United States District Court, S.D. Iowa, Central Division
SUSAN E. FOX, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
STEPHEN B. JACKSON. JR., UNITED STATES MAGISTRATE JUDGE
REVIEW OF ADMINSTRATIVE RECORD
Reports Completed by Susan Fox and Her Daughter-in-Law C.
Hearing Testimony of Susan Fox D. Testimony of Vocational
Expert E. Report of Vocational Rehabilitation Counselor F.
Decision of Administrative Law Judge
JUDICIAL REVIEW OF DECISION
Standard of Review B. Analysis of Fox's Arguments Before
This Court 1. Assessment of Past Relevant Work 2. Application
of Medical Vocational Guidelines Rule 202.06 3. Assessment of
Treating Physician's Opinion 4.
Assessment of Fox's Subjective Complaints and Testimony
5. Error in Hypothetical Question
Susan Fox (“Fox”) seeks judicial review of the
Social Security Commissioner's decision denying her
Application for Disability Insurance Benefits under Title II
of the Social Security Act, 42 U.S.C. § 401 et seq. Fox
was found to suffer from the severe impairments of mild
degenerative disc disease, irritable bowel syndrome, obesity,
depression and anxiety. It was determined Fox has the
residual functional capacity to perform light work with
certain exceptions and limitations. Further, it was found
that Fox is capable of performing past relevant work as a
cleaner, and that such work does not require the performance
of work- related activities precluded by her residual
functional capacity. Consequently, the Commissioner concluded
Fox was not disabled for purposes of the Act.
insists she is unable to engage in any substantial gainful
activity due to her medically determinable severe impairments
and, therefore, is disabled under the Act, and entitled to
benefits accordingly. She asserts three primary arguments
before this Court: (1) the Administrative Law Judge erred by
not classifying her prior work owning and operating a
cleaning business as a composite job, and she cannot perform
that past relevant work; (2) the Administrative Law Judge
erred in not applying Medical Vocational Guidelines Rule
202.06 to her case, and finding her disabled; and (3) the
Administrative Law Judge erred in discounting her treating
physician's opinion limiting her to part-time work. In
her complaint, although not argued explicitly in her brief,
Fox also asserts the Administrative Law Judge erred in
assessing the credibility of her subjective complaints and
testimony, and by posing a hypothetical question to the
vocational expert which does not adequately describe her
limitations. Fox requests this Court reverse the decision of
the Commissioner or, in the alternative, vacate the final
decision of the Commissioner and remand this matter for
case was referred to this Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) for submission of a report and
recommendation regarding a disposition. Dkt. 4. As set forth
below, it is recommended that the decision of the
Commissioner be affirmed.
applied for Disability Insurance Benefits on December 2,
2013, with an alleged onset date of October 31, 2012.
Administrative Record (Dkt. 7) 265-271. The Social Security
Administration denied her application for benefits initially
on March 5, 2014, and upon reconsideration on May 28, 2014.
Id. 143-172. In both determinations, the
Administration found Fox had the capacity to perform work
similar to her past job as a delivery driver. Id.
timely request for a hearing, Fox's claims were heard
before Administrative Law Judge (“ALJ”) Eric S.
Basse on August 10, 2015. Id. 94-142. Fox was
represented by counsel and testified on her own behalf.
Id. 99-132, 137-141. Vocational expert Melinda Stahr
responded to hypotheticals presented by the ALJ and Fox's
counsel. Id. 133-136.
Basse issued a written decision denying Fox's application
for benefits on January 12, 2016. Id. 24-36. The ALJ
found Fox is capable of performing past relevant work as a
cleaner. Id. 33. Fox timely requested a review of
the ALJ's decision, and the Appeals Council denied review
on January 6, 2017. Id. 1-6. Consequently, the
decision of the ALJ stands as the final decision of the
filed her Complaint (Dkt. 1) before this Court on February
27, 2017. She asserts that she testified to disabling
limitations, but ALJ Basse rejected her testimony and failed
to give good reasons for discounting her testimony.
Id. ¶¶ 9-11. She claims the ALJ's
decision is not supported by substantial medical evidence,
the ALJ improperly rejected her subjective allegations, and
the hypothetical question posed to the vocational expert does
not adequately describe her limitations. Id.
¶¶ 14-16. Fox requests the final decision of the
Commissioner be reversed or, alternatively, be vacated and
remanded for further proceedings. Id. ¶ 18. She
also seeks reasonable attorney fees and costs. Id.
Commissioner filed an answer on May 4, 2017 (Dkt. 6) with a
copy of the Administrative Record (Dkt. 7). The Commissioner
contends Fox has not shown “good cause” to
warrant reversal under the Act, 42 U.S.C. § 405(g). Dkt.
6 ¶ 5.
filed a brief (Dkt. 9) in support of her claims on July 6,
2017. The Commissioner submitted a responsive brief (Dkt. 10)
on August 28, 2017. Fox filed a reply brief (Dkt. 11) on
September 12, 2017.
parties did not request oral argument and a hearing does not
appear to be necessary. Thus, the matter is considered to be
fully submitted for purposes of this report and
REVIEW OF ADMINISTRATION RECORD
Magistrate Judge has reviewed the entire Administrative
Record (“A.R.”), and summarizes certain portions
as background for the specific issues presented by the
parties as follows: (a) medical records, (b) reports
completed by Fox and her daughter-in-law, (c) testimony of
Fox at the hearing, (d) testimony of the vocational expert
Melinda Stahr, (e) report by vocational rehabilitation
counselor Paula Santagati, and (f) written decision of ALJ
Dr. Randoph Rough on January 5, 2012 for cardiac issues. A.R.
388. Dr. Rough noted Fox has a history of a racing heart,
with heart rates up to 156 beats per minute, and has
palpitations when she is anxious, but those are brief.
Id. Dr. Rough also noted Fox smokes a pack of
cigarettes a day and is unable to stop, her cholesterol was
recently 247, and she denies chest pains or significant
dyspnea symptoms. Id. Dr. Rough's impressions
were that Fox has hypertension, mild hyperlipidemia, obesity,
a racing heart, anxiety, a normal stress cardiolite, positive
family history for myocardial infarction and continued
nicotine use. Id. 389-390. Dr.
encouraged weight reduction and follow-up in one year.
Dr. Kim Countryman on October 25, 2012, complaining of
irritable bowel syndrome. Id. 398. Fox reported
having significant lower abdominal pain with constipation and
diarrhea, with the pain starting the moment she walked into
work at Walmart. Id. Dr. Countryman had a long
discussion with Fox concerning her medical issues, and
indicated Fox's issues “are directly tied to her
severe anxiety regarding her job.” Id. 399.
Dr. Countryman told Fox “she needed to make a decision
regarding her job” and “recommended [she] turn in
her resignation and get a non-irritating, non-anxiety
producing part-time job” with low volume and stress.
assessment was that Fox suffered from anxiety, irritable
bowel syndrome and depression. Id. Dr. Countryman
issued a “to whom it may concern” note which
Ms Susan Fox can not work overnight's, must work low
stress hours at work and must only work 8 hour days / 5 day
work week. Must have the days off be consecutive.
Rough saw Fox for a recheck on her heart issues on April 18,
2013. Id. 391. Fox reported she had not had any
recent fast heart beats, but does have an occasional skipping
of her heart and palpitations. Id. Dr. Rough
indicated this should not require any specific change in
therapy. Id. Dr. Rough found Fox's blood
pressure was controlled but she was significantly obese at
255 pounds and encouraged her to lose weight, and noted Fox
continues to smoke a pack of cigarettes a day. Id.
Dr. Rough's impressions were hypertension, racing heart
rate, controlled with a calcium channel blocker, palpitations
correlating with simple ectopy, continued nicotine abuse,
mild hyperlipidemia, abnormal stress cardiolite, and a
positive family history for myocardial infarction.
Id. 393. Dr. Rough encouraged weight reduction and
nicotine cessation. Id.
with Physician Assistant Michael Barger on October 30, 2013,
to establish care with the Family Health Center. Id.
459. Fox reported having chronic diarrhea and then
constipation, as well as a long history of depression and bad
anxiety for which she was taking medications. Id.
Practitioner Ranae Roberts met with Fox on November 15, 2013,
for a psychiatric evaluation. Id. 453. Fox reported
her mood as being nervous and edgy, grooming is difficult,
and it takes an enormous effort for her to get out of the
house or take a shower. Id. 454. Fox felt she was
becoming homebound because of her mood and her chronic
diarrhea. Id. She reported feeling overwhelmed and
pressured with life, with finances being a big stress because
she had to quit her job, she has had anxiety since she was 20
years old, and she has suffered from depression over the past
several years. Id. Fox felt her body was breaking
down as she was unable to go out of the house due to
increased bowel movements, cramping and diarrhea.
Id. 455. NP Roberts noted a past psychiatric history
which included Fox receiving therapy at the age of 28 for
anxiety, seeing therapists and psychiatric providers on and
off since her late 20s, and having previous diagnoses of
anxiety, agoraphobia, OCD and possible major depressive
disorder. Id. NP Roberts' assessment was anxiety
disorder, continuous tobacco dependence and moderate
recurrent major depression. Id. 456. The plan was to
resume Fox on Cymbalta and weaning off of Zoloft, with Fox to
return to the clinic in one to two weeks or sooner if needed.
visited NP Roberts again on November 25, 2013, for an
interval exam. Id. 449-450. Fox reported overall
feeling better, but also noted moderate to severe agoraphobic
features. Id. 450. She indicated it took
considerable effort to leave the house, and reported not
leaving the house until 4:00 p.m. to run errands the day
before the appointment because she was stressed about it all
day. Id. 450-451. Fox indicated she had less
diarrhea and less back pain. Id. 451. She also
indicated a lack of motivation for self-care and
housecleaning, but is noted as improving. Id.
451-452. NP Roberts' assessment was moderate recurrent
major depression and agoraphobia. Id. 451. Fox was
directed to return to the clinic in two to three weeks or
sooner if needed. Id. 452.
Roberts saw Fox again on December 27, 2013. Id. 444.
Fox reported doing better in some areas, and the same in
other areas. Id. 445. She indicated her mood was
better, she was not so down lately, but does have bouts of
not showering for nearly two weeks, and had not taken her
garbage out for a month. Id. She reported
difficulties with motivation, in particular with
housekeeping. Id. She was hesitant to increase her
medications, but knew it would help. Id. 446. Her
anxiety was not as bad as it had been, however, she still had
panic feelings at times. Id. The assessment was
anxiety disorder, tobacco dependence, moderate recurrent
major depression and agoraphobia. Id. 446-447. NP
Roberts adjusted medications and directed Fox to return with
an update. Id. 447.
February 18, 2014, Fox saw Licensed Social Worker Kelli
Foltz-Daniels for therapy. Id. 419. Fox reported her
depression and anxiety had taken a turn for the worse over
the past few months due to a diagnosis of acute colitis and
being advised to resign from her job. Id. Fox
indicated she resigned from her job and started looking for
less stressful work, but had not been able to find anything,
and her unemployment benefits were running out. Id.
She expressed concern about losing her home, indicated her
mother had recently died, and her car needed repairs.
Id. She had very low motivation for most things,
including self-care, and had allowed her home to become in
bad condition. Id. 419-420. She also expressed a
decreased ability to concentrate, but did have some ability
to obtain enjoyment from television and the internet.
Id. 420. She struggled with sleep, but denied having
thoughts of self-harm or suicide, or of harming anyone else.
Id. It was recommended that Fox start individual
psychotherapy, continue to work with her medical teams to
address her health issues, and follow-up with community
resources. Id. 423. Diagnosis was depressive
disorder, anxiety disorder and agoraphobia. Id.
another interval exam with NP Roberts on February 26, 2014.
Id. 434. She reported her mood as “marginally
better” but still had a lack of motivation, sadness and
numerous stressors in her life. Id. 436. Fox also
reported having irritable bowel syndrome symptoms, but at the
time more constipation and diarrhea, and was uncomfortable
leaving the house. Id. The assessment was depressive
disorder, anxiety disorder, agoraphobia and hoarding disorder
behavior. Id. 437. The plan was to increase dosage
of Wellbutrin and continue on Cymbalta. Id. Fox was
to return in five to six weeks or sooner if needed and
follow-up with her primary care physician concerning physical
health issues. Id. 438.
March 19, 2014, Fox saw Licensed Social Worker Teresa Weeks
for individual therapy. Id. 430. Fox presented very
depressed, with low energy and lack of motivation to change.
Id. Symptoms were noted as anxiety and depression
manifested by hoarding and agoraphobia. Id. Fox
admitted to a hoarding problem, but did not know where to
start in cleaning it up, and expressed difficulty showering
even once a week and not doing dishes in over two months.
Id. Her goals were to begin journaling, and getting
up, showering and dressed prior to the next session.
Id. Diagnosis was noted as agoraphobia, hoarding
disorder behavior, and moderate recurrent major depression.
NP Roberts on May 12, 2014, for another interval exam.
Id. 426. She was feeling better overall with
increased motivation, but was experiencing a lack of
initiation. Id. 427. She wanted to plant a garden
and start quilting again, but it was hard for her to follow
through. Id. She was taking her medication as
prescribed, and reported positive benefits with no negative
mental side effects. Id. 428. NP Roberts noted a
diagnosis of agoraphobia, anxiety disorder, depressive
disorder, hoarding disorder behavior and tobacco dependence.
Id. Fox's medications were adjusted, and she was
directed to continue with individual therapy and return in
two to three months or sooner if needed. Id. 429.
returned to see NP Roberts on August 28, 2014, and reported
she was feeling depressed and anxious, and experiencing low
motivation. Id. 490-491. Her house needed work, the
garbage needed to be taken out and she had hoarding behaviors
at times. Id. 491. NP Roberts adjusted medications,
and indicated Fox should return in one month and initiate
therapy appointments as soon as possible. Id. 493.
November 4, 2014, Fox saw Dr. Dana Danley for a comprehensive
physical examination. Id. 484. Among other things,
Fox reported having chronic diarrhea and mild urinary
incontinence. Id. She indicated having difficulty
coming to the appointment due to agoraphobia, and was meeting
with a counselor on a regular basis. Id. She noted
having depression in the past, but felt it was worse due to
her lack of motivation, hygiene and cleanliness at home.
Id Fox returned to NP Roberts on January 2, 2015,
for medication management and reported having extreme
agoraphobia, not leaving the house for weeks, and not
showering for six weeks except bathing before her
appointment. Id. 479-480. She complained of
decreased motivation. Id. 480. Coping techniques,
anxiety reducing behaviors, and depression relief techniques
were discussed with and understood by Fox. Id. 481.
The diagnosis noted was agoraphobia, anxiety disorder,
hoarding disorder behavior and moderate recurrent major
depression. Id. Fox was to continue with Cymbalta
and consider trying Wellbutrin or other medications, and
returning in two to three months or sooner if needed.
Id. 482. NP Roberts strongly recommended individual
worked with Dawn Larson, Rehabilitation Coordinator, with
Mainstream Living, Inc. from May 25, 2015 through June 30,
2015. Id. 502-504. The objectives were to learn new
coping skills by December 31, 2015, and consisted of the
staff meeting with Fox in her home to work on those matters.
LPN Ann Ries on June 25, 2015, for medication follow-up.
Id. 473-474. It was noted Fox had not been seen at
the clinic since the previous January, and reported things
had been “better and worse.” Id. 474.
Fox had stopped taking Cymbalta, and felt her emotions had
come back, and she had a clear mind, and had started writing
again. Id. She was enjoying writing, spending time
with her cats, and being on Facebook to chat with friends.
Id. She reported taking medications for anxiety
approximately three times a week, and “having emotions
since her brain function is back.” Id. She
indicated she looks forward to cleaning her house, and is
doing one box at a time, and wants to refrain from further
psychotropic medication. Id. LPN Ries noted
Fox's mood would be investigated at her next appointment,
she was to continue with individual therapy, and return to
the clinic in two to three months or sooner if needed.
with Physical Therapist John Urban on August 12, 2015, to
treat low back pain. Id. 505-506. Fox indicated she
had suffered chronic back pain beginning in October 2014.
Id. 506. She reported her back hurts with walking,
prolonged standing and bending forward, and she is unable to
lie flat on her back due to pain, but she is able to
completely relieve her symptoms by sitting in a recliner.
Id. The plan involved treatment intervention
focusing on postural reeducation and lower extremity
strength, modalities and manual therapy as needed.
Reports Completed by Susan Fox and Her
completed a chest pain questionnaire on February 10, 2014.
A.R. 303-304. She reported having “no chest pain”
but her heart can speed up at times, however, medications
help keep it under control. Id. 303. She indicated
stress makes her heart speed up and skip beats. Id.
She has lower back pain but can walk “quite a
distance” briskly, and at a normal pace. Id.
304. Sitting for a few moments can ease the lower back pain.
Id. She can lift and carry 30 pounds, sometimes 40
pounds but not far. Id. She has strong lower
intestinal cramps on an almost daily basis. Id.
also completed a function report dated February 10, 2014.
Id. 307-314. She reported being diagnosed in 2013
with acute colitis and irritable bowel. Id. 307. She
has had diarrhea on a daily basis, which is uncontrollable,
especially after she eats. Id. She has severe
stomach cramps each day, and not much energy. Id.
Due to severe depression and frequent anxiety and panic
attacks, she has trouble leaving the house. Id. She
also has trouble concentrating, cleaning her house and taking
proper care of herself. Id.
further reported trouble waking up in the morning.
Id. 308. Most of her daily activities are looking at
Facebook and watching T.V. Id. She only leaves the
house when she needs to pick up medications, attend
appointments at the hospital or clinic, or pick up cigarettes
or groceries. Id. She does not visit friends or
family, and does very little housework or laundry.
Id. Prior to her illnesses she could do anything she
wanted to, including work, visiting with friends, taking care
of herself and doing housework. Id. She has anxiety
and trouble sleeping when she knows she has to leave the
house the next day. Id.
to Fox, she can dress herself but no longer takes daily
showers or washes her hair. Id. She can feed
herself, but does not do much laundry. Id. Although
she is able to take care of her personal needs and grooming,
she does not do so because she does not care anymore.
Id. 309. She prepares frozen dinners, but does not
use an oven or stove. Id. She does not cook often as
she does not feel like eating because it sets off her
intestinal issues. Id. She washes her laundry when
she runs out of clean clothes, but usually wears the same
clothes, and rarely cleans. Id. Since no one comes
to see her, she does not care about the mess in her house.
Id. She does drive a car and can go out alone, but
she will go outside only when she has to go somewhere,
otherwise, she stays inside. Id. 310. She will shop
for groceries and cigarettes in stores one time a week, but
does so quickly so she can get home. Id.
able to take care of her bills and money. Id. She
does not have much in-person contact with other people, and
mostly communicates through Facebook. Id. 311.
Except for medical staff, she does not interact much with
others. Id. Fox explained that most of her family
and friends do not understand what she is going through.
Id. 312. Prior to her illnesses she went anywhere
she wanted, and did everything she desired to do.
Id. Fox indicated she hurts in the lower back if she
walks more than a short distance, or if she stands very long.
Id. She can walk around in the hospital, but may
need to rest for a period of time due to pain in her back.
follows written instructions “okay” and spoken
instructions well if she does not get sidetracked.
Id. She explained she does not handle stress well
due to her irritable bowel syndrome and panic attacks, and
changes in routine are hard for her. Id. 313. She
has phobias in the form of avoiding people, and is easily
ashamed. Id. Due to the onset of diarrhea, she tries
not to get stressed, although she used to be able to handle
also completed a Work History Report dated February 10, 2014.
Id. 315-324. Among other jobs, Fox indicated she was
an owner/operator of a home cleaning service from 1990 to
approximately 2010. Id. 316, 320. Asked to describe
this job, she responded: “advertise, maintain cleaning
inventory & vacuums & equipment. Supervised up to 2
employees (part time), but worked alone most days cleaning
private homes.” Id. 320. She further indicated
she used an upright vacuum and handheld vacuum, and the only
technical skills or knowledge needed was her cleaning
experience. Id. She relied on assistance to prepare
her financial information and reports. Id. Fox
estimated she walked 50 minutes and stood 40-45 minutes each
day on this job. Id. She constantly stooped,
occasionally kneeled, almost never crouched, occasionally
crawled, and reached frequently. Id. The heaviest
object she handled was a lightweight upright vacuum, and only
had to handle small objects when dusting. Id. The
heaviest weight she lifted was 10 pounds and she never had to
move furniture. Id. She would carry equipment and
supplies to and from her car, and up and down stairs.
Id. She explained she supervised two other people in
this job for “maybe a year” and did not spend
much time supervising them “except for checking their
work quality.” Id.
daughter-in-law, Heather, completed a third-party function
report dated February 5, 2014. Id. 292-301. Heather
reported that Fox is depressed, has anxiety, exhaustion and
bathroom issues from her medications, and sleeps irregularly
due to her illnesses. Id. 294-295. According to
Heather, prior to her illness Fox was able to work five days
a week, and visit her family eight or more times a year.
Id. 295. Now Fox constantly needs to be close to
home to use the toilet. Id. Heather indicated Fox
cannot “keep up with bills due to Walmart firing her
for her illnesses, ” but she does shop for groceries,
drives, and goes outside 10 to 12 times per year.
Id. 296. Heather further reported Fox can prepare
her own meals and do some laundry and cleaning, although
chores are slowly spread out through the week. Id.
297. Heather noted Fox needs help cleaning because she
becomes exhausted and feels sick. Id. Fox's
hobbies include reading. Id. 298. Heather indicated
Fox is a recluse, her only granddaughter rarely sees her, and
her family misses her. Id. 299. As described by
Heather, Fox has difficulty following through with her
promises to visit, she cries a lot and has a fear of leaving
her home. Id. 299-300.
Hearing Testimony of Susan Fox
presented testimony to the ALJ on August 10, 2015. A.R.
99-132, 137-138. She was born April 22, 1952, graduated from
high school, and received a diploma. Id. 99. Fox did
not pursue education beyond high school except for what she
called “self-education.” Id. She is
5'1½" tall, and weighs approximately 266
pounds. Id. 112.
to Fox, she has not worked since she became disabled on
October 31, 2012, when her doctor told her she needed to quit
working at Walmart. Id. 99-100. Fox had worked as a
sales associate after starting as an inventory control
specialist. Id. 100. She stocked shelves, worked in
the pharmacy, set-up, assembled and dissembled displays,
moved pallets of merchandise on the floor, picked up
merchandise to be brought to the floor, and cashiered.
Fox had delivered pizza, and acted as a shift manager on some
days, before accepting the position at Walmart which had
better wages and benefits. Id. 107-108. Fox also had
her own business cleaning houses which started in 1991 and
ended in December 2010. Id. 129.
worked full time doing “everything” herself
except “at one point” she had two part-time
employees working for her. Id.
also earned income as a contract writer of Harlequin Romance
novels primarily in the early 2000s. Id. 101-103.
Twenty five of her novels were published, some of which are
still being published in foreign markets. Id. 101.
She considered it a “great moneymaker” for her
because she could set her own schedule and spend time with
her family. Id. 102. It would take her about three
to four months to write a novel and generated up to $18, 000
or $20, 000 a year. Id. 102-103. Her first book was
published in 1986, and the last book was published in 2007.
the hearing, Fox discussed the health problems which
interfere with her functioning, including irritable bowel
syndrome and acute colitis. Id. 103. While at
Walmart, she had to take leaves of absence because of flares
of diarrhea. Id. 104, 122. She tried medications but
then would have difficulty with constipation. Id.
104. The doctor attempted to adjust her medications, but
could not get the correct balance. Id. 104-105. Fox
testified this condition “gets better” but she
still has flares. Id. 105. She noted that during the
weekend before the hearing she had “tremendous
abdominal pain and a lot of diarrhea.” Id. Fox
believes if she had a job she would be in the bathroom
“off and on” throughout the day even with using
pads and liners. Id. 105-106. She estimates she can
be in the bathroom for up to an hour and a half, several
times a day. Id. 106-107.
enjoyed her work at Walmart, but quit due to the irritable
bowel syndrome. Id. 108. On the days she had bad
symptoms, Fox would spend up to an hour and a half in the
bathroom. Id. 109. She would take leaves of absence
to deal with the symptoms, and adjust her behaviors in other
ways to try to control the condition. Id. Fox
believes that if she were to be ...