Zortman v. Commissioner of Social Security

Filing 22

ORDER Accepting 19 Report and Recommendations: The Commissioners determination that Zortman was not disabled is affirmed. Judgment shall enter in favor of the Commissioner. Signed by Chief Judge Leonard T Strand on 8/19/2019. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JANEAN MARIE ZORTMAN,
No. C18-4035-LTS
Plaintiff,
vs.
ANDREW M. SAUL, Commissioner of
Social Security,1

MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

Defendant.
___________________________
I.

INTRODUCTION

This case is before me on a Report and Recommendation (R&R) filed by the
Honorable Mark R. Roberts, United States Magistrate Judge. See Doc. No. 19. Judge
Roberts recommends that I affirm the decision by the Commissioner of Social Security
(the Commissioner) denying Janean Marie Zortman’s application for disability insurance
benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401-34.
Zortman filed timely objections (Doc. No. 20) and the Commissioner filed a response
(Doc. No. 21). The background is set forth in the R&R and is repeated herein only to
the extent necessary.
II.
A.

APPLICABLE STANDARDS

Judicial Review of the Commissioner’s Decision
The Commissioner’s decision must be affirmed “if it is supported by substantial

evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.

1

Andrew M. Saul was sworn in as Commissioner of Social Security on June 17, 2019. Pursuant
to Federal Rule of Civil Procedure 25(d), he has been substituted for Acting Commissioner
Nancy A. Berryhill as the defendant in this suit.

2006); see 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 . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir.
2003). The Eighth Circuit explains the standard as “something less than the weight of
the evidence and [that] allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the [Commissioner] may decide to grant
or deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30
F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence that supports the Commissioner’s decision and evidence that detracts from
it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search the
record for evidence contradicting the [Commissioner’s] decision and give that evidence
appropriate weight when determining whether the overall evidence in support is
substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
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. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing 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 Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
2

Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”).
B.

Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following

standards: 
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co.,
3

333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
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, 150 (1985).
III.

THE R&R

Zortman applied for disability insurance benefits on March 23, 2015, alleging
disability beginning December 31, 2014, due to a back injury. Doc. No. 19 at 1-2 (citing
AR 70, 169-70, 197). After a hearing, an Administrative Law Judge (ALJ) applied the
familiar five-step evaluation and found that Zortman was not disabled as defined in the
Act. Zortman argues the ALJ erred by: (1) improperly evaluating the opinions of her
treating physicians; (2) improperly evaluating her subjective complaints; (3) failing to
complete a fair hearing; and (4) relying upon a defective hypothetical. Id. at 7 (citing
Doc. No. 15 at 3-4). Judge Roberts addressed each argument separately.
In addressing the first issue, Judge Roberts noted that Zortman primarily took
issue with the ALJ giving controlling weight to the opinions of the state agency physicians
over the opinions of her treating physicians – Dr. Lukken and Dr. Garred. Id. With
regard to Dr. Lukken, Judge Roberts noted that he has been treating Zortman since 2011
as her pain management doctor. Id. at 9. He provided a medical opinion dated April
10, 2017, in which he opined that Zortman was incapable of performing full-time work.
Id. He concluded her maximum ability to stand and walk during an 8-hour workday with
normal breaks would be less than two hours. Id. He also found that Zortman’s maximum
ability to sit would be less than two hours. Id. He noted she would need to be able to
shift from sitting to standing as needed and would need to lie down at unpredictable times
during the workday. Id. The maximum amount she could lift and carry on an occasional
4

and frequent basis would be less than 10 pounds. Id. He also found she would be absent
from work more than three times per month due to her impairment, symptoms and
treatment. Id.
The ALJ was “not entirely persuaded” by Dr. Lukken’s opinion, stating that his
chart notes did not include significant abnormal clinical findings or consistent findings of
weakness. Id. Indeed, his notes contained several references to significant improvement
in her symptoms. Id. The ALJ also cited an August 2015 note in which Dr. Lukken
indicated he “would be willing to assist” Zortman in her pursuit of disability benefits.
The ALJ concluded this suggested that Dr. Lukken’s opinion was more of an
accommodation than an objective assessment of her functional limitations. Therefore,
the ALJ did not give Dr. Lukken’s opinion controlling weight – or any specific weight
for that matter. Id. at 10. Instead, he gave “greatest weight” to the opinions of the state
agency physicians who reviewed the record and concluded Zortman would need to change
positions every two hours for no more than five minutes at a time. Id.
Judge Roberts concluded Dr. Lukken’s opinion was not entitled to controlling
weight because it was “inconsistent with the other substantial evidence in the record” and
analyzed it pursuant to the six factors in 20 C.F.R. § 404.1527(c)(2). Id. at 10-16. These
include: (1) the length of the treatment relationship and frequency of the examination; (2)
nature and extent of the treatment relationship; (3) supportability; (4) consistency; (5)
specialization and (6) other factors. Based on these factors, he concluded the ALJ’s
analysis of Dr. Lukken’s opinion was supported by substantial evidence.
With regard to Dr. Garred’s opinion, Judge Roberts noted that he is Zortman’s
family physician and has been treating her in all aspects of her health since 1984. In
relation to her alleged impairment, Dr. Garred prescribed pain medication and referred
Zortman to various professionals for treatment. Id. at 16. He provided two medical
opinion letters dated February 7, 2013, and May 4, 2015. Id.
In the February 2013 letter, Dr. Garred explained Zortman’s history of lower back
issues after a lumbar laminectomy and revision surgeries. Id. at 17. He also explained
5

her symptoms and the various treatments she has tried. Id. He noted she has a little
difficulty walking due to pain, no limits with her upper extremities and was limited in
moderate activities, lifting and carrying, climbing stairs, stooping, climbing, kneeling
and crawling. Id. He did not find any work environment restrictions, but noted that her
pace could be compromised due to pain and her pain could also be expected to limit what
she could do at certain times while on the job. Id. The May 2015 letter essentially
contained the same observations and opinions. Id. Dr. Garred noted that she has
attempted therapy and tried clinic injections for her pain. Id. He also noted that a March
2015 MRI showed “satisfactory appearance” of various fusion sites from previous
surgeries and although there was mild hypertrophy, there were no significant changes.
Id.
Judge Roberts noted the ALJ gave Dr. Garred’s opinions little weight because they
failed to articulate specific functional limitations and the generalized limitations he
provided were at odds with the treatment notes indicating Zortman had experienced
effective symptomatic relief. Id. at 17-18 (citing AR 25-26). The ALJ also cited a
statement that he attributed to Dr. Garred regarding Zortman’s ability to return to work
and used that statement to further justify giving Dr. Garred’s opinion little weight. Id.
at 18. Judge Roberts noted that this statement was wrongly attributed to Dr. Garred and
was actually a statement by Dr. Michael Longley.
Judge Roberts agreed that Dr. Garred’s opinion was not entitled to controlling
weight because it was inconsistent with other substantial evidence in the record. He
reviewed the opinion under the six factors in 20 C.F.R. § 404.1527(c)(2) and concluded
the ALJ’s evaluation of that opinion was supported by substantial evidence. Id. at 1821.
Next, Judge Roberts considered the ALJ’s evaluation of Zortman’s subjective
complaints. He noted Zortman’s challenge to this aspect of the ALJ’s decision was not
entirely clear, but that it appeared she was arguing the ALJ erred by not discussing the
6

Polaski2 factors prior to discrediting her subjective complaints of pain.

Id. at 21.

Zortman cited her strong work history, her four back surgeries and consistent reports of
back pain as support for why the ALJ should have found her complaints credible when
evaluating the Polaski factors. Id. at 23. Judge Roberts noted the ALJ discounted
Zortman’s subjective complaints based on their inconsistency with the treatment notes
and noted this was supported by the record, which showed that her “musculoskeletal
strength and sensation in the lower extremities was grossly intact and no deficits were
appreciated” and that her lumbosacral spine motion, gait and stance were all normal. Id.
at 24 (citing AR 605, 615, 546, 561, 572, 590, 671-72). Zortman had also declined a
referral to a spine specialist in March 2015. Id. (citing AR 521).
Judge Roberts pointed out that the ALJ had considered Zortman’s work history,
but noted her positive work history was diminished by the fact she was laid off rather
than forced out due to her condition. The ALJ also noted her receipt of unemployment
benefits after her alleged onset date hindered her claim because she had to represent that
she was able and available to work and actively seeking work in order to receive those
benefits. Id. at 24-25. Judge Roberts cited case law in which this has been recognized
as a legitimate reason to discount a claimant’s allegations of a disabling condition. Id.
Judge Roberts next considered the ALJ’s evaluation of Zortman’s daily activities
as a reason for discrediting her subjective complaints. These daily activities included
preparing simple meals, performing light chores, going out alone to drive or shop,
helping care for her grandchildren and having no problems with personal care aside from
needing assistance getting in and out of the bathtub. Id. at 25 (citing AR 25). The ALJ
also cited specific occurrences that he found indicated Zortman’s limitations were not as
severe as alleged. For instance, she stood on cement for a long period of time two months
before her alleged onset date, lifted her 23-pound grandchild in September 2014, assisted
in caring for her infant grandchild in March 2014, cared for her husband post-surgery
2

See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).

7

and did farm work in spring 2016, went down a slide with her grandchild in May 2016,
traveled to Orlando in September 2016 and traveled long distances in the car. Id. Judge
Roberts cited case law acknowledging that acts inconsistent with a claimant’s assertion
of disability reflect negatively on her credibility. Id. (citing Johnson v. Apfel, 240 F.3d
1145, 1148 (8th Cir. 2001).
The ALJ’s analysis of Zortman’s credibility also included discussion of Zortman’s
treatment. He noted that she had reported significant improvement in her symptoms with
conservative treatment measures such as therapy and injections. Id. at 26. Judge Roberts
noted this reason was supported by the record. Id. To the extent Zortman argues her
four back surgeries and consistent reports of back pain support her subjective allegations,
Judge Roberts noted that the relevant question was the extent to which her symptoms
affected her capacity to perform basic work activities. Id. He noted that the ALJ had
acknowledged Zortman’s surgical history, but that his RFC assessment included
limitations that took into account the reality of her symptoms. Id. at 26-27. Ultimately,
Judge Roberts concluded that the ALJ adequately considered the Polaski factors in
analyzing Zortman’s subjective complaints.
Judge Roberts next considered Zortman’s argument that the ALJ had not
completed a fair hearing because he should have allowed her to more fully explain the
extent of her daily activities if he was going to use them as a basis to discount her
subjective allegations. Id. at 27. She contends that the farm work and caring for her
grandchildren, as cited by the ALJ, were very limited. Judge Roberts concluded Zortman
had received a full and fair hearing and that the ALJ based his credibility findings on all
the evidence in the record. Id. at 28. He noted Zortman and her attorney were aware
that the ALJ would base his decision on all of the evidence presented, which included the
testimony at the hearing and the admitted evidence in the record. Id. He reasoned that
the claimant and her attorney had ample opportunity at the hearing to explain any evidence
before the ALJ. Id. Indeed, Zortman’s attorney was permitted (and did) make an opening
statement and the ALJ asked Zortman at the end of the hearing if there was anything she
8

would like to add that had not already been discussed. Zortman did make a statement.
Judge Roberts concluded this argument was without merit.
Finally, Judge Roberts considered Zortman’s argument that the ALJ relied on a
defective hypothetical. Judge Roberts explained that the ALJ posed four hypothetical
situations to a vocational expert (VE). Id. at 29. The second hypothetical included an
individual who could perform light work with postural and environmental limitations who
would need to shift between sitting and standing every two hours no more than five times.
Id. The limitations in this hypothetical ultimately aligned with the ones adopted in the
ALJ’s RFC determination. Id. The VE concluded that such an individual could perform
Zortman’s prior jobs and jobs in the light category, such as a cashier, cafeteria attendant
and counter clerk. Id. The VE noted the need to shift positions would align with
regularly scheduled work breaks. Id. The ALJ concluded that Zortman was capable of
performing her past work as a customer service manager or a general merchandise
salesperson. Id. Alternatively, the ALJ found she could perform other work that exists
in significant numbers in the national economy. Zortman argues the ALJ erred in relying
on the second hypothetical because it did not include Dr. Lukken’s opinion that Zortman
would have to miss three days of work per month and was unable to lift more than 10
pounds. Id.
Because Judge Roberts had already concluded the ALJ did not err in evaluating
Dr. Lukken’s medical opinion, he stated the ALJ was not required to include the properly
rejected limitations from Dr. Lukken’s opinion in the hypothetical to the VE. Id. He
found that the limitations the ALJ included in the hypothetical were supported by the
record and that other limitations that were left out were properly excluded for the reasons
stated by the ALJ. Therefore, Judge Roberts concluded the VE’s testimony constituted
substantial evidence and the ALJ did not rely upon a defective hypothetical. For all of
these reasons, Judge Roberts recommends that I affirm the ALJ’s decision and dismiss
Zortman’s case with prejudice.
9

IV.

DISCUSSION

Zortman objects to Judge Roberts’ R&R based on the following objections:
 The [R&R] errs in rejecting the opinion of Dr. Lukken and not giving it
controlling weight
 Given the conclusions reached by Dr. Lukken, if it is not rejected and given
weight, then the testimony of the Claimant is then supported by the opinion of
Dr. Lukken and therefore credible
 If arguments I and II as set forth above are found to be correct, then Argument
III follows suit in that the ALJ relied upon a defective hypothetical to the
Vocational Expert
 The case should remand the matter in difference [sic] to the treating physician’s
opinion if the Court chooses not to reverse this matter
See Doc. No. 20 at 4. As indicated above, Zortman’s objections all depend (to some
extent) on whether the treating physician opinions (specifically Dr. Lukken’s opinion)
are entitled to controlling weight. She contends, at the very least, the matter should be
remanded to give deference to those opinions. Id. I will consider the ALJ’s evaluation
of the medical opinions and Zortman’s subjective complaints, followed by the
hypothetical question to the VE in conducting my de novo review.
A.

Medical Opinions
Zortman argues that the ALJ’s statement that Dr. Lukken’s opinion represented

“more of an accommodation of the claimant’s pursuit of disability benefits rather than
objective assessment of her functional limitations” was not a good reason to discredit Dr.
Lukken’s April 2017 opinion. She notes that in August 2015, Dr. Lukken stated that he
was willing to assist Zortman with her disability application.

Zortman argues this

comment should not be used as a reason to discredit Dr. Lukken’s opinion two years later
in 2017. Id. at 5. Zortman also argues that the regulations support her argument that

10

the need to shift positions every two hours (a limitation included in the ALJ’s RFC
finding) is a serious problem. Id. at 6 (citing Social Security Regulation 1.00 at 1.04(b)).3
With regard to Dr. Garred’s opinions, Zortman argues the ALJ’s decision to give
his opinions little weight is based on a note in December 2012 that predated Zortman’s
alleged onset date by two years. Id. She also argues the ALJ rejected more recent
examinations by Dr. Garred. Finally, Zortman argues the state agency opinions should
not have been given more weight than the treating physician opinions because the state
agency reviewers never saw Dr. Lukken’s opinion. Id. at 7.
The Commissioner responds that Judge Roberts properly found that the ALJ gave
Dr. Lukken’s opinion less than controlling weight because it was inconsistent with
substantial evidence in the record. Doc. No. 21 at 2. The Commissioner notes that
Judge Roberts acknowledged that the length and frequency of Dr. Lukken’s treatment
relationship weighed in favor of giving his opinion substantial weight, but that despite
this treatment relationship, the treatment notes did not support Dr. Lukken’s opinion. Id.
at 3. Because the treatment notes lacked abnormal findings and did not support his
opinion, they were based on Zortman’s self-reported complaints. The Commissioner
argues the ALJ appropriately gave Dr. Lukken’s opinion less weight given that he did
not find Zortman’s subjective complaints to be entirely credible. Id. The Commissioner
3

Listing 1.04 address disorders of the spine. Listing 1.04(b) specifically addresses spinal
arachnoiditis and indicates it is “confirmed by an operative note or pathology report of tissue
biopsy, or by appropriate medically acceptable imaging, manifested by severe burning or painful
dysesthesia, resulting in the need for changes in position or posture more than once every 2
hours.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1 at 1.04(b). The ALJ considered Listing 1.04,
but there was a lack of evidence confirming the presence of spinal arachnoiditis. AR 21.
Nonetheless, it is unclear what Zortman’s argument is considering this Listing. She does not
argue that there is evidence in the record to support this Listing. Moreover, the ALJ
acknowledged Zortman would need to shift positions every two hours for no more than five
minutes at a time without needing to leave her workstation and included this limitation in the
RFC. To the extent Zortman argues this limitation prohibits work, that is refuted by the VE’s
testimony that Zortman could perform past relevant work and other jobs available in the national
economy with such a limitation. See AR 26-27; AR 63-66. Zortman provides no other basis
for challenging this finding outside of citing Listing 1.04(b).

11

also argues that Zortman’s entire course of treatment does not change the analysis because
Judge Roberts considered this in evaluating whether the ALJ’s reasons for assigning Dr.
Lukken’s opinion less than controlling weight were supported by substantial evidence in
the record as a whole. Id. at 3-4.
With regard to Dr. Garred’s opinions, the Commissioner argues Judge Roberts
appropriately found the ALJ provided good reasons for declining to give his opinion
controlling weight. The Commissioner also noted that Dr. Garred’s opinion does not
provide support for Dr. Lukken’s opinion. Id. at 4.
Finally, with regard to the state agency medical opinions, the Commissioner
argues the fact that the state agency consultants did not have an opportunity to review
Dr. Lukken’s opinion is not cause for reversal because, as Judge Roberts reasoned, that
opinion did not assist Zortman’s contentions and did not demonstrate a change in her
impairment. Id. at 4-5.
In reviewing the medical opinions in this case, I find it important to first clarify
which regulations govern the evaluation of medical opinions. Zortman’s claim was filed
in March 2015. This means the medical opinion evidence in her case is subject to a
different set of regulations than for claims filed after March 27, 2017. As of that date,
the ALJ need not defer or give any specific evidentiary weight to certain medical
opinions, but must consider the general “persuasiveness” of all medical opinions in the
record (not only acceptable medical opinions) according to various factors. Compare 20
C.F.R. § 404.1520c (applicable to claims filed on or after March 27, 2017) to 20 C.F.R.
§ 1527(c) (applicable to claims filed before March 27, 2017). Zortman’s claim falls
under 20 C.F.R. § 404.1527(c). This regulation provides:
(2) Treatment relationship. Generally, we give more weight to medical
opinions from your treating sources, since these sources are likely to be the
medical professionals most able to provide a detailed, longitudinal picture
of your medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations. If we find that a treating
12

source’s medical opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling weight.
When we do not give the treating source’s medical opinion controlling
weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of
this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this
section in determining the weight to give the medical opinion. We will
always give good reasons in our notice of determination or decision for the
weight we give your treating source’s medical opinion.
20 C.F.R. § 404.1527(c).
The ALJ stated the following with regard to Dr. Lukken’s opinion:
The claimant’s representative asserted in his prehearing brief that
Dr. Lukken’s opinion merits a finding of total disability in this matter
(Exhibit 25E), and while I have considered the opinion contained in Exhibit
12F, I am not entirely persuaded by it. Dr. Lukken suggested that the
claimant was generally unable to sustain even sedentary work activity and
would be absent from work more than three times per month. However,
his chart notes are generally devoid of significant abnormal clinical
findings, and while his opinion referenced weakness on examination, his
contemporaneous chart notes are generally silent as to consistent findings
of weakness. Moreover, the pain management notes are replete with
references to significant improvement in the claimant’s symptoms, and Dr.
Lukken’s notation in August 2015 that he “would be willing to assist” the
claimant in her pursuit of disability benefits (Exhibit 10F, p.64) strongly
suggests that his April 2017 opinion represents more of an accommodation
of the claimant’s pursuit of disability benefits rather than an objective
assessment of her functional limitations.
AR 26. The ALJ then discussed other medical evidence suggesting that while Zortman
had limitations, she was not totally disabled and that her functioning and symptomatology
had not deteriorated or worsened since 2014. Id.
With regard to Dr. Lukken’s 2015 statement that he was willing to assist Zortman
with her disability application being used as a reason to discount his 2017 opinion, I note
that this was only one of several reasons the ALJ provided in declining to give Dr.
Lukken’s opinion controlling weight. The other reasons were based on the medical
13

evidence (including Dr. Lukken’s own treatment notes) and whether that evidence
supported the disabling limitations provided by Dr. Lukken. These are good reasons for
declining to give Dr. Lukken’s opinion controlling weight. See Halverson v. Astrue, 600
F.3d 922, 931 (8th Cir. 2010) (“The ALJ noted the conflicting opinions regarding [the
claimant’s] ability to perform work activities and chose not to give controlling weight to
[the treating psychiatrist’s] opinion.”); Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir.
2009) (“It is permissible for an ALJ to discount an opinion of a treating physician that is
inconsistent with the physician’s clinical treatment notes.”); Reed v. Barnhart, 399 F.3d
917, 921 (8th Cir. 2005) (noting that it is appropriate to discount a treating physician’s
opinion where the limitations “stand alone” on a form and were never mentioned in the
physician’s records or treatment nor supported by any objective testing or reasoning).
They are also supported by substantial evidence. See AR 489-90 (treating note
dated March 10, 2015, indicating pain was at level 5, had good strength throughout and
no weakness); AR 498 (treatment note date April 9, 2015, indicating it was a bad month
with increased pain, which was exacerbated with prolonged standing or walking); AR
612-13 (treatment note dated June 30, 2015, indicating no new issues, “[p]atient did not
appear uncomfortable,” after receiving steroid injection at previous appointment); AR
609-10 (treatment note dated July 30, 2015, “[n]o weakness or problems in the lower
extremities” and recommending core conditioning and regular exercise); AR 598-99
(treatment note dated October 27, 2015, “I want her to stay physically active which she
is”); AR 581-82 (treatment note dated March 14, 2016, in which Zortman described her
pain at a 10 while sitting down and after reviewing the pain scale revised her rating to a
5); AR 567-68 (treatment note dated July 5, 2016, stating “[m]oving all extremities fairly
well” and “[m]edications are for the most part effective”); AR 545-65 (showing similar
findings through January 1, 2017); AR 664-75 (showing similar findings through April
10, 2017). I agree with Judge Roberts that the ALJ’s evaluation of Dr. Lukken’s opinion
is supported by substantial evidence in the record as a whole.
14

With regard to Dr. Garred’s opinions, Zortman takes issue with the 2012 statement
(“I think she could do that without injuring herself” in terms of returning to her job that
was “primarily sitting” in nature), attributed to him because it was made two years before
her alleged onset date. Judge Roberts correctly noted that this statement was made by
Dr. Michael Longley, not Dr. Garred, but nonetheless found the ALJ’s other reasons for
not giving Dr. Garred’s opinions controlling weight were supported by substantial
evidence.

I agree. Aside from the statement that was wrongly attributed to him, the

ALJ evaluated Dr. Garred’s opinions as follows:
I have also considered the narrative statements offered by her primary care
provider in February 2013 and May 2015 (Exhibit 9F). Those statements
generally fail to articulate specific functional limitations in terms of the
claimant’s physical capacity, and while some generalized limitations were
suggested in terms of her ability to sustain pain given her pain levels, that
suggestion appears at odds with the longitudinal pain management notes
reflecting quite effective symptomatic relief. Accordingly, those narrative
statements in Exhibit 9F are given little weight.
AR 25-26. As Judge Roberts noted, Dr. Garred explained Zortman’s history of lower
back issues after a lumbar laminectomy and revision surgeries in his February 2013 letter.
Doc. No. 19 at 17. He also explained her symptoms and the various treatments she has
tried. Id. He noted she has a little difficulty walking due to pain, no limits with her
upper extremities and was limited in moderate activities, lifting and carrying, climbing
stairs, stooping, climbing, kneeling and crawling.

Id.

He did not find any work

environment restrictions, but noted that her pace could be compromised due to pain and
her pain could also be expected to limit what she could do at certain times while on the
job. Id. The May 2015 letter essentially contained the same observations and opinions.
Id. He noted that she has attempted therapy and tried clinic injections for her pain. Id.
He also noted that a March 2015 MRI showed “satisfactory appearance” of various fusion
sites from previous surgeries and although there was mild hypertrophy, there were no
significant changes. Id.
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The only other criticism Zortman has with regard to the ALJ’s evaluation of Dr.
Garred’s opinions is that the ALJ rejected “later medical examinations by Dr. Garred.”
Doc. No. 20 at 6. However, she does not explain what these later medical examinations
showed or what additional limitations they purportedly support. Having reviewed Dr.
Garred’s treatment notes in the record following his May 2015 opinion, I do not see
anything that demonstrates a worsening of her condition or that would support greater
limitations than those adopted by the ALJ. Indeed, none of the treatment notes after May
2015 indicate that Zortman sought treatment for back pain from Dr. Gerrad. See AR
641 (treatment note dated October 30, 2015, in which Zortman sought a flu shot); AR
637-40 (treatment note dated January 19, 2016, in which Zortman sought treatment for
shoulder pain); AR 632-36 (treatment note dated September 19, 2016, in which Zortman
reported stress related to her family and a dog bite to her thumb that she wanted to take
care of before a trip to Orlando). I find the ALJ’s evaluation of Dr. Gerrad’s opinions
is supported by substantial evidence in the record as a whole.
Finally, with regard to the state agency medical consultant opinions, Zortman
argues these should not be entitled to great weight because the state agency medical
consultants did not have the opportunity to review Dr. Lukken’s opinion. Judge Roberts
addressed this argument in his R&R and reasoned Dr. Lukken’s opinion did not assist
Zortman’s contentions and did not demonstrate a change in her impairment. Doc. No.
19 at 14-15. Specifically, Dr. Lukken’s treatment notes continued to state that her
“musculoskeletal strength and sensation in the lower extremities was grossly intact and
no deficits were appreciated” (AR 605, 615) and that her lumbosacral spine motion, gait,
and stance were all normal (Id. at 546, 561, 572, 590, 671-72). Id. He also noted that
with regard to Zortman’s subjective pain, the later treatment notes reflected her reports
that the injections and medication were helping. Id. (citing AR 442, 462, 470, 474, 486,
548, 552, 560, 567, 571, 578, 585, 589, 595, 665-66, 674).
I agree that the state agency medical consultants’ lack of opportunity to consider
Dr. Lukken’s opinion is not cause for reversal or remand, especially considering the
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ALJ’s reasons for finding that opinion was not entitled to controlling weight. The state
agency medical consultants did consider Dr. Garred’s opinion and treatment records from
Dr. Lukken, prior to May 2015 and June 2015 when they issued their respective opinions.
See AR 71-95. As Judge Roberts noted, this is not unusual in Social Security cases. See
Doc. No. 19 at 14. The later treatment records did not demonstrate a worsening of
Zortman’s condition. Id. at 14-16.
In sum, I agree with Judge Roberts regarding the ALJ’s assessment of the medical
opinion evidence. The ALJ provided good reasons for weighing the medical opinions as
he did. These reasons and the ALJ’s RFC finding are supported by substantial evidence
in the record as a whole.
B.

Zortman’s Subjective Complaints
Zortman argues that her subjective complaints are consistent with Dr. Lukken’s

opinion and that if Dr. Lukken’s opinion is given proper weight, then her subjective
complaints should also be considered credible and supported by the medical evidence.
For the reasons described above, I find that the ALJ did not err in assigning less than
controlling weight to Dr. Lukken’s opinion. Zortman does provide any other criticisms
to the ALJ’s analysis of her subjective complaints.
Having conducted a de novo review, I agree with Judge Roberts that the ALJ’s
reasons for discrediting the severity of Zortman’s subjective complaints are supported by
substantial evidence in the record as a whole. See Doc. No. 19 at 21-27. The ALJ
considered the Polaski factors and found that her work-related limitations were not as
severe as alleged. The ALJ properly rejected the severity of Zortman’s symptoms and
limitations as alleged.
C.

Hypothetical Question to the VE
Zortman’s last objection also relies on a finding that Dr. Lukken’s opinion should

have been given greater weight. As stated above, I find that the ALJ gave good reasons
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for giving his opinion less than controlling weight, which are supported by substantial
evidence in the record as a whole. Zortman makes no other arguments as to why the
ALJ’s hypothetical question to the VE was defective. The ALJ provided hypothetical
questions to the VE based on both the limitations that were ultimately adopted in the RFC
and the limitations identified by Dr. Lukken in his opinion. Having given Dr. Lukken’s
opinion less than controlling weight, the ALJ was justified in relying on the hypothetical
containing only the limitations the ALJ found were supported by the record.
Having conducted a de novo review, I find no error with this aspect of the ALJ’s
decision and agree with Judge Roberts that the hypothetical question the ALJ ultimately
relied on was supported by substantial evidence in the record as a whole. See Doc. No.
19 at 28-30.
V.

CONCLUSION

For the reasons set forth herein:
1.

Zortman’s objections (Doc. No. 20) to the Report and Recommendation
(Doc. No. 19) are overruled.

2.

I accept Judge Roberts’ Report and Recommendation (Doc. No. 19)
without modification. See 28 U.S.C. § 636(b)(1).

3.

Pursuant to Judge Roberts’ recommendation:
a.

the Commissioner’s determination that Zortman was not disabled is
affirmed; and

b.

Judgment shall enter in favor of the Commissioner.

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IT IS SO ORDERED.
DATED this 19th day of August, 2019.

__________________________
Leonard T. Strand, Chief Judge

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