1:20-cv-00217•Case Name in Social Security Case - Unavailable
Texto completo
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 1 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 1 of 30
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 2abilitytofullyopposehisrightthumb. 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. Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 2 of 30
(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. 3 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 3 of 30
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 4 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 4 of 30
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. 5 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 5 of 30
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 6 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 6 of 30
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 7 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 7 of 30
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. 8 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 8 of 30
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. Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 9 of 30
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. Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 10 of 30
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. 11 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 11 of 30
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. 12 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 12 of 30
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: Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 13 of 30
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 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 14 of 30
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: Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 15 of 30
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 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 16 of 30
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 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 17 of 30
(1) whether the claimant is presently engaged in a substantial gainful activity, (2) whether the claimant has a severe impairment that significantly limits the 18Barnhart,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 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 19 of 30
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:
Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 20 of 30
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. § 212001)(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. Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 21 of 30
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 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 22 of 30
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 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 23 of 30
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. Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 24 of 30
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 25heaversthattheALJ'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 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 26 of 30
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 27theALJnotesthatPlaintiffworkedformanyyearsafterhis1986motorcycleaccident,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 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 27 of 30
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 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 28 of 30
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 30 Case 1:20-cv-00217-CRH Document 26 Filed 12/03/24 Page 30 of 30
Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.