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Postel v. Saul

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

September 26, 2019

ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.


          Mark A. Roberts, United States Magistrate Judge.

         Plaintiff Penny Roxane Postel (“Claimant”) seeks judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Sections 401-34 and for Supplemental Security Income benefits (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. Sections 1381-85. Claimant contends that the Administrative Law Judge (“ALJ”) erred in determining that she was not disabled. For the reasons the decision of the ALJ is affirmed.

         I. BACKGROUND

         I adopt the facts set forth in the Parties’ Joint Statement of Facts (Doc. 19) and only summarize the pertinent facts here. Claimant was born on December 1, 1971 (AR[2]at 225.) Claimant is a high school graduate. (Id.) She allegedly became disabled due to PTSD, anxiety, and agoraphobia. (Id. at 263.) Claimant’s alleged onset of disability date was May 1, 2008 (Id. at 225.) Claimant filed applications for Social Security disability benefits and SSI on November 21, 2014. (Id. at 225-31.)[3] Claimant’s claims were originally denied on February 27, 2015. (Id. at 131-40, 143-51.) Reconsideration was denied on May 14, 2015. (Id. at 154-71.) A video hearing was held on February 13, 2017 with Claimant, her then-attorney Cherie Pichone, and hearing reporter Anne Linden in Waterloo, Iowa and ALJ Janice Barnes-Williams and vocational expert (“VE”) Amy Salva in Kansas City, Missouri.[4] (Id. at 37-67.) Claimant and the VE testified. (Id. at 38-66.)

         Claimant filed post-hearing objections and rebuttal evidence on February 28, 2017. (Id. at 328-83.) The ALJ entered an unfavorable decision on March 23, 2017. (Id. at 13-29.) On May 15, 2017, Claimant filed a Request for the Appeals Council to review the ALJ’s decision and filed a brief in support on May 22, 2017. (Id. at 223-24, 385-87.) On May 23, 2018, the Appeals Council found there was no basis to review the ALJ’s decision. (Id. at 1-3.) Accordingly, the ALJ’s decision stands as the final administrative ruling in the matter and became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.

         On July 30, 2018, Claimant timely filed her complaint in this Court. (Doc. 4.) On June 8, 2018, the parties consented to have a magistrate judge conduct all proceedings in this case. (Doc. 15.) The case was originally assigned to then-Chief Magistrate Judge, the Honorable C.J. Williams and was reassigned to me on September 17, 2018. All briefs were filed by December 19, 2018.


         A disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant has a disability when, due to physical or mental impairments, the claimant

is not only unable to do [the claimant’s] previous work but cannot, considering [the claimant’s] age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). A claimant is not disabled if the claimant is able to do work that exists in the national economy but is unemployed due to an inability to find work, lack of options in the local area, technological changes in a particular industry, economic downturns, employer hiring practices, or other factors. 20 C.F.R. § 404.1566(c).

         To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows the five-step sequential evaluation process outlined in the regulations. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). At steps one through four, the claimant has the burden to prove he or she is disabled; at step five, the burden shifts to the Commissioner to prove there are jobs available in the national economy. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009).

         At step one, the ALJ will consider whether a claimant is engaged in “substantial gainful activity.” Id. If so, the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i). “Substantial activity is significant physical or mental work that is done on a full- or part-time basis. Gainful activity is simply work that is done for compensation.” Dukes v. Barnhart, 436 F.3d 923, 927 (8th Cir. 2006) (citing Comstock v. Chater, 91 F.3d 1143, 1145 (8th Cir. 1996)); 20 C.F.R. § 416.972(a), (b)).

         If the claimant is not engaged in substantial gainful activity, at step two, the ALJ decides if the claimant’s impairments are severe. 20 C.F.R. § 416.920(a)(4)(ii). If the impairments are not severe, then the claimant is not disabled. Id. An impairment is not severe if it does not significantly limit a claimant’s “physical or mental ability to do basic work activities.” Id. § 416.920(c). The ability to do basic work activities means the ability and aptitude necessary to perform most jobs. These include

(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting.

Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (quotation omitted) (numbers added; internal brackets omitted).

         If the claimant has a severe impairment, at step three, the ALJ will determine the medical severity of the impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment meets or equals one of the impairments listed in the regulations (“the listings”), then “the claimant is presumptively disabled without regard to age, education, and work experience.” Tate v. Apfel, 167 F.3d 1191, 1196 (8th Cir. 1999).

         If the claimant’s impairment is severe, but it does not meet or equal an impairment in the listings, at step four, the ALJ will assess the claimant’s residual functional capacity (“RFC”) and the demands of the claimant’s past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). RFC is what the claimant can still do despite his or her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing 20 C.F.R. §§ 404.1545(a), 416.945(a)). RFC is based on all relevant evidence and the claimant is responsible for providing the evidence the Commissioner will use to determine the RFC. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). “Past relevant work” is any work the claimant performed within the fifteen years prior to his application that was substantial gainful activity and lasted long enough for the claimant to learn how to do it. 20 C.F.R. § 416.960(b)(1). If a claimant retains enough RFC to perform past relevant work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).

         At step five, if the claimant’s RFC will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to show there is other work the claimant can do, given the claimant’s RFC, age, education, and work experience. Id. §§ 416.920(a)(4)(v), 416.960(c)(2). The ALJ must show not only that the claimant’s RFC will allow the claimant to do other work, but also that other work exists in significant numbers in the national economy. Eichelberger, 390 F.3d at 591 (citation omitted).

         A. The ALJ’S Findings

         The ALJ made the following findings at each step of the five-step process regarding Claimant’s disability status.

         At step one, the ALJ found that Claimant had not engaged in substantial gainful activity since May 1, 2008, the alleged onset date. (AR at 15.)

         At step two, the ALJ found that Claimant suffered from the following severe impairments: anxiety, panic disorder with agoraphobia, and post traumatic stress disorder (“PTSD”). (Id.) The ALJ also found that Claimant’s asthma, hypertension, and obesity were nonsevere impairments. (Id. at 16.)

         At step three, the ALJ found that Claimant did not have an impairment or combination of impairments that met or equaled a presumptively disabling impairment listed in the regulations, either when considered singly or in combination. (Id. at 17.) Specifically, the ALJ considered Claimant’s mental impairments under 12.06 (anxiety and obsessive compulsive disorders) and 12.15 (trauma- and stressor-related disorders).[5] (Id. at 17.)

         At step four, the ALJ found that Claimant had the RFC to perform a full range of work at all exertional levels with the following non-exertional limitations:

[Claimant] is limited to simple, routine and repetitive tasks, which may require detailed instructions but do not involve complex tasks. The work should be in an environment free of fast-paced production requirements and involve only simple, work-related decisions with few, if any, work place changes. There should be no interaction with the general public. She can work around co-workers, but with only occasional interaction with co-workers and supervisors.

(Id. at 19.) At step five, the ALJ found that there were jobs that existed in significant numbers in the national economy that Claimant could perform, including order filler, meat skinner, and production helper. (Id. at 28-29.) Therefore, the ALJ concluded that Claimant was not disabled. (Id. at 29.)

         B. The Substantial Evidence Standard

         The ALJ’s decision must be affirmed “if it is supported by substantial evidence on the record as a whole.” Moore, 572 F.3d at 522. “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). A court cannot disturb an ALJ’s decision unless it falls outside this available “zone of choice” within which the ALJ can decide the case. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (citation omitted). The decision is not outside that zone of choice simply because the court might have reached a different decision. Id. (citing Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001)); Moore, 572 F.3d at 522 (holding that the court cannot reverse an ALJ’s decision merely because substantial evidence would have supported an opposite decision).

         In determining whether the Commissioner’s decision meets this standard, the court considers all the evidence in the record, but does not reweigh the evidence. Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). A court considers both evidence that supports the ALJ’s decision and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search the record for evidence contradicting the [ALJ’s] decision and give that evidence appropriate weight when determining whether the overall evidence in support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).


         Claimant alleges the ALJ committed reversible error by (A) failing to properly evaluate the opinion evidence in the case and (B) relying on VE testimony to fulfill her step 5 burden without properly addressing her objections memorandum and rebuttal evidence related to the VE’s testimony. (Doc. 22 at 3.)

         A. The ALJ properly evaluated the opinion evidence in this case.

         Claimant argues that the ALJ did not properly weigh the opinion evidence in this case. Claimant takes issue with how the ALJ weighed the opinions of consultative examining psychologist Paul Conditt and Claimant’s counselor, Angela Wilson. In addition, Claimant asserts that the ALJ did not properly weigh the opinions of state agency psychological consultants Russell Lark, Ph.D. and Jennifer Ryan, Ph.D.

         “Where an ALJ does not rely on opinions from treating or examining sources, there must be some other medical evidence in the record for the ALJ’s opinion to be supported by substantial medical evidence on the record.” Shuttleworth v. Berryhill, No. 17-CV-34-LRR, 2017 WL 5483174, at *7 (N.D. Iowa Nov. 15, 2017) (quoting Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004)), R. & R. adopted, 2018 WL 1660084 (N.D. Iowa Apr. 5, 2018). “It is the ALJ’s function to resolve conflicts among the opinions of various treating and examining physicians. The ALJ may reject the conclusions of any medical expert, whether hired by the claimant or the government, if they are inconsistent with the record as a whole.” Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001)); Martin v. Berryhill, No. 1:18-CV-00004 JM/PSH, 2019 WL 138655, at *6 (E.D. Ark. Jan. 8, 2019) (explaining that “the ALJ must weigh the various medical opinions in the record”) (citation omitted), R. & R. adopted, 2019 WL 334202 (E.D. Ark. Jan. 25, 2019).

         “Because [a] claimant’s RFC is a medical question, an ALJ’s assessment of it must be supported by some medical evidence of the claimant’s ability to function in the workplace.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (citation omitted). “However, there is no requirement that an RFC finding be supported by a specific medical opinion.” Id. (citing Meyers v. Colvin, 721 F.3d 521, 526-27 (8th Cir. 2013) (affirming RFC without medical opinion evidence); Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th Cir. 2012) (same)).

         The following people provided opinions related to Claimant’s mental impairments: examining psychologist, Paul Conditt, Psy.D.; Claimant’s counselor, Angela Wilson; and state agency psychological consultants Russell Lark, Ph.D. and Jennifer Ryan, Ph.D.

         1. Paul Conditt, Pys.D.

         Dr. Conditt conducted an independent consultative examination of Claimant on February 20, 2015, and wrote his opinion on the same day. (AR at 514-16.) Dr. Conditt noted that Claimant was oriented in all spheres during her exam, her mood was “slightly depressed, ” and that her anxiety was “severe.” (Id. at 515.) Claimant had her roommate accompany her to the examination because “she won’t leave the house without having someone with her.” (Id.) Dr. Conditt stated that Claimant suffers from PTSD due to a history of abuse at the hands of her ex-husband, has flashbacks of being assaulted by her husband that are often triggered by yelling or loud noises, and “startles quite easily.” (Id. at 514-15.)

         Dr. Conditt noted that Claimant has started to feel depressed and overwhelmed and can only sleep for a couple of hours because of racing thoughts. (Id.) She also reported daily panic attacks that manifest in shortness of breath, a racing heart, her arms going numb, her “whole body tens[ing] up, ” and tunnel vision. (Id.) Claimant has daily crying spells and is “quite irritable.” (Id.) Although Claimant is capable of cooking more complicated things, she only cooks microwave food and rarely does chores because “she can’t be bothered.” (Id.) Claimant is training a therapy dog, which she enjoys, but that only takes up part of her day. (Id.)

         Dr. Conditt opined that although Claimant likely has average intelligence, her high anxiety impedes her intellectual functioning and causes difficulty with tasks involving concentration, memory, and had even simple arithmetic. (Id. at 515-16.) Dr. Conditt gave Claimant the following prognosis:

Guarded. [Claimant] may improve with therapy, but at this point her ability to function outside of her home is extremely limited due to anxiety and hyper-vigilance.
1. As far as ability to understand instruction, procedures and locations, moderate impairment due to the effect that anxiety has on her cognitive functioning.
2. As far as ability to carry out instructions, maintain concentration and pace, severe impairment due to anxiety interfering with her ability to concentrate.
3. As far as ability to interact appropriately with supervisors, co-workers, and the public, severe impairment due to anxiety and being afraid that people are going to hurt her.
4. As far as ability to use good judgment and respond appropriately to changes in the work place, she would likely freeze or run away if something unexpected occurred.
5. As far as ability to handle funds, she is capable of managing her own finances.

(Id. at 516.)

         The ALJ gave Dr. Conditt’s opinion some weight because while the ALJ agreed that the medical evidence showed Claimant had “mental health symptoms, ” the ALJ also found that Claimant’s condition “condition improved within 12 months of starting therapy in September of 2014.” (Id. at 26.) The ALJ also stated that Claimant’s own “admissions and the documentation of her capabilities, further suggest improved functional capacity.” (Id.)

         a. Legal Standard for Evaluating Dr. Conditt’s Opinion

         Dr. Conditt is “an acceptable medical source” under Social Security regulations. 20 C.F.R. § 404.1502(a). Proper evaluation of a medical source’s opinion requires consideration of the following factors: (1) examining relationship, (2) treatment relationship, (3) supportability, (4) consistency, (5) specialization, and (6) other factors.[6]20 C.F.R. §§ 404.1527(c)(1)-(5), 416.927(c). “[T]he regulations do not strictly require the ALJ to explicitly discuss each factor under 20 C.F.R. § 404.1527(c).” Kuikka v. Berryhill, No. 17-CV-374 (HB), 2018 WL 1342482, at *5 (D. Minn. Mar. 15, 2018) (quoting Mapson v. Colvin, No. 14–CV–1257 (SRN/BRT), 2015 WL 5313498, at *4 (D. Minn. Sept. 11, 2015) (noting internal brackets omitted)). Claimant argues that the ALJ failed to provide good reasons for failing to give Dr. Conditt’s opinion the “great weight” it is entitled to under the regulations. (Doc. 22 at 6.)

         b. Analysis

         i. Examining Relationship

         “Generally, [ALJs] give more weight to the medical opinion of a source who has examined [a claimant] than to the medical opinion of a medical source who has not examined [a claimant].” 20 C.F.R. § 404.1527(c)(1). This is one of two factors that Claimant asserts the ALJ improperly evaluated when weighing Dr. Conditt’s opinion. Claimant argues that SSA “regulations could not be clearer that a consultative examination opinion is generally entitled to great weight. Agency physicians are deemed under the regulations to have expertise in the evaluation of disability in general, and in particular with respect to Social Security programs. . . . Yet, the ALJ gave no deference to the special status that Dr. Conditt held with the Agency, nor did she credit that his examining relationship with Plaintiff generally entitled him to ‘more weight’ under the regulations.” (Doc. 22 at 6-7.)

         The Commissioner counters that “[t]o the extent plaintiff implies Dr. Conditt is a state agency medical consultant, the record does not support this implication. . . . [because] plaintiff was referred to Dr. Conditt by the state agency disability determination services.” (Doc. 25 at 5 n.2 (citing AR at 514).) The Commissioner is correct. Dr. Conditt’s opinion is written on letterhead from “Conditt Psychological Services” that has two providers listed on the letterhead: Paul M. Conditt, Pys.D. and Kristine M. Conditt, Pys.D. (AR at 514.) Dr. Conditt’s opinion states that the source of referral for his evaluation of Claimant was Disability Determination Services. (Id.) Dr. Conditt is not an employee of the SSA and therefore holds no special status within the agency.

         However, Dr. Conditt examined Claimant once in his role as an examining psychologist, which means he spent time with Claimant rather than just reading her medical records. Thus, this factor weighs slightly in favor of giving Dr. Conditt’s opinion increased weight.

         ii. Treatment Relationship

         “Generally, [ALJs] give more weight to the medical opinions from [a claimant’s] treating sources. . . . When the treating source has seen [the claimant] a number of times and long enough to have obtained a longitudinal picture of [the claimant’s] impairment, [the ALJ] will give the source’s opinion more weight than . . . if it were from a nontreating source.” 20 C.F.R. at § 404.1527(c)(2)(i). In addition, “the more knowledge a treating source has about [a claimant’s] impairment(s), the more weight the [ALJ] will give the source’s opinion.” Id. at § 404.1527(c)(2)(ii). As discussed, Dr. Conditt is not Claimant’s treating psychologist. He met with Claimant once to examine her, but not to treat her. Therefore, this factor weighs against giving Dr. Conditt’s opinion increased weight.

          iii. Supportability

         “The better an explanation a source provides for a medical opinion, the more weight [the ALJ] will give that medical opinion.” 20 C.F.R. § 404.1527(c)(3). Dr. Conditt stated that his opinion is based on “test results and other available information and it is based upon inferences, psychometric probabilities, and the typical limited time affordable to gather data and information.” (AR at 514.) Dr. Conditt opined that Claimant was “oriented in all spheres, [h]er mood was slightly depressed, [and] her anxiety [was] severe.” (Id. at 515.) Although the latest version of the Diagnostic and Statistical Manual of Mental Disorders (DSM) no longer uses GAF scores, Dr. Conditt assigned Claimant a GAF score of 53, which indicated that Claimant had “moderate difficulty in social occupational, or school functioning.” Am. Psych. Ass’n, DSM-IV at 32 (4th ed. 2005). Because Dr. Conditt did not explain what tests he administered to show how his opinion is supported, this factor does not weigh in favor of giving Dr. Conditt’s opinion increased weight.

         iv. Consistency

         “Generally, the more consistent a medical opinion is with the record as a whole, the more weight [the ALJ] will give to that medical opinion.” 20 C.F.R. § 404.1527(c)(4). The ALJ relied on evidence “as previously discussed in detail” to support her conclusion that Claimant’s condition improved within twelve months of beginning therapy in September 2014.

         Claimant testified at the hearing that she has daily panic attacks; agoraphobia that keeps her “‘house ridden’ the majority of the time”; an inability to go out alone; PTSD that is triggered by “noise, scents, body type, raised voices, and men who remind her of her ex-husband”; “chaos, fear, rage, paranoia, anxiety, [an] inability to focus or concentrate, and frustration, for which medications only help for an hour or two.” (Id. at 20, 48-54.) Claimant also testified that “during a typical day she cries frequently and is paranoid.” (Id. at 20, 47.) The ALJ concluded that while Claimant’s impairments “could reasonably be expected to cause the alleged symptoms, . . . [Claimant’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.” (Id. at 21.) The Court agrees.

         Claimant asserts that a medical source’s opinion need not be consistent with all the medical evidence in the record for the opinion to be entitled to substantial weight. (Doc. 22 at 9 (citing SSR 96-2p).) Claimant notes that Dr. Conditt’s opinion is consistent with Ms. Wilson’s opinion.[7] (Id. at 9.) This is true. However, Claimant cites no treatment notes or other parts of the record that support either Dr. Conditt’s opinion or Ms. Wilson’s opinion. Rather, Claimant argues only that “[t]he evidence demonstrates that [Claimant] has severe [PTSD] and anxiety stemming from domestic abuse” and that the ALJ ignored “the consistency between the examining opinions.” (Id.) The Court will analyze each of these opinions separately to determine if the record as a whole supports them.

         The ALJ agreed that Claimant’s PTSD and anxiety are severe impairments (Id. at 15) and the Commissioner does not take issue with that conclusion. The ALJ did not agree, however, that Dr. Conditt’s opinion was consistent with the medical evidence in the record. In her opinion, the ALJ cited “[r]ecent treatment notes that show improvement with therapy” to support her decision. (AR at 22-24.) After reviewing the record, the Court agrees with the ALJ that records show that Claimant’s impairments improved after she entered therapy in September 2014. The record contains treatment notes from the Abbe Center for Community Health from September 25, 2014 through November 3, 2016. (Id. at 421-66, 529-60, 696-752.) For the most part, Claimant saw her counselor, Kimberly Ellingson, weekly. (Id.) Claimant first sought treatment for PTSD and anxiety shortly after she left her husband, who was both physically and emotionally abusive. (Id. at 424-25.) At her first session, Claimant presented in the following way:

Alert and oriented to time, place, and person. Client made good eye contact throughout the session. Behavior throughout the session was cooperative and appropriate. Client presented casually dressed. Psychomotor activity appeared within normal range. Mood was dysphoric[8] and affect appeared broad.[9] ...

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