United States District Court, N.D. Iowa, Central Division
MEMORANDUM OPINION AND ORDER
K.E. Mahoney, United States Magistrate Judge.
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.
early 1990s, Carlson underwent seven surgeries on his right
shoulder from a work-related accident. AR 104,
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.
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. AR 37, 1121.
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.
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.
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.
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 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
[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.
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.
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. AR4-6, 249. The Appeals Council gave
little weight to Dr. Kapler's opinion. AR 5.
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).
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).
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.