United States District Court, N.D. Iowa, Eastern Division
REPORT AND RECOMMENDATION
K. E. Mahoney United States Magistrate Judge.
Diane Kinzebach's application for disability insurance
(DI) benefits under Title II of the Social Security Act, 42
U.S.C. §§ 401-434, is before the court for a second
time: the court previously reversed a decision of the
Commissioner of Social Security (the Commissioner) denying
Kinzebach benefits for failing to provide a “good
reason” for discounting the residual functional
capacity (RFC) opinion of Kinzebach's treating physician,
Dr. James Peterson. On remand from this court, the
administrative law judge (ALJ) found that Dr. Peterson's
RFC opinion was inconsistent with the record as a whole and
again denied Kinzebach benefits. Kinzebach appeals, arguing
that the ALJ erred in weighing the medical-opinion evidence,
including Dr. Peterson's opinion, and her subjective
complaints. I recommend that the Commissioner's decision
filed applications for DI benefits in August 2007 and
February 2009, alleging disability beginning on August 21,
2007, due to her past colon cancer and resulting bowel
problems, problems with her legs (pain and neuropathy), and
(for the first time in the 2009 application) back pain. AR
306, 348. The ALJ found (and neither party challenges) that
Kinzebach was eligible for DI benefits for a disability
established on or before September 30, 2012, making the
relevant time period August 21, 2007, to September 30, 2012.
applications were denied initially and on reconsideration. AR
76-78. In connection with those reviews, state agency
consultants evaluated her physical RFC: Dr. Judy Panek
in November 2007 and Dr. Chrystalla Daly in April 2009. AR
520-25, 623-29. Before the ALJ hearing, Kinzebach
submitted an additional physical RFC opinion from her primary
care physician, Dr. Peterson, which he completed on June 28,
2010. AR 744-48.
first video hearing before an ALJ occurred on August 26,
2010, and a few months later, the ALJ denied her request for
DI benefits. AR 58, 82-94. The Appeals Council vacated and
remanded that decision, finding that the ALJ needed to
resolve the following issues:
• [Dr. Peterson] opined that the claimant could work for
four hours a day at a light lifting level, and could
sit/stand 30 minutes at a time with occasional postural
limitations. The [ALJ] provided some weight to these
limitations, but did not specifically discuss the limitation
that the claimant could work for only four hours a day.
Further evaluation of this opinion is necessary.
• The decision indicates that the claimant had the [RFC]
to perform a range of light work, but could only “walk
three blocks.” The length of time the claimant can walk
. . . is unclear. Further evaluation of the claimant's
[RFC] is necessary.
• The hearing decision includes “bowel
incontinence” as a severe impairment, but no associated
limitations are provided in the [RFC] assessment.
AR 101 (citations omitted). The Appeals Council instructed
the ALJ on remand to obtain and address additional evidence
concerning Kinzebach's physical RFC, to give further
consideration to Dr. Peterson's RFC opinion, and to
provide further explanation of the ALJ's RFC limitations
“with specific references to evidence of record in
support.” AR 102-03. A second hearing was held on March
14, 2013, and a second ALJ opinion issued the next month,
again denying Kinzebach DI benefits. AR 18-34, 43. In
addition to the RFC opinions discussed above, the ALJ
considered a letter date January 5, 2012, from physician
assistant Angela Schreiber (PA Schreiber) and an opinion
dated September 24, 2012, by one-time consultative examiner
and physician assistant Robert Welshons (PA Welshons), which
was also signed by Dr. Adam Roise. AR 29-30, 842, 1142-44.
Appeals Council denied Kinzebach's request for review,
and she appealed the ALJ's decision to this
court. AR 1318, 1325-44. The court held that the
ALJ did not give “good reasons” for rejecting Dr.
Peterson's RFC opinion. AR 1343. The court reasoned:
At various points in his decision, the ALJ points out
instances where Kinzebach indicated that her pain was less or
better, and she was able to function fairly well. However,
the ALJ completely ignores evidence in the record where
Kinzebach's signs and symptoms show greater pain and
functional limitations. . . . [I]n his decision, the ALJ
focuses on instances where Kinzebach's back pain appeared
better in January and February 2012, . . . gloss[ing] over
the fact that she underwent back surgery in May 2012.
1341-42. The court further reasoned that the ALJ did not cite
to specific evidence in the record inconsistent with Dr.
Peterson's RFC opinion and that the ALJ did not address
Dr. Peterson's opinion that Kinzebach could work only
four hours a day, which the Appeals Council had instructed
the ALJ to address on remand. Id. The court reversed
the ALJ's decision and remanded for further proceedings,
ordering that on remand “the ALJ shall provide clear
reasons for accepting or rejecting Dr. Peterson's
opinion” with support from the record. AR 1344.
video hearing was held on November 24, 2015, this time before
ALJ Eric S. Basse, who had not presided over the prior
proceedings. AR 1245. On March 30, 2016, the ALJ issued the
third (and final) opinion denying Kinzebach DI benefits. AR
1217-33. As with the previous opinions, the ALJ followed the
familiar five-step process outlined in the
regulations to determine whether Kinzebach was
disabled. As before, the ALJ found that Kinzebach suffered
from the following severe impairments during the relevant
time period: “history of rectal cancer, status
post-surgery, chemotherapy and radiation; degenerative disc
disease of the lumbar spine; [and] status-post back surgery
May 2012.” AR 20, 1219. In determining Kinzebach's
RFC, the ALJ found that she could perform light work, which
requires standing for six hours and sitting for two hours in
an eight-hour day,  except:
[S]he could lift 20 pounds occasionally and 10 pounds
frequently. She could stand or sit throughout an 8-hour day
with regular work breaks. She could walk 3 blocks at a time.
She had to avoid ladders, ropes and scaffolds. She had to
avoid work at heights. The claimant had to have ready [sic]
available access to a bathroom.
AR 1221. Based on this RFC, the ALJ found that
Kinzebach could perform her past work as a receptionist and
material clerk. AR 1232. Thus, the ALJ once again found that
Kinzebach was not disabled. AR 1233.
Appeals Council denied Kinzebach's request for review on
September 30, 2016 (AR 1207-10), making the ALJ's
decision the final decision of the Commissioner. See
20 C.F.R. § 404.981. Kinzebach filed a timely complaint
in this court, seeking judicial review of the
Commissioner's decision (Doc. 2). See 20 C.F.R.
§ 422.210(c). The parties briefed the issues (Docs.
14-16), and the Honorable Linda R. Reade, United States
District Judge for the Northern District of Iowa, referred
this case to me for a Report and Recommendation.
must affirm the ALJ's decision if it “is supported
by substantial evidence in the record as a whole.”
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007);
see also 42 U.S.C. § 405(g). “Substantial
evidence is less than a preponderance, but enough that a
reasonable mind might accept it as adequate to support a
decision.” Kirby, 500 F.3d at 707. The court
“do[es] not reweigh the evidence or review the factual
record de novo.” Naber v. Shalala, 22 F.3d
186, 188 (8th Cir. 1994). If, after reviewing the evidence,
“it is possible to draw two inconsistent positions from