United States District Court, N.D. Iowa, Eastern Division
A. Roberts, United States Magistrate Judge.
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
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 (ARat 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.) 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. (Id. at 37-67.) Claimant and the
VE testified. (Id. at 38-66.)
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.
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.
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
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).
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).
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. §
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
Bowen v. Yuckert, 482 U.S. 137, 141 (1987)
(quotation omitted) (numbers added; internal brackets
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).
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).
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).
The ALJ’S Findings
made the following findings at each step of the five-step
process regarding Claimant’s disability status.
one, the ALJ found that Claimant had not engaged in
substantial gainful activity since May 1, 2008, the alleged
onset date. (AR at 15.)
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.)
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). (Id. at 17.)
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.)
The Substantial Evidence Standard
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).
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)).
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.)
The ALJ properly evaluated the opinion evidence in this
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.
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).
[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.
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.
Paul Conditt, Pys.D.
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
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.)
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
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
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.)
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
Legal Standard for Evaluating Dr. Conditt’s
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.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.)
[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.)
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
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.
[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.
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.
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.
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.
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. (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.
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
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 and affect appeared