Kinseth v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER: Rejecting 10 Report and Recommendation: The Commissioner's decision is reversed and this case is remanded to the Commissioner for further proceedings consistent with this opinion: The Clerk shall enter judgment against the Commissioner and in favor of Plaintiff Kinseth. Signed by Judge Mark W Bennett on 08/20/13. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
KIMBERLY K. KINSETH,
No. C 12-3033-MWB
CAROLYN W. COLVIN,
Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER REGARDING REPORT AND
TABLE OF CONTENTS
Procedural Background ........................................................... 2
Factual Background ............................................................... 3
Summary of medical evidence ........................................... 3
Medical evidence of physical impairment ..................... 3
Medical evidence of mental impairment ....................... 7
State agency consultants ........................................ 10
Kinseth’s testimony .............................................. 12
Vocational expert’s testimony .................................. 14
Summary of the ALJ’s decision ....................................... 15
ANALYSIS ................................................................................. 17
Standard of Review ............................................................... 17
Kinseth’s Objections ............................................................. 22
Discounting Dr. Gibson ................................................. 24
Discounting Dr. Ahrendsen ............................................ 26
Discounting Dr. Johnson ............................................... 29
Giving “significant weight” to Dr. Woodard and Dr.
Griffith ..................................................................... 30
CONCLUSION ............................................................................ 31
This case is before me on a Report And Recommendation (R&R) (docket no. 10)
from Magistrate Judge Leonard Strand recommending that I affirm a decision by the
Social Security Commissioner (the Commissioner) denying Plaintiff Kimberly Kinseth
(Kinseth) disability insurance benefits (DIB) under Title II of the Social Security Act.
On April 11, 2013, Kinseth filed objections to the R&R (docket no. 11). On April 19,
2013, Defendant filed a three-sentence response summarily opposing Kinseth’s
objections (docket no. 12). For the reasons discussed below, I decline to accept the
R&R and instead remand this case to the Commissioner for further proceedings.
Judge Strand summarized this case’s procedural background as follows:
Kinseth protectively filed for DIB on May 29, 2009,
alleging disability beginning on October 10, 2008, due to
bipolar disorder, fibromyalgia, degenerative disc disease,
arthritis, bulging disk, asthma and depression. AR 192-205.
Her claims were denied initially and on reconsideration. AR
Kinseth requested a hearing before an
Administrative Law Judge (“ALJ”). AR 74. On April 14,
2011, ALJ John E. Sandbothe held a hearing during which
Kinseth and a vocational expert (“VE”) testified. AR 32-55.
On April 25, 2011, the ALJ issued a decision finding
Kinseth not disabled since October 10, 2008. AR 9-31.
Kinseth sought review of this decision by the Appeals
Council, which denied review on April 5, 2012. AR 1-3.
The ALJ’s decision thus became the final decision of the
Commissioner. 20 C.F.R. §§ 404.981.
On May 18, 2012, Kinseth filed a complaint in this court
seeking review of the ALJ’s decision. This matter was
referred to the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a
report and recommended disposition of the case.
Report And Recommendation 1-2 (docket no. 10). On August 29, 2012, Kinseth filed
a brief (docket no. 7) requesting that Judge Strand reverse the ALJ’s decision because
(1) the ALJ failed to give good reasons for rejecting the opinions of Kinseth’s three
treating physicians, and (2) the ALJ gave too much weight to the opinions of nontreating state agency consultants. On October 15, 2012, the Defendant filed a brief
(docket no. 8) requesting that Judge Strand affirm the ALJ’s decision, arguing that the
ALJ properly evaluated the medical opinions and that substantial evidence supported the
After reviewing the parties’ briefs, Judge Strand issued his R&R on April 4,
2013, recommending that I affirm the ALJ’s decision (docket no. 10). On April 11,
2013, Kinseth timely filed objections to the R&R (docket no. 11), which essentially reassert the arguments made in Kinseth’s earlier brief. Finally, on April 19, 2013, the
Defendant filed a response to Kinseth’s objections (docket no. 12), incorporating the
arguments made in Defendant’s earlier brief. I must now decide whether to accept or
reject the R&R in light of Kinseth’s objections.
In his R&R, Judge Strand made thorough findings of fact.
Recommendation 2-14 (docket no. 10). Neither party has objected to these factual
findings. I therefore adopt the findings of fact from the R&R, which are set forth
Summary of medical evidence
Medical evidence of physical impairment
Kinseth began seeing Mark Johnson, M.D., at Mercy
Internal Medicine Clinic in 2007 for her fibromyalgia and
chronic back pain. AR 393-95. Dr. Johnson prescribed
Lortab three times per day under a pain contract.1 Id. In
November 2007, Dr. Johnson noted her back pain was
“quite well controlled.” AR 393. Dr. Johnson also
prescribed medication for Kinseth’s mood disorder with
sleep disorder. AR 391. He suggested she transfer to a
primary care provider in 2008, but Kinseth continued seeing
Dr. Johnson for several issues and he continued prescribing
her medication. AR 387, 388, 390.
In May 2009, Dr. Johnson wrote that Kinseth had
fairly typical symptoms of fibromyalgia and had carried this
diagnosis for much of her adult life. AR 383. He noted that
her symptoms waxed and waned and she would have weeks
where she was comfortable and weeks when she was
debilitated. Id. He wrote, “Even simple exercise can
exacerbate her pain, especially upper shoulder neck pain and
sometimes lower extremity limb and girdle discomfort.” Id.
Kinseth began seeing Jennifer Gibson, M.D., for
back pain in July 2009. AR 446. Kinseth noted that her
pain worsened with increased activity. Id. She explained if
she pushed herself when her pain felt under control, it would
flare up and she would have to spend the next two to three
days in bed. Id. Dr. Gibson spoke with Kinseth about time
management and pacing, suggesting this could help control
some of her pain symptoms. AR 447. She asked that
Despite this pain contract, it appears from the record that Kinseth was receiving Lortab
prescriptions from two different providers from 2007 through 2009. Kinseth was initially
prescribed Lortab by David Ruen, M.D., in April 2005 with instructions to use it sparingly.
AR 322. Dr. Ruen noted that she was not to use Soma in the future. Id. By October 2007,
Kinseth had transferred her care to Glee Christ, ARNP, at Belmond Medical Center and Dr.
Johnson at Mercy, both of whom prescribed Lortab. AR 367, 395. Ms. Christ originally
prescribed Lortab and Soma three times per day, but decreased the prescriptions to two times
per day in October 2007. Id. In February 2008, she noted Kinseth was pleading with her to
increase the dosage but she was uncomfortable with Kinseth’s excessive use of Lortab and
Soma. AR 364. She noted that an extensive workup had been done with negative results and
that a MRI showed very mild degenerative disk disease at L5-S1 but was otherwise
unremarkable. Id. Kinseth continued receiving Lortab and Soma prescriptions from Ms.
Christ until at least February 2009 and Lortab from Dr. Johnson until July 2009 when her
medication management was transferred to another provider. AR 353, 448.
Kinseth get a urine drug screen before her next appointment
so they could transfer her medication management from Dr.
Johnson and set up a pain contract. AR 448.
Kinseth did not come in for a drug screen before her
next appointment, stating she had been busy with her
grandchildren. AR 445. She provided a urine sample at the
appointment and was given a three-week supply of her
prescriptions to last until her next scheduled appointment.
Id. The drug screen came back positive for amphetamine.
AR 444. Kinseth said she had borrowed Adderall from a
friend. Id. She apologized and said it would never happen
again. Dr. Gibson discussed the pain contract for her
Lortab prescription. Id. She wrote that a drug screen
would be performed at every visit for the next six months.
In October 2009, a MRI of Kinseth’s spine was
taken. AR 476-81. The results were summarized in a letter
from David Ruen, M.D., on October 6, 2009. AR 487.
The results of your recent x-ray showed essentially no
evidence of arthritis, degenerative disease or other
problems. There were a couple of benign pelvic
calcifications but it was otherwise unremarkable.
Your neck x-ray showed minimal arthritis at C4-5
and an unfused accessory ossification center at C2-3.
Your MRI scans of these areas showed a broad based
disk bulge left greater than right at the C4-5 level.
You had normal cord signal throughout the neck.
There was no abnormal enhancement. Your MRI
scan of the lumbar spine showed mild interspaced
narrowing without evidence of significant arthritis.
There was no spinal canal narrowing. There was
minimal bulging. There was no evidence of any kind
of tears and certainly no herniated disk or even
Congratulations on these very
excellent results. I look forward to our next visit.
On November 11, 2009, Dr. Gibson discussed
Kinseth’s functional abilities with her and made the
She finds that pain interferes with her ability to
lift weights. She can only lift five to ten pounds of
weight occasionally because this does bother her neck
The patient is not able to sit for more than 20
minutes or stand for more than 20 minutes without
needing to take a break or change position. She can
only walk one block before she has to sit down.
She has discomfort with stooping, kneeling,
climbing, and crawling, and I would suggest that she
avoid these activities completely.
She is capable of sight, hearing, speech.
Travel would be limited by the restrictions on sitting,
standing, and walking, handling of small objects with
her hands. She does have swelling with prolonged
use of both her hands and her feet.
We also talked about the fact that she has
trouble working for prolonged periods. She did do
house chores a few weeks ago. She worked about six
hours straight and took 10-minute breaks as if she
was at work, and by the end of the evening had to go
[to] the emergency room with pain and swelling.
She does have flare-ups of her fibromyalgia. Some
days are better than others. On the flare-up days, she
may have pain that is severe enough that she needs to
lie down for most of the day.
We have talked about pacing. I have suggested that
she not work for more than 20 or 30 minutes without
taking a more extensive break, possibly a 20 to 30minute break, and she has tried to follow that in her
AR 527-28. On November 20, 2009, Dr. Gibson completed
a questionnaire at the request of Kinseth’s attorney. AR
558-59. She wrote that Kinseth could not stand or sit for
more than 20 minutes at a time without experiencing pain
and she could not kneel, climb, crawl or stoop. Id. She
suggested that Kinseth’s impairments would affect her
attendance at work and her ability to perform under
pressure. She also noted that Kinseth’s concentration was
impaired. Id. She stated a flare up of fibromyalgia pain
could cause Kinseth to miss work. She also reported
Kinseth’s chronic pain was unlikely to improve and impaired
Kinseth’s daily functioning. Id.
On January 5, 2010, Dr. Gibson expressed concern
that Kinseth may have been receiving her Vyvanse
prescription from a second provider. AR 596. She also
noted that Kinseth had requested early refills of her
prescriptions on two occasions. Id. On one occasion,
Kinseth requested an early refill stating she had lost her
luggage while traveling. Id. Dr. Gibson denied this
request. Id. On January 6, 2010, Kinseth reported that Dr.
Johnson would no longer prescribe her Vyvanse because he
believed she was seeking the prescription from multiple
providers. Dr. Gibson also refused to prescribe Vyvanse,
noting that Robert Stern, D.O., thought she should not take
that medication. AR 595. Dr. Gibson stated that any
prescription for Vyvanse would have to come from a
Medical evidence of mental impairment
On February 1, 2008, Dr. Johnson noted that Kinseth
reported significant problems with sleep disorder and mood
disorder. AR 424. She improved while taking Depakote
but stopped using it. Dr. Johnson advised her to continue
taking it and increased her prescription. Id. Later that
month, Kinseth sought help for exacerbation of her
depression from Glee Christ, ARNP, at Belmond Medical
Center. AR 364. Her Effexor prescription was increased.
Id. On May 9, 2008, Ms. Christ noted that Kinseth’s moods
were stabilized and she had been sleeping well. AR 363.
On May 12, 2009, Kinseth reported to Dr. Johnson
that she thought she had bipolar disease. AR 387. Based on
her description of symptoms, he noted, “I do think she is
correct” and he prescribed Lamictal. AR 383-87.
In July 2009, Kinseth saw R.M. Ramos, M.D., at
Mental Health Center of North Iowa for evaluation of
attention deficit disorder. AR 440. She explained that she
did not have symptoms of hyperactivity, but had difficulties
concentrating on one task and finishing things she would
start. Dr. Ramos indicated he wanted to perform more tests
before diagnosing her and prescribing medication. AR 441.
On August 13, 2009, Brent Seaton, Ph.D., performed
a neuropsychological evaluation for diagnostic clarification
and treatment planning regarding Kinseth’s bipolar disorder
and possible attention deficit/hyperactivity disorder
(“ADHD”). AR 400. Dr. Seaton concluded Kinseth’s full
scale IQ was 77, which is within the borderline range of
general intellectual functioning. AR 405. Dr. Seaton noted
that she was likely prone to difficulties interacting with
people, especially those in positions of authority. AR 407.
He diagnosed her with bipolar II disorder and gave her a
provisional diagnosis of ADHD, stating that he needed more
objective evidence. Id. He suggested that medication and
individual therapy would be helpful. AR 408.
Dr. Johnson wrote a letter on behalf of Kinseth on
October 8, 2009, stating:
She has been unable to work because of her
underlying bipolar type II disorder. She also has
chronic pain syndrome which is not under my direct
care, the patient seeing Dr. Jennifer Gibson for this
reason, but this has also been debilitating.
She requires multiple drug therapy for mood
stabilization and with the contingent comorbidities of
psychiatric illness and drug side effects, she is unable
to perform any type of work at this time.
This letter is to document her chronic pain syndrome
as well as her history of bipolar depression and I am
supporting her filing for disability because of her
Kinseth began seeing Jon Ahrendsen, M.D., in
February 2010 for ADHD. AR 626-27. Dr. Ahrendsen
suggested she try methyl B-12 injections for ADHD and
fibromyalgia in addition to a trial of stimulant medication.
AR 628. Kinseth later called saying she would like to try
Adderall, noting she had taken it before and did not have
any side effects. AR 628-29. Dr. Ahrendsen prescribed
Adderall. Id. Kinseth reported the Adderall made her feel
better, although it would wear off after approximately four
hours. AR 625. Dr. Ahrendsen conducted an attention
assessment test and increased the dosage. Id. On August 2,
2010, Kinseth called in to get an early refill on her Adderall
stating she had been in a car accident and lost her
medication. AR 622. Dr. Ahrendsen found an on-call
provider who was willing to prescribe enough medication to
last until her next refill date if Kinseth brought in a police
report. Id. Dr. Ahrendsen’s office tried calling Kinseth
multiple times and left multiple voicemails for her on August
2, 3, 4, and 5, but she never called back and did not get an
early refill. Id. Medication management of Kinseth’s
Lortab prescription was transferred to Dr. Ahrendsen from
Dr. Gibson in September 2010. AR 633-34.
Dr. Ahrendsen wrote a letter on March 28, 2011, to
confirm Kinseth’s diagnosis of ADHD. AR 661. He wrote
that he had been treating her for ADHD for several years
and she had improved with proper medication management.
Id. He indicated that she still suffers difficulty with focusing
and maintaining attention for a long period of time. He
noted that Kinseth suffers from bipolar features, chronic
depression and chronic back pain. He stated her back pain
results in physical limitations of lifting, bending, walking
and carrying. Id. He concluded, “I believe Kimberly has a
sufficient number of medical problems including bipolar
issues, depression issues, ADHD issues, chronic back pain
issues that her application for disability is a reasonable one.”
State agency consultants
Scott Shafer, Ph.D., performed a mental residual
functional capacity (“RFC”) assessment and psychiatric
review technique on September 22, 2009. AR 457-74. He
found that she had moderate limitations in her ability to
understand, remember, and carry out detailed instructions
and maintain attention and concentration for extended
periods. AR 457-58. In all other areas she was not
significantly limited. Id. Dr. Shafer summarized the
medical evidence and Kinseth’s daily activities. AR 459.
He found her severe mental impairment did not meet or
equal a listing. He noted that she was able to sustain
employment in the past and stopped working due to her
medications. Id. Her Global Assessment of Functioning
(“GAF”)2 scores of 50 to 55 indicated a moderate level of
impairment and her daily activities showed that she can
handle daily responsibilities and negotiate the community
He found that her attention,
concentration, and pace are adequate for routine tasks not
requiring sustained attention and she can interact
appropriately with the public, coworkers, and supervisors.
Id. Her judgment was also adequate to adjust to changes in
the workplace. In his psychiatric review technique, he
found moderate difficulties in maintaining concentration,
persistence, or pace, mild difficulties with activities of daily
A GAF score represents a clinician’s judgment of an individual’s overall ability to function in
social, school, or occupational settings, not including impairments due to physical or
environmental limitations. See American Psychiatric Ass’n, Diagnostic & Statistical Manual of
Mental Disorders 34 (4th ed.) (DSM-IV). A GAF score of 51-60 indicates moderate
symptoms or moderate difficulty in social, occupational, or school functioning.
living and maintaining social functioning, and no episodes of
decompensation. AR 471.
Melodee Woodard, M.D., performed a physical RFC
assessment on October 7, 2009. AR 488-95. She found that
Kinseth could occasionally lift and/or carry 20 pounds,
frequently lift and/or carry 10 pounds, could stand and/or
walk about 6 hours in an 8-hour workday and could sit for
the same. AR 489. She could also be expected to
occasionally climb, balance, stoop, kneel, crouch or crawl.
She was to avoid any overhead reaching and concentrated
exposure to extreme cold and hazards such as machinery or
heights. AR 491-92. Dr. Woodard noted that in December
2008, July 2009, and August 2009, Kinseth reported Lortab
was “quite helpful” in relieving her symptoms. AR 495.
She also noted attempts by Kinseth’s physicians to wean her
off narcotics. Id. As for her fibromyalgia, Dr. Woodard
noted Kinseth had not sought treatment for diffuse pain
before July 2009 and it was unclear who initially gave her
this diagnosis. Id. Kinseth reported the TENS unit helped
and Dr. Gibson recommended time management and pacing
in addition to treatment to relieve her symptoms. Id.
Finally, Dr. Woodard noted that testing revealed that
Kinseth had a tendency to potentially exaggerate the nature
of her complaints and that she attributed the loss of her 26
jobs to non-physical impairments. Id.
Sandra Davis, Ph.D., performed a mental RFC
assessment and psychiatric review technique on December
21, 2009. AR 560-77. Dr. Davis noted that Kinseth’s
claim was being reconsidered due to new allegations that
Kinseth was more forgetful and less able to concentrate. AR
576. In addition to the moderate limitations previously
identified by Dr. Shafer, she also found moderate limitations
in her ability to: perform activities within a schedule,
maintain regular attendance, and be punctual within
customary tolerances; work in coordination with or
proximity to others without being distracted by them;
complete a normal workday and workweek without
interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable
number and length of rest periods; interact appropriately
with the general public; accept instructions and respond
appropriately to criticism from supervisors; get along with
coworkers or peers without distracting them or exhibiting
behavioral extremes, and respond appropriately to changes
in the work setting. AR 574-75. In all other areas she was
not significantly limited. Id.
In summary she wrote:
[T]he claimant has some problems with understanding
and carrying out more detailed tasks. She would
have fluctuating attention and concentration. Pace
will be slower than that of others. She may have
difficulty relating to authority, and be distracting to
others. She is doing less in terms of her household
activities and ADL’s at present. She has pursued
stimulants for her possible ADHD, but has done some
of that without medical supervision.
source] opinion is from a physician she no longer sees
and whose specialty is not mental health; as such,
more weight is given to those mental health
practitioners she has seen.
AR 577. Dr. Davis also noted that Kinseth’s credibility
could be challenged based on her seeking stimulants from
two sources and borrowing medication from a friend, as
well as her husband’s reports which indicated more positive
daily functioning than Kinseth herself did. Id.
At the hearing, Kinseth testified she completed
twelfth grade and had taken additional classes in
cosmetology and nursing. AR 35. She said she had been in
special education throughout high school for language and
math. Id. She testified that she has problems with memory,
concentration and staying on task. AR 36. She thought she
could stay on task for 15 minutes at a time and had greater
difficulty concentrating when other people were around her.
AR 37. Kinseth testified that her difficulties with lifting,
sitting and staying on task in addition to her mental
impairments prevent her from working. AR 38.
As for mental impairments, Kinseth testified that her
bipolar disorder causes irregular sleeping patterns. She
sometimes slept four days in a row and other times she
could only sleep for a couple hours. Id. She said her
ADHD made her argumentative and she had trouble getting
along with people. AR 39. She reported that she often
challenged her supervisors in past jobs and lost jobs for that
reason. AR 40-41. Kinseth said she would normally stay at
a job for no more than three months. AR 41. She reported
missing 28 days out of two months at her last job as a
nurse’s aide. Id. She said she also had a tendency to
become obsessed with simple tasks so that she would spend
the majority of the day working on one thing. AR 39-40.
With regard to physical impairments, Kinseth stated
that she needed to switch positions at least every 40 minutes.
AR 42-43. She described difficulties with lifting, standing
and sitting related to her fibromyalgia pain. Id. She said
the more she pushes herself, the more pain she experiences,
and she is taking the maximum dosage that is recommended
of her medication. Id. In describing her fibromyalgia pain,
Kinseth said it radiates out from a spot in her shoulder. AR
43. As for back pain, Kinseth said her doctors have told her
to switch positions when she experiences soreness. Id. Her
medication does not stop the pain. She thought she could
stand for 40 minutes and sit for 45 minutes before needing
to switch positions. AR 43-44. She stated she is able to
walk two to three blocks. AR 44. She also described
difficulties with bending, kneeling and lifting. AR 44-45.
On a typical day, Kinseth stated that she would watch
television, read and get on the computer. She would try to
go to doctor’s appointments when she had them, but would
often re-schedule them because she did not want to leave her
house. AR 45-46. She testified she did not do housework,
yard work, or take care of her pets, and that other people
would help her out with these things. Id. She explained that
if she tried to do things such as vacuuming, she would be
sore the next day. AR 46. Kinseth said she would
sometimes go visit places with the help of a friend to share
her story about her prior drug use. AR 46-47. She has
been clean for 10 years. AR 47. Someone would usually
go grocery shopping with her or she would give a list to
someone else. She said that if she went by herself, she
would spend too much time in the store and buy more than
she intended. Id. She testified that she sometimes has
problems taking care of herself and her daughter would have
to remind her to take a shower. AR 48. She stated that any
changes in routine would cause her stress, which would
exacerbate her symptoms. AR 49. Kinseth thought she
would be unable to return to any of her past jobs because
she would argue with people. AR 51.
Vocational expert’s testimony
The ALJ summarized Kinseth’s vocational and
medical background then gave the VE the following
She could lift 20 pounds occasionally, 10 pounds
frequently; she could only occasionally balance,
stoop, crouch, kneel, crawl, climb; simple routine,
and repetitive work; no contact with the public;
AR 52. The ALJ stated he did not believe any of Kinseth’s
past work would be available under this hypothetical, but
asked the VE if there were other jobs she could perform.
Id. The VE answered that the jobs of routine clerk, laundry
folder and housekeeper were available within these
limitations and existed in significant numbers within Iowa
and the national economy. AR 52-53.
The second hypothetical provided by the ALJ
contained the same limitations as before with additional
limitations of standing for a total of two hours during the
workday, two or more absences per month and slow-paced
work for up to one-third of the day. AR 53. The VE
responded that a person with these limitations and Kinseth’s
vocational and medical background would not be
competitively employable. Id.
Kinseth’s attorney also asked the VE hypotheticals.
He first asked if any of the jobs from the first hypothetical
would be affected if the individual needed to take a 20minute break after every 20 to 30 minutes of work. Id.
This was based on a treatment note from Dr. Gibson. Id.
The VE answered that an individual who required two or
more unscheduled breaks per day would not be
competitively employable on a full-time basis. AR 53-54.
Kinseth’s attorney also asked if any of the jobs from the first
hypothetical would be affected if an individual could only
stay on task 10 to 15 minutes at a time without completing
her tasks. AR 54. The VE responded ‘yes.’ Id. Finally,
the attorney referenced Kinseth’s testimony about her
confrontational behavior towards supervisors. Id. The VE
stated that not many employers would tolerate frequent
conflict in the workplace on a regular basis. AR 54-55.
Summary of the ALJ’s decision
The ALJ made the following findings:
(1) The claimant meets the insured status
requirements of the Social Security Act through June
The claimant has not engaged in substantial
gainful activity since October 10, 2008, the alleged
onset date (20 CFR 404.1571 et seq.).
The claimant has the following severe
impairments: subaverage intellectual functioning;
fibromyalgia; bipolar disorder; and ADHD (20 CFR
The claimant does not have an impairment or
combination of impairments that meets or medically
equals one of the listed impairments in 20 CFR part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
After careful consideration of the entire
record, the undersigned finds that the claimant has the
residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) such that she can lift
and carry twenty pounds occasionally, ten pounds
frequently; occasionally balance, stoop, kneel,
crouch, crawl, and climb; she is limited to simple
routine repetitive work; she can have no contact with
the public; and she can work at no more than a
The claimant is unable to perform any past
relevant work (20 CFR 404.1565).
The claimant was born on April 1, 1961 and
was 47 years old, which is defined as a younger
individual age 18-49, on the alleged disability onset
The claimant subsequently changed age
category to closely approaching advanced age (20
The claimant has at least a high school
education and is able to communicate in English (20
Transferability of job skills is not material to
the determination of disability because using the
Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled,” whether or
not the claimant has transferable job skills (See SSR
82-41 and 20 CFR 404, Subpart P, Appendix 2).
(10) Considering the claimant’s age, education,
work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20
CFR 404.1569 and 404.1569(a)).
(11) The claimant has not been under a disability,
as defined in the Social Security Act, from October
10, 2008, through the date of this decision (20 CFR
Standard of Review
I review Judge Strand’s R&R under the statutory standards found in 28 U.S.C. §
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
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 Court explained:
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.”
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
Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989).
“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
Court of Appeals 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, 57374 (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
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 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 omitted)).
Here, Kinseth has objected to some of Judge Strand’s findings. Although I will
review these findings de novo, and Judge Strand’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)).
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.” Krogmeier v. 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. 2006)).
Kinseth raises two objections to Judge Strand’s recommendation that I affirm the
Kinseth argues (1) that the ALJ failed to give good reasons for
discounting the medical opinions of Kinseth’s three treating doctors; and (2) that the
ALJ gave too much weight to the opinions of non-treating doctors. While Kinseth
argues these objections separately in her brief, her two points are highly interrelated.
In short, she argues that the ALJ gave too little weight to the treating doctors, too much
weight to the non-treating doctors, and no good reason for the difference.
The ALJ’s decision centered on five doctors’ opinions.
Three of Kinseth’s
treating doctors—Dr. Gibson, Dr. Ahrendsen, and Dr. Johnson—submitted opinions
favorable to Kinseth.
Two non-treating doctors—Dr. Woodard and Dr. Griffith—
submitted opinions unfavorable to Kinseth. The ALJ gave “significant weight” to the
non-treating doctors (docket no. 5-2, at 21-22) and “little” or “no” weight to the
treating doctors (docket no. 5-2, at 20, 22). Unsurprisingly, then, the ALJ denied
Kinseth benefits. What is surprising is that the ALJ categorically elevated the opinions
of the non-treating doctors over those of the treating doctors.
An ALJ may elevate a non-treating doctor’s opinion over a treating doctor’s
opinion, but only in certain cases. Generally, “[a] treating physician’s opinion is due
controlling weight if that opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the record.” Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001) (quoting
Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000) (quoting 20 C.F.R. §
404.1527(d)(2))) (internal quotation marks omitted). But an ALJ may “disregard the
opinion of a treating physician where other medical assessments are supported by better
or more thorough medical evidence, or where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions.” Prosch, 201 F.3d at 1013
(citing Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997); Cruze v. Chater, 85 F.3d
1320, 1324-25 (8th Cir. 1996)) (internal quotations omitted). “Whether the ALJ grants
a treating physician’s opinion substantial or little weight, the regulations provide that
the ALJ must ‘always give good reasons’ for the particular weight given to a treating
physician’s evaluation.” Id. (citing 20 C.F.R § 404.1527(d)(2)).
Kinseth argues that the ALJ did not “give good reasons” for discounting
Kinseth’s treating physicians. I will evaluate the ALJ’s reasons for discounting each of
Kinseth’s treating physicians in turn below.
Discounting Dr. Gibson
The ALJ assigned “very little weight” to the questionnaire Dr. Gibson submitted
on Kinseth’s behalf. The ALJ explained his reasons for doing so in one sentence,
claiming that Dr. Gibson’s opinions were “based on a short treating history and are
inconsistent with the objective medical evidence in the record” (docket no. 5-2, at 20).
There are two problems with this explanation. First, while ALJs may consider the
“[l]ength of the treatment relationship” between a doctor and a claimant, 20 C.F.R. §
404.1527(c)(2)(i), the ALJ in this case favored the opinions of doctors who had no
treating history with Kinseth.
Dr. Gibson had personally treated Kinseth on four
occasions. The ALJ never explained why a short treatment history hurt Dr. Gibson’s
opinion, but the lack of any treatment history did not hurt the non-treating doctors’
Second, the ALJ never explained how Dr. Gibson’s opinion was “inconsistent
with the objective medical evidence in the record.” The ALJ did not discuss what the
“objective medical evidence” showed, much less point to a single specific conclusion
from Dr. Gibson that was “inconsistent” with that evidence. The ALJ briefly noted
that Kinseth’s “previous x-rays revealed no evidence of arthritis or degenerative disease
. . . [and] the MRI of the claimant’s neck and low back revealed minimal findings”
(docket no 5-2 at 20).
But, the ALJ never connected this observation to his
determination that Dr. Gibson’s conclusions contradicted the record evidence. The
record shows that Dr. Gibson treated Kinesth for fibromyalgia, a condition that Dr.
Gibson noted could flare up causing Kinseth to miss work (Ex. 21F; docket no. 5-9, at
119). The ALJ never explained how the x-ray and MRI evidence related to Kinseth’s
fibromyalgia (or any of Kinseth’s other conditions for that matter). Simply put, the
ALJ’s one-sentence justification for discrediting Dr. Gibson’s opinion—without more—
cannot qualify as a “good reason” for discounting a treating physician’s opinion.
Judge Strand offered an additional reason in support of the ALJ’s decision.
Judge Strand noted that it was not clear whether Dr. Gibson based her opinion on an
independent medical finding, or simply on Kinseth’s subjective description of her
alleged disability. Report And Recommendation 23 (docket no. 10). Judge Strand
based this observation on a page from Dr. Gibson’s clinical notes in which Dr. Gibson
lists a number of Kinseth’s physical limitations:
She finds that pain interferes with her ability to lift
weights. She can only lift five to ten pounds of weight
occasionally because this does bother her neck and back.
The patient is not able to sit for more than 20 minutes
or stand for more than 20 minutes without needing to take a
break or change position. She can only walk one block
before she has to sit down.
She has discomfort with stooping, kneeling, climbing,
and crawling, and I would suggest that she avoid these
She is capable of sight, hearing, speech. Travel
would be limited by the restrictions on sitting, standing, and
walking, handling of small objects with her hands. She does
have swelling with prolonged use of both her hands and her
We also talked about the fact that she has trouble
working for prolonged periods. She did do house chores a
few weeks ago. She worked about six hours straight and
took 10-minute breaks as if she was at work, and by the end
of the evening had to go [to] the emergency room with pain
She does have flare-ups of her fibromyalgia. Some days are
better than others. On the flare-up days, she may have pain
that is severe enough that she needs to lie down for most of
We have talked about pacing. I have suggested that she not
work for more than 20 or 30 minutes without taking a more
extensive break, possibly a 20 to 30-minute break, and she
has tried to follow that in her daily life.
(Ex. 20F; docket no. 5-9, at 87).
While this list is no doubt based, in part, on
Kinseth’s descriptions of her pain, much of the list is written as though the points are
Dr. Gibson’s conclusions. More importantly, the list appears to be consistent with the
objective conclusions in the questionnaire Dr. Gibson later sent to Kinseth’s attorney
(Ex. 21F; docket no. 5-9, at 118-119). Taken together, these factors suggest that Dr.
Gibson’s observations were her own.
If the record contains evidence suggesting
otherwise, the ALJ did not discuss it.
In short, the ALJ’s one-sentence explanation for discounting Dr. Gibson’s
opinion, devoid of any specific analysis, cannot constitute a “good reason” for not
giving controlling weight to a treating doctor’s opinion. This does not mean the ALJ’s
decision to give little weight to Dr. Gibson’s opinion was incorrect, only that the ALJ
did not provide a sufficient explanation for doing so.
Discounting Dr. Ahrendsen
Like Dr. Gibson’s opinion, the ALJ assigned “little weight” to Dr. Ahrendsen’s
The ALJ offered three reasons for doing so:
(1) that Dr. Ahrendsen
incorrectly claimed in his opinion letter that he had treated Kinseth for “several years,”
when in fact he had only treated Kinseth a “few times”; (2) that Dr. Ahrendsen’s
opinions were “inconsistent with the medical evidence of record”; and (3) that Dr.
Ahrendsen’s opinions were “inconsistent with his own treating notes which indicated
[Kinseth] was doing better with no reported side effects once [she started taking]
Adderall in February 2010” (docket no. 5-2, at 22).
The ALJ’s first two reasons suffer from the same problems present in the ALJ’s
decision to discount Dr. Gibson’s opinion. First, the ALJ apparently discounted Dr.
Ahrendsen’s opinion based on his short treatment history with Kinseth without
explaining why that was a reason to prefer the opinions of the non-treating doctors with
no treatment history. Moreover, it is unclear what the ALJ meant when he noted that
Dr. Ahrendsen had only seen Kinseth “a few” times, but the record shows that Dr.
Ahrendsen saw Kinseth at least seven times (Ex. 27F; docket no. 5-10, at 46-49, 5254).
Second, the ALJ provided no reason at all explaining how Dr. Ahrendsen’s
opinion was “inconsistent with the medical evidence of record.”
The ALJ’s third reason finds little support in the record. The ALJ found that
Dr. Ahrendsen’s opinions were “inconsistent with his own treating notes which
indicated [Kinseth] was doing better with no reported side effects once [she started
taking] Adderall in February 2010.” Specifically, the ALJ, and later Judge Strand,
found Dr. Ahrendsen’s opinion letter (Ex. 28F; docket no. 5-10, at 89) to be
inconsistent with one of Dr. Ahrendsen’s earlier medical records from August 12, 2010
(Ex 27F; docket no. 5-10, at 621). In his opinion letter, Dr. Ahrendsen opined that
Kinseth “has a sufficient number of medical problems including bipolar issues,
depression issues, ADHD issues, [and] chronic back pain issues that her application for
disability is a reasonable one.” In the August 12, 2010, record, Dr. Ahrendsen noted
that Kinseth felt as though the Adderall she had been taking “helps a lot,” presumably
with her ability to focus on tasks. According to the ALJ, Dr. Ahrendsen’s opinion and
the August 12, 2010, record were inconsistent because the record showed that Kinseth
“was doing better with no reported side effects” after taking Adderall.
Again, there are two problems with the ALJ’s reasoning. First, the fact that
Adderall helped Kinseth—without more—does not necessarily speak to Kinseth’s ability
to work. The August 12, 2010, record does not relate Kinseth’s Adderall use to her
ability to work.
It simply states that Adderall helps Kinseth.
But the fact that a
claimant is doing well on medication may not bear on his or her ability to work because
“doing well for the purposes of a treatment program has no necessary relation to a
claimant’s ability to work or to her work-related functional capacity.”
Massanari, 259 F.3d 707, 712 (8th Cir. 2001). Thus, the ALJ “relied too heavily on
indications in the medical record that [Kinseth] was doing well” on Adderall.
(internal quotation marks omitted). The August 12, 2010, record may still be relevant
to the ALJ’s decision to discount Dr. Ahrendsen’s opinion, but the ALJ’s use of that
record must extend beyond the fact that the record says that Adderall helps Kinseth.
Second, even if Kinseth was doing well on Adderall, that fact does not
necessarily contradict Dr. Ahrendsen’s conclusion. In fact, Dr. Ahrendsen apparently
took Kinseth’s success with medication into account in rendering his opinion.
beings his opinion letter by noting:
I have been treating [Kinseth] for several years period of
time now for ADHD and she has improved with proper
medication management. However, she still suffers difficulty
with focusing and maintaining attention for a long period of
time due to the fact that this diagnosis was not made at a
young age when it should have been done. In addition,
Kimberly suffers from bipolar features and chronic
depression, as well as chronic back pain.
(Ex. 28F; docket no. 5-10, at 89) (emphasis added). An ALJ does not state a “good
reason” for discounting a doctor’s opinion where the ALJ points out an inconsistency
that, upon closer examination, does not really exist. Cf. Reed v. Barnhart, 399 F.3d
917, 921 (8th Cir. 2005) (holding that it was not inconsistent for a doctor to note a
claimant’s inability to pay attention for extended periods, but still conclude that the
claimant could understand, remember, and perform short, simple instructions).
Because Dr. Ahrendsen’s opinion does not necessarily conflict with the August 12,
2010, record, the ALJ’s stated reason for discounting Dr. Ahrendsen’s opinion is not a
None of the three reasons the ALJ gave for discounting Dr. Ahrendsen’s opinion
were sufficiently detailed to be considered “good reasons.” They may be correct, but
the ALJ failed to support any of his reasons with sufficient facts, drawn from the record
Discounting Dr. Johnson
Finally, the ALJ gave “no weight” to Dr. Johnson’s opinion. The ALJ gave two
(1) that Dr. Johnson’s opinion “is quite conclusory, providing very little
explanation of the evidence relied on in forming that opinion”; and (2) that “Dr.
Johnson’s opinion appears to rest on an impairment that is outside his area of expertise”
(docket no. 5-2, at 20). After reviewing Dr. Johnson’s opinion letter (Ex. 17F; docket
no. 5-9, at 64), I agree with the ALJ’s conclusion that it is highly conslusory. “[A]
treating physician’s opinion does not deserve controlling weight when it is nothing more
than a conclusory statement.” Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008)
(citing Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996)). Dr. Johnson’s entire
opinion letter is comprised of five sentences, only three of which discuss Kinseth’s
treatment, and one of those three sentences notes that Kinseth’s “chronic pain syndrome
. . . is not under [Dr. Johnson’s] direct care” (emphasis added). Dr. Johnson did not
support any of the statements in his opinion with any explanation or reference to
specific facts related to Kinseth’s treatment. Thus, I conclude that the ALJ provided a
good reason for discounting Dr. Johnson’s opinion.
Because I conclude that the ALJ properly discounted Dr. Johnson’s opinion on
the grounds that it was conclusory, I need not address the ALJ’s second reason related
to Dr. Johnson’s expertise. In her brief, Kinseth only challenges the ALJ’s second
Giving “significant weight” to Dr. Woodard and Dr. Griffith
Contrary to his treatment of Kinseth’s treating doctors, the ALJ gave “significant
weight” to the opinions of two non-treating doctors, Dr. Woodard and Dr. Griffith,
both of whom provided opinions supporting the ALJ’s decision to deny Kinseth benefits
(docket no. 5-2, at 20-22). Kinseth argues that the ALJ erred in giving so much weight
to these non-treating physicians. Most of the arguments Kinseth makes in her brief
relate to the ALJ’s decision to give Dr. Griffith’s opinion significant weight.
contrast, Kinseth makes relatively few arguments about the ALJ’s decision to give Dr.
Woodard’s opinion significant weight.
Because the ALJ’s decision failed to provide good reasons for discounting two of
the three treating physicians, it is difficult to determine whether the non-treating
physician’s opinions should be entitled to significant weight.
For example, if on
remand the ALJ is unable to bolster his reasons for discounting the treating physicians,
that would suggest that the treating physicians’ opinions should be given controlling
weight. If, however, the ALJ has good reasons for discounting the treating physicians’
opinions, I find that the ALJ likely did not err in relying on the non-treating physicians’
In his R&R, Judge Strand noted that the ALJ provided a “thorough
explanation” of the non-treating doctors’ opinions. I agree with that assessment. In
particular, the ALJ summarized at length Dr. Woodard’s opinions and the medical
evidence Dr. Woodard relied upon (docket no. 5-2, at 18-20).
I note, however, that the ALJ’s reliance on Dr. Griffith’s opinion seems
inconsistent with some of the reasons the ALJ used to discount the treating doctors.
For example, Dr. Griffith had no treatment history with Kinseth, and Dr. Griffith’s
opinion was every bit as conclusory as Dr. Johnson’s. In fact, Dr. Griffith summarily
agreed with Dr. Woodard’s earlier assessment in one sentence:
“The initial RFC
remains appropriate and is fully affirmed as written” (Ex. 24F; docket no. 5-10, at 6).
Still, Dr. Woodard’s more thorough opinion is likely sufficient to justify the ALJ’s
decision to credit the non-treating physicians, assuming the treating physicians’
opinions are not controlling.
On remand, if the ALJ determines that there are “good reasons” for discounting
Kinseth’s treating doctors’ opinions, then I would likely not find that the ALJ erred in
giving substantial weight to the non-treating physicians. But, the law requires that the
ALJ give “good reasons” for discounting treating physicians, and on the current record,
he did not. Thus, I will remand this case to give the ALJ an opportunity to elaborate
on the evidence supporting his decision to discount Kinseth’s treating physicians.
All three of Kinseth’s treating physicians issued opinions favorable to Kinseth,
but the ALJ rejected these opinions and relied instead on non-treating doctors’ opinions,
which were not favorable to Kinseth. The ALJ may have been right to do so. But the
ALJ needs to provide good reasons for discounting the seemingly unanimous opinions
of Kinseth’s treating physicians. The ALJ’s curt explanations for preferring the nontreating physician’s opinions are simply not detailed enough to be “good reasons.”
Without a sufficient record detailing the ALJ’s reasons for not giving controlling
weight to Kinseth’s treating physicians’ opinions, I cannot properly evaluate whether
the ALJ was correct to elevate the non-treating physicians’ opinions over the treating
physicians’ opinions. Moreover, I cannot independently find new reasons to discredit
either the treating or non-treating physicians’ opinions. Even under de novo review,
that would constitute weighing the evidence, which is a power reserved for the ALJ.
Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). Thus, I will remand this case
to the Commissioner to determine whether there are “good reasons” to discount
Kinseth’s treating physicians and, if there are, to support those reasons with a specific
and detailed analysis of the record evidence.
I decline to accept Judge Strand’s R&R. Instead, the Commissioner’s decision is
reversed, and this case is remanded to the Commissioner for further proceedings
consistent with this opinion. The Clerk shall enter judgment against the Commissioner
and in favor of Kinseth.
IT IS SO ORDERED.
DATED this 20th day of August, 2013.
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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