Swett v. Astrue - Document 16
MEMORANDUM OPINION AND ORDER Accepting 12 Report and Recommendation which recommended the ALJ's decision be affirmed and that judgment be entered in favor or the Commissioner and against Swett. Signed by Judge Mark W Bennett on 12/05/2011. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
RAYMOND PAUL SWETT, JR.,
No. C 10-3057-MWB
MICHAEL J. ASTRUE,
Commissioner of Social Security,
MEMORANDUM OPINION AND
MAGISTRATE JUDGE’S REPORT
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Procedural Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Summary of medical evidence . . . . . . . . . . . . . . . . . . . . . . 5
Hearing testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Summary of the ALJ’s decision . . . . . . . . . . . . . . . . . . . . 14
II. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Standard Of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Swett’s Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The ALJ’s credibility determination . . . . . . . . . . . . . . . . .
Compliance with treatment . . . . . . . . . . . . . . . . . . .
Evidence of peripheral neuropathy . . . . . . . . . . . . .
Residual functional capacity assessment and hypothetical
questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Peripheral neuropathy and need for breaks . . . . . . . .
Lifting restriction . . . . . . . . . . . . . . . . . . . . . . . . .
III. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
A. Procedural Background
This case is before me pursuant to a Report and Recommendation (docket no. 12)
from Chief United States Magistrate Judge Paul Zoss, regarding plaintiff Raymond Swett’s
claims for disability insurance benefits (DIB) and supplemental security income benefits
(SSI), pursuant to Titles II and XVI of the Social Security Act.
I quote from Judge Zoss’s Report And Recommendation to introduce the procedural
history of this case:
On June 16, 2008, Swett applied for DIB and SSI, alleging
disability beginning on April 15, 2006, due to blindness in the
left eye, diabetes, kidney problems, nerve damage, limited
walking ability, learning disability, and heart problems. AR 9,
93-98, 122, 126. The Commissioner denied Swett’s
applications initially and again on reconsideration;
consequently, Swett requested a hearing before an
Administrative Law Judge (“ALJ”). AR 35-52. On June 3,
2010, ALJ John E. Sandbothe held a hearing in which Swett
and a vocational expert (“VE”) testified. AR 20-34. On July
6, 2010, the ALJ issued a decision finding Swett not disabled
since the alleged onset date of disability of April 15, 2006. AR
6-15. Swett sought review of this decision by the Appeals
Council, which denied review on August 23, 2010. AR 1-5.
The ALJ’s decision thus became the final decision of the
Commissioner. 20 C.F.R. §§ 404.981, 416.1481.
(docket no. 12, pp. 1-2.)
On October 12, 2010, Swett filed a complaint in this court seeking review of the
ALJ’s decision (docket no. 1). The case was referred to Judge Zoss, pursuant to 28
U.S.C. § 636(b)(1)(B), for the filing of a report and recommended disposition of the case.
On January 16, 2011, Swett filed his brief in support of benefits (docket no. 8). First,
Swett argued that the ALJ’s hypothetical questions to the vocational expert were not based
on substantial evidence, as the hypothetical questions ignored the limiting effects of Swett’s
diabetes mellitus and obesity and were based on a lifting restriction that was inconsistent
with the recommendation of Swett’s doctors. Second, Swett contended that the ALJ erred
in assessing Swett’s credibility on two grounds. As to the first ground, Swett asserted that
the ALJ erroneously discredited Swett’s subjective complaints on the basis of Swett’s
alleged noncompliance with prescribed treatment. Swett contended that, while a claimant’s
lack of desire to comply with prescribed treatment may reflect adversely on credibility, no
evidence exists here to suggest that Swett lacked desire to comply with treatment. Rather,
Swett followed medical advice, but his diabetes remained out of control, despite his
efforts. Moreover, Swett argued, on the basis of Social Security Rule 82-59, that the
Commissioner may not deny benefits on the basis of noncompliance with prescribed
treatment if the claimant has a justifiable reason for failing to follow treatment. Swett
maintained that the ALJ failed to consider whether Swett had good reason for failing to
comply with treatment. As to the second ground, Swett argued that the ALJ erred in
discounting Swett’s credibility by finding that Swett had not voiced concerns to his doctors
about peripheral neuropathy. Swett maintained that his medical records documented his
complaints about peripheral neuropathy.
On March 16, 2011, the Commissioner responded with his brief in resistance
(docket no. 9). The Commissioner first argued that the ALJ’s hypothetical questions were
based on substantial evidence, as the ALJ formulated his hypothetical questions based on
his proper determination of Swett’s residual functional capacity. The Commissioner
argued that the ALJ, in determining Swett’s residual functional capacity, appropriately
discounted Swett’s reported limitations caused by his diabetes and obesity, based on the
ALJ’s finding that Swett was not entirely credible. Second, the Commissioner argued that
the ALJ, in determining Swett’s credibility, appropriately considered Swett’s
noncompliance with medical treatment, as the record showed that Swett did not take
medication as prescribed, keep appointments, and was not interested in changing his
lifestyle. Moreover, the Commissioner maintained that Swett incorrectly understood
Social Security Rule 82-59 to apply to credibility determinations.
Commissioner contended that while Rule 82-59 provides guidelines for the denial of
benefits to an otherwise disabled individual on the basis of noncompliance, Rule 82-59
does nothing to restrict the ALJ’s use of noncompliance in determining a claimant’s
credibility. Furthermore, the Commissioner argued that the ALJ properly discounted
Swett’s credibility, based on the inconsistencies between Swett’s hearing testimony
regarding his peripheral neuropathy and the medical records.
Judge Zoss issued a Report And Recommendation on August 31, 2011 (docket no.
12). Judge Zoss determined that the ALJ’s decision was supported by substantial evidence
in the record as a whole, and therefore recommended that the ALJ’s decision denying
benefits be affirmed. Specifically, Judge Zoss found that the ALJ properly discounted
Swett’s credibility, finding that the ALJ appropriately considered Swett’s failure to follow
prescribed treatment and that the record was inconsistent with Swett’s testimony regarding
the limitations caused by his peripheral neuropathy. Next, Judge Zoss found that the ALJ
properly formulated his hypothetical questions to the vocational expert, as hypothetical
questions need only include impairments and limitations that the ALJ finds credible.
On September 13, 2011, Swett filed a timely objection (docket no. 13) to Judge
Judge Zoss’s Report And Recommendation. The Commissioner filed his response to
Swett’s objection on September 23, 2011 (docket no. 15), in which he addresses Swett’s
arguments by incorporating the arguments made in his initial brief. The Commissioner
urges me to adopt the Report And Recommendation and affirm the ALJ’s finding that
Swett is not disabled.
B. Factual Background
In his Report And Recommendation, Judge Zoss made the following findings of
Summary of medical evidence
Bethesda Family Medicine
On April 28, 2006, Swett complained to Elizabeth
Williams, M.D., of “intermittent episodes of left-sided chest
wall pain, shoulder pain, abdominal pain as well as numbness,
tingling and pain in his left arm and a shooting pain in his left
leg. Also, over the last few weeks, he has been getting
fatigued and [shortness of breath] with these episodes.” AR
323. Swett was referred to St. Paul Cardiology to rule out a
cardiac or vascular event. AR 323-24. Dr. Williams
commented, “Perhaps some of this can be due to neuropathy
secondary to diabetes but it does not seem typical in nature.”
On May 9, 2006, Swett related to Dr. Williams that,
during the previous night, “he had an episode where he was
hot and sweaty, nauseated, weak, having this chest pain which
is different than his chest wall pain. He also notes that his
diabetes has been kind of out of control for the past few
weeks. . . . He has gone to some diabetic classes and some he
has missed. He thinks it does help him.” AR 321. Swett
received an EKG referral for a diabetic eye examination. AR
322. On May 15, 2006, Swett underwent an eye examination
at St. Paul Eye Clinic.
Neuropathy denotes a functional disturbance or pathological change in the
peripheral nervous system. Dorland’s Illustrated Medical Dictionary 1287 (31st ed.2007).
Examination revealed background diabetic
retinopathy and bilateral macular pigment
changes. Visual acuity is poor in the left eye
due to amblyopia. He has had bad vision in his
left eye his entire life. He was patched as a
child. He has congenital nystagmus and mild
[The examining physician]
recommended yearly eye examinations for the
diabetes. He does have background diabetic
On May 22, 2006. Swett again complained to Dr.
Williams of chest pain and shortness of breath over the
weekend, which “got a little better” on that Sunday. AR 317.
Dr. Williams concluded, “[T]he chest discomfort was likely
not myocardial ischemia”; an echocardiogram showed normal
left ventricular systolic function “with a little LVH, no
valvular lesions but possible LV relaxation abnormality.” AR
317. Swett’s diabetes medication was increased. AR 318.
On May 31, 2006, Swett complained to Aziza Shireen,
M.D., of “chest pain mainly on the left side,” stating that
“pain is 7/10 on the pain scale which radiates to his left arm”
and that the “pain is conflicting and comes and goes” and
increases with exertion. Swett reported that Naproxen did not
help to reduce the pain. Dr. Shireen concluded that the
“[p]ain is not likely cardiac in origin at this moment.” AR
On June 9, 2006, Swett complained to Dr. Williams of
tooth pain after an dental appointment. AR 313. Dr. Williams
noted that Swett “recently has not been taking care of his
diabetes much,” which was not well controlled. AR 313.
Swett had “not picked up [his] prescription” of niacin
“because has been so broke. He has not been able to work
lately.” AR 313.
On June 12, 2006, Swett underwent a coronary
angiogram, which revealed mild, non-obstructive coronary
artery disease, non-cardiac chest pain, a falsely abnormal CT
coronary angiogram, and normal left ventricular systolic
function and normal hemodynamics. AR 284.
On July 12, 2006, Swett expressed concern to Shannon
Reidt, Pharm.D., about his blood sugar levels. AR 309. Dr.
Reidt noted that “readings from the past two weeks have
ranged between 300 and 400 with some readings in the 500's.”
Swett reported that he attended diabetes education and tried to
make healthy dietary choices, but had not made any recent
dietary changes that would explain his elevated blood sugar
level. AR 309. He stated that he missed taking his
medications about two to three times a week and his insulin
about two times a week. AR 309. Swett also complained of
“leg leg ‘foot zingers’ which just come on and off more in the
last couple of weeks and only last for a few seconds. He is
also noticing that he is having some numbness and stiffness in
that leg which is worse than his right.” AR 311. Dr. Williams
noted that Swett “has been off of work for the last week with
these complaints of his leg pain. Not sure if this a valid thing
or not.” AR 312.
On July 19, 2006, Swett obtained his diabetes
medication and received training on using his flex pen. AR
On August 24, 2006, Swett complained to Marc
Baumgartner, M.D., of “some chronic fatigue related to his
diabetes. Otherwise he states he has been unemployed[;] he
was on medical leave from Wal-Mart,” where he had been
working as a truck loader. AR 135, 306. An angiogram “was
otherwise negligible,” and “no operative intervention was
recommended at that time.” AR 306. Dr. Baumgartner noted
that Swett was able to work the following Monday, and
“provided him restrictions of heavy lifting and excessive
activity at work. Otherwise, free to return to work.” AR 30607.
During a medication check on April 24, 2007, Swett
asked to be treated only with insulin for diabetes because of
side effects from his medications. AR 303-05.
On November 8, 2007, Swett complained to Adam
Hoverman, M.D., of pain in his left shoulder and wrist that
had been ongoing for months and was worse with movement.
AR 301. He also complained of bilateral foot pain from
weightbearing that worsened throughout the day, as well as
nocturnal burning pain on the plantar aspect of his left foot not
associated with weightbearing. AR 301. Although he was on
insulin therapy, Swett’s diabetes was poorly controlled. AR
On November 26, 2007, Swett saw Dr. Hoverman and
reported no complaints, although he acknowledged that he had
occasionally forgotten to take his medications. AR 299. Swett
reported to Dr. Hoverman that he “walk[ed] a lot” around the
house, at the supermarket, and six blocks with his son. AR
On March 5, 2008, Swett reported to Dr. Hoverman
that, “in the last several weeks, he has had visual changes and
intermittent blurred vision” and “has not made any of the
dietary nor lifestyle nor exercise changes based on
recommendations from [the] diabetic educator.” Swett denied
having chest pain, shortness of breath, abdominal or neck
pain, or weakness or loss of sensation in any extremity. AR
296. Dr. Hoverman’s treatment notes indicate that Swett was
“not currently achieving the anticipated [diabetes] control
hoped for with his diabetic education and therapeutic regimen.
The patient states that this is hard to do so and that he is not
currently interested in changing many of his lifestyle factors.”
On April 4, 2008, Swett reported to Dr. Hoverman of
“some right heel pain” after walking five to six miles. AR
293. He also complained of intermittent, sharp left shoulder
pain, which was alleviated when he slept with the shoulder
elevated. AR 293. Dr. Hoverman noted that, although Swett’s
hypertension was well controlled, his diabetes continued to be
poorly controlled. AR 294.
Joseph Latella, D.O.
On September 25, 2008, Joseph Latella, D.O.,
performed a consultative examination of Swett (AR 366-71)
and noted as follows:
[Swett] is a divorced forty six year old white,
divorced male who is the father of three grown
children and they live with their mother. The
last time he worked was in 2006 as a trailer
loader for a trucking company. He quit due to
his diabetes and complications from it.
He stated that he diabetes has affected his
eyesight and he has nephritis of the kidney. He
does have a metabolic syndrome and is not
controlled with his Lantus insulin 40 units 4
times daily along with Humulin insulin 3 times
a day. This is given SubQ and he is taking
Metformin 1000 mg twice daily. He stated that
his sugars run over 300 mg/dl every day. He is
also taking Tricor and Crestor for his
hyperlipidemia. His blood pressure is under
control with Lisinopril 10 mgs. daily. He has
been diagnosed with Type II diabetes for the past
ten years and may need an insulin pump to
control this disease. He denies any history of
allergies to food or medications and has never
had any surgeries.
He does not drive and has never had a driver’s
license. He has been treated for strabismus as a
child and does wear glasses. He has lost partial
eyesight in the left eye laterally. His Snellen’s
chart showed without glasses left eye 20/200, the
right eye 20/40 and with both eyes with glasses
in place his eyesight was 20/20. He does exhibit
color blindness with red looking blue. He has
graduated high school and can read, write and
understand the English language. He can crawl,
kneel and climb stairs. He can transfer objects
with either hand. He takes care of his own
finances. He does not drink alcohol, abuse
drugs or smoke. He has just moved from
Minnesota to the Fort Dodge area and is
qualified for Medicaid.
The range of motion chart is filled out and is
relatively normal. His gait is normal and he
does not use any cane, crutch or walker. He
stated that he was seen and examined by a
physician in Fort Dodge, Iowa last week and he
does not know the physician’s name or the
results of the labs.
AR 370-71. Dr. Latella’s diagnoses included (1) metabolic
syndrome; (2) ventral abdominal hernia; (3) hyperlipidemia;
(4) hypertension; and (5) unknown diabetic nephropathy. AR
State Agency Medical Consultants
On November 19, 2008, Laura Griffith, D.O., a state
agency medical consultant, assessed Swett’s physical residual
functional capacity (“RFC”). AR 372-79. Dr. Griffith opined
that Swett could (1) lift and/or carry 50 pounds occasionally
and 25 pounds frequently; (2) stand and/or walk for a total of
about six hours in an eight-hour workday; (3) sit for about six
hours in an eight-hour workday; and (4) perform unlimited
pushing and/or pulling with the upper and lower extremities.
AR 373. Further, Swett could frequently climb, balance,
stoop, kneel, crouch, and crawl. AR 374. Finally, Swett had
no manipulative, visual, communicative, or environmental
limitations other than avoiding concentrated exposure to
hazards and extreme cold and heat because of his diabetic
neuropathy. AR 375-76. Dr Griffith found Swett’s allegations
to be “partially credible. Poor compliance is noted with
regard to his diabetic control. However, MER indicates he is
able to walk 5-6 miles and is currently looking for
employment,” which contradicted Swett’s report that his
“walking is limited to 20 minutes.” AR 377, 379. Dr.
Griffith found Swett’s medically determinable impairments of
obesity and diabetic neuropathy to be severe. AR 379.
On April 20, 2009, Chrystalla Daly, D.O., another state
agency medical consultant, expressed the same opinion about
Swett’s physical RFC, except that she concluded that Swett
could only occasionally climb, balance, stoop, kneel, crouch,
and crawl. AR 409-16. Dr. Daly noted Swett’s reported
ability to walk five to six miles and to stand to wash dishes for
at least four hours. AR 411.
Wolfe Eye Clinic
On November 19, 2008, Swett underwent a eye
examination at the Wolfe Eye Clinic in consultation for retinal
disease. AR 388-90. Swett complained of blurry vision in
both eyes that began two years earlier and of flashes that
affected both near and far vision. AR 388. Although the
onset was “constant,” the condition was moderate and
associated with reading. AR 388. Swett was ultimately
diagnosed with severe, non-proliferative diabetic retinopathy
with no diabetic macular edema; a history of amblyopia in the
left eye; and mild cataracts. AR 390. Swett’s vision remained
“about the same” during a diabetic vision check three months
later on February 26, 2009, but he did not complain of pain.
Iowa Heart Center
On February 19, 2009, Swett was examined at the Iowa
Heart Center for his complaint of chest pain. AR 403-05.
[Swett has] had chest pain off and on for many
months. He has about 1-2 occasions per month
that is usually burning pain, may occur at rest,
it’s more on the right side of his chest. He can’t
identify any aggravating factors. His pain may
be present for only a minute or may be present
for a couple of hours. He has no symptoms with
exertion. He is not working right now but he
says he walks every day and [is] able to do that
without any chest pain or undue dyspnea.
On March 3, 2009, myocardial perfusion imaging of
Swett at the Iowa Heart Center revealed normal myocardial
perfusion imaging, with no infarction or ischemia noted. AR
Community Health Center of Fort Dodge
On July 10, 2009, Swett visited the Fort Dodge
Community Health Center seeking a new prescription for his
medications and also complaining of a rotator cuff injury in his
right shoulder from slipping on a wet floor. AR 424. On
March 26, 2010, Swett reported that he walked five miles a
day, did not test his blood sugar at home because of the cost,
and had not been able to have shoulder surgery performed
because of his high blood sugar. AR 425. Swett’s
medications were refilled. AR 425. Swett had no complaints
in a follow-up visit on April 23, 2010. AR 427.
Swett stands five feet and eight inches tall and weighs
250 pounds. AR 23. At the time of the hearing, he had lost
thirty pounds because of his diabetes. AR 23. Swett is single
and lives with his 19-year-old son. AR 23. Swett does not
have a driver’s license because of his blurred vision where he
“can’t see half of the time on [his] left side.” AR 24.
At the time of the hearing, he worked 20 to 25 hours
per week as a dishwasher at Ford Dodge Community College.
AR 24. As a dishwasher and fast-food worker he occasionally
would have to lift up to fifty pounds. AR 32. Swett is a
diabetic and injects insulin four times a day, which takes him
15 to 20 minutes to do. AR 24-25, 27. If his blood sugar
level is still too high, he also takes Novolog as necessary to
reduce his diabetes. AR 26-27. It takes Swett 15 minutes to
check his blood sugar. AR 28.
Swett’s diabetes causes him to feel fatigued; “sometimes
it takes up to two days at a time to recuperate.” AR 28. As
a result of his fatigue, he naps “[a]t least four times a day.”
AR 28. He also suffers from loss of muscle, strength, and
vision, and has nerve pain throughout his legs and arms. AR
28. Swett also suffers from a loss of sensation, and has
numbness in his hands and feet from nerve damage. AR 29.
According to Swett, “sometimes where I’m walking . . . I’ll
get into a point where my leg just feels like it goes into a limp
mode and I start limping, loss of strength, very painful sharp
pains in the bottom of my feet.” AR 29. The ALJ noted that
Swett’s medical records indicate that he never complained to
a doctor about his hands and feet tingling, but Swett responded
that the tingling began “[t]he moment that [he] developed
diabetes.” AR 31. Swett testified that he also suffers daily
from blurry vision in both eyes, and is in pain on a daily basis.
Swett’s employer at the time of the hearing did not have
a problem with his taking occasionally unscheduled breaks for
insulin injections. AR 28-29. At times Swett would need to
take unscheduled breaks because “[s]ometimes I just got to get
up and go.” AR 29.
The VE testified that a hypothetical individual of
Swett’s age, education, and work experience with diabetes,
obesity, and a restriction on work requiring fine visual detail
who could lift 50 pounds occasionally and frequently could
perform Swett’s past work as a dishwasher, fast-food worker,
and stocker as generally performed, AR 32. Such an
individual, however, would not be competitively employable
if that individual also had to take two or more unscheduled
fifteen-minute breaks per day, could not stand for more than
a total of two hours during a work day, and could not perform
gross or fine manipulation. AR 32-33.
According to the VE, an individual with no limitations
other than the need for two unscheduled fifteen-minute breaks
could be competitively employed. AR 33. On the other hand,
a work restriction of three or more unscheduled fifteen-minute
breaks “would limit a person’s employability.” AR 34.
Summary of the ALJ’s decision
On July 6, 2010, the ALJ found that Swett (1) had not
engaged in substantial gainful activity since the alleged onset
date of disability of April 15, 2006; and (2) had an impairment
or a combination of impairments considered to be “severe” on
the basis of the requirements in the Code of Federal
Regulations; but (3) did not have an impairment or a
combination of impairments meeting or equaling one of the
impairments set forth in 20 C.F.R. Part 404, Subpart P,
Appendix 1; and (4) was able to perform his past relevant
work as a dishwasher, stocker, and fast-food worker. AR 1115. The ALJ accordingly found that Swett was not disabled
from April 15, 2006, through the date of the ALJ’s decision.
In so finding, the ALJ found that the plaintiff had the
RFC to perform medium work and lift 50 pounds occasionally
and 50 pounds frequently, but he could not“perform fine detail
in vision.” AR 12.
Regarding Swett’s credibility, the ALJ found that his
“medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, [his]
statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they
are inconsistent with the [ALJ’s] residual functional capacity
assessment.” AR 14. The ALJ found that Swett “experiences
some symptoms and limitations; however, the record does not
fully support the severity of [his] allegations.” AR 14. Swett
“has received treatment for diabetes, yet the primary
recommendation was for [him] to exhibit better self care and
follow prescribed medication regimens. Multiple cardiac tests
proved negative. [Swett] periodically received musculoskeletal
pain care, but on an episodic basis only.” AR 14. The ALJ
noted Swett’s “history of diabetes mellitus, with poor
compliance with treatment. Treatment notes from March 2008
indicated [he] ‘has not made any of the dietary nor lifestyle nor
exercise changes based on recommendations from [the]
diabetic educator.’” AR 13 (quoting AR 296). Further, the
ALJ “fully incorporated” the effect of Swett’s obesity into the
ALJ’s RFC assessment. AR 13.
Report And Recommendation at 2-11 (docket no. 12). I adopt Judge Zoss’s findings of
fact, as the parties have not objected to them.
A. Standard Of Review
The court reviews the magistrate judge’s report and recommendation pursuant to
the statutory standards found in 28 U.S.C. § 636(b)(1):
A judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.
The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1) (2006); see Fed. R. Civ. P. 72(b) (stating identical requirements);
N.D. Ia. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge
but not articulating any standards to review the magistrate judge’s report and
recommendation). While examining these statutory standards, the United States Supreme
Any party that desires plenary consideration by the Article III
judge of any issue need only ask. Moreover, while the statute
does not require the judge to review an issue de novo if no
objections are filed, it does not preclude further review by the
district judge, sua sponte or at the request of a party, under a
de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 154 (1985). Thus, a district court may review de novo any
issue in a magistrate judge’s report and recommendation at any time. Id. If a party files
an objection to the magistrate judge’s report and recommendation, however, the district
court must “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”
28 U.S.C. §
636(b)(1). In the absence of an objection, the district court is not required “to give any
more consideration to the magistrate’s report than the court considers appropriate.”
Thomas, 474 U.S. at 150.
De novo review, of course, is nondeferential and generally allows a reviewing court
to make an “independent review” of the entire matter. Salve Regina College v. Russell,
499 U.S. 225, 238 (1991) (noting also that “[w]hen de novo review is compelled, no form
of appellate deference is acceptable”); see Doe v. Chao, 540 U.S. 614, 620-19 (2004)
(noting de novo review is “distinct from any form of deferential review”). The de novo
review of a magistrate judge’s report and recommendation, however, only means a district
court “‘give[s] fresh consideration to those issues to which specific objection has been
made.’” United States v. Raddatz, 447 U.S. 667, 675 (1980) (quoting H.R. Rep. No.
94-1609, at 3, reprinted in 1976 U.S.C.C.A.N. 6162, 6163 (discussing how certain
amendments affect 28 U.S.C. § 636(b))). Thus, while de novo review generally entails
review of an entire matter, in the context of § 636 a district court’s required de novo
review is limited to “de novo determination[s]” of only “those portions” or “specified
proposed findings” to which objections have been made. 28 U.S.C. § 636(b)(1); see
Thomas, 474 U.S. at 154 (“Any party that desires plenary consideration by the Article III
judge of any issue need only ask.”). Consequently, the Eighth Circuit Court of Appeals
has indicated de novo review would only be required if objections were “specific enough
to trigger de novo review.” Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989).
Despite this “specificity” requirement to trigger de novo review, the Eighth Circuit Court
of Appeals has “emphasized the necessity . . . of retention by the district court of
substantial control over the ultimate disposition of matters referred to a magistrate.” Belk
v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). As a result, the Eighth Circuit has been
willing to “liberally construe” otherwise general pro se objections to require a de novo
review of all “alleged errors,” see Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995),
and to conclude that general objections require “full de novo review” if the record is
concise. Belk, 15 F.3d at 815 (“Therefore, even had petitioner’s objections lacked
specificity, a de novo review would still have been appropriate given such a concise
record.”). Even if the reviewing court must construe objections liberally to require de
novo review, it is clear to this court that there is a distinction between making an objection
and making no objection at all. See Coop. Fin. Assoc., Inc. v. Garst, 917 F. Supp. 1356,
1373 (N.D. Iowa 1996) (“The court finds that the distinction between a flawed effort to
bring objections to the district court’s attention and no effort to make such objections is
appropriate.”). Therefore, I will strive to provide de novo review of all issues that might
be addressed by any objection, whether general or specific, but will not feel compelled to
give de novo review to matters to which no objection at all has been made.
In the absence of any objection, the Eighth Circuit Court of Appeals has indicated
a district court should review a magistrate judge’s report and recommendation under a
clearly erroneous standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.
1996) (noting when no objections are filed and the time for filing objections has expired,
“[the district court judge] would only have to review the findings of the magistrate judge
for clear error”); Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990) (noting the
advisory committee’s note to Fed. R. Civ. P. 72(b) indicates “when no timely objection
is filed the court need only satisfy itself that there is no clear error on the face of the
record”); Branch, 886 F.2d at 1046 (contrasting de novo review with “clearly erroneous
standard” of review, and recognizing de novo review was required because objections were
filed). The United States Supreme Court has stated that the “foremost” principle under
the “clearly erroneous” standard of review “is that ‘[a] finding is “clearly erroneous”
when[,] although there is evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.’” Anderson
v. City of Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)). Thus, the clearly erroneous standard of review
is deferential, see Dixon v. Crete Medical Clinic, P.C., 498 F.3D 837, 847 (8th Cir. 2007)
(noting a finding is not clearly erroneous even if another view is supported by the
evidence), but a district court may still reject the magistrate judge’s report and
recommendation when the district court is “left with a definite and firm conviction that a
mistake has been committed.” U.S. Gypsum Co., 333 U.S. at 395.
Even though some “lesser review” than de novo is not “positively require[d]” by
statute, Thomas, 474 U.S. at 150, Eighth Circuit precedent leads me to believe that a
clearly erroneous standard of review should generally be used as the baseline standard to
review all findings in a magistrate judge’s report and recommendation that are not objected
to or when the parties fail to file any timely objections, see Grinder, 73 F.3d at 795;
Taylor, 910 F.2d at 520; Branch, 886 F.2d at 1046; see also FED. R. CIV. P. 72(b)
advisory committee’s note (“When no timely objection is filed, the court need only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.”). In the context of the review of a magistrate judge’s report and
recommendation, I believe one further caveat is necessary: a district court always remains
free to render its own decision under de novo review, regardless of whether it feels a
mistake has been committed. See Thomas, 474 U.S. at 153-54. Thus, while a clearly
erroneous standard of review is deferential and the minimum standard appropriate in this
context, it is not mandatory, and I may choose to apply a less deferential standard.
The Eighth Circuit Court of Appeals, in the context of a dispositive matter
originally referred to a magistrate judge, does not review a district court’s decision in
similar fashion. The Eighth Circuit Court of Appeals will either apply a clearly erroneous
or plain error standard to review factual findings, depending on whether the appellant
originally objected to the magistrate judge’s report and recommendation. See United States
v. Brooks, 285 F.3d 1102, 1105 (8th Cir. 2002) (“Ordinarily, we review a district court’s
factual findings for clear error . . . . Here, however, the record reflects that [the
appellant] did not object to the magistrate’s report and recommendation, and therefore we
review the court’s factual determinations for plain error.” (citations omitted)); United
States v. Looking, 156 F.3d 803, 809 (8th Cir. 1998) (“[W]here the defendant fails to file
timely objections to the magistrate judge’s report and recommendation, the factual
conclusions underlying that defendant’s appeal are reviewed for plain error.”). The plain
error standard of review is different than a clearly erroneous standard of review, see
United States v. Barth, 424 F.3d 752, 764 (8th Cir. 2005) (explaining the four elements
of plain error review), and ultimately the plain error standard appears to be discretionary,
as the failure to file objections technically waives the appellant’s right to appeal factual
findings. See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (stating an appellant
who did not object to the magistrate judge’s report and recommendation waives his or her
right to appeal factual findings, but then choosing to “review the magistrate judge’s
findings of fact for plain error”). An appellant does not waive his or her right to appeal
questions of law or mixed questions of law and fact by failing to object to the magistrate
judge’s report and recommendation. United States v. Benshop, 138 F.3d 1229, 1234 (8th
Cir. 1998) (“The rule in this circuit is that a failure to object to a magistrate judge’s report
and recommendation will not result in a waiver of the right to appeal ‘“when the questions
involved are questions of law or mixed questions of law and fact.’” (quoting Francis v.
Bowen, 804 F.2d 103, 104 (8th Cir. 1986), in turn quoting Nash v. Black, 781 F.2d 665,
667 (8th Cir. 1986))). In addition, legal conclusions will be reviewed de novo, regardless
of whether an appellant objected to a magistrate judge’s report and recommendation. See,
e.g., United States v. Maxwell, 498 F.3d 799, 801 n.2 (8th Cir. 2007) (“In cases like this
Here, Swett has objected to several of Judge Zoss’s findings. Although I will
review these findings de novo, and Judge Zoss’s other findings for clear error, I review
the Commissioner’s decision to determine whether the correct legal standards were applied
and “whether the Commissioner’s findings are supported by substantial evidence in the
record as a whole.” Page v. Astrue, 484 F.3d 1040, 1042 (8th Cir. 2007) (citing Haggard
v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999)).
Under this deferential standard,
“[s]ubstantial evidence is less than a preponderance but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.”
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002); see also Page, 484 F.3d at 1042
(“Substantial evidence is relevant evidence which a reasonable mind would accept as
adequate to support the Commissioner’s conclusion.” (quoting Haggard, 175 F.3d at
594)). “If, after review, [the court] find[s] it possible to draw two inconsistent positions
from the evidence and one of those positions represents the Commissioner’s findings, [the
court] must affirm the denial of benefits.” Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.
2008) (quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996)). Even if the court
would have “‘weighed the evidence differently,’” the Commissioner’s decision will not be
disturbed unless “it falls outside the available ‘zone of choice.’” Nicola v. Astrue, 480
F.3d 885, 886 (8th Cir. 2007) (quoting Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.
one, ‘where the defendant fails to file timely objections to the magistrate judge’s report and
recommendation, the factual conclusions underlying that defendant’s appeal are reviewed
for plain error.’ We review the district court’s legal conclusions de novo.” (citation
B. Swett’s Objections
In his objections, Swett challenges Judge Zoss’s finding, and subsequent
recommendation, that there is substantial evidence in the record to support the ALJ’s
determination that Swett is capable of performing past relevant work as a dishwasher,
stocker, and fast food worker. Specifically, the ALJ found that Swett has the residual
functional capacity (RFC) to perform medium work, such that he could lift fifty pounds
occasionally and fifty pounds frequently, but that he cannot perform fine detail in vision.
Swett objects to Judge Zoss’s Report And Recommendation, arguing 1) the ALJ’s
credibility determination was flawed because he improperly considered Swett’s
noncompliance with medical treatment; 2) Judge Zoss erroneously characterized the ALJ’s
decision to discredit Swett’s allegations of peripheral neuropathy, and the ALJ’s credibility
determination itself was flawed because the ALJ ignored portions of the medical record
showing Swett’s peripheral neuropathy; and 3) the ALJ’s hypothetical questions to the
vocational expert (VE) and his RFC assessment were erroneous, as they failed to account
for Swett’s peripheral neuropathy and need for breaks and used an improper lifting
The ALJ’s credibility determination
Swett maintains that the ALJ, in making his credibility determination, erroneously
considered Swett’s noncompliance with treatment and ignored evidence of Swett’s
peripheral neuropathy. When evaluating a claimant’s subjective complaints, an ALJ must
employ the multi-factor standard articulated by the Eighth Circuit Court of Appeals in
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which examines “the claimant’s prior
work history; daily activities; duration, frequency, and intensity of pain; dosage,
effectiveness and side effects of medication; precipitating and aggravating factors; and
functional restrictions.” Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010) (quoting
Medhaug v. Astrue, 578 F.3d 805, 816 (8th Cir. 2009), in turn citing Polaski, 739 F.2d
at 1322). Nonetheless, “[t]he ALJ is not required to discuss each Polaski factor as long
as ‘he acknowledges and considers the factors before discounting a claimant’s subjective
complaints.’” Id. at 932 (quoting Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009)).
Rather, “[t]he ALJ need only acknowledge and consider those factors before discounting
a claimant’s subjective complaints.” Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th
Cir. 2004). The ALJ may also consider “the absence of objective medical evidence to
support the complaints, although the ALJ may not discount a claimant’s subjective
complaints solely because they are unsupported by objective medical evidence.”
Halverson, 600 F.3d at 931-32 (citing Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir.
2008)). Additionally, “acts which are inconsistent with a claimant’s assertion of disability
reflect negatively upon that claimant’s credibility,” id. at 932 (citing Heino v. Astrue, 578
F.3d 873, 881 (8th Cir. 2009)), and the ALJ may discredit “a claimant’s subjective
complaints if there are inconsistencies in the record as whole,’” id. (quoting Van Vickle
v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008)). Courts generally defer to an ALJ’s
credibility finding when the ALJ “‘explicitly discredits the claimant’s testimony and gives
good reason for doing so.’” Id. at 932 (quoting Juszczyk v. Astrue, 542 F.3d 626, 632
(8th Cir. 2008)). The Eighth Circuit Court of Appeals has cautioned judges against
“substitut[ing] [their] opinion for that of the ALJ, who is in a better position to assess
credibility.” Eichelberger, 390 F.3d at 590 (citing Brown v. Chater, 87 F.3d 963, 965
(8th Cir. 1996)).
Compliance with treatment
Swett contends that the ALJ improperly discounted Swett’s credibility on the basis
of his noncompliance with prescribed diabetes treatment. Swett maintains that he made
every effort to comply with prescribed treatment but that his diabetes nevertheless
remained out of control. The ALJ concluded, after considering the Polaski standard, that
Swett’s noncompliance with treatment, among other factors, weighed against Swett’s
credibility: “The claimant experiences some symptoms and limitations; however the record
does not fully support the severity of the claimant’s allegations. The claimant has received
treatment for diabetes, yet the primary recommendation was for the claimant to exhibit
better self care and follow prescribed treatment regimens.” AR 14. The Eighth Circuit
Court of Appeals has determined that a “claimant’s failure to follow prescribed course of
treatment weigh[s] against credibility when assessing subjective complaints of pain.” See
Ramirez v. Barnhart, 292 F.3d 576, 582 (8th Cir. 2002) (“Claimant . . . refus[ed] to see
a dietician to lose the weight exacerbating her back pain, neglect[ed] to take prescribed
medication, and fail[ed] to perform her prescribed physical therapy exercises.”) (citing
Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001)); accord Tellez v. Barnhart, 403
F.3d 953, 957 (8th Cir. 2005) (approving ALJ’s consideration of claimant’s “medical noncompliance” in discounting the claimant’s credibility). Swett attempts to distinguish his
noncompliance from that in Ramirez, arguing,
In Ramirez . . . the plaintiff complained of pain but did not
seek treatment or take medication that would alleviate pain[,]
thus eroding her credibility. Mr. Swett regularly goes to the
doctor seeking changes to his diabetes treatment, he seeks
education about his lifestyle by going to a diabetic educator,
and he injects himself regularly. Yet, his blood sugar is
regularly out of control. . . . His noncompliance is not the
same as the noncompliant behavior seen in the Ramirez case,
and does not erode Mr. Swett’s credibility.
Swett’s Objections at 1 (docket no. 13). Swett maintains, “In this case there is no fact that
can be relied upon that suggests that [Swett’s] noncompliance was intentional.” Id.
The record contradicts Swett’s assertions. There is substantial evidence throughout
the record that Swett failed to follow his physicians’ prescribed treatment—and not due to
an inability to comply. Swett’s physician reported in March 2008,“[H]e has not made any
of the dietary nor lifestyle nor exercise changes based on recommendations from the
diabetic educator,” and, moreover, that he was “not currently interested in changing many
of his lifestyle factors.” AR 296. During that same visit, Swett’s physician “urged [him]
to strive for better compliance.” Id. Earlier, in November 2004, Swett reported that he
had not taken medicine for his diabetes or hypertension for a year. AR 241. In May
2005, his physician listed his medical history as “diabetes, hypertension, noncompliant.”
AR 244. On the other hand, there is at least some indication in the record that Swett did
his best to comply with prescribed treatment, for instance, in July 2006: “Pt uses three
different Glucometers to check BS’s . . . including morning, midday, before work and at
bedtime. Attends diabetes education. Pt states that he tries to make healthy dietary
choices.” AR 309. Additionally, there is some evidence that Swett, at times, could not
afford his medications. See, e.g., AR 313. Nonetheless, because substantial evidence
shows that Swett failed to follow prescribed treatment, even when able to comply, I find
that, to the extent the ALJ relied on Swett’s noncompliance in discounting his credibility,
such reliance was proper. See Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010)
(“‘[A court] may not reverse the Commissioner’s decision merely because substantial
evidence exists in the record that would have supported a contrary outcome.’” (quoting
Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000))).
Evidence of peripheral neuropathy
Swett advances two objections regarding the ALJ’s decision to discredit Swett’s
subjective allegations of peripheral neuropathy. First, Swett asserts that Judge Zoss
erroneously found that the ALJ specifically assessed the credibility of Swett’s subjective
allegations of peripheral neuropathy.
Swett maintains that the ALJ’s credibility
determination did not refer to Swett’s peripheral neuropathy. Second, Swett argues that
the ALJ ignored medical evidence of peripheral neuropathy in the record and thus
improperly discounted Swett’s allegations of peripheral neuropathy.
I first address Swett’s objection to Judge Zoss’s characterization of the ALJ’s
decision. With respect to the ALJ’s consideration of Swett’s peripheral neuropathy, Judge
Zoss reasoned, as follows:
The ALJ found that Swett “alleged neuropathy in his
extremities; however, the medical evidence does not document
such complaints.” AR 13. Swett maintains that “[t]he ALJ
erred in not finding that there was peripheral neuropathy.”
Doc. No. 8 at 18. The ALJ did not discount Swett’s diagnosis
of neuropathy. Rather, the ALJ found Swett’s allegations that
his limitations from his neuropathy were disabling not to be
Report And Recommendation at 20 (docket no. 12). Swett asserts that Judge Zoss’s
explanation “does not correctly reflect the ALJ decision.” Swett’s Objections at 2 (docket
no. 13). Swett contends that the ALJ’s decision “discuss[ed] the Polaski standard but only
applie[d] the facts relating to ‘treatment for diabetes’ and ‘multiple cardiac tests.’ There
Swett’s argument here is somewhat unclear, as he argued to Judge Zoss that,
although the ALJ did assess the credibility of Swett’s complaints of peripheral neuropathy,
the assessment was flawed. Swett asserted in his briefs to Judge Zoss, “The ALJ also
points to the fact that Mr. Swett did not report any concerns about peripheral neuropathy.
. . . The ALJ erred in making the credibility determination he did in reliance on this
factor,” (docket no. 8 at 30), and, “The plaintiff is not complaining that the ALJ did not
address plaintiff’s credibility—the plaintiff is asserting that the ALJ credibility
determination is flawed,” (docket no. 10 at 2).
Nonetheless, despite the fact that Swett’s argument is unclear, I will consider both
his objection to Judge Zoss’s characterization of the ALJ’s decision and his objection that
the ALJ ignored evidence in the record of Swett’s peripheral neuropathy and thus
improperly discounted his subjective complaints.
is no discussion relative to a credibility finding as it relates to Mr. Swett’s peripheral
I find that Judge Zoss fairly characterized the ALJ’s decision. The ALJ made the
following findings regarding Swett’s credibility following his explanation of the Polaski
After careful consideration of the evidence, the
undersigned finds that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.
The claimant experiences some symptoms and
limitations; however, the record does not fully support the
severity of the claimant’s allegations. The claimant has
received treatment for diabetes, yet the primary
recommendation was for the claimant to exhibit better self care
and following prescribed medication regimens. Multiple
cardiac tests proved negative. The claimant periodically
received musculoskeletal pain care, but on an episodic basis
AR 14. Swett is correct that the ALJ did not specifically mention “peripheral neuropathy”
after his reference to the Polaski factors. However, before his discussion of the Polaski
factors, the ALJ noted, “The claimant alleged neuropathy in his extremities; however, the
medical evidence does not document such complaints. . . . Notably, the claimant does not
take any prescription medications to relieve neuropathic pain. The claimant reported some
heel pain in April 2008, but this was after walking 5-6 miles.” AR 13. Swett appears to
insist that merely because the ALJ did not reiterate these comments regarding Swett’s
peripheral neuropathy after discussing the Polaski factors, the ALJ did not assess the
credibility of Swett’s allegations of peripheral neuropathy. I find that Swett’s mechanistic
interpretation is at odds with the deferential standard of review that courts afford ALJ
decisions. See Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004) (“[A court]
will not set aside an administrative finding based on an ‘arguable deficiency in
opinion-writing technique’ when it is unlikely it affected the outcome.” (quoting Brown v.
Chater, 87 F.3d 963, 966 (8th Cir. 1996))); Castile v. Astrue, 617 F.3d 923, 929 (7th Cir.
2010) (Courts should give an ALJ’s decision “a commonsensical reading rather than
nitpicking at it” (citation omitted)). Thus, taken in context, a fair reading of the ALJ’s
decision would be that the ALJ found that the “record does not fully support the severity
of the claimant’s allegations,” AR 14, including Swett’s allegations of peripheral
neuropathy. Therefore, I agree with Judge Zoss’s determination that “the ALJ found
Swett’s allegations that his limitations from his neuropathy were disabling not to be
credible.” Report And Recommendation at 20.
Beyond his objections to Judge Zoss’s characterization of the ALJ’s decision, Swett
argues that the ALJ erred in discounting Swett’s allegations of peripheral neuropathy.
Swett contends that the record demonstrates that he sought and received treatment for
peripheral neuropathy, and that even the state agency medical consultant diagnosed Swett
with neuropathy and found that it limited Swett’s ability to work. Swett adds that the ALJ
improperly focused on the one instance in which Swett walked five to six miles as proof
that he did not suffer from pain and numbness in his extremities. Swett argues that this
“one time episode does not destroy [his] credibility concerning his normal walking.”
Swett’s Objections at 2 (docket no. 13).
The ALJ’s decision to discount Swett’s subjective allegations of peripheral
neuropathy was proper. In the administrative hearing, Swett testified that he experienced
the following problems related to peripheral neuropathy, which began “[t]he moment that
[he] developed diabetes,” AR 31:
[S]kin wear or loss of feeling in the bottom of the feet where
if I walk there’s a piece of glass on the floor and I walk over
it where I won’t be able to feel it so next thing I noticed where
I got a cut on the bottom of the foot and sometimes it gets
Nerve damage, just very numb in the hands, feet, sometimes
where I’m walking I’ll lose - - I’ll get into a point where my
leg just feels like it goes into a limp mode and I start limping,
loss of strength, very painful sharp pains in the bottom of my
AR 29. The ALJ, however, did not find these complaints of peripheral neuropathy to be
credible and articulated his reasoning as follows: “The claimant alleged neuropathy in his
extremities; however, the medical evidence does not document such complaints. . . .
Notably, the claimant does not take any prescription medications to relieve neuropathic
pain. The claimant reported some heel pain in April 2008, but this was after walking 5-6
miles.” AR 13. The ALJ’s articulated grounds for discrediting Swett’s allegations were
An ALJ may discount a claimant’s credibility based on “acts which are
inconsistent with a claimant’s assertion of disability.” See Halverson, 600 F.3d at 932.
Here, walking five to six miles was inconsistent with Swett’s allegations of very painful
neuropathy in his legs and feet. Additionally, “the absence of objective medical evidence
to support the complaints” may weigh against a claimant’s credibility, “although the ALJ
may not discount a claimant’s subjective complaints solely because they are unsupported
by objective medical evidence. Id. at 931-32. Thus, it was appropriate for the ALJ to
consider, as one factor in discounting Swett’s subjective complaints, the lack of medical
documentation to support the extent of his alleged limitations arising from peripheral
Swett argues that the ALJ “misse[d] the record” regarding his peripheral
neuropathy. Swett’s Objections at 2 (docket no. 13). He is certainly correct that there is
some evidence of medical treatment for peripheral neuropathy in the record. Nonetheless,
substantial evidence supports the ALJ’s decision to discount Swett’s subjective complaints.
To begin, the medical record simply does not support the extent of burning, numbness, and
pain that Swett alleges are caused by his peripheral neuropathy. The strongest evidence
of his peripheral neuropathy comes from his doctor’s notes on November 8, 2007, where
Swett complained of
bilateral foot pain located over medical [sic, medial] aspect of
his ankles and medial aspect of each foot. He states this is
mostly painful with weightbearing and gets worse throughout
the day. He denies trauma to the area. Pt also has burning
pain on the plantar aspect of the Lft foot over the metatarsal
heads. He states this is only at night and is not associated with
weight bearing. Pt also believes he has some numbness in that
area. . . . There is minimal decreased sensation of the
ball/plantar surface of the left foot.
AR 301-02. During that visit, Swett was prescribed Neurontin, 100 mg, for peripheral
AR 302. However, as indicated above, the doctor in that visit noted that
Swett experienced only “minimal decreased sensation.” Id. On July 12, 2006, Swett
reported “left leg ‘foot zingers’ which just come on and off more in the last couple of
weeks and only last for a few seconds [and] some numbness and stiffness in that leg which
is worse than his right,” AR 311, but Swett’s doctor commented that she was “[n]ot sure
if this is a valid thing or not.” AR 312. On April 28, 2006, Swett reported “numbness,
It is not clear from the medical records whether Swett’s doctor diagnosed solely
the burning and numbness on Swett’s left foot as peripheral neuropathy or whether Swett’s
doctor diagnosed both the left foot burning and numbness and the bilateral foot pain as
peripheral neuropathy. AR 301-02.
tingling and pain in his left arm and a shooting pain in his left leg.” AR 322. Swett’s
doctor commented, “Perhaps some of this can be due to neuropathy secondary to diabetes
but it does not seem typical in nature.” AR 323. On January 20, 2006, Swett complained
of “left leg shooting pains,” which the doctor diagnosed as “probably MSK pain and
neuropathy.” AR 333. Swett was prescribed a topical Capsaicin cream for pain. AR 333.
Swett is correct that the state agency medical consultant diagnosed Swett with diabetic
neuropathy. AR 372. However, Swett overstates the resulting limitations found by the
medical consultant, who determined only that “[d]ue to diabetic neuropathy [Swett’s]
ability to tolerate extreme temperatures and hazards is mildly limited.”
Moreover, beyond failing to support the extent of Swett’s alleged limitations arising
from peripheral neuropathy, the record contains evidence that is inconsistent with his
subjective complaints. In a Personal Pain/Fatigue Questionnaire dated March 15, 2009,
Swett answered “no” in response to the questions, “Does your pain/fatigue limit your
ability to use your arms or hands?” and “Does your pain/fatigue limit your ability to walk
and stand or sit?” AR 194-95. Swett alleged that he suffered from “skin wear” on the
bottom of his feet, AR 29, but the state agency medical consultant, in discussing Swett’s
neuropathy, remarked that Swett “has no foot ulcerations or breakdown.” AR 376.
Furthermore, Swett argues that the ALJ unfairly focused on a “one-time” event in which
Swett walked five to six miles as proof that Swett did not suffer from limitations due to
peripheral neuropathy. However, the April 4, 2008, incident in which Swett walked five
to six miles, AR 293, was not isolated. On November 26, 2007, Swett reported to his
I also note that Swett has not explained how a “mildly limited” “ability to tolerate
extreme temperatures and hazards” prevents him from performing his past relevant work
as a dishwasher, stocker, and fast-food worker, all of which the ALJ found him able to do.
doctor that he “‘walks a lot’ around the house, at the supermarket, and six blocks with his
son.” AR 299. On February 19, 2009, Swett told his doctor that he walks every day. AR
Therefore, because substantial evidence in the record as a whole supports the ALJ’s
decision to discount Swett’s subjective complaints of limitations arising from his peripheral
neuropathy, I find that the ALJ’s credibility determination was proper. See Page, 484
F.3d at 1042. I will not “substitute [my] opinion for that of the ALJ, who is in a better
position to assess credibility.” Eichelberger, 390 F.3d at 590.
Residual functional capacity assessment and hypothetical questions
Swett argues that the ALJ, in determining Swett’s RFC and in posing hypothetical
questions to the VE, erred by 1) failing to incorporate limitations caused by peripheral
neuropathy 2) failing to incorporate Swett’s need for breaks and 3) using an improper
In formulating a claimant’s RFC and in posing hypothetical questions to the VE, the
ALJ need only include the claimant’s limitations and impairments that he has determined
to be credible. See Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006) (“Before the
ALJ could determine [the claimant’s] RFC, he first had to assess [the claimant’s]
credibility as to his subjective complaints. . . . A hypothetical question posed to a VE need
only include those impairments and limitations found credible by the ALJ.” (citation and
internal quotation marks omitted)); see also Heino, 578 F.3d at 882; Tellez, 403 F.3d at
957 (“[T]he ALJ’s determination regarding [the claimant’s] RFC was influenced by his
determination that her allegations were ‘less than fully credible,’ and we give the ALJ
deference in that determination.”).
As with other aspects of an ALJ’s decision, a
reviewing court must look to see whether the ALJ’s RFC and hypothetical questions were
“supported by substantial evidence in the record as a whole.” See Page, 484 F.3d at 1042;
Morse v. Shalala, 32 F.3d 1228, 1230 (8th Cir. 1994) (per curiam) (“In order for an ALJ
to rely on a vocational expert’s opinion, the posed hypothetical must accurately describe
a claimant’s impairments. The proper question for a court in reviewing such a finding by
an ALJ is whether the information given to the vocational expert in the hypothetical was
supported by substantial evidence in the record as a whole.” (citation omitted)).
Furthermore, “an ALJ may omit alleged impairments from a hypothetical question when
the record does not support the claimant’s contention that his impairments significantly
restricted his ability to perform gainful employment.” Owen v. Astrue, 551 F.3d 792, 802
(8th Cir. 2008) (citation and internal quotation marks omitted).
Peripheral neuropathy and need for breaks
Here, the ALJ did not err in excluding Swett’s alleged limitations due to peripheral
neuropathy from the RFC and the hypothetical questions to the VE. As discussed above,
the ALJ properly discounted Swett’s subjective complaints related to peripheral neuropathy
and, thus, did not need to include them in the RFC and the hypothetical questions. See
Dukes, 436 F.3d at 928.
Swett also asserts that the ALJ erred by failing to include in the RFC and
hypothetical questions Swett’s need for scheduled and unscheduled breaks throughout the
workday to monitor his blood sugar and inject insulin. Swett maintains that his testimony
about his need for such breaks was credible, as there was no contradictory evidence in the
record and, moreover, the medical evidence documented that he regularly takes insulin.
Swett testified that he takes his Atlantis insulin four times a day, at 8 a.m., noon, 4 p.m.,
and before bed. AR 25-26. He also testified that, in addition to the Atlantis, he takes his
NovoLog insulin “if [his] sugar level is still too high. It’s normally based on before I eat
and after I eat,” and that he knows he needs his NovoLog if he feels “[l]ight headed,
dizziness, shaky.” AR 26. Swett stated that he takes the NovoLog every day, between
four to eight times per day. AR 26-27. He also tests his blood sugar everyday. AR 27.
Swett testified that it takes “roughly 15 to 20 minutes” to inject himself with insulin and
“another 15 minutes at least” to test his blood sugar. AR 27-28. The ALJ asked Swett
how he injects insulin at his current job as a dishwasher, where he works 20-25 hours per
week, AR 24:
Q: Okay I kind of want to jump back a little bit and talk about
your - - the job that you’re at. I assume you have to go to the
bathroom a lot due to the insulin injection.
A: Yes I do.
Q: Does [sic] your employer aware of this? Do they give you
any problems with that?
A: They are aware but they don’t give me any problems at all
[sic] of taking breaks when I need to.
Q: Okay and are your breaks pretty scheduled or do you
sometimes just have to get up and go and take a break?
A: Sometimes I just got to get up and go.
The ALJ did not err in excluding, from the RFC and hypothetical questions, Swett’s
need for breaks due to his insulin injections and blood sugar testing, as an ALJ need not
include “alleged impairments . . . when the record does not support the claimant’s
contention that his impairments significantly restricted his ability to perform gainful
employment.” See Owen, 551 F.3d at 802. During the hearing, Swett’s attorney asked
the VE how many unscheduled breaks would be permitted by an employer:
Q: Okay do you know normally what - - how many
unscheduled breaks of 15 minute duration would be tolerated
by an employer?
A: That’s a - - there’s no set rule. In my professional opinion,
it would depend on the job that you’re talking about and the
situation essentially as a general rule, I think you know more
than two would not be tolerated.
AR 33. Based on the VE’s testimony, although “there’s no set rule,” it appears that two
unscheduled breaks of fifteen minute duration would not interfere with Swett’s
employment. There is no indication in the record that Swett requires more than two
unscheduled breaks during the work day. He testified that he “sometimes” needs “to get
up and go,” but he did not testify that he needs to do so more than twice in a work day.
Although Swett testified that he uses his NovoLog as needed, approximately four to eight
times a day, he also stated that he generally used it “before I eat and after I eat,” AR 26.
Thus, there is no indication that he would need more than two unscheduled breaks to use
it outside of scheduled eating times. Moreover, Swett testified that his current employer
is aware that he needs to take breaks and that “they don’t give [him] any problems at all
[about] taking breaks when [he] need[s] to.” AR 28. Although Swett is not working full
time at his current job as a dishwasher, but rather 20-25 hours per week, the fact that his
current employer has no problem with his scheduled and unscheduled breaks is further
evidence that his breaks do not interfere with his ability to work. See Dukes, 436 F.3d at
928 (“The fact that [the claimant] was employed at the time of the hearing in a field of
work identified by the VE, laundry laborer, supports the determination that [the claimant]
failed to meet his burden of establishing that he could not engage in past relevant work.”).
Therefore, while the ALJ did not incorporate Swett’s need for breaks into his final
decision, both the VE’s testimony in response to questions from Swett’s attorney and
Swett’s own employment demonstrate that his need for breaks does not “significantly
restrict his ability to perform gainful employment.” See Owen, 551 F.3d at 802. Thus,
the ALJ did not err in omitting Swett’s need for breaks.
Swett also maintains that the ALJ employed an improper lifting restriction when
formulating his RFC and his hypothetical questions. The ALJ found, in his assessment of
Swett’s RFC, that Swett “could lift fifty pounds occasionally and fifty pounds frequently.”
AR 12. Swett notes that both state agency medical consultants determined that Swett could
lift fifty pounds occasionally and only twenty-five pounds frequently, not fifty. AR 373,
410. Consequently, Swett argues that, [w]hen the ALJ substituted the heavier restriction
for his RFC he did so with no support from the medical record. An ALJ may not
substitute his or her opinion for that of qualified professionals.” Swett’s Objections at 3
(docket no. 13). Swett therefore concludes that both the RFC and the hypothetical
questions posed to the VE were erroneous.
Even conceding Swett’s argument that the ALJ erred in finding that Swett could lift
fifty pounds frequently, Swett has not shown how this error repudiates the ALJ’s finding
that Swett could perform his past relevant work as a dishwasher, fast food worker, and
stocker. AR 15. “[T]he claimant bears the burden to establish that he or she cannot return
to past relevant work.” Dukes, 436 F.3d at 928 (quoting Vandenboom v. Barnhart, 421
F.3d 745, 750 (8th Cir. 2005)).
Swett does not contest the state agency medical
consultants’ findings that he could lift fifty pounds occasionally and twenty-five pounds
frequently—indeed, he argues that the ALJ erred by failing to follow the medical
consultants’ lifting restrictions. Swett’s Objections at 3 (docket no. 13). Swett’s ability
to lift twenty-five pounds frequently and fifty pounds occasionally qualifies him for
“medium work,” as defined by the SSA regulations: “Medium work involves lifting no
more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to
25 pounds. If someone can do medium work, we determine that he or she can also do
sedentary and light work.” 20 C.F.R. § 416.967(c). Swett’s past relevant work requires
medium or light exertion: his work as a dishwasher and a stocker was medium work, and
his work as a fast food worker was light. AR 15. Therefore, even accepting that the ALJ
erred in finding Swett was capable of lifting fifty pounds frequently, Swett, who is able to
lift fifty pounds occasionally and twenty-five pounds frequently, remains able to perform
his past relevant work. Thus, the ALJ’s finding that Swett was not disabled because he
was able to perform his past relevant work is supported by substantial evidence in the
record as a whole.
THEREFORE, I find that the ALJ’s determination that Swett is capable of
performing his past relevant work as a fast food worker, stocker, and dishwasher is
supported by substantial evidence in the record as a whole. Judge Zoss recommended that
the ALJ’s decision be affirmed and that judgment be entered in favor of the Commissioner
and against Swett. I agree and thus accept Judge Zoss’s Report And Recommendation
(docket no. 12).
IT IS SO ORDERED.
DATED this 5th day of December, 2011.
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA