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Carlson v. Commissioner of Social Security

United States District Court, N.D. Iowa, Central Division

September 26, 2018

COMMISSIONER OF Social Security, [1] Defendant.


          Kelly K.E. Mahoney, United States Magistrate Judge.

         Plaintiff Gary Alex Carlson seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his applications for supplemental security income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f, and for disability insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Carlson argues that the Commissioner erred in evaluating his subjective complaints of his symptoms, in giving little weight to the medical opinions of Carlson's treating physician and of a consultative examiner, and in posing hypothetical questions to a vocational expert (VE). I recommend reversing the Commissioner's decision and remanding for further proceedings.

         I. BACKGROUND [2]

         In the early 1990s, Carlson underwent seven surgeries on his right shoulder from a work-related accident. AR 104, 467;[3] Doc. 2 at 11. He eventually recovered and returned to work (in the construction field) with no restrictions. Id. In 2005, he injured his left shoulder and underwent two surgeries. AR 467; Doc. 2 at 11. He did not return to work after this injury until March 2008. AR 285, 467. He worked for about seven months, but in November 2008, Carlson injured his right shoulder again while working, and he has not engaged in substantial gainful activity since (although he has made unsuccessful work attempts). AR 33, 137, 285, 467. In July 2009, Carlson had another right-shoulder surgery. AR 478-81. On March 2, 2010, he filed applications for DI and SSI benefits, alleging disability since his November 2008 shoulder injury. AR 130-132. These claims were denied initially and upon reconsideration on November 2, 2010, and became final when Carlson failed to request a hearing before an ALJ. AR 30, 130-132.

         In August 2013, Carlson re-injured his right shoulder while working on a drywall project. AR 758. Because of this injury, Carlson underwent another surgery for his right shoulder on October 18, 2013. AR 880-85. Dr. Lisa Kapler, MD, became Carlson's treating physician following the October 2013 surgery, seeing Carlson for the first time on January 10, 2014.[4] AR 37, 1121.

         Dr. Kapler's treatment notes include numerous reports of right shoulder pain in 2014 and 2015, and Dr. Kapler prescribed various pain medications during this time in an attempt to control Carlson's pain. See, e.g., AR 929, 967, 975, 1069, 1083. Dr. Kapler also prescribed Carlson medications for sleep difficulties and mental impairments, including depression, bipolar disorder, and anxiety. See, e.g., AR 909, 929, 942, 992, 1018, 1061.

         Carlson filed a DI claim on July 30, 2013, and an SSI claim on November 5, 2013, alleging disability beginning on July 12, 2009 (although his attorney recognized at the hearing that due to the finality of his prior denial, “we can only go back to” November 3, 2010, the day after his initial disability claim was denied). AR 30, 97, 136. Both of Carlson's disability claims were denied initially on October 28, 2013, and then again on reconsideration on March 7, 2014. AR 135-77. In connection with the determination on reconsideration, the Social Security Administration ordered a consultative examination. AR 152, 168. Dr. Michael Henderson, DO, performed this one-time examination of Carlson on March 4, 2014, to determine his physical limitations. AR 900-02.

         On April 28, 2014, Carlson filed a written request for a hearing before an ALJ. AR 30, 207. The hearing occurred on July 29, 2015, with the ALJ appearing in West Des Moines, Iowa, and Carlson appearing via videoconference from Waterloo, Iowa. AR 30, 93. Carlson testified personally about his limitations and history of pain. AR 93-121. Melinda Starr, a VE, also testified and answered questions posed by the ALJ regarding whether a hypothetical person with specified limitations could perform Carlson's past work and work in the national economy. AR 91-92, 121-28.

         On October 22, 2015, the ALJ issued a written opinion and found Carlson had “not been under a disability . . . from November 3, 2010, through [October 22, 2015].” The ALJ followed the five-step process outlined in the regulations[5] to deny Carlson's applications for disability benefits. AR 30-41. At step one, the ALJ found that Carlson had not engaged in substantial gainful activity since November 2010. AR 33. Although the ALJ recognized that Carlson had “tried painting . . . for a couple months” in 2011, the ALJ found this to be an unsuccessful work attempt, since Carlson reported being unable to continue the painting job “due to arm[] and back pain.” Id. At step two, the ALJ found that Carlson suffers from the following severe impairments: “status post shoulder surgeries bilaterally, disorders of the shoulders bilaterally, degenerative disc disease, degenerative joint disease, depressive disorder, and polysubstance abuse disorder (cannabis).” AR 33. At step three, the ALJ found that Carlson's impairments did not meet or equal a listing. AR 33. In making this determination, the ALJ found that Carlson suffered from moderate limitations in concentration, persistence, or pace. AR 34. To evaluate whether Carlson retained the ability to perform his past work (step four) or other work (step five), the ALJ determined Carlson's residual functional capacity (RFC)[6]:

[Carlson] has the [RFC] to perform light work . . . . Specifically, he is limited to lifting and/or carrying 20 pounds occasionally and 10 pounds frequently; standing and/or walking 6 hours in an 8-hour workday; sitting 6 hours in an 8-hour workday; occasionally pushing/pulling with the right upper extremity; never climbing ladders, ropes, or scaffolds; occasionally climbing of ramps and stairs, crawling, balancing, stooping, kneeling, and crouching; occasionally reaching overhead with the bilateral upper extremities; frequently reaching in the front and/or laterally with the bilateral upper extremities, but not constantly, and within the limits of lifting restrictions; occasional exposure to extreme cold, humidity, and vibration; and performing simple, routine, repetitive tasks.

         AR 35. Although the ALJ recognized that “[Carlson's] medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, ” the ALJ did not fully credit Carlson's subjective complaints regarding his physical and mental limitations and his complaints of pain. AR 36. The ALJ also gave little weight to Dr. Henderson's opinion of Carlson's limitations. AR 38. The ALJ determined Carlson's RFC prevented him from performing his past relevant work, but the ALJ found there were other jobs in the national economy that he could perform. AR 39-40.

         Following the ALJ's denial of disability benefits, Carlson filed an appeal to the Appeals Council on December 16, 2015. AR 26. In connection with the request for review, Carlson submitted an RFC opinion formulated by Dr. Kapler on February 25, 2016. AR 5, 249, 1153-59. The Appeals Council granted review solely to consider Dr. Kapler's opinion, and on April 3, 2017, the Appeals Council issued a written opinion affirming the ALJ's determination that Carlson was not disabled and adopting the ALJ's findings in their entirety.[7] AR4-6, 249. The Appeals Council gave little weight to Dr. Kapler's opinion. AR 5.

         Carlson filed a timely appeal in this court on June 1, 2017. Doc. 2. The parties briefed the issues (Docs. 12, 13, 14) and consented to the jurisdiction of a United States magistrate judge (Doc. 6).


         A court must affirm the Commissioner'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 the evidence and one of those positions represents the [Commissioner's] findings, [the court] must affirm the decision.” Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         Carlson asks the Court to review whether (1) the ALJ erred in evaluating Carlson's subjective allegations of his symptoms; (2) the Appeals Council erred by giving little weight to Dr. Kapler's medical opinion; (3) the ALJ erred by giving little weight to Dr. Henderson's medical opinion; and (4) the ALJ erred in posing hypothetical questions to the VE at the hearing.

         A. ...

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