REPORT AND RECOMMENDATION

PAUL A. ZOSS, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

The plaintiff, Terry L. Hall ("Hall"), appeals the denial by the administrative law judge ("ALJ") of Title XVI supplemental security income ("SSI") and Title II disability insurance ("SSD") benefits. Hall argues (1) the ALJ failed to obtain existing medical evidence, (2) the ALJ failed to obtain a consultative examination or medical expert opinion regarding Hall's work-related limitations, and (3) the ALJ failed to properly reconcile the evidence. Thus, Hall argues the case should be remanded to the Commissioner for further development of the record.

II. PROCEDURAL AND FACTUAL BACKGROUND A. Procedural Background

Hall filed applications for SSI and SSD benefits on March 29, 1996, alleging an onset of disability as of September 6, 1995. (R. at 120-23, 354-56) The application was denied initially on November 1, 1996 (R. at 100, 103-106), and on reconsideration (R. at 101-102, 108-112). Hall then requested a hearing, which was held before ALJ Jean M. Ingrassia on January 22, 1998. (R. at 48-99) Attorney Jennifer Bronson represented Hall at the hearing. Hall, Vocational Expert ("VE") Jeff L. Johnson, and social worker/ therapist Keri McColley testified at the hearing. On February 27, 1998, the ALJ ruled Hall was not entitled to SSI or SSD benefits. (R. at 17-36) Hall's request for review was denied by the Appeals Council on May 26, 1999 (R. at 6-7), making the ALJ's decision the final decision of the Commissioner.

Hall filed a timely complaint on July 26, 1999, seeking judicial review of the ALJ's ruling. (Doc. No. 1) In accordance with Administrative Order #1447, Chief Judge Mark W. Bennett referred this matter to the undersigned United States Magistrate Judge for the filing of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Hall filed a brief supporting his claim on April 19, 2000. (Doc. No. 15) On June 13, 2000, the Commissioner of Social Security filed his brief. (Doc. No. 16) The court now deems the matter fully submitted, and turns to a review, pursuant to 42 U.S.C. § 405(g), of Hall's request for a remand.

B. Factual Background 1. Introductory facts and Hall's daily activities

Hall is seeking SSI and SSD benefits for a disability beginning on September 6, 1995, allegedly caused by mental health problems, mood disorders, and chronic obstructive pulmonary disease. At the time of the hearing in January 1998, Hall was forty-one years old. He completed only the seventh grade, but had obtained a G.E.D. in 1983. He has had no further education. He has been married and divorced twice. (R. at 52)

Hall testified to a fairly extensive work history at a number of skilled and unskilled jobs. His last job prior to the ALJ hearing was as a detail assembler at a boat manufacturer. (R. at 53) He worked at this job from February 1993 until September 1995, and then quit because, Hall testified, he "was burned out." (R. at 54, 131) Before that job, he was the assistant manager at an adult book store and theater for a year. (R. at 55) During that year and the preceding two years, he also was an assistant supervisor in the assembly department of a newspaper (for one year, he held two full-time jobs). (R. at 56-57) Previously, he worked as a paste-up artist at a publication company (R. at 58), a draftsman for an engineering company (R. at 59), and as a "hopper" on a garbage truck. ( Id.) He testified that he could not return to any of these jobs because he can "just barely get through the day when I don't do anything." (R. at 73)

The ALJ asked Hall why he stopped working in September 1995, and Hall responded that he has "been going to therapy" because he is "afraid of losing [his] mind." (R. at 59) He explained he suffers from depression that makes him physically sick. (R. at 60-61) He suffers from this depression all the time, but some days are worse than others. (R. at 68-69) He experiences extreme nervousness and anxiety that cause him to be worried about "a place to live, food to eat . . ., no job, no money." (R. at 61) He regularly suffers from panic attacks that cause him to feel sick and require him to lie down. (R. at 67) Sometimes these attacks make him feel like he is going to lose consciousness. ( Id.) In the past, after these attacks he has become dizzy, passed out, thrown up, and had headaches. ( Id.) He also has problems with his concentration, memory, and appetite. (R. at 67-69) Sometimes he has suicidal thoughts. (R. at 73) He testified that he is "officially homeless," and he stays with friends. (R. at 61)

Hall takes amitriptyline, a prescribed medication, for sleep and appetite. (R. at 62) He testified the medicine is helping "a little bit," but sometimes he still does not sleep. (R. at 65) Without the medication, he usually sleeps two or three hours at a time, but the medicine helps him to sleep five or six hours at a time, although he still can go two or three days without sleeping. (R. at 70) He is fatigued every day. ( Id.)

He admitted to the ALJ that he has a history of alcohol and drug addiction, but stated he no longer uses alcohol or illegal drugs, and he has not been intoxicated since 1989. (R. at 62) Hall testified that his depression and anxiety, as well as his past alcohol and drug abuse, are the result of post-traumatic stress disorder caused by a childhood history of incest, violence, and beatings (R. at 71-72) He frequently attends NA and AA meetings. (R. at 72-73)

Hall testified that he also suffers from emphysema, and as a result, he experiences shortness of breath, dizziness, and lightheadedness. (R. at 74) He also frequently contracts pneumonia. (R. at 70, 75) He does not see a doctor for his emphysema because he cannot afford to do so. (R. at 75) He testified that his respiratory problems preclude him from working around welders, as he had done when he worked for the boat manufacturer. (R. at 76) Despite these problems, Hall continues to smoke. (R. at 75)

Hall described his other problems as follows: "Well I slipped my back a few times and that's not good. And I'm hypoglycemia [sic]. I've had part of my stomach and intestine removed and I'm suppose to watch what I eat. And a nervous disorder, sleep disorder." (R. at 77) Hall testified that he is in debt, and that"if this falls through i.e., his social security claim] then I'm going to file bankruptcy." (R. at 76)

Hall gets up each morning at around 6:30 or 7:00, but sometimes earlier. (R. at 77) He does not eat breakfast, but he has coffee and reads books throughout the morning. ( Id.) He sometimes eats lunch. (R. at 78) In the afternoon, he and his roommate, who is a carpenter, generally "just hang out," but if his roommate has chores to do, Hall will help him. ( Id.) He does not drive. (R. at 77) He never naps, and generally goes to bed around midnight. ( Id.) On days when he is depressed or ill, he might stay in bed all day. (R. at 78)

Keri McColley, a licensed independent social worker, testified at the hearing on Hall's behalf. On examination by Hall's attorney, McColley testified that she provides Hall with "psychotherapy both from a psycho dynamic and a cognitive behavioral standpoint." (R. at 80) When she first began treating Hall, she met with him twice a week, but by the time of the hearing, they were meeting weekly. ( Id.) Her diagnosis of Hall was that he suffers from post-traumatic stress disorder, chronic; generalized anxiety disorder; and polysubstance dependence with physiological dependence, sustained full remission. (R. at 80-81, 306)

In a sworn "MEDICAL SOURCE STATEMENT" dated May 21, 1997 (Exhibit 19F, R. at 306-10), McColley gave the following additional opinions:

• No impairment remembering work-like procedures (locations are not critical);

• Slight impairment understanding, remembering and carrying out short and simple instructions, noting, "It is easy for him to be overwhelmed with the thoughts and become forgetful or distracted."

• Moderate impairment maintaining attention for extended periods (2 hour segments), noting, "His `mind races' so his concentration is divided among many thoughts and worries. He may `go through the motions' of a task but dissociate or in other ways lack concentration."

• Moderate impairment maintaining regular attendance and being punctual within ordinary tolerances, noting, "He is often forgetful and feels disorganized which makes it difficult to meet some obligations."

• Slight impairment sustaining an ordinary routine without special supervision, noting his "[d]ifficulty in this area increases with the complexity of the routine."

• Moderate impairment working in coordination with or proximity to others without being unduly distracted by them, noting, "He often finds a need to watch over others who appear hazardous. It is difficult to tolerate those who `whine or are lazy' or need supervision."

• No impairment making simple work-related decisions.

• Marked impairment completing a normal workday and workweek without interruption from medically based symptoms, noting, "His physical symptoms include difficulty breathing, vision impairment, dizziness, extreme fatigue, etc. . . ."

• Moderate impairment performing at a consistent pace without an unreasonable number and length of rest periods.

• Moderate impairment asking simple questions or requesting assistance, noting, "He will ask for consultation but will not ask for assistance on a task, particularly if he believes he should be able to complete it on his own."

• Slight impairment accepting instructions and responding appropriately to criticism from supervisors, noting that "difficulty would occur if the person who approached him seemed hostile, condescending, or trying to shirk their own responsibilities. He would feel easily provoked by anyone who appeared threatening."

• No impairment getting along with co-workers or peers without unduly distracting them or exhibiting behavioral problems.

• Slight impairment maintaining socially appropriate behavior and adhering to basic standards of neatness, noting, "He tends to be somewhat eccentric in his dress and can become sarcastic or use other forms of communication which may be difficult to interpret (as a defense)."

• Slight impairment responding appropriately to changes in the work setting, noting, "This would be particularly difficult if the changes were unpredictable or random."

• Slight impairment regarding awareness of normal hazards and taking appropriate precautions, noting, "He uses safety precautions but may push himself physically to the point that he was unable to function with little warning thereby creating a hazard."

She concluded her sworn statement with the following comment:

Please note that I believe Mr. Hall's claims to be suffering from a number of physical and mental health difficulties are valid. These conditions are chronic and have been exacerbated over the years. They have appeared to make it difficult for him to maintain his previous employment. Furthermore, he has attempted to remove many dysfunctional coping mechanisms (i.e. substance abuse, denial, numbing) which would likely make employment in the future more difficult.

(R. at 310)

The ALJ's examination of McColley continues for five transcript pages, in which the ALJ challenged McColley's credentials, compared the witness's credentials to the ALJ's own credentials, and attempted to belittle the witness, without asking any questions directed to the witness's opinions or conclusions. (R. at 84-89)

2. Vocational expert's testimony

We have a 42 year old individual with a GED certificate and work activity as set out in Exhibit 21E. In terms of his physical capacity to perform work related activities, I refer you to Exhibit 11F, page 3, where he is judged as having mild obstructive lung defect, but on spiro metric values, his emphysema is basically assessed by the pulmonary specialist as being non-severe. It must be non-severe because he still continues to smoke and therefore it doesn't appear that, if he had any problems with breathing or coughing it's due to his smoking rather than his lung defect. So we will consider that to be a non-severe impairment. In terms of his other problems, he was, he underwent MMPI testing and he underwent psychological testing by a certified licensed clinical psychologist. Claimant has a history of extensive alcohol and drug abuse, which he himself admitted in Exhibit 24F, page 2, that they may contribute to his memory and concentration problem. However, was specifically tested objectively for attention and concentration range. That's Exhibit 24 page 3. I.Q. testing, Exhibit 24, page 4, showed a full scale I.Q. score of 98, a verbal I.Q. score of 92 and a performance I.Q. score of 109, intellectual ability was judged to be in the average range, with verbal intellect in the average to low average range and non-verbal intellect in the average to average range. General memory ability in the low average range with specific memory abilities ranging from the border line to the average range. That's Exhibit 24F, page 4. Based on the testing done by the clinical psychologist, it is found that he was able to remember and understand simple instructions, procedures and locations. He was able to interact appropriately with supervisors, coworkers and the public. Use good judgment and respond appropriately to changes in the work place and maintain attention and concentration. Let it be noted that the claimant quit his job in September of '95 because he said he was burnt out, not because of any physical or mental problems. Also I take note of the MMPI testing which indicates that there's a possibility of malingering to present a false claim of mental illness. And when I wrote to Dr. Hison to ask her to explain her restrictions given in Exhibit 20F, she basically did not respond to my letter. Although I am admitting Exhibit 19 and Exhibit 20 into evidence, I am not placing any weight or very minimal weight to the conclusions in the form questionnaire pursuant to Oleary B. Schwiper, since the doctor refused to explain it and since the social worker is not an acceptable medical source. With those restrictions, would he be able to perform any of his past work activity?

(R. at 91-92) VE Johnson answered, "Your Honor, with the limitations you have posed in hypothetical number one, it would be my opinion that the past relevant work, all positions could be performed, either as the claimant has performed them or as performed in the national economy." (R. at 92) The ALJ then asked, "If I accepted the claimant's testimony at the hearing today as credible and consistent with the medical and clinical records that I have before me, would there be any work he could perform?" (R. at 92-93) VE Johnson responded that taking Hall's testimony into consideration, Hall most likely would be precluded from work at the semi-skilled and skilled levels, but not from certain work at the unskilled level, including his past job as a cashier. (R. at 93, 195)

On cross-examination by Hall's attorney, VE Johnson testified that if the person in "hypothetical number one" were moderately limited in his ability to maintain concentration and attention, he would be precluded from semi-skilled and skilled type occupations, but he still could perform unskilled work. (R. at 96) VE Johnson also testified that if the person were markedly limited in the ability to perform at a consistent pace without an unreasonable number and length of rest periods, he would be precluded from competitive employment. (R. at 97) Finally, VE Johnson testified that if the person were unable to complete a normal work day and work week without interruptions from medically-based symptoms, he would be precluded from competitive employment. (R. at 97)

3. Hall's medical history

The first medical record in the administrative record concerns a visit by Hall to Trinity Regional Hospital for, inter alia, flu-like symptoms, including an upper respiratory infection. (R. at 204-05) The diagnosis of Keith Hansen, D.O., the treating physician, was upper respiratory infection, and sinusitis with secondary gastroenteritis. (R. at 205)

The next medical record is from a visit by Hall to Keri McColley, his therapist at Lutheran Family Services, on February 12, 1996. (R. at 269) This was five months after Hall's alleged disability onset date of September 6, 1995, and about six weeks before Hall filed his applications for SSI and SSD benefits on March 29, 1996. There are no other medical records in the file concerning Hall's pulmonary problems, and no medical records at all concerning his mental health problems, that predate the alleged disability onset date.

After sessions of interviews and tests (R. at 270), McColley made the following "working diagnosis"

Axis I: 309.81 Post traumatic stress disorder, chronic

300.01 Panic disorder without agoraphobia

Axis II: 799.9 Diagnosis deferred

Axis III: Emphysema, arthritis, migraines, back problems

Axis IV: Personal Losses, extreme childhood trauma

Axis V: GAF: 50 (serious)

(R. at 271) McColley had regular, twice-a-week sessions with Hall over the following year-and-a-half, and weekly sessions thereafter. (R. at 64-269, 280-305, 280)

On April 19, 1996, Hall saw Ed D. Dehaan, M.D., for a physical. In a report to Vocational Rehabilitation Services of Fort Dodge, Iowa, Dr. Dehaan stated that Hall last worked at a boat manufacturer, and quit "impetuously" after working there two years. (R. at 208) Hall recently had been doing some heavy moving, and had twisted his back. ( Id.) Hall gave a history of appendectomy, with subsequent peritonitis leading to a partial gastrectomy and partial bowel obstruction; trouble maintaining weight; smoking, one pack of cigarettes a day; more than one bout of pneumonia; chronic obstructive pulmonary disease; and symptoms of anxiety and depression. ( Id.) Upon physical examination, Dr. Dehaan found nothing remarkable, but noted that Hall was "pleasant, but somewhat hypomanic in his conversation." ( Id.) Dr. Dehaan's impression of Hall was: "Slightly built, but generally physically healthy recovering addict with no specific physical impairment. He is somewhat historionic (sic) in his presentation." (R. at 209)

In April and on May 1, 1996, S.O. Lee, M.D., a board certified psychiatrist (R. at 214), interviewed Hall, administered an MMPI-2, and then interviewed Hall again. (R. at 210-211) On May 13, 1996, Dr. Lee prepared a psychiatric evaluation report of Hall. (R. at 211-14). Hall was referred to Dr. Lee because he had applied for vocational rehabilitation. (R. at 211) Dr. Lee stated Hall "walked away from his work [at the boat manufacturer] for reasons that I can not understand. He repeatedly says he does not know why he walked off the job." (R. at 211-212) Dr. Lee described Hall's mental status as follows:

He is alert, well oriented to all aspects, he is poorly nourished, thin Caucasian male appearing 5'10" in height with brown hair, blue eyes. He is casually or poorly groomed with mustache. He wears sort of a neck tie but at his previous visit he had bola bulla around his neck or sort of bola bulla around his neck and was dressed much like a cowboy. Today he is more conservatively dressed but still is frayed in his appearance. He is somewhat dowdy. He carries unhappy, depressed, and destitute look on his face. Psychomotor activity is diminished. Direct eye contact is fair. He appears a bit older than his stated age with brown hair, brown eyes. No abnormal movements or pathological reflexes observed. Speech is with average rate and rhythm, it reaches goal. Sometimes he takes time before he can answer questions, other times I have to repeat the questions. Attention/concentration is somewhat poor. Affect is dysphoric, mildly anxious. Mood is reported to be that of depression. Thought content shows no delusional ideas or violent thoughts, no illogical thinking observed. Perception intact, no report of hallucination or any perceptual problem such as illusion. General fund of knowledge/current information is fair, memory is fair, mathematical ability is fair, abstract thinking is concrete, reasoning ability is fair, judgment for unusual matters and hypothetical situations is fair. Insight into his illness and problems is fair.

(R. at 213)

Dr. Lee made the following diagnosis:

Axis I: Adjustment Disorder with Depressed Mood.

Dysthymia

Substance Abuse Disorder.

Axis II: Passive-Aggressive.

Axis III: Poor Nutrition.

Axis IV: Moderately Severe, Mostly Environmental Stresses

Axis V: Highest Global Assessment of Functioning in the Past Year Not Specified, At the Present 55 to 60.

(R. at 213-14) Dr. Lee stated he had a "hard time understanding why [Hall] can not be gainfully employed as he seems to have fairly good skill." (R. at 214) He concluded:

There is indication of characterological impairment, probably stemming from his early experience of psychosocial deprivation. The MMPI-2 that was administered was not valid because of the exaggerated picture of his situations and problems. Basically there is no particular disorder in the areas of thinking, mood and affect, perception, or cognition. Dysphoria, unhappiness, dissatisfaction, seem to be more from environmental, situational, and secondary in nature. It is interesting that he seems to have fairly good interpersonal skill as well as good occupational skill, nonetheless he has history, lifelong history, of difficulty functioning in a steady manner. I think it is due to inherent instability with his premorbid basic personality.

( Id.)

On June 6, 1996, Dee E. Wright, Ph.D. and Nerbert L. Notch, Ph.D., clinical psychologists, completed a psychiatric review technique form. (Exhibit 6F, R. at 215-23) They found no evidence of any organic or mental disorders, psychotic disorders, mental retardation, autism, anxiety related disorders, or somatoform disorders. (R. at 217, 219-20) They found, however, that Hall did suffer from a depressive syndrome characterized by appetite disturbance with a change in weight, sleep disturbance, decreased energy, and difficulty concentrating or thinking. (R. at 218) They concluded that Hall had slight limitations in activities of daily living and moderate limitations in maintaining social functioning. (R. at 222) He often had deficiencies of concentration, persistence, or pace resulting in a failure to complete tasks in a timely manner. ( Id.) He never had episodes of deterioration or decompensation in work or work-like settings. ( Id.)

In the mental residual functional capacity assessment portion of the form, they found Hall was not significantly limited in most areas, but he was moderately limited in the following abilities: understanding and remembering detailed instructions; carrying out detailed instructions; maintaining attention and concentration for extended periods; working in coordination with or proximity to others without being distracted by them; completing a normal workday and workweek without interruptions from psychologically based symptoms, and performing at a consistent pace without an unreasonable number and length of rest periods; getting along with coworkers or peers without distracting them or exhibiting behavioral extremes; responding appropriately to changes in the work setting; and setting realistic goals or make plans independently of others. (R. at 224-25)

After completing the evaluation form, Dr. Wright reached the following conclusions:

Behaviorally, the claimant appears able to perform a range of simple, repetitive, and routine cognitive activity when he is motivated to do so. The claimant would appear to have some difficulties performing complex cognitive activity secondary to some moderate restrictions of function with sustained concentration and attention.

The claimant appears to possess adequate social skills. He appears able to sustain short lived, interactions with others when he is motivated to do so. The claimant would appear to have some difficulties consistently performing activities in settings that would be considered socially demanding.

The claimant does not appear to demonstrate significant difficulties with self care. He appears able to travel independently and he can perform independent, goal oriented activity.

(R. at 228)

On June 18, 1996, Marlon K. Weiss, M.D. completed a disability physical examination of Hall for Vocational Rehabilitation. (R. at 229-33) He took a history from Hall in which Hall claimed he has had emphysema since being hospitalized with right lung collapse at age nineteen. (R. at 229) Hall also complained of arthritis. ( Id.) Hall stated he did not sleep well at night. ( Id.) He also stated his chest hurt and he had a cough. ( Id.) Upon physical examination, Dr Weiss found nothing remarkable. Hall's lungs had good, clear breath sounds in all lobes. ( Id.) His only diagnosis was that Hall was recovering from alcoholism/drug abuse, with a notation to rule out depression. ( Id.)

Dr. Weiss stated Hall could lift fifty pounds on a regular basis, and was not restricted in standing, moving about, walking, or sitting in an eight-hour workday. ( Id.) He also found Hall would be able to climb ladders on a regular basis, and would have no problems handling objects, seeing, hearing, or speaking. (R. at 231) Dr. Weiss urged Hall to quit smoking and to consider psychiatric care "to make a firm diagnosis of depression vs residual from alcoholism." ( Id.) On June 30, 1996, Dr. Weiss received an x-ray report from Michael A. Hinz, M.D., listing an impression of emphysematous blebs in both lung apices, and asymmetric pleural thickening in the right lung apex. (R. at 234)

On August 15, 1996, James B. Burr, M.S., a licensed mental health counselor with North-Central Iowa Mental Health Center (R. at 250), completed an evaluation of Hall. (R. at 251-55) In his report, Burr states the "presenting problem" is a problem sleeping and Hall sometimes "forgets to eat." (R. at 251) Hall told Burr he had been hospitalized numerous times for both mental health problems and substance abuse, and he had had considerable outpatient therapy. ( Id.) Hall stated he had been treated with "all kinds of medications and is leery of receiving any additional medications." ( Id.) He also stated he had been diagnosed previously as "Manic Depressive." ( Id.) He told Burr that he suffered from emphysema, hypoglycemia, and arthritis. (R. at 252)

Burr gave Hall a Burns Depression Check List, and he scored a 26, indicating a moderate degree of depression. ( Id.) Burr also gave Hall a Burns Anxiety Inventory, and he scored a 59, indicating extreme anxiety. ( Id.) Burr observed that Hall was mildly agitated and appeared somewhat grandiose. (R. at 253) Hall's speech was rambling and circumstantial. ( Id.) His insight and judgment were "fair." (R. at 253-54) Burr concluded with the following diagnosis:

Axis I: #1 Bipolar II Disorder 296.89

#2 Possible Bipolar I Disorder

Axis II: No diagnosis

Axis III: Emphysema, hypoglycemia and arthritis per patient's report

Axis IV: Psychosocial stressors include financial problems and lack of employment.

Axis V: GAF: Current: 50

(R. at 254)

On August 30, 1996, James Duhl, R.R.T. completed a pulmonary function report on Hall. (R. at 236-41) The computerized interpretation of the test results showed "mild obstructive lung defect." (R. at 238)

On September 26, 1996, Josefina Hizon, M.D., a psychiatrist with North-Central Iowa Mental Health Center, completed an evaluation report on Hall. (R. at 256-57) Dr. Hizon stated the following about Hall's mental state:

Terry presented himself as a very sickly looking, fragile male who was quite talkative. He was coherent and relevant and he tended to make fun. He seemed to have very good insight into his condition now. He claimed that he had been feeling depressed and highly anxious. In the past, he had attempted suicide twice. Otherwise, he is not feeling suicidal at this point. He claimed he had lost about 25 pounds in one year. Recent and remote memory remain intact. He denied hallucinations and did not express any delusions. He is in good touch with reality. He is currently not abusing any alcohol or any drugs. His judgment is satisfactory. There is no evidence of psychosis at this point. He claimed that he has emphysema and hypoglycemia.

(R. at 256-57) Dr. Hizon diagnosed:

Axis I: #1 Possible Dysthymic Disorder, 300.4

#2 Chemical abuse in remission

Axis II: No diagnosis made

Axis III: Patient claimed that he has had physical examinations. He probably should be checked for HIV

Axis IV: Stressors: None identified except for joblessness.

Axis V: GAF: Current: 60

(R. at 257) Dr. Hizon's treatment recommendation was that Hall start taking antidepressants and continue with individual supportive therapy. ( Id.)

On November 22, 1996, therapist McColley wrote a report entitled "Additional Information for Disability Determination: Mr. Terry Hall," in which she stated her original diagnosis continued to be valid. She described her treatment as follows:

Psychotherapy with Mr. Hall has consisted of a combination of psychodynamic and cognitive-behavioral approaches. He has been able to trust the therapeutic relationship and take risks in new behavior and thought patterns both in and out of the therapy sessions. However, this has been a long and difficult process for Mr. Hall requiring shifts in entrenched belief patterns and dealing with the effects of severe childhood trauma and substance dependence. I would anticipate that Mr. Hall's functioning would eventually improve but that he will suffer with some anxiety symptoms related to being a trauma survivor indefinitely especially given the recent research on how brain physiology is permanently altered by repeated trauma exposure.

(R. at 262) McColley stated Hall was able to perform most basic functioning tasks, although his energy level tended to fluctuate greatly. ( Id.) She observed that Hall had trouble sleeping through the night, which affected his functioning during the day. ( Id.) Finally, she stated that in the past, Hall's pattern had been "to work continuously [at a job] until he would physically and mentally collapse from exhaustion[,]" and he "still struggles with this type of impaired judgment." ( Id.)

On November 25, 1996, James Burr, counselor with North-Central Iowa Mental Health Center, wrote a letter to Disability Determination Services providing the following information about Hall:

1) He is able to remember and understand instructions, procedures and locations.

2) He is able to carry out instructions but could have some difficulty maintaining attention, concentration, and pace.

3) In interacting with others he might be seen as flamboyant and a little odd.

4) He is able to use good judgement.

(R. at 250)

On December 5, 1996, Robert M. Knox, M.D., a medical consultant, completed a physical functional capacity assessment of Hall. (R. at 272-79) Dr. Knox found Hall occasionally could lift or carry twenty pounds, and frequently could lift or carry ten pounds. (R. at 273) Otherwise, he found Hall was not restricted by any physical impairments.

Therapist McColley signed a sworn Medical Source Statement on May 21, 1997 (Exhibit 19F, R. at 306-10), reaffirming her previous diagnoses, and assigning Hall a GAF of 55. (R. at 306)

On June 17, 1997, Dr. Hizon, psychiatrist, completed a Medical Source Statement on Hall, giving the following opinions:

• Moderate impairment remembering work-like procedures (locations are not critical);

• Moderate impairment understanding, remembering and carrying out short and simple instructions.

• Marked impairment maintaining attention for extended periods (2 hour segments).

• Moderate impairment maintaining regular attendance and being punctual within ordinary tolerances.

• Moderate impairment sustaining an ordinary routine without special supervision.

• Moderate impairment working in coordination with or proximity to others without being unduly distracted by them.

• Moderate impairment making simple work-related decisions.

• Marked impairment completing a normal workday and workweek without interruption from medically based symptoms.

• Marked impairment performing at a consistent pace without an unreasonable number and length of rest periods.

• Moderate impairment asking simple questions or requesting assistance.

• Moderate impairment accepting instructions and responding appropriately to criticism from supervisors.

• Marked impairment responding appropriately to changes in the work setting.

• Moderate impairment regarding awareness of normal hazards and taking appropriate precautions.

(R. at 311-15)

On October 3, 1997, David P. Johnson, Ph.D., a licensed clinical psychologist, prepared a Psychological Assessment Report on Hall for the Disability Determination Services Bureau. (R. at 328-31) Dr. Johnson reached the following conclusions:

Terry is functioning in the average to low-average range of verbal intellectual ability and in the average to high-average range of nonverbal intellectual ability at the present time. His overall level of measured intellect at this time is in the middle of the average range, but his intellectual functioning is probably better understood by considering separately his verbal and nonverbal scores. The difference between them also suggests that his nonverbal abilities are somewhat superior to his verbal intellectual abilities. The quality of Terry's performance on the test of intellect suggests that he may have functioned at a somewhat higher level in the past.

The scores which Terry earned on the test of memory indicate that he is functioning in the low-average range of general memory ability at this time and in the borderline to average range with respect to his other more specific memory abilities. In particular, his ability to maintain attention and concentration was measured as falling in the low-average range to borderline range. It does appear, therefore, that Terry is probably experiencing a moderate level of memory and concentration impairment, in comparison to what would be expected by his performance on the test of intellect.

Terry will probably be able to remember and understand simple instructions, procedures, and locations. However, he will probably be mildly to moderately limited, for reasons of intellect and memory, in his ability to remember and to understand more complex or detailed instructions, procedures, and locations, to carry out instructions, maintain attention, concentration, and pace, to interact appropriately with supervisors, coworkers, and the public, and to use good judgment and to respond appropriately to changes in the work place.

(R. at 331)

4. The ALJ's conclusions

The ALJ found Hall "met the disability insured status requirements of the Act on September 6, 1995, the date the claimant stated he became unable to work," and he has not engaged in substantial gainful activity since September 6, 1995. (R. at 30-31) The ALJ further found that Hall's statements concerning his impairments and their impact on his ability to work, and the statements of Hall's witness, Keri McColley, were not credible. (R. at 31) The ALJ also found Hall has severe depression and chronic obstructive pulmonary disease and emphysema, but he does not have an impairment or combination of impairments specifically meeting or equaling the criteria of any impairment listed in 20 C.F.R. Part 404, Appendix 1, Subpart P, Regulations No. 4. ( Id.) The ALJ concluded that Hall is able to perform the work-related activities of his past relevant work as an assembly detailer, paste-up artist, retail manager, and cashier II. ( Id.) The ALJ further concluded that Hall maintains:

the residual functional capacity to perform full range of medium work, limited and restricted as follows: He can lift or carry 50 pounds occasionally and 25 pounds frequently. He can stand or walk more than six hours during a normal eight hour work day, and sit two hours during an eight hour work day. Also his memory shows that he is functioning in the low-average range of general memory ability and in the borderline to average range. His ability to maintain attention and concentration falls in the low-average range to borderline range. The claimant is able to remember and understand simple instruction[s], procedures and locations; able to interact appropriately with supervisors, co-workers and the public; use good judgment and respond appropriately to changes in the work place; and he is able [to] maintain attention and concentration.

( Id.)

As a result, the ALJ concluded Hall is not under a "disability" as defined in the Social Security Act. (R. at 32)

III. ANALYSIS A. The Substantial Evidence Standard

Governing precedent in the Eighth Circuit requires this court to affirm the ALJ's findings if they are supported by substantial evidence in the record as a whole. Weiler v. Apfel, 179 F.3d 1107, 1109 (8th Cir. 1999) (citing Pierce v. Apfel, 173 F.3d 704, 706 (8th Cir. 1999)); Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir. 1998) (citing Matthews v. Bowen, 879 F.2d 422, 423-24 (8th Cir. 1989)); 42 U.S.C. § 405(g) ("The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ."). Under this standard, substantial evidence means something "less than a preponderance" of the evidence, Kelley, 133 F.3d at 587, but "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); accord Ellison v. Sullivan, 921 F.2d 816, 818 (8th Cir. 1990). Substantial evidence is "relevant evidence which a reasonable mind would accept as adequate to support the [ALJ's] conclusion." Weiler, 179 F.3d at 1109 (again citing Pierce, 173 F.3d at 706); Perales, 402 U.S. at 401, 91 S.Ct. at 1427; accord Hutton v. Apfel, 175 F.3d 651, 654 (8th Cir. 1999); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Ellison, 91 F.2d at 818.

Moreover, substantial evidence "on the record as a whole" requires consideration of the record in its entirety, taking into account "`whatever in the record fairly detracts from'" the weight of the ALJ's decision. Willcuts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (quoting Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)); accord Hutton, 175 F.3d at 654 (citing Woolf, 3 F.3d at 1213). Thus, the review must be "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision"; it must "also take into account whatever in the record fairly detracts from the decision." Kelley, 133 F.3d at 587 (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).

In evaluating the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Secretary of Health Human Serv., 879 F.2d 441, 444 (8th Cir. 1989) (citing Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987)). The court, however, does "not reweigh the evidence or review the factual record de novo." Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (quoting Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it "possible to draw two inconsistent positions from the evidence and one of those positions represents the agency's findings, [the court] must affirm the [Commissioner's] decision." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989)); see Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir. 1997) (citing Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996)). This is true even in cases where the court "might have weighed the evidence differently," Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citing Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)), because the court may not reverse "the Commissioner's decision merely because of the existence of substantial evidence supporting a different outcome." Spradling v. Chater, 126 F.3d 1072, 1074 (8th Cir. 1997).

B. Disability Determination and the Burden of Proof

Section 423(d) of the Social Security Act defines a disability as 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 twelve months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505. A claimant has a disability when the claimant is "not only unable to do his previous work but cannot, considering . . . his age, education and work experience, engage in any other kind of substantial gainful work which exists in [significant numbers in] the national economy . . . either in the region in which such individual lives or in several regions of the country." 42 U.S.C. § 432(d)(2)(A).

To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step process outlined in the regulations. 20 C.F.R. § 404.1520 416.920; see Kelley, 133 F.3d at 587-88 (citing Ingram v. Chater, 107 F.3d 598, 600 (8th Cir. 1997)). First, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity. Second, he looks to see whether the claimant labors under a severe impairment; i.e., "one that significantly limits the claimant's physical or mental ability to perform basic work activities." Kelley, 133 F.3d at 587-88. Third, if the claimant does have such an impairment, then the Commissioner must decide whether this impairment meets or equals one of the presumptively disabling impairments listed in the regulations. If the impairment does qualify as a presumptively disabling one, then the claimant is considered disabled, regardless of age, education, or work experience. Fourth, the Commissioner must examine whether the claimant retains the residual functional capacity to perform past relevant work. Id.

Finally, if the claimant demonstrates the inability to perform past relevant work, then the burden shifts to the Commissioner to prove there are other jobs sufficiently available in the national economy that the claimant can perform, given the claimant's impairments and vocational factors such as age, education and work experience. Id.; Hunt v. Heckler, 748 F.2d 478, 479-80 (8th Cir. 1984) ("[O]nce the claimant has shown a disability that prevents him from returning to his previous line of work, the burden shifts to the ALJ to show that there is other work in the national economy that he could perform[,]" citing Baugus v. Secretary of Health Human Serv., 717 F.2d 443, 445-46 (8th Cir. 1983); Nettles v. Schweiker, 714 F.2d 833, 835-36 (8th Cir. 1983); O'Leary v. Schweiker, 710 F.2d 1334, 1337 (8th Cir. 1983)); accord Scott v. Apfel, 89 F. Supp.2d 1066, 1072 (N.D.Iowa 2000) (Bennett, C.J.).

Step five requires the Commissioner to bear the burden on two particular matters:

In our circuit it is well settled law that once a claimant demonstrates that he or she is unable to do past relevant work, the burden of proof shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to do. McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) ( en banc); O'Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir. 1983).

C. Review of the ALJ's Decision

The ALJ found Hall was able to perform his past relevant work, and he retained the residual functional capacity to perform, with certain limits, a full range of medium work. (R. at 31) The ALJ discredited Hall's testimony, the testimony of therapist McColley, and the report of mental health counselor James Burr, finding there was "no objective evidence to support the claimant's catalogue of alleged mental impairments." (R. at 28)

Hall presents three arguments in support of his challenge to the Commissioner's decision. First, he contends the ALJ failed to obtain existing medical evidence, and relied on incomplete records from Hall's "treating sources." (Pl. Br. at 11) Second, Hall claims the ALJ erred in failing to obtain a consultative examination or medical expert opinion that included a review of the medical records and an evaluation of Hall's work-related limitations. (Pl. Br. at 13) Third, Hall contends the ALJ failed to properly reconcile the evidence in the record. (Pl. Br. at 15)

These issues all involve alleged shortcomings in the administrative record upon which the ALJ relied, and Hall's claim that the ALJ had the duty to correct those alleged shortcomings before issuing her decision. Thus, the court will examine the alleged deficiencies in the record to determine whether Hall's arguments have merit.

Hall argues the medical records in this case "appear to be incomplete." (Pl. Br. at 11) Specifically, Hall claims certain medical records are absent from the record that were necessary to the ALJ's determination of his case.

Hall claims records are missing that reflect his sessions with Dr. Hizon from September 26, 1996, to July 1997, and after August 1997. ( Id.) On November 8, 1996, Hall completed a Reconsideration Disability Report (R. 170-73) in which he stated he had been seeing Dr. Hizon on a weekly basis since March 1996. (R. at 171) This conflicts with Dr. Hizon's evaluation dated September 26, 1996 (R. at 256-57), which appears to be her initial evaluation of Hall, as well as the representation in Hall's brief that Dr. Hizon "first evaluated him on September 26, 1996." (Pl. Br. at 11) Further, Hall testified that he saw Dr. Hizon monthly or less ( see R. at 65), and he said Dr. Hizon "gives me medication for sleep." (R. at 60) Hall stated that at his visits with Dr. Hizon, "She looks at me to see how I look. . . . Asks me how I feel. . . . And we talk about whether the medicine [is] helping or not." (R. at 65)

This is consistent with documentary evidence in the record. Dr. Hizon completed a Medical Source Statement on June 17, 1997 (R. at 311-15), in which she based her evaluation of Hall on "the patient's medical status and Keri McColley's Medical Source Statement, her Intake Staffing summary dated 2/21/96, her Statement dated 6/15/96, her Statement dated 11/22/96, and Progress Notes." (R. at 312) The record reflects Hall was seeing McColley regularly for counseling during the period in question, and was seeing Dr. Hizon "for medication management of his sleep problems and depression." (R. at 329) This is supported by Dr. Hizon's records indicating she saw Hall for medication checks on July 18, August 19 and August 26, 1997. (R. at 322-25) Nothing in the record, either in the medical records or in Hall's testimony, suggests Hall was seeing Dr. Hizon for psychotherapy. Thus, it appears any missing records from Dr. Hizon likely would reflect only medication checks and would add little or nothing to the evidence in this case. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir. 1993) ("We are not convinced that these results . . . would be important enough to make a difference in the circumstances of this case.")

The same may not be true, however, of records Hall claims are missing from his sessions at the Plains Area Mental Health Center ("Plains"), where he was seeing "both a psychiatrist and therapist." (Pl. Br. at 11, citing R. at 191) On January 7, 1998, Hall completed a form entitled "Claimant's Recent Medical Treatment," in which he stated he had seen Dr. Brian Fulton and therapist Don McCulley at Plains from September to December 1997. (R. at 191) Hall indicated Fulton and McCulley had received his records from Dr. Hizon and Keri McColley, "and both agreed with the diagnosis of acute post traumatic stress disorder" and "instructed [him] to work on [his] sleeping disorder and to eat better." ( Id.) Hall's attorney, Jennifer Bronson, notified the ALJ in a letter dated November 26, 1997 (R. at 187-88), that she would be submitting additional records from Plains, where Hall was "now receiving mental health services" from both a psychiatrist and counselor. (R. at 183) Despite these representations, no records from Plains appear in the administrative record, and Hall did not testify at the hearing about recent treatment he had received at Plains.

The Eighth Circuit considered a similar situation in Onstad. The claimant argued the ALJ failed to develop the record fully, specifically because some medical records were not obtained. The court explained that in considering such an argument, the relevant inquiry is whether the claimant "was prejudiced or treated unfairly by how the ALJ did or did not develop the record; absent unfairness or prejudice, we will not remand." Onstad, 999 F.2d at 1234 (citing Phelan v. Bowen, 846 F.2d 478, 481 (8th Cir. 1988)). The court noted:

While the ALJ has a duty to develop the record fully and fairly, Driggins v. Harris, 657 F.2d 187, 188 (8th Cir. 1981), even when a claimant has a lawyer, it is of some relevance to us that the lawyer did not obtain (or, so far as we know, try to obtain) the items that are now being complained about.

Similarly, as pointed out by the Commissioner in his response brief in the present case, there is no indication of whether Hall's attorney tried to obtain the Plains records, or of what those records might have shown if they had been obtained. ( See Def. Br. at 6) A significant difference exists between this case and Onstad, however, in that although Onstad's psychologist's records were missing, "the expert's summary of that testing" was present in the record. See Onstad, 999 F.2d at 1234. In the present case, there is no summary, and indeed no indication of any kind, of what the Plains records might show, rendering the record incomplete for purposes of justifying the ALJ's decision.

The absence of the Plains records is particularly problematic because the court agrees with Hall's third argument that the current record contains conflicting evidence that fails to resolve the question of Hall's disability or lack thereof. Because the Plains records would reflect Hall's most recent treatment for the period immediately prior to the administrative hearing, the court finds an examination of those records is crucial to a determination of whether the ALJ's hypothetical posed to the VE accurately reflected all of Hall's impairments, limitations and restrictions. See Mehaffey v. Apfel, 81 F. Supp.2d 952, 956 (N.D.Iowa 2000) (Bennett, J.) If the Plains records fail to resolve the ambiguities in the existing record, then the court also finds Hall is correct in asserting the need for a consultative examination which includes a review of all the available medical records, and results in an opinion of what Hall can still do despite his impairments. See 20 C.F.R. § 416.919a(a)(2).

IV. CONCLUSION

IT IS RECOMMENDED, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636 (b)(1)(C) and Fed.R.Civ.P. 72(b), within ten (10) days of the service of a copy of this Report and Recommendation, that the case be remanded to the commissioner for further proceedings as set forth above.

IT IS SO ORDERED.