SubpartP,Appendix1. Id. WhatfollowsistheALJ'sarticulatedbasisforthisfinding:
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getting along with her (hearing testimony). Although he alleges problems getting
along with others since his traumatic brain injury due to frustration, and feelings of
inferiority, he is able to interact with his brothers that live close by, regularly visit
family and friends, and attend church (6E/5, 6; hearing testimony). The claimant is
also able to shop with no documented difficulty getting along with store clerks or
other shoppers (6E/4; hearing testimony). Additionally, he is able to interact
appropriately with treatment providers. The claimant has a mild limitation.
The third functional area is concentrating, persisting, or maintaining pace. In this
area, the claimant has a mild limitation. The claimant alleges problems with
concentration (hearing testimony). However, he is able to prepare meals, do dishes,
do laundry, mow the yard, garden, shop, drive short distances, help watch cattle, and
mend barbed wire fencing (6E; hearing testimony). The claimant also testified that
he is able to watch television programs like the news and football games. Although
he testified that he may require breaks when watching long programs, it was due to
physical pain and not psychologically based symptoms. All of these activities require
some ability to concentrate, persist and maintain pace. He has a mild limitation.
The fourth functional area is adapting or managing oneself In this area, the claimant
has a mild limitation. The claimant is able to manage his own personal care needs,
and his treatment providers do not express any concerns related to his hygiene
(6E/2). He also interacts appropriately with treatment providers, and does not have
regular emotional outbursts. Despite his diagnoses of neurocognitive disorder due
to traumatic brain injury and adjustment disorder, the claimant also worked for
several years (IF/7; IE; 2E; 3E/3; SE). His work history and reported activities show
that the claimant is able to adapt to some degree of change, respond to demands, set
realistic goals, make independent plans, and is aware of normal hazards. He has a
mild limitation.
Because the claimant's medically determinable mental impairments cause no more
than "mild" limitation in any of the functional areas, they are nonsevere (20 CFR
404.1520a(d)(l)).
The limitations identified in the "paragraph B" criteria are not a residual functional
capacity assessment but are used to rate the severity of mental impairments at steps
2 and 3 of the sequential evaluation process. The mental residual functional capacity
assessment used at steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment by itemizing various functions contained in the broad categories
found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of
Impairments (SSR 96-8p). Therefore, the following residual functional capacity
assessment reflects the degree of limitation the undersigned has found in the
"paragraph B" mental function analysis.
Id. at pp. 13-15.
14
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The claimant is able to lift and/or carry 50 pounds occasionally and 25 pounds
frequently. He can stand and/or walk about 6 hours in an 8-hour workday and can sit
for about 6 hours. He can frequently climb ramps and stairs but only occasionally
climb ladders, ropes, and scaffolds. He can occasionally balance and frequently
stoop, kneel, crouch, and crawl. 	He would be limited to fingering occasionally
bilaterally. 	He can have only occasional exposure to extreme cold, hazardous
machinery, and unprotected heights. He would need to work at a job with no more
than 	moderate 	noise 	levels 	(as 	defined 	by 	the 	Selected 	Characteristics 	of
Occupations) and with a need for no more than occasional need for depth perception.
Id. at p. 16.
In making this determination the ALJ acknowledged that Voegele’s medically determinable
impairments could reasonably be expected to cause some of his alleged symptom. Id. 	However,
he discounted Voegele’s subjective complaints regarding the intensity, persistence, and limiting
effects of his symptoms on the grounds that they were not entirely consistent with the medical
evidence and other evidence in the record. Id.
The ALJ declined to defer or otherwise afford controlling weight to any prior administrative
medical findings or medical opinions regarding Voegele’s conditions. Id. p. 18. That being said,
the ALJ found the assessments of the State agency consultants to be persuasive as they were
consistent with and supported by the objective evidence, Voegele’s testimony, and the activities of
Voegele’s daily living. Id. He likewise found Dr. Kehrwald’s opinion persuasive given that it was
consistent and supported by Voegele’s work history. Id. at p. 19. However, he hastened to add that
Dr. Kehrwald’s opinion would only be considered to the extent that it established any longstanding
psychologically based impairments or symptoms for Voegele as it provided little insight into
Voegele’s limitations during the period at issue.
The ALJ found Dr. Garman’s opinion unpersuasive. Id. at pp. 18-19. In so finding, he noted
15
Atstepfour,theALJdeterminedthatVoegeleretainedtheresidualfunctioncapacityto
performmediumworkwiththefollowinglimitations:
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thedearthofphysicalfindingsinDr.Garman’snotesandthatthefactthatDr.Garmanhasprovided
littleifanyexplanationforhisconclusions. Id.atp.19.
TheALJnextconsideredwhetherVoegelewasabletoperformherpastrelevantwork. Id.
at 19-20. Based on the VE’s testimony at the administrative hearing, the ALJ concluded that
Voegelecouldnotperformthiswork. Id.
Atthefifthandfinalstepofhisanalysis,theALJconcludedthatVoegelewasnotdisabled
as he could make a successful adjustment to other work existing in significant numbers in the
nationaleconomythathewascapableofperforminggivenhisage, workexperience,andRFC. Id.
atpp.20-21.
4. 	AppealsCouncil’sDecision
Voegele timely requested a review of the ALJ’s decision by the Appeals Council. On
September22,2020,theAppealsCouncildeniedVoegele’srequest,renderingtheALJ’sdecision
thefinaldecisionoftheCommissioner. Doc.No.18-2atpp.2-4.
5. 	RequestforJudicialReview
Voegeleinitiatedtheabove-captionedactionbyComplaintonNovember24,2020. Doc.
No.1. OnJuly28,2021,he filedaMotionforSummaryJudgment. HeassertsthattheALJfailed
to property evaluate and credit the opinion of his treating physician, incorporate his mental
limitationsintheRFC,andproperlyevaluatehissubjectivecomplaints. Hefurtherassertsthatthe
ALJ”Sstepfivedeterminationisunsupported. HerequeststhattheALJsdecisionbevacatedand
thatthismatterberemandedforfurtheradministrativeproceedings. Doc.No.20.
OnAugust27,2021,theCommissionerfiledacombinedMotionforSummaryJudgment
andresponsetoVoegele’smotion. Doc.Nos.21and23. OnSeptember3,2021,Voegelefileda
16
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reply to the Commissioner’s response to his motion. Doc. No. 24.
II. 	APPLICABLE LAW
A. 	Standard of Review
The scope of this court’s review is limited in that it is not permitted to conduct a de novo
review. Rather, the court looks at the record as a whole to determine whether the Commissioner’s
decision is supported by substantial evidence. Ellis v. Barnhart, 392 F.3d 988, 993 (8th Cir. 2005).
Substantial evidence is less than a preponderance, but more than a scintilla of evidence.
Nelson v. Sullivan, 966 F.2d 363, 366 n.6 (8th Cir. 1992); Robinson v. Sullivan, 956 F.2d 836, 838
(8th Cir. 1992). 	It is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Nelson v. Sullivan, 966 F.2d at 366 n.6 (quoting Richardson v. Perales, 402
U.S. 389, 401(1971)).
Under the substantial evidence standard, it is possible for reasonable persons to reach
contrary, inconsistent results. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). Thus, the
standard “embodies a zone of choice within which the [Commissioner] may decide to grant or deny
benefits without being subject to reversal on appeal.” Id. 	Consequently, the court is required to
affirm a Commissioner’s decision that is supported by substantial evidence - even when the court
would weigh the evidence differently and reach an opposite conclusion. Id.
In conducting its review, the court is required to afford great deference to the ALJ’s
credibility assessments when the ALJ has seriously considered, but for good reason has expressly
discounted, a claimant’s subjective complaints, and those reasons are supported by substantial
evidence based on the record as a whole. See Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999);
Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993). The Eighth Circuit has stated, “Our
touchstone is that a claimant’s credibility is primarily a matter for the ALJ to decide.” Anderson v.
17
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(1) 	whether the claimant is presently engaged in a substantial gainful activity,
(2) 	whether the claimant has a severe impairment that significantly limits the
18
Barnhart,344F.3d809,814(8thCir.2003).
Nonetheless,thecourt’sreviewismorethanasearchforevidencethatwouldsupportthe
determinationoftheCommissioner. Thecourtisrequiredtocarefullyconsidertheentirerecordin
decidingwhetherthereissubstantialevidencetosupporttheCommissioner’sdecision,including
evidenceunfavorabletotheCommissioner. Ellisv.Barnhart,392F.3dat993.
B. 	LawGoverningEligibilityforAdultBenefits
“Tobeeligiblefordisabilityinsurancebenefits,aclaimanthastheburdenofestablishing
theexistenceofadisabilityundertheSocialSecurityAct(“Act”). 42U.S.C.§423(a)(1)(D). To
meet this burden, the claimant must show: (1) a medically determinable physical or mental
impairment that has lasted, or can be expected to last, for not less than twelve months; (2) an
inabilitytoengageinanysubstantialgainfulactivity;and(3)thatthisinabilityresultsfromthe
impairment. 42 U.S.C. § 423(d)(1)(A).” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001).
“Substantialgainfulactivity”undertheActincludesanysubstantialgainfulworkthatexists
inthenationaleconomy,regardlessof(1)whethersuchworkexistsintheimmediateareainwhich
theclaimantlives,(2)whetheraspecificjobvacancyexistsfortheclaimant,or(3)whetherthe
claimantwouldbehiredifheorsheappliedforwork. 42U.S.C.§423(d)(2)(A). Workavailable
inthenationaleconomywithrespecttoaparticularpersonmeans“workwhichexistsinsignificant
numberseitherintheregionwheresuchindividuallivesorinseveralregionsofthecountry.” Id.
In deciding whether a claimant is disabled within the meaning of the Act, the ALJis
requiredtousethefive-stepsequentialevaluationmandatedby20C.F.R.§404.1520anddetermine:
Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 18 of 30

claimant's physical or mental ability to perform basic work activities,
(3) 	whether the claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations,
(4) 	whether the claimant has the residual functional capacity to perform his or
her past relevant work, and
(5) 	if the claimant cannot perform the past work, the burden then shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.
If the ALJ reaches the fourth step, the ALJ must determine a claimant’s RFC, which is what
the claimant can do despite his or her limitations. 20 C.F.R. § 404.1545. The ALJ is required to
make the RFC determination based on all relevant evidence, including, particularly, any
observations of treating physicians and the claimant’s own subjective complaints and descriptions
of his or her limitations. Pearsall v. Massanari, 274 F.3d at 1218.
In evaluating a claimant’s subjective complaints, the ALJ is required to assess the claimant’s
credibility in light of the objective medical evidence and “any evidence relating to: a claimant’s
daily activities; duration, frequency and intensity of pain; dosage and effectiveness of medication;
precipitating and aggravating factors, and functional restrictions.” 	Id. 	In this circuit, these are
referred to as the “Polaski factors” after the Eighth Circuit’s decision in Polaski v. Heckler, 739 F.2d
1320 (8th Cir. 1984). 1 E.g., Ellis v. Barnhart, 392 F.3d 988, 993-996 (8th Cir. 2005). 	Claimant’s
1 In Polaski, the Eighth Circuit approved a settlement agreement with the Secretary of HHS that contained, in part, the
following language, which the court stated was a correct statement of the law with respect to the manner in which
subjective pain complaints are to be analyzed:
While the claimant has the burden of proving that the disability results from a medically
determinable physical or mental impairment, direct medical evidence of the cause and effect
relationship between the impairment and the degree of claimant's subjective complaints need not be
produced. The adjudicator may not disregard a claimant's subjective complaints solely because the
objective medical evidence does not fully support them.
The absence of an objective medical basis which supports the degree of severity of subjective
complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and
complaints. The adjudicator must give full consideration to all of the evidence presented relating to
subjective complaints, including the claimant's prior work record, and observations by third parties
19
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Generally, an ALJ is obliged to give controlling weight to a treating
physician's medical opinions that are supported by the record. See Randolph v.
Barnhart, 386 F.3d 835, 839 (8th Cir. 2004); 20 C.F.R. § 404.1527(d)(2). A medical
source opinion that an applicant is "disabled" or "unable to work," however, involves
an issue reserved for the Commissioner and therefore is not the type of "medical
opinion" to which the Commissioner gives controlling weight. See Stormo [v.
Barnhart], 377 F.3d [801, 806 (8th Cir. 2004)] ("[T]reating physicians' opinions are
not medical opinions that should be credited when they simply state that a claimant
can not be gainfully employed, because they are merely opinions on the application
of the statute, a task assigned solely to the discretion of the Commissioner." (internal
marks omitted)); 20 C.F.R. § 404.1527(e)(1). Further, although medical source
opinions are considered in assessing RFC, the final determination of RFC is left to
the Commissioner. See 20 C.F.R. § 404.1527(e)(2).
. . . .
The Commissioner defers to a treating physician's medical opinions about the
nature and severity of an applicant's impairments, including symptoms, diagnosis and
prognosis, what an applicant is capable of doing despite the impairment, and the
resulting restrictions. 20 C.F.R. § 404.1527(a)(2). "A treating physician's opinion is
due 'controlling weight' if that opinion is 'well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the record.'" Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir.
and treating and examining physicians relating to such matters as:
1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication; and
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis
of personal observations. Subjective complaints may be discounted if there are inconsistencies in the
evidence as a whole. [Emphasis in original.].
739 F.2d at 1322. The Polaski factors are now embodied in 20 C.F.R. § 404.1529.
20
subjectivecomplaintsmaybediscountedonlyiffoundtobeinconsistentwiththerecordtakenas
awhole. Pearsallv.Massanari,274F.3dat1218.
Also,theALJmustgivecontrollingweighttomedicalopinionsoftreatingphysiciansthat
aresupportedbyaccepteddiagnostictechniquesandthatarenotinconsistentwithothersubstantial
evidence. Thisruledoesnotapply,however,toopinionsregardingdisabilityorinabilitytowork
becausethesedeterminationsarewithintheexclusiveprovinceoftheCommissioner. TheEighth
Circuithassummarizedtherelevantrulesregardingtreatingphysicianopinionsasfollows:
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III. 	DISCUSSION
A. 	Consideration of Dr. Garman’s Opinion
For claims like Voegele’s that were filed on or after March 27, 2017, the weight assigned
to medical opinions is governed by 20 C.F.R. § 404.1520c. 	Pemberton v. Saul, 953 F.3d 514, 517
n.2 (8th Cir. 2020). Under this regulation, the ALJ does not defer to any medical opinions, including
opinions from the claimant's treating medical sources. 20 C.F.R. § 404.1520c(a). Rather, the ALJ
considers all medical opinions according to five factors: (1) supportability; (2) consistency; (3)
relationship with the claimant; (4) specialization; and (5) other factors. 20 C.F.R. § 404.1520c(c).
Supportability and consistency are the most important factors, and the ALJ must explain how those
two factors were considered in determining the persuasiveness of a medical opinion. 20 C.F.R. §
404.1520c(b)(2). The ALJ is not required to explain the remaining factors unless the ALJ “find[s]
that two or more medical opinions ... about the same issue are both equally well supported ... and
consistent with the record ... but are not exactly the same.” 20 C.F.R. § 404.1520c(b)(2)-(3).
The new regulations no longer specifically state that an ALJ must give “good reasons” for
the weight given to medical opinions. Compare 20 C.F.R. § 404.1527 (old rule) to 20 C.F.R. §
21
2001)(quotingProschv.Apfel,201F.3d1010,1012-13([8thCir.]2000)).
Ellisv.Barnhart,392F.3dat994-995.
Disabilitydeterminationsmadebyothers,whilerelevantevidence,arenotcontrollingupon
theCommissioner. TheCommissionerischargedwithmakingherowndisabilitydetermination
baseduponthecriteriasetforthintheSocialSecuritylaw. 20C.F.R.§404.1504.E.g.,Jenkinsv.
Chater,76F.3d231,233(8thCir.1996). And,iftheALJproceedstothefifthstep,theburden
shifts to the Commissioner to prove that there are other jobs in the national economy that the
claimantcanperform. Pearsallv.Massanari,274F.3dat1217.
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404.1520c;seealsoThomasv.Kijakazi,No.4:20CV363DDN,2021WL3566621,at*6(E.D.
Mo. Aug. 12, 2021) (“The new regulation ... relaxed the requirement that ALJs provide ‘good
reasons’fortheweightgiventomedicalopinions.”). However,anALJ'sexplanationfortheweight
given to a medical opinion must still be “adequately articulated” and “supported by substantial
evidence.” Thomas,2021WL3566621,at*7–8;Dornbachv.Saul,No.4:20-CV-36RLW,2021
WL 1123573, at *11 (E.D. Mo. Mar. 24, 2021) (reversing and remanding the Commissioner's
decisionbecausethe“ALJdidnotadequatelysupporthisreasoningforrejectingthetreatingmedical
sources’opinions”under20C.F.R.§404.1520c);Smithv.Kijakazi,No.3:20-CV-00364(PSH),
2022WL193063,at*3(E.D.Ark.Jan.20,2022)(“ALJsarerequiredto‘explain’theirdecisions
astothetwomostimportantfactors—supportabilityandconsistency.”).
VoegelemaintainsthattheaforementionedregulationsdonotsupporttheALJ’srejection
ofDr.Garman’sopinion. Specifically,VoegeleassertsthatDr.Garman’sopinionwasinformedby
hisfamiliaritywithVoegele’simpairments(hehadbeenVoegele’sprimarycarephysiciansinceat
least2009)andconsistentwithhisownnotesaswellas theprogressnotesofEriksonchiropractic,
the observations of PA Mollman, and the observations of both Dr. Jackson and Klindworth
regardinghisvision, hips,hands,gripstrength,andpain.HefurtherassertsthattwooftheALJ’s
findings–that there are no physical findings in Dr. Garman’s notes to support the limitations
describedinhisopinionandthatDr.Garman’sopinionconsistedofaseriesofcheckboxeswithout
explanationonapreparedform–arepatentlyfalse.
Voegele takes exception to the ALJ’s characterization of Dr. Garman’s treatment as
conservative,assertingthatsuchacharacterizationisamisrepresentationofthefactsandthathe
chosenottopursueallofthecoursesoftreatment recommendedbyDr.Garman--physicaltherapy,
aCTscan,anorthopedicsurgeryconsultation,labs,andmedications--onaccountoftheircostand
22
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his lack of insurance. Voegele also takes the ALJ to task for cherry picking perceived
inconsistencies between Dr. Garman’s opinion and the rest of the medical records in order to
discountDr.Garman’sopinion. SeeGainesv.Colvin,No.8:15CV207,2016WL617420,at*2(D.
Neb.Feb.16,2016)(“ALJhastheobligationtoconsiderallrelevantmedicalevidenceandcannot
simplycherry-pickfactsthatsupportafindingofnon-disabilitywhileignoringevidencethatpoints
toadisabilityfinding.”).
Havingreviewedtherecord,thecourtfindslittlesupportfortheVoegele’sassertionthatthe
ALJ“cherry-picked”therecordandimproperlydiscardedordiscountedDr.Garman’sopinion.The
ALJconsideredsupportabilityandconsistencyfactorsinconsideringDr.Garman’sopinion. Inso
doing he contrasted Dr. Garman’s opinion with his own notes and other medical evidence and
concludedtheywereinconsistent.
Dr.Garman’sopinionconsistedofcheckedboxes,circledanswers,andbrieffillintheblank
responses. Itcontainsnocitationtoordiscussionofmedicationevidenceandprovideslittletono
elaboration. TheALJnotedasmuch. SeeThomasv.Berryhill,881F.3d672,675(8thCir.2018)
(findinglittleevidentiaryvalueinachecktheboxassessmentdevoidofelaborationandexplanation
fortheconclusionsreached). Thecourtappreciatesthatasamatterofexpediencyandtoensurethat
treatingphysicians“coverallthebases”whenrenderingtheiropinion, manyrelyoncheckbox
forms similartotheoneutilizedbyDr. Garman. However,itdoesnotescapethecourt’snotice
thatthenotestakenbyDr.Garmanonthedatehecompletedtheformdonotentirelyalignwiththe
opinionexpressedintheform.
Turning to Dr. Garman’s notes in general, they reflect that on examination, Voegele’s
physical 	findings were generally unremarkable. Dr. Garman did suggest a CT scan, labs,
(unspecified)medicationinMarch2018,asurgicalconsultinApril2018toaddressapossibletorn
23
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B. 	ALJ’s Step Five Determination
Voegele next asserts that the ALJ's determination at step five is unsupported. Specifically,
24
meniscusinVoegele’sleftknee,andphysicaltherapyafterVoegelepresentedwithakneeinjury
inJanuary2019. SettingasideVoegele’sreasonfordecliningthesecoursesoftreatment,itappears
thatVoegelewasabletoaddresstheminwholeorinpartthroughalternativemeansasthereislittle
ifanymention/discussionofhisknees,backandchestinhisapplicationforDIBandthatthese
maladiesdidnototherwiseappearcentraltohisclaimforDIB.
LikeDr.Garman’snotes,thephysicalfindingsdocumentedbytheconsultingphysicians
werelargelyunremarkable. Yes,Voegeleexhibitedsomeobservabledeficitsonaccountofhis
variousinjuriesandwhatx-raysrevealedtobemildarthriticchanges. Theconsultingphysicians
noted that Voegele had some discomfort to the point that he needed to often shift positions.
However,theyalsonotedthatVoegelehadnormalreflexes,anormalgait,theabilitytoambulate
andtonavigatehiswaythroughanexamroomwithoutissue,andtheabilitytomanipulateobjects
withbothhands,albeitmoreeasilywithhisrightthanleft. Theseobservationsareinconsistentwith
statementsmadebyDr.GarmanthatVoegelecouldoccasionallyambulate,couldneveruseshis
handsforfinemanipulation,could occasionallyusehishands forgrossmanipulation,andwas
sufferingfrompainsoseverethatitwouldlikelytakehimofftaskforalmostone-thirdofatypical
workday.
Insum,therecorddoesnotsupportVoegele’scontentionthattheALJ“cherry-picked”the
record or otherwise failed to appropriately apply the new regulations when reviewing medical
opinions.Rather,itisapparentfromtherecordthattheALJproperlyconsideredallofthemedical
evidence and in so doing, concluded that Dr. Garman’s opinion lacked supportability and
consistencyascomparedtohisnotesandtheopinionsexpressedbyothers.
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F.3d 549, 561 (8th Cir. 2011).
C. 	ALJ'S RFC Determination
The ALJs bears “the primary responsibility for assessing a claimant's residual functional
capacity based on all relevant evidence.” Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000). That
said, a claimant's RFC is a medical question and “at least some” medical evidence must support the
ALJ’s RFC determination. Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Accordingly, “the
ALJ should obtain medical evidence that addresses the claimant's ability to function in the
workplace.” Id. (internal quotation omitted).
Voegele asserts the following with respect to the ALJ’s consideration of his mental
limitations when making his RFC determination. First, the ALJ erred by not addressing Voegele’s
mild limitations in the four broad areas of mental functioning in the RFC determination or including
them in the hypothetical to the VE.
Under the Rules, the ALJ is required to consider all limitations imposed by the
25
heaversthattheALJ'shypotheticaltotheVEandbyextensionhisRFCdeterminationfailedto
incorporatethelimitationstowhichDr.Garmanhadopinedandwhichwouldprecludehimfrom
performingtheworkofakitchenhelperand/orsweeper/cleaner. 	HefurtheraverstheALJfailed
toexplainwhytheportionofDr.Jackson'sopinionthatwouldotherwisebedisabling(occasionally
reach,finger,handleandfeelwithhislefthand)wasnotincorporatedoraccountedforintheRFC
determination. Finally,heaversthattheALJ cherrypickedwhatwasfavorableinsupportofhis
RFCanddisregardedtherestwithoutadequateexplanation.
Asdiscussedabove,theALJevaluatedDr.Garman'sopinioninaccordancewithagency
regulations. HeincludedinhisRFCdeterminationallofthelimitationsthattherecordasawhole
supported. SeeMcGeorgev.Barnhart,321F.3d766,769(8thCir.2003);Bucknerv.Astrue, 646
Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 25 of 30

claimant's impairments, even those that are not severe. 	Social Security Ruling
(“SSR”) 96-8p (1996). Even though a non-severe “impairment standing alone may
not significantly limit an individuals ability to do basic work activities, it may--when
considered with limitations or restrictions due to other impairments--be critical to the
outcome of a claim.”
Doc. No. 20 at p. 19. Second, remand for clarification is appropriate given the ALJ’s finding that
two conflicting state agency consultant opinions were persuasive.
[T]he state agency consultant (“SAMC”) found that Plaintiff had a severe
neurocognitive disorder[ ] as a secondary impairment. 	T 57. 	However, on
reconsideration, the SAMC found that Plaintiff’s neurocognitive disorder[ ] was non-
severe. 	T73. 	Interestingly enough, the ALJ found both of these opinions to be
“persuasive.” (T17) without recognizing the very different findings. Moreover, the
ALJ did not discuss this diagnosis or any resulting limitations, and Plaintiff was left
to speculate why this is so. 	This case must be remanded for clarification of this
issue; did Plaintiff have severe neurocognitive disorders or not.
Id. at p. 22 (emphasis in original).
With respect to the latter, the court makes two observations. First, there little ambiguity in
the record regarding the severity of Voegele’s neurocognitive disorder in the eyes of the ALJ; at
step 3 of his analysis, the ALJ discussed the paragraph B criteria at some length and then concluded
that the Voegele’s neurocognitive and adjustment were non-severe. Second, in his supporting brief
Voegele characterizes his mental limitations as mild. Id. at p. 23 (“The ALJ failed to state what
effect those mild mental limitations had on Plaintiff’s ability to work . . . .”) (emphasis added).
Thus, the assertion that the ALJ’s findings are ambiguous and that there is lack of clarity regarding
the severity of his neurocognitive disorder is specious.
Turning to the former, an ALJ is not required to discuss a diagnosis or a condition when
there is no evidence that imposed any limitations on the claimant’s functional capacity. 	See Box
v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995). Notably, Voegele has not cited any credible evidence
that would demonstrate additional limitations are attributed to his mental impairments. Conversely,
26
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v. Barnhardt, 380 F.3d 441, 447 (8th Cir. 2024).
D. 	ALJ's Evaluation of Plaintiff's Subjective Complaints
Based upon his review the evidence, the ALJ found that Voegele’s medically determinable
impairments could be expected to cause the alleged symptoms but that Voegele’s “statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the reasons explained in
the decision.” Doc. No. 18-2 at pp. 16.
Voegele asserts that his subject complaints were not given a full and fair evaluation by the
ALJ and that the ALJ improperly dismissed his complaints with the boilerplate recitation that the
“the intensity, persistence, and limiting effects of his symptoms” were “inconsistent with the
treatment record and reasons described below.” Doc. No. 20-1 at p. 23. He further asserts that his
ability to engage in activities of daily living, such as a cooking, cleaning, or participating in a hobby,
does not constitute evidence of the functional capacity to engage in substantial gainful activity.
Carlson v. Saul, 473 F. Supp. 3d 950, 968 (D. Neb. 2020)
In analyzing a claimant's subjective complaints, an ALJ must consider: (1) the claimant's
daily activities; (2) the duration, frequency, and intensity of the condition; (3) dosage, effectiveness,
and side effects of medication; (4) precipitating and aggravating factors; and (5) functional
restrictions. Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009) (citing Finch v. Astrue, 547 F.3d
933, 935 (8th Cir.2008); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). Other factors for
27
theALJnotesthatPlaintiffworkedformanyyearsafterhis1986motorcycleaccident,oftenabove
substantialgainfulactivitylevels. Doc.No.18-2at p.13,Doc.No.18-6atpp.2-38,51-57. The
Eighth Circuit has held that if the record suggests a non-severe impairment does not cause
limitations,theALJneednotaccountfortheimpairmentintheRFCdetermination.SeeHilkemeyer
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considerationincludetheclaimant's“relevantworkhistoryandtheabsenceofobjectivemedical
evidencetosupportthecomplaints.”Gowellv.Apfel,242F.3d793,796(8thCir.2001). These
factorsarederivedfromtheEighthCircuit’sdecisioninPolaskiv.Heckler,739F.2d1320,1322
(8th Cir.1984). While ALJs must acknowledge and consider these factors before discounting a
claimant'ssubjectivecomplaints,they“neednotexplicitlydiscusseachPolaskifactor.” Goff, 421
F.3dat791.ALJsmaydiscountclaimants'complaintsifthereareinconsistenciesintherecordas
awhole. ThecourtwillgenerallydefertoanALJ'scredibilityfindingaslongastheALJexplicitly
discreditsaclaimant'stestimonyandgivesagoodreasonfordoingso. Schultzv.Astrue,479F.3d
979,983(8thCir.2007);seealsoHolmstromv.Massanari,270F.3d715,721(8thCir.2001)(“The
credibilityofaclaimant'ssubjectivetestimonyisprimarilyfortheALJtodecide,notthecourts.”).
Here,theALJproperlyconsideredthePolaskifactorsandarticulatedbasesfordiscounting
Voegele’scredibility. Forexample,theALJreviewedtheobjectivemedicalevidence. Insodoing,
theALJnotedthat,whileVoegelehadmildarthriticchangesinbothofhishipsandosteoarthritis
inhishands,Voegelehadreliedonaspirinandibruprofenasneededforpainreliefandthatthere
wasverylittletreatmentforhisimpairmentsreflectedinthemedicalevidenceofrecord. Doc.No.
18-2atp.17. TheALJ furthernotedthat,whileVoegelehadissueswithhisrightthumb,was
unable to to fully grip, had generalized stiffness in his hips, and walked with antalgic gait, he
remainedcapable,byDr.Klindworth’saccount,ofpickingupapenwithhisrighthandwithout
difficultyandwithhislefthandwithsomeadditionaleffort. Id. Additionally,Voegeleshowedno
hipabnormalitiesandhadnormalrangeofmotiononexamination. Id.
TurningtoDr.Jacksonreport,theALJnotedthat,onexamination,Voegelehadexhibited
minimaldifficultywithabductingandelevatinghisarmpasthisshoulder,milddecreasedrangeof
motioninhisrightwrist,normalgripstrengthinhisrighthandandmilddecreasedgripstrengthin
28
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IV. 	CONCLUSION
In this case, the ALJ correctly applied governing law, regulations, and policy guidance, and
there is substantial evidence supporting the Commissioner’s decision. As long as there is substantial
evidence supporting the decision, this court may not reverse it simply because there is substantial
evidence supporting a contrary outcome or because the court would have decided the case
differently. Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001); see also Schmitt v. Kijakazi,
27 F.4th 1353, 1361 (8th Cir. 2022).
Accordingly, the Commissioner’s Motion for Summary Judgment (Doc. No. 21) is
29
hisright. Id. Additionally,Voegele’sshoulderROMwasnormal,hecouldabductandelevatehis
armsone-hundredeightydegreesbilaterally,hissensationtolighttouchinhisupperandlower
extremitieswasintact,hisgatewithnormal,andhehadnodifficultiesnavigatingtheexamination
room. Id.
MovingontoVoegele’sactivitiesofdailyliving,theALJnotedthatVoegelelivedinarural
areawithhisgirlfriend,assistedwithchores,watchedhisbrother’scattle,fixedbarbedwirefencing,
tendedtohispersonalneeds,droveshortdistances,andwalkedforexercise. Id. AsVoegelehas
pointedout,suchactivitiesarenotdeterminative. TheyneverthelessremainafactorfortheALJto
considerwhenassessingVoegele’scredibility. AndEighthCircuitcaselawgenerallysuggeststhat
anALJmayappropriatelyconsiderdailyactivitiesinconjunctionwithotherfactorsthatmaybear
upon the issue of credibilty. See Halvorson v. Astrue, 500 F.3d 922, 932-33 (8th Cir. 2010);
Clevingerv.Astrue,567F.3d971,975(8thCir.2009).
TheALJ’sarticulatedbasesfordiscountingVoegele’ssubjectivecomplaintswerevalid.See
Bradleyv.Astrue,528F.3d1113,1115(8thCir.2008).Findingsubstantialevidentiarysupportin
therecordforhisfindings,thecourtdeferstotheALJ'sadversecredibilitydetermination.
Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 29 of 30

GRANTED, Voegele’s Motion for Summary Judgment (Doc. No. 20) is DENIED,
and the Commissioner's decision is AFFIRMED.
ITISSOORDERED.
DatedthisSEEBZPG%FDFNCFS 
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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