Knibbe v. Commissioner of Social Security

Filing 23

MEMORANDUM Opinion and Order Accepting 21 Report and Recommendation. Commissioners determination that Knibbe was not disabled is affirmed; judgment shall enter in favor of the Commissioner. Signed by Chief Judge Leonard T Strand on 8/12/2019. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SHAWN ALAN KNIBBE,
No. C18-4043-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. 21. Judge
Roberts recommends that I affirm the decision by the Commissioner of Social Security
(the Commissioner) denying Shawn Alan Knibbe’s application for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security
Act (the Act), 42 U.S.C. §§ 401-34, 1381-83f. Knibbe filed timely objections (Doc. No.
22). The Commissioner did not file a response. 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.

11

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

Knibbe applied for disability insurance benefits and supplemental security income
on December 9, 2014, alleging disability beginning December 1, 2014, due to
Parkinson’s disease, shoulder pain and lack of strength. Doc. No. 21 at 2 (citing AR 24,
303). After a hearing, an Administrative Law Judge (ALJ) applied the familiar five-step
evaluation and found that Knibbe was not disabled as defined in the Act. Knibbe argues
the ALJ erred by: (1) improperly weighing the medical evidence in the record, (2)
improperly considering Knibbe’s subjective complaints, and (3) basing the residual
functional capacity (RFC) on an improper hypothetical question posed to the vocational
expert (VE) during the hearing. Judge Roberts addressed each argument separately.
With regard to the weighing of the medical evidence, Knibbe argues the ALJ erred
in “rejecting the opinion of the treating physicians and relying upon the opinions of the
non-examining doctors.” Id. at 7 (citing Doc. No. 17 at 3). He also argues that the ALJ
erred by rejecting both the treating physician and state agency physician opinion in favor
of the ALJ’s own unsupported opinion that Knibbe was limited to sedentary work. Id. at
7-8. He argues his testimony was consistent with the limitations and symptoms described
in his medical records. Finally, he asserts the ALJ failed to mention the treatment notes
of his physician, Dr. Bhatti. Id. at 8.
Judge Roberts noted that the record identified Dr. Case, Dr. Bertoni and Dr. Bhatti
as Knibbe’s treating sources. Id. Judge Roberts identified Dr. Case as Knibbe’s main
4

treating physician. Dr. Case provided a medical source opinion on April 9, 2015, in
which he opined Knibbe could: sit for eight hours in an eight-hour workday, stand/walk
for three hours in an eight-hour workday, occasionally lift ten pounds or less, rarely lift
20 pounds, never lift 50 pounds, occasionally twist and stoop, rarely crouch/squat and
climb stairs, never climb ladders, use each of his hands to grasp, turn and twist objects
50 percent of an eight-hour workday, use his fingers for fine manipulation 50 percent of
an eight-hour workday and reach (including overhead reaching) 25 percent of an eighthour workday. Id. at 9 (citing AR 468). He would also need to shift positions at will
from standing, walking and sitting. Id. Dr. Case found Knibbe’s symptoms were rarely
severe enough to interfere with the attention and concentration needed to perform simple
work tasks, but that Knibbe would be absent from work on average about three days per
month. Id. (citing AR 469).
The ALJ gave Dr. Case’s opinion “little weight” because it was inconsistent with
the medical evidence in the record, did not include “any rationale for these limitations”
and was inconsistent with Dr. Case’s own treating notes from April 9, 2015. Id. at 910. Judge Roberts agreed that Dr. Case’s treatment notes did not provide a basis for his
opinion. Id. at 10. He then considered whether the ALJ’s reasons for giving Dr. Case’s
opinion less than controlling weight were supported by substantial evidence based on the
factors under 20 C.F.R. §§ 404.1527(c), 416.927(c).
The first factor is the examining relationship. Judge Roberts noted that Dr. Case
examined Knibbe as his treating neurologist seven times between December 2, 2013, and
April 9, 2015, prior to providing his opinion in this case. Id. at 12. As a treating
physician, Judge Roberts noted that Dr. Case’s opinion was entitled to greater weight
unless it was not supported by substantial evidence on the record as a whole. For reasons
discussed below, he agreed with the ALJ that Dr. Case’s opinion was not supported by
substantial evidence on the record as a whole.
examining relationship a neutral factor.
5

Id.

Judge Roberts considered the

The second factor is the treatment relationship. Given that Dr. Case was a treating
source and had treated Knibbe for his Parkinson’s disease, Judge Roberts concluded this
factor weighed in favor of giving Dr. Case’s opinion increased weight. Id.
The third factor is supportability. Judge Roberts noted that Dr. Case stated he
based his opinion on “physical assessments, over time.” Id. (citing AR 469). While this
indicated some basis for his opinion, Judge Roberts noted that it provided little
information to determine whether Dr. Case’s conclusions were supported because he did
not document the types of deficiencies he noticed, the tests he ran and the interventions
he attempted to help mediate Knibbe’s symptoms. Id. at 12-13. Judge Roberts agreed
with the ALJ that the checklist format and lack of support within Dr. Case’s opinion
justified giving it less weight. Id. at 13. Judge Roberts noted the ALJ also found Dr.
Case’s opinion was inconsistent with his own treatment notes. Id. With regard to
anticipated absences of three days per month, the ALJ found there was no documentation
to support this limitation such as missed appointments or other important events. Id.
Judge Roberts reviewed Dr. Case’s treatment notes and agreed there was no mention of
missed events in Knibbe’s life among the otherwise comprehensive discussion of all
relevant topics covered in Dr. Case’s examinations of Knibbe. Id. Finally, the ALJ cited
inconsistencies in Dr. Case’s treatment notes dated the same day as his opinion. Id. Dr.
Case found that Knibbe exhibited fine finger dexterity, did not have tremors and could
twist, stoop and bend at the waist. Id. at 14. However, his opinion limited the amount
that Knibbe could be expected to perform these tasks in the workplace. Judge Roberts
concluded the record supported this reason as well.
While some of the limitations expressed in Dr. Case’s opinion were supported by
his treatment notes, others were not. For example, Judge Roberts noted there was nothing
in Dr. Case’s treatment notes to support the lifting limitations he had identified. Indeed,
there was no indication that Dr. Case had ever tested Knibbe’s lifting limits or that Knibbe
had ever reported difficulties with lifting. The only thing close to a lifting limitation
6

(other than Knibbe’s overall diagnosis of generalized bradykinesia2), was a March 31,
2014, note stating Knibbe’s strength was “normal” and a June 20, 2014, treatment note
documenting Knibbe’s report that he “[felt] weak and encumbered trying to work
overhead.” Id. (citing AR 454, 456). Judge Roberts reasoned that while there was some
evidence in Dr. Case’s treatment notes supporting his opinion, there was other evidence
that did not. He concluded this factor supported the ALJ’s decision to give Dr. Case’s
opinion little weight.
The fourth factor is consistency. The ALJ determined that Dr. Case’s opinion
was not supported by other evidence in the record as a whole and cited to specific pages
documenting that Knibbe did not have “debilitating tremors or severe range of motion
limitations.” Id. at 14-15 (citing AR 30). Upon reviewing the record, Judge Roberts
agreed with the ALJ that Dr. Case’s opinion was not supported by the record as a whole
and cited specific inconsistencies. He concluded this factor supported giving Dr. Case’s
opinion limited weight. Id. at 15.
The fifth factor is specialization.

Judge Roberts noted that Dr. Case is a

neurologist who gave an opinion in his area of expertise about a patient under his care.
Id. While Dr. Case’s opinion was not supported by the record as a whole, Judge Roberts
concluded that this factor weighed slightly in favor of giving the opinion more weight.
Id.
Finally, Judge Roberts discussed other factors. With regard to a specific walking
limitation of 200 feet without an assistive device that Knibbe cited from a one-sentence
letter written by Dr. Case on September 16, 2015, Judge Roberts noted this limitation
was not supported by Dr. Case’s own treatment notes. Id. at 16. He noted the narrative
sections of Dr. Case’s treatment notes did not document that Knibbe discussed walking
difficulties with Dr. Case or that Knibbe reported the need to use an assistive device when

2

A decrease in spontaneity and movement. See Stedman’s Medical Dictionary 117350 (28th ed.
2006).

7

walking. Id. While Dr. Case described Knibbe’s walking as “quite slow for age with
slow turns,” Judge Roberts noted there was no support in the record for a 200-foot
walking distance limitation as Knibbe alleged. Id. at 16-17. Judge Roberts concluded
that the ALJ’s decision to assign “little weight” to Dr. Case’s opinion was supported by
substantial evidence in the record as a whole. Id. at 17.
Judge Roberts next considered the opinion of Dr. Bertoni, who completed a onepage check box form at the request of Knibbe’s attorney dated May 11, 2015. Id. (citing
AR 470). Dr. Bertoni has treated Knibbe for his Parkinson’s disease since November
2014. Id. Dr. Bertoni marked that Knibbe had significant rigidity and bradykinesia and
that those conditions resulted in the following limitations: sustained disturbance of gross
and/or dexterous movement and sustained disturbance of gait and/or station. Id. This
was the entire extent of his opinion. The ALJ gave his opinion “little weight” because
Dr. Bertoni did not support his opinion with references to medical evidence and because
the record as a whole did not support these conclusions. Id. at 18.
Judge Roberts considered the same six factors in analyzing the ALJ’s decision with
regard to Dr. Bertoni’s opinion. As to the examining relationship, Judge Roberts noted
that Dr. Bertoni stated he had been treating Knibbe for six months at the time he provided
his opinion. Id. Judge Roberts noted there were no treatment notes in the record
confirming this treatment and found this factor weighed in favor of giving Dr. Bertoni’s
opinion little weight.
With regard to the “treatment relationship” factor, Judge Roberts concluded this
factor was neutral. Id. at 19. While the record did not support a six-month treatment
relationship, there was evidence that Dr. Case had referred Knibbe to Dr. Bertoni, which
suggested he was a treating source at some point.
As to supportability, Judge Roberts noted Dr. Bertoni did not provide any support
for his opinions and there are no treatment notes from him in the record. Id. He also
noted the check box format was cursory and perfunctory and limited the author’s choices
by providing only two options for each query. The format also assumed that the patient
8

was already experiencing “significant” or “sustained” symptoms from his Parkinson’s
disease. There was no documentation or citation to any tests, clinical observations or
narration of impressions by Dr. Bertoni in the record. Id. Judge Roberts agreed with
the ALJ that the lack of references to medical evidence justified giving Dr. Bertoni’s
opinion little weight. Id. at 19-20.
In evaluating the consistency factor, Judge Roberts agreed with the ALJ that
although there was some support for some of Dr. Bertoni’s conclusions (particularly
rigidity and bradykinesia), there was also evidence Knibbe had full strength, which
undermined his findings. Id. at 20. With regard to his findings of sustained disturbance
of gross and/or dexterous movement or sustained disturbance of gait and/or station, Judge
Roberts noted there was no evidence in the record to support such a limitation and cited
evidence that suggested at most moderate disturbance related to gross and/or dexterous
movement, but only with action. Id. Judge Roberts concluded this factor weighed in
favor of giving Dr. Bertoni’s opinion little weight. Id. at 21.
Finally, with regard to specialization, Judge Roberts considered this factor neutral
given Dr. Bertoni’s specialization as a neurologist. However, as noted above, his opinion
was not supported by the record. There were no other factors relevant to Dr. Bertoni’s
opinion and Judge Roberts found the ALJ’s decision to give Dr. Bertoni’s opinion little
weight was supported by substantial evidence in the record as a whole. Id.
Judge Roberts next considered the treatment notes of Dr. Bhatti, who did not
provide a formal medical opinion. Knibbe argues that the ALJ did not adequately
consider or address Dr. Bhatti’s findings. Id. Judge Roberts disagreed, noting that the
ALJ’s decision contained five citations to Dr. Bhatti’s treatment notes and eight citations
to treatment notes from one of Knibbe’s appointments with Dr. Bhatti. Id. at 21-22.
Another exhibit containing Dr. Bhatti’s treatment notes was cited three times in the ALJ’s
decision.

Judge Roberts concluded the ALJ thoughtfully considered Dr. Bhatti’s

treatment notes and used them to support his conclusions.
9

Contrary to Knibbe’s argument, Judge Roberts concluded the regulations do not
require the ALJ to “weigh” findings, records or treatment notes. Id. at 22 (citing 20
C.F.R. §§ 404.1520c, 404.1527). Rather, the ALJ is required to weigh “opinions” from
treating sources and Dr. Bhatti did not provide an opinion in this case. Id. Judge Roberts
concluded the records cited by Knibbe are treatment notes rather than opinions. The ALJ
took the findings in these treatment notes into account when formulating the RFC, but he
was not required to “weigh” them as asserted by Knibbe. Id. at 23.
Judge Roberts finally considered the opinions of the state agency physicians – Dr.
Byrnes and Dr. May. Id. The ALJ gave these opinions “minimal weight” because
Knibbe’s Parkinson’s disease and shoulder impingements prevented him from doing the
weight lifting required for “light exertional activities” that the state agency physicians
opined Knibbe could do. Judge Roberts noted the ALJ found Drs. Byrnes and May did
not adequately consider the combination of Knibbe’s impairments and did not have the
benefit of the hearing evidence. Id. at 23-24. Based on the ALJ’s review of the medical
evidence as a whole, he determined that Knibbe was capable only of performing work at
a sedentary level. Id. at 24.
Judge Roberts then addressed Knibbe’s argument that because the ALJ did not
give controlling or great weight to any medical opinion in the record, the ALJ’s RFC
was not supported by medical evidence. Id. (citing Doc. No. 17 at 4). Judge Roberts
noted that the ALJ found Knibbe was more limited than provided in any of the medical
opinions and, while he did not give any particular medical opinion controlling weight, he
did rely on supporting evidence from the medical opinions in crafting the RFC. Id. at
25. Judge Roberts noted that the RFC incorporated some limitations from each medical
opinion and that the remaining limitations in the RFC were supported by medical evidence
and substantial evidence in the record as a whole. Judge Roberts found no error with
respect to the ALJ’s formulation of the RFC based on the medical evidence, including
the weight he assigned to the medical opinions. Id. at 26.
10

Judge Roberts then addressed Knibbe’s argument that the ALJ erred in discounting
Knibbe’s subjective complaints. Id. He noted the ALJ found that Knibbe’s symptoms
were not as severe as alleged based on the treatment notes, in which Knibbe’s physicians
consistently encouraged him to exercise and be active and did not disclose severe tremors,
loss of grip strength, an inability to write legibly or severe cognitive limitations. Id. at
28. The treatment notes indicated Knibbe had full range of motion, intact neurological
senses and “normal strength throughout his musculoskeletal systems.” Id. The record
also contained evidence that Knibbe performed household chores, maintained social
relationships, completed shopping errands, drove, went fishing and used a computer. Id.
Judge Roberts noted the ALJ cited to the record in support of his conclusions and
discussed particular evidence that he found inconsistent with Knibbe’s subjective
complaints. Id. After conducting his own review of the record, Judge Roberts agreed
that the record as a whole did not support the extent of Knibbe’s subjective allegations.
He then went on to discuss the ALJ’s examination of the individual Polaski factors. Id.
at 29-33. Judge Roberts concluded the ALJ properly considered Knibbe’s subjective
complaints, discussed all of the Polaski factors and supported his decision by citing
substantial evidence on the record as a whole.
The final argument Judge Roberts considered was whether the ALJ’s hypothetical
question to the VE was supported by substantial evidence. Id. at 33. He noted that the
third hypothetical posed to the VE contained the limitations ultimately adopted in the
RFC. Id. (citing AR 27, 80-81). The VE found that with these limitations the individual
could work as a document preparer, telephone quotation clerk or addressing clerk. Id.
The ALJ posed a fourth hypothetical in which he changed the ability to finger frequently
to the ability to finger occasionally. Id. at 34. The VE noted that this change would
preclude all the previously identified jobs and only the job of callout operator would allow
those limitations. Id. The VE added that a person could perform all of the previously
identified jobs if the person was allowed to stretch for a full minute out of every hour to
“increase his comfort,” and that if the fourth hypothetical was changed such that the
11

person could occasionally reach and was limited to infrequent handling and fingering, 93
percent of the jobs were no longer available. Id. The VE also determined that absences
of three days per month would preclude all work. Id.
Knibbe argues that the hypothetical the ALJ relied on did not fully take into
account all of Knibbe’s limitations. Specifically, Knibbe argues that the record does not
support sedentary work given that Dr. Case stated Knibbe could not work. Id. (citing
Doc. No. 17 at 10-11). The hypothetical also did not include the restrictions and
limitations identified by Drs. Bertoni and Bhatti regarding his tremors, limitations in
reaching, problems with his gait, problems remembering things and problems with being
understood when he speaks. Id. It also did not account for his fatigue and tiredness. Id.
He argues the job of callout operator is particularly inappropriate given his “problems
with his voice and being heard.” Id. (citing Doc. No. 17 at 9).
Judge Roberts noted that nowhere in Dr. Case’s letter, or anywhere else in the
record, did Dr. Case state that Knibbe could not work. Although Dr. Case stated that
Knibbe was disabled, Judge Roberts noted this is not the same standard and that people
with disabilities work every day. Id. at 35. Judge Roberts noted that Dr. Case had also
checked the blank that Knibbe was capable of working in a low stress job and had been
presented the option of checking that Knibbe was incapable of working. Id. Finally, he
noted that even if Dr. Case had opined that Knibbe could not work, the ALJ could have
appropriately disregarded that opinion because such a finding is reserved solely for the
Commissioner.
With regard to Drs. Bertoni and Bhatti, Judge Roberts noted that Knibbe did not
cite any records regarding the specific limitations he asserts should have been included
in the hypothetical. Id. at 36. Moreover, Judge Roberts previously determined that the
ALJ properly weighed Dr. Bertoni’s opinion and there was no opinion from Dr. Bhatti
in the record for the ALJ to weigh. Dr. Bhatti’s treatment notes supported the limitations
identified by the ALJ in the RFC and hypothetical. While Dr. Bhatti did diagnose Knibbe
with hypophonia (a speech disorder) and documented his slurred and soft speech, he
12

nonetheless found Knibbe’s speech understandable during all but his first examination in
November 2014. Id. The ALJ also had no difficulties understanding Knibbe during the
hearing except for instances where he had to ask him to speak up. Id. at 37. Finally,
with regard to his assertions of fatigue and tiredness, Judge Roberts noted that Knibbe
testified that he had a full day of activities the day before his hearing and did not mention
the need to rest. The record was also absent of references to the need to take prolonged
rest breaks during the day that could not be accommodated in the workplace. Judge
Roberts noted the sedentary RFC was designed to accommodate Knibbe’s tendency to get
fatigued. Judge Roberts concluded the ALJ incorporated all impairments that the ALJ
found supported by the record into the hypothetical.
For all of these reasons, Judge Roberts recommends that I affirm the decision of
the ALJ and dismiss Knibbe’s case with prejudice.
IV.

DISCUSSION

Knibbe has the following objections to the R&R:
 The [R&R] errs in rejecting the opinions of Dr. Case, Dr. Bertoni and Dr.
Bhatti and not giving them controlling weight
 Given the conclusions reached by Dr. Case, Dr. Bertoni and Dr. Bhatti, if they
are not rejected and given weight, then the testimony of the Claimant is then
supported by the opinion of Dr. Case, Dr. Bertoni and Dr. Bhatti 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 [sic] 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. 22 at 4. As indicated above, Knibbe’s objections all depend (to some
extent) on whether the treating physician opinions are entitled to controlling weight. He
13

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 Knibbe’s
subjective complaints, followed by the hypothetical question to the VE in conducting my
de novo review.
A.

Medical Opinions
Knibbe argues that the ALJ correctly acknowledged that Dr. Case, Dr. Bertoni

and Dr. Bhatti are all experts in their field of treating individuals with Parkinson’s disease
and have an examining/treating relationship with Knibbe. Doc. No. 22 at 7. Each of
these factors increases the weight that should be given to these opinions. Id. Knibbe
also argues that the opinions of these providers are consistent with each other and
consistent with the treatment notes. He notes that the symptoms of Parkinson’s disease
may vary from appointment to appointment and that these inconsistencies should not be
used to discount the treating physician opinions because such inconsistencies are a
symptom of the condition itself. He argues these opinions should be given more weight
than the state agency medical consultant opinions. He also argues that his subjective
complaints support the opinions of his treating physicians.
Knibbe’s objections to the R&R mirror his initial arguments rather than pointing
to any aspect of the record that Judge Roberts failed to consider or overlooked. As
summarized above, Judge Roberts discussed in great detail each of the factors under 20
C.F.R. §§ 404.1527(c), 416.927(c), as they applied to the opinions of Dr. Case and Dr.
Bertoni and whether the ALJ’s assigned weight to those opinions was supported by
substantial evidence. See Doc. No. 21 at 11-23. He noted that Dr. Bhatti did not provide
an opinion, but the ALJ adequately considered his treatment notes. See supra pages 510.

Judge Roberts also discussed the state agency medical consultant opinions. Id. at

10. I find it unnecessary to repeat that analysis here. Having conducted my own de novo
review of the record and the ALJ’s decision, I agree with Judge Roberts’ analysis. The
14

ALJ provided good reasons supported by substantial evidence in the record for weighing
the medical opinions as he did.
With regard to Knibbe’s argument that the ALJ failed to take into account the
nature of Knibbe’s Parkinson’s disease, the ALJ noted:
More recently in February 2017, he reported that his condition did not
deteriorate and that ‘he has not noticed any change in his Parkinson
symptoms.’ He has reported that his most bothersome symptoms were
tremors at peak dose times and if he does not take his medications, his
symptoms increased. His medication regime was adjusted and the followup treatment notes do not describe intensive tremors. He reported that he
was able to drive 3.5 hours at a time, further suggesting his condition was
not as limiting as described. During a later visit, he specifically stated that
his medication adjustment improved his symptom control.
AR 29. The ALJ also remarked that despite numerous in-office examinations, severe
tremors, loss of grip strength, inability to write legibly or severe cognitive limitations
were never noted. AR 28. His physicians consistently noted full ranges of motion, intact
neurological senses and normal strength throughout his musculoskeletal systems. Id. at
28-29. Knibbe does not cite anything in his objections demonstrating a significant
variance or deterioration in his symptoms.

The ALJ took the nature of Knibbe’s

Parkinson’s condition into account by finding he was more limited than identified by the
state agency consultants. Id. at 31. He remarked that Knibbe did exhibit some tremors,
a slower gait and he required consistent medical examinations to measure the progression
of his Parkinson’s. Id.
I find the ALJ adequately took into account the nature of Knibbe’s condition and
the full range of symptoms that he experienced. I disagree that the record supports the
more severe symptoms identified by Dr. Case and Dr. Bertoni in their opinions or as
suggested by Knibbe.3 This was not a situation in which the ALJ ignored more severe

3

For the reasons discussed below, I do not find that Knibbe’s subjective complaints (when
properly weighed) support the treating physician opinions.

15

symptoms in the record and based his RFC only on the “good days” that Knibbe
experienced. Had more severe symptoms appeared consistently in the record that were
not amenable to treatment, the ALJ would have erred in failing to consider them.
However, as noted by the ALJ and Judge Roberts, the treatment notes suggest that
Knibbe’s symptoms were well-controlled with medication and did not show significant
deterioration. While Knibbe’s Parkinson’s condition is generally progressive, this does
not necessarily mean that, at this time, it has progressed to the point where Knibbe is
unable to perform all work available in the national economy with the limitations
supported by the record.
Overall, I find no error with regard to the ALJ’s assessment of the medical
evidence and medical opinion evidence in the record and find that the ALJ’s reasons for
discounting certain aspects of the medical opinions is supported by substantial evidence
in the record as a whole as is the ALJ’s overall RFC assessment.
B.

Knibbe’s Subjective Complaints
Knibbe argues that his subjective complaints are consistent with the treating

physician opinions and provide a separate basis to give those opinions great weight. He
notes that his testimony reveals the following issues: weak in both hands and tremors,
problems with writing, problems reading because he falls asleep, weakness in both hands
and arms, loses balance, problems with steps/stairs, getting out of a chair, weakness and
loss of strength and grip, dexterity in his hands so he cannot tie his shoes, problems with
buttons and dressing himself and soft speech among others. Doc. No. 22 at 8 (citing AR
52-61). He contends the treatment notes from the University of Nebraska Medical Center
support these limitations.

Id. (citing Doc. No. 16 at 5-10).

Specifically, Knibbe

references a treatment note stating his medication was not working and he was
deteriorating at a fast rate. Id (citing AR 383). He also argues that the “ALJ also talks
about Dr. Case in April 2015 as to his ability to work which is different than what was
16

said later on.” Doc. No. 22 at 8-9. He cites the ALJ’s decision, but not “what was said
later on” that was different from Dr. Case’s April 2015 opinion.
The ALJ stated the following with regard to Knibbe’s subjective complaints:
The claimant testified that his main barrier to employment was due
[to] his symptoms related to Parkinson’s disease. He reported that he
experienced grip strength weakness, difficulty rising from a seated
position[], difficulty walking backwards, poor balance control, bilateral
hand tremors, and decreased concentration. With regard to functional
limitations, the claimant alleged his impairments have negatively affected
his ability to lift, squat, bend, reach, walk, kneel, talk, climb stairs,
concentrate, and use his hands. Despite these allegations, he stated that he
was able to perform household chores, maintain social relationships,
complete shopping errands, drive an automobile, go fishing on warm
weekends, and use a computer.
Overall, the medical record does not support his subjective
allegations. The progress notes submitted by his treating physicians
describe some symptoms but not to the level that the claimant described.
The claimant was also encouraged to maintain a regular exercise and
activity routine, also suggesting his condition was not as limiting as
described. The claimant participated in numerous in-office examinations.
The examination results do not describe severe tremors, loss of grip
strength, the inability to write legibly, or severe cognitive limitations.
Conversely, his physicians continually noted full ranges of motion, intact
neurological senses, and normal strength throughout his musculoskeletal
systems.
AR 28-29 (internal citations omitted). The ALJ went on to describe specific medical
evidence that addressed Knibbe’s reported symptoms and his ability to perform workrelated functions. AR 29-30.
Judge Roberts found the ALJ properly weighed Knibbe’s subjective complaints
according to the Polaski factors. He noted that the ALJ found the medical records did
not document Knibbe’s symptoms at the level described, but indicated Knibbe had full
range of motion, intact neurological senses and normal strength throughout his
musculoskeletal systems. These findings were supported by citations to the record.
Judge Roberts examined each of the Polaski factors himself to determine if the ALJ’s
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conclusions were supported by substantial evidence in the record as a whole and found
that they were. Doc. No. 21 at 28-33.
The specific treatment note referenced by Knibbe is dated November 7, 2014, and
reflects Knibbe’s first visit to the University of Nebraska Medical Center’s Movement
Disorders Clinic for evaluation of Parkinsonism. AR 377. Dr. Bhatti made the following
assessment: “Stage 2 Parkinsonism; 45 year old male with young onset parkinsonism
starting around age 43-44 with relatively rapid progression and decreased response to
medications.” AR 383. He also noted that the onset began in early 2013 with anosmia4
and was soon followed by tremors, akinesia5 and rigidity and rapid involvement of both
sides. Id. He prescribed new medication for Knibbe and ordered additional testing. Id.
at 384.
As Judge Roberts noted, “[w]hile this treatment note acknowledges the rapid
progression Claimant was experiencing at the time, and the progressive nature of
Parkinson’s disease, in general, it does not account for the symptom improvement
Claimant has experienced over the years after trying new medication regimens.” Doc.
No. 21 at 31. Judge Roberts noted that both Dr. Case and Dr. Bhatti described Knibbe’s
tremors as “absent, “slight,” “mild,” and “moderate.” Id. I agree that this notation
from Knibbe’s first visit does not support a finding that Knibbe’s medication is not
working and “he [i]s deteriorating a fast rate.” Doc. No. 22 at 8. While that may have
been Dr. Bhatti’s impression at Knibbe’s first visit, it does not represent his current status
as evidenced by later treatment notes showing that his medication is working to control
his symptoms and the progression of his conditions slowed or remained stable. This
treatment note does not support the severity of limitations as alleged by Knibbe.

4

Loss or absence of the sense of smell. See Stedman’s Medical Dictionary 44980 (28th ed.
2006).
5

Absence or loss of the power of voluntary movement. See Stedman’s Medical Dictionary
18980 (28th ed. 2006).

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With regard to Dr. Case’s April 2015 opinion not being consistent with “what was
said later on,” I can only speculate as to what Knibbe is referring to since he does not
cite to anything in the record. See Doc. No. 22 at 8-9.

My guess is a September 16,

2015, letter in which Dr. Case stated: “The above mentioned meets the definition of
handicapped due to an inability to walk in excess of 200 feet without assistance. This
handicap is permanent.” AR 489. It appears this note was written for purposes of
obtaining a permanent handicapped parking status. See AR 622 (“Based on his gait
difficulties and fatigue, I believe Shawn does qualify for a permanent handicapped
parking sticker, and have recommended he take our letter to receive one.”). Dr. Case’s
opinion in that letter has no impact as to whether Knibbe meets social security disability
requirements and does not support the severity of limitations as alleged by Knibbe. I
have found no other opinion expressed by Dr. Case in the record that is contrary to his
April 2015 opinion.
As the ALJ noted, there is no question that Knibbe experiences symptoms related
to Parkinson’s and that it is progressive. The relevant question is the extent to which
those symptoms interfere with work and whether Knibbe can perform work available in
the national economy with certain work-related limitations supported by the record. This
must be measured by what is in the record now and not speculation as to what limitations
Knibbe may have in the future. The ALJ considered and incorporated many of Knibbe’s
symptoms in crafting the RFC. Indeed, he gave the opinions of the state agency medical
consultants minimal weight because those opinions did not fully account for all his
impairments. While the disease may progress further to the point that Knibbe is no longer
able to perform work-related functions, the record before the ALJ does not support that
he has reached that point.
Based on my de novo review, I find no error in the ALJ’s assessment of Knibbe’s
credibility. The ALJ discussed the Polaski factors in assessing Knibbe’s credibility with
regard to his subjective complaints. The ALJ’s reasons for declining to fully credit
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Knibbe’s subjective complaints are supported by substantial evidence in the record as a
whole.
C.

Hypothetical Question to the VE
Knibbe’s last objection relies on a finding that the treating physician opinions and

Knibbe’s subjective complaints should have been given greater weight. He argues that if
the treating physicians and Knibbe are believed, then the hypothetical questions are
defective. See Doc. No. 22 at 9. As stated above, I find that the ALJ gave good reasons
for giving the treating physician opinions less than controlling weight and not fully
crediting Knibbe’s subjective complaints. These reasons are supported by substantial
evidence in the record as a whole.
As Knibbe acknowledges, the ALJ asked the VE a hypothetical question involving
sedentary work with additional restrictions identified in the RFC. Doc. No. 22 at 9. The
VE responded that jobs such as document preparer, telephone clerk and addressing clerk
would be available. Id. (citing AR 82). If the individual’s fingering ability was changed
from frequently to occasionally, one job (callout operator) would be available in the
national economy with the other limitations remaining the same. AR 82. Knibbe argues
that he has difficulties with his voice and being heard so this job would not be appropriate.
Doc. No. 22 at 9-10.
Judge Roberts considered this argument and noted that while Knibbe was
diagnosed with a voice impairment and slurred and soft speech was documented in the
record, Dr. Bhatti found Knibbe’s speech understandable during all but his first
examination in November 2014. Doc. No. 21 at 36-37. The ALJ was also able to
understand Knibbe during the hearing except for two instances when he had to ask him
to speak up. Id. He also noted the transcript was very clean, indicating that the court
reporter was able to understand Knibbe. Id. Ultimately, the ALJ adopted an RFC with
frequent fingering (AR 27) so this is a non-issue, especially because Knibbe does not
challenge the fingering limitation.
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Knibbe does argue that the ALJ’s hypothetical (and RFC) of sedentary work does
not take into account all of Knibbe’s limitations because Dr. Case says he cannot work.
Doc. No. 22 at 11. He also argues that the hypothetical does not include restrictions and
limitations related to his tremors, reaching, problems with his gait, difficulties
remembering things, difficulties with being understood when he speaks, fatigue and
tiredness. Id. He contends these limitations are supported by the medical records from
Dr. Bhatti.
Judge Roberts addressed Knibbe’s argument that the hypothetical and RFC were
contrary to Dr. Case’s opinion that Knibbe “cannot work.” Judge Roberts noted such a
statement from Dr. Case was absent in the record. Doc. No. 21 at 35. He acknowledged
that Dr. Case’s letter stated Knibbe was disabled, but Judge Roberts reasoned that many
people with disabilities are able to work, citing the Americans with Disabilities Act
(ADA). Id. He also noted that Dr. Case checked the blank that Knibbe was capable of
performing in a low stress job. He had the option of checking that Knibbe was incapable
of working, but did not do so. Id. He pointed out that Dr. Case did put limits on
Knibbe’s work capabilities, indicating that he was able to perform some kind of work.
Finally, Judge Roberts noted that had Dr. Case stated Knibbe could not work, the ALJ
could have appropriately disregarded that opinion because that decision is reserved for
the Commissioner. Id.
In his objections, Knibbe argues that working with accommodations (as addressed
by the ADA) is not the same standard as under the Social Security Act. See Doc. No.
22 at 12-14. He notes that the Eighth Circuit has refused to permit an ALJ to rely upon
a VE’s assumption that an employer, in compliance with the ADA, would accommodate
a claimant’s disabilities, thereby enabling the claimant to perform the work in question.
Id. at 14 (citing Eback v. Chater, 94 F.3d 410, 412 (8th Cir. 1996). He also cites another
case in which a district court held that where a VE testified that a job would be available
if the employer provided a special telephone to a hearing-impaired individual, the
Commissioner had not met his or her burden of proving that adequate jobs existed in the
21

national economy. Id. (citing Sullivan v. Halter, 135 F. Supp.2d 985, 987-88 (S.D. Iowa
2001).
Knibbe misconstrues Judge Roberts’ point. He noted that Dr. Case’s letter stating
Knibbe was “disabled” is not akin to stating that Knibbe “cannot work.” See Doc. No.
21 at 35. Indeed, Judge Robert was making the precise point that Knibbe raises in his
objections – that disability has different meanings under the ADA and the Social Security
Act. The fact that Dr. Case may have found Knibbe “disabled” for purposes of obtaining
a handicapped parking permit does not mean Knibbe “cannot work” for purposes of
receiving social security disability benefits. I find no error with this aspect of Judge
Roberts’ analysis.
Judge Roberts also addressed Knibbe’s argument that the ALJ’s hypothetical did
not account for all of the limitations as reflected in the records from Dr. Bhatti or the
University of Nebraska Medical Center. See Doc. No. 21 at 35. Judge Roberts noted
that Knibbe failed to cite any specific records documenting that Knibbe had greater
limitations than reflected in the RFC. Id. at 36. Knibbe also failed to cite any records
in his objections. Doc. No. 22 at 11-12. Nonetheless, Judge Roberts stated he considered
all of the evidence in the record, including Dr. Bhatti’s treatment notes that documented
only slight to moderate tremors and strength of 5/5. Doc. No. 21 at 36 (citing AR 381,
751, 767, 784, 793).

He noted after “extensive ambulation testing,” Dr. Bhatti

consistently found Knibbe’s gait to be normal, if slow. Id. (citing AR 753, 761, 768,
776, 786, 796).

Knibbe always received normal results on cognitive and mental

examinations and had full range of motion with his upper extremities, in spite of having
varying degrees of rigidity on any given day. Id. (citing AR 381, 751, 760, 767, 783,
793). The record also did not indicate that Knibbe required prolonged rest breaks that
could not be accommodated with regularly-scheduled breaks in the workplace. Id. at 37.
Moreover, he noted the sedentary limitation was designed to accommodate Knibbe’s
tendency to get fatigued. Id. Judge Roberts concluded the ALJ included all impairments
in the hypothetical that the ALJ accepted as true and excluded the impairments he had
22

reason to discredit. Id. He concluded the limitations identified in the hypothetical
encompassed Knibbe’s limitations that were documented in the medical records. Id.
Having conducted a de novo review, I find no error with regard to the hypothetical
question to the VE and agree with Judge Roberts’ analysis.

The hypothetical question

the ALJ relied on is supported by substantial evidence in the record as a whole.
V.

CONCLUSION

For the reasons set forth herein:
1.

Knibbe’s objections (Doc. No. 22) to the Report and Recommendation
(Doc. No. 21) are overruled.

2.

I accept the Report and Recommendation (Doc. No. 21) without
modification. See 28 U.S.C. § 636(b)(1).

3.

Pursuant to Judge Roberts’ recommendation:
a.

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

b.

Judgment shall enter in favor of the Commissioner.

IT IS SO ORDERED.
DATED this 12th day of August, 2019.

__________________________
Leonard T. Strand, Chief Judge

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