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Davis v. Saul, 963 F.3d 790 (8th Cir. 2020), Atty Wes Kappelman, Ames, IA, Corbett Allen Luedeman, Cedar Rapids, IA, and Mahesha Subbaraman, Minneapolis, MN

The decision addresses three cases where the plaintiff raised a Lucia challenge after its initial briefing had been completed, and the magistrate judge had recommended affirming the Agency’s decision in each case. While the district court allowed briefing on the issue, it declined to consider the newly raised argument, finding that as the issue had not been raised before the ALJ or the Appeals Council, each plaintiff had waived the issue. Id. at 792-93. The district court noted that other Circuits have disagreed on whether exhaustion of the issue before the Agency is required. Id. at 793.

The Court agreed that the plaintiffs waived this issue by not raising it at the administrative level. The Court explained:

We consider here the practicalities of potentially upsetting numerous administrative decisions because of an alleged appointment flaw to which the agency was not timely alerted. We also recognize the perverse incentives that could be created by allowing claimants to litigate benefits before an ALJ without objection and then, if unsuccessful, to secure a remand for a second chance based on an unexhausted argument about how the ALJ was appointed. See Freytag, 501 U.S. at 895 (Scalia, J., concurring in part and concurring in the judgment). Under all of the circumstances, we do not view this as a rare situation in which a federal court should consider an issue that was not presented to the agency.
Id. at 795. Affirmed.

Lucus v. Saul, 960 F.3d 1066 (8th Cir. 2020), Atty Frank T. Koch, Columbia, MO

Plaintiff applied for disability benefits based on his mental impairments; in denying his claim, the ALJ gave only partial weight to the opinion of his treating psychiatrist (Dr. Goyal), finding it to be internally inconsistent and contradicted by the record and her own treatment notes. Id. at 1068. While the district court found the ALJ failed to adequately explain the purported inconsistencies and failed to properly discuss the 1527 factors, it found the error to be harmless because Plaintiff could not identify greater limitations that could have been found had the opinion been given great weight, and affirmed the ALJ’s decision. Id. The Court disagreed.

In considering the ALJ’s first rationale, the Court found the ALJ did not identify any specific inconsistencies, but rather “simply listed ten of Dr. Goyal’s conclusions without explaining why she believed they were incompatible or undermined her credibility.” Id. at 1069. Regarding the second rationale, the ALJ “cited only to statements from Dr. Goyal, confusingly combined conclusions from the mental RFC form with one reference to Dr. Goyal’s treatment notes, and left out important context. For example, the ALJ brought up [Plaintiff’s] participation in a bowling group, but never mentioned that it was part of his treatment for anxiety and depression at Pathways Behavioral Health Counseling Center. Nor did she describe the repeated references in the record where [Plaintiff] required his therapist to help perform basic tasks like getting groceries and attending appointments.” Id. The Court found the ALJ did not give “good reasons.” Id.

The Court then held this error was not harmless. An error is harmless when the claimant fails to “provide some indication that the ALJ would have decided differently if the error had not occurred.” Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012). The Court found the VE testimony refutes the district court’s finding that the ALJ’s error is not harmless; the VE testified that missing 2 or more days per month, working at a slow pace for 25% or the workday or requiring a break every 2 hours would be unemployable, limitations that “match[] Dr. Goyal’s assessment in most ways.” Id. at 1069. Remand

Thomas v. Berryhill, 881 F.3d 672 (8th Cir. 2018)

Plaintiff was a younger individual with no past relevant work alleging disability on the basis of morbid obesity, osteoarthritis, a full-scale IQ of seventy, with depression and anxiety. She had previously received Supplemental Security Income which had ceased when she married. She had recently divorced.

She appealed the district court decision on the basis that (1) the ALJ erred in assigning “little weight” to her treating physician in determining her RFC, and (2) the ALJ was required to resolve a conflict in the vocational expert testimony before determining she could perform a significant number of jobs in the national economy. The court rejected her first argument finding that the ALJ properly weighed the opinion of her treating physician explaining that she had treated with him on only two occasions subsequent to her application, his two opinions were check-the-box forms, and the two opinions were inconsistent with each other with no explanation for the change or record reflecting any intervening escalation in her condition. The court also found that her activities of daily living such as “caring for her young son, preparing his meals, doing housework, shopping for groceries, handling money, watching television, and driving a car when necessary, among other things—showed that she could work.”

However, the court found the RFC limiting the Plaintiff to “1 to 2 step tasks” involving “few variables and little judgment” was inconsistent with Step 5 jobs DOT descriptions involving Level Three reasoning—”the ability to apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form.” In essence, the VE testified that Plaintiff could perform a job which was, in reality, two reasoning levels higher than her RFC limitations. The court explained “[b]y incorporating the definition of level-one reasoning into the RFC, the ALJ indicated that she could perform only occupations at [that] reasoning level.” The Commissioner has ruled that an ALJ may not rely on a vocational expert’s testimony about the requirements of a job if an “apparent unresolved conflict” exists between that testimony and the job’s description in the Dictionary of Occupational Titles (DOT). See Moore v. Colvin, 769 F.3d 987, 989-90 (8th Cir. 2014) The court continued “[b]ecause that conflict was “apparent” and not just “possible,” the ALJ needed to do more than have the expert affirm that his testimony was consistent with the DOT. Under the Commissioner’s own policy, the ALJ was required to elicit from the expert an opinion on whether there is a “reasonable explanation” for the conflict and determine whether the expert’s testimony warranted reliance despite the conflicting information in the DOT. In the absence of that inquiry, the expert’s testimony did not constitute substantial evidence on which the Commissioner could rely.” The court vacated the district court’s judgment and remanded to return the case to the Agency for a new Step 5 determination.

Chismarich v. Berryhill, 888 F.3d 978 (8th Cir. 2018)

Plaintiff alleged disability due to bipolar disorder, drug and alcohol addiction, knee injury, learning disability, and attention deficit disorder. He appealed the district court decision on the basis that the ALJ’s findings at Step 3 as part of the Psychiatric Review Technique were inconsistent with the ALJ’s RFC finding. Specifically, at Step 3 the ALJ found that Plaintiff had “moderate” impairments in the domains of (1) social functioning, (2) activities of daily living, and (3) concentration, persistence, or pace. He argued these findings were inconsistent with an RFC finding with the following mental limitations: able to understand, remember, and carry out at least simple instructions and non-detailed tasks; can respond appropriately to supervisors and co-workers in a task oriented setting where contact with others is casual and infrequent; can perform work at a normal pace without production quotas; should not work in a setting which includes constant, regular contact with the general public; and should not perform work which includes more than infrequent handling of customer complaints.

The court rejected this argument explaining “there is nothing inconsistent with the ALJ’s separate analyses at the different steps.” While as “a general proposition” the psychiatric review technique must be consistent with the RFC finding “[a]s a practical matter, however, the different steps serve distinct purposes, the degrees of precision required at each step differ, and our deferential standard of review precludes us from labeling findings as inconsistent if they can be harmonized.” The court explained that if apparent inconsistencies in the ALJ’s opinion can be harmonized, then there is no error, since each step of the 5-step evaluation does not require identical levels of precision in interpretation. See Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006) (“Each step in the disability determination entails a separate analysis and legal standard.”). Refusing to “pick nits nor accept an appellant’s invitation to rely upon perceived inconsistencies” the court further explained “the record overwhelming supports the determination that [claimant] is not disabled.” His activities such as “car[ing] for and transport[ing] four young children, perform[ing] housekeeping tasks, manag[ing] the sale of the family’s house, and negotiate[ing] with the builders of a new house” supported the ALJ’s RFC finding. The court affirmed the district court’s judgment.

Nash v. Commissioner, Social Security Administration, 907 F.3d 1086 (8th Cir. 2018)

Plaintiff, a person “closely approaching retirement age” alleged disability due to problems with her back, right knee, and right thumb. She alleged disability onset on the date she was “laid off” from her position as a recruiter. During the administrative hearing she testified to urinary incontinence and frequent restroom usage. She appealed the district court decision on the basis that (1) the ALJ did not include a limitation in any hypotheticals to the vocational expert that she needed to lie down and prop up her feet, (2) the ALJ did not include any bathroom related limitations in the RFC finding, and (3) the ALJ violated SSR 96-8p by failing to formulate an RFC on a “function-by-function” basis.
The court rejected these arguments. First, it explained the only evidence for Plaintiff’s need to lie down and proper up her feet was her own testimony which the ALJ had found inconsistent with the evidence of record. Her treating doctors’ own opinion stated that despite her back pain she would be able to sit. Subjective complaints may be discounted if the claimant’s testimony is inconsistent with the evidence as a whole. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). The court also noted here that Plaintiff had stopped working due to a lay off and not her medical condition. Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 1998) (determination that claimant not disabled supported in part by facts that claimant (1) left job due to lay-off, not her medical condition, and (2) continued to seek work after alleged onset date). Second, the court explained that no medical source identified urinary incontinence as a disabling condition. While treatment notes indicated a diagnosis of urinary incontinence and medication for it, they did not identify a basis for the diagnosis or an accompany limitations. The court, therefore, found it could not display the ALJ’s determination “who is in a better position to gauge credibility and resolve conflicts in evidence.” Finally, the court explained that the ALJ did not violate SSR 96-8p because while “an ALJ [cannot] disregard evidence or ignore potential limitations, [this does] not require an ALJ to mechanically list and reject every possible limitation.” The court affirmed the district court’s judgment.