Mortensen v. Astrue et al

Filing 20

ORDER adopting Magistrate Judge's 16 Report and Recommendation; denying plaintiff's 11 Motion for Summary Judgment filed by Shaun F. Mortensen, granting defendant's 13 Motion for Summary Judgment filed by Michael J. Astrue (Written Opinion). Signed by Judge John R. Tunheim on March 12, 2012. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
SHAUN F. MORTENSEN,

Civil No. 10-4976 (JRT/JJG)
Plaintiff,

v.

ORDER ADOPTING THE REPORT
AND RECOMMENDATION OF THE
MAGISTRATE JUDGE

MICHAEL J. ASTRUE,
Defendant.

Patrick R. Martin and Jody A. Ward-Rannow, OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, P.C., Wells Fargo Center, 90 South
Seventh Street, Suite 3800, Minneapolis, MN 55402, for plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, 600 United States Courthouse, 300
South Fourth Street, Minneapolis, Minnesota 55415, for defendant.
Shaun Mortensen sought judicial review of the administrative law judge’s (ALJ)
denial of his application for disability insurance benefits (DIB) and supplemental security
income (SSI). Mortensen disputes the ALJ’s determination that he is not disabled for
purposes of the Social Security Act (SSA). Both parties moved for summary judgment
on the issue of whether substantial evidence supported the ALJ’s decision.

In a

September 30, 2011 Report and Recommendation (R&R), United States Magistrate Judge
Jeanne J. Graham recommended that the Court grant Astrue’s motion and deny
Mortensen’s motion. Following Mortensen’s timely objections to the R&R, this Court
reviews de novo the challenged portions of the R&R under 28 U.S.C. § 636(b)(1)(C) and
D. Minn. L.R. 72.2.

25

Because the Court finds the R&R correctly concluded that

substantial evidence on the record as a whole supported the ALJ’s determination that
Mortensen is not disabled, the Court overrules Mortensen’s objections and adopts the
R&R.

BACKGROUND
Mortensen’s history of mental health problems dates back to early childhood. (R.
at 109). Mortensen has struggled with anger management and depression, and has a
history of harming himself and others. (Id. at 767.) He has unsuccessfully applied for
disability benefits at least four times. (Id. at 714.) Following a hearing on September 19,
2009, the ALJ concluded that Mortensen was not disabled, and denied his application for
disability insurance benefits (DIB) and supplemental security income (SSI). (Id. at 18.)
Mortensen’s objections to the ALJ’s decision and the R&R recommending that this Court
uphold it relate to (1) his low Global Assessment of Functioning (GAF) scores, (2) his
treating physician’s opinion as to whether Mortensen is disabled, and (3) the ALJ’s
credibility determination.1

I.

GAF Scores
Over the years, doctors have utilized Mortensen’s GAF scores in order to quantify

his overall mental well-being. “The GAF is a numeric scale ranging from zero to one
hundred used to rate social, occupational and psychological functioning ‘on a
hypothetical continuum of mental health-illness.’” Pate-Fires v. Astrue, 564 F.3d 935,
1

This opinion recites only the facts essential to rule on Mortensen’s objections to the
Magistrate’s R&R. For a more detailed factual background, see R&R at 2-14.

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937 n.1 (8th Cir. 2009) (quoting Diagnostic and Statistical Manual of Mental Disorders, at
32 (4th ed. Am. Psychiatric Ass’n 1994) (DSM-IV)). The record reflects over six years of
medical records, during which time Mortensen had the following GAF scores, ranging
from 21 to 52:
 52 in December 2001 (R. at 1067.)
 50 in January 2003 (Id. at 615.)
 50 on January 5, 2004 (Id. at 911.)
 25 on January 17, 2004 (Id. at 867.)
 40 in February 2007 (Id. at 686.)
 48 in April 2007 (Id. at 710.)
 21 in April 2008 (Id. at 769.)
 40 in June 2008 (Id. at 794.)
The ALJ’s opinion declaring Mortensen not to be disabled within the meaning of the SSA
did not discuss Mortensen’s GAF scores. (Id. at 9-18.)

II.

Opinion of Dr. Timothy Egan
Mortensen saw a number of mental health professionals from July 15, 2005

through December 2008. (See R&R at 4-9.)2 Mortensen’s objections to the R&R’s
2

The Court begins its review of Mortensen’s medical file on July 15, 2005, (R. at 45-65),
the day following the effective denial of Mortensen’s prior application for benefits. See Gavin v.
Heckler, 811 F.2d 1195, 1200 (8th Cir. 1987) (applying doctrine of collateral estoppel to prohibit
consideration of certain evidence already considered in a final, previously adjudicated
application for benefits).

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treatment of Mortensen’s mental examinations relate only to the ALJ’s consideration of
Dr. Timothy Egan’s opinion of May 28, 2004. On that date, Dr. Egan opined in a letter
that Mortensen “clearly is not going to be capable of maintaining competitive
employment.” (R. at 827.)

Dr. Egan also stated: “As you know [Mortensen] suffers

from significant psychiatric difficulties including attention deficit hyperactivity disorder,
depressive disorder, psychotic features and borderline intellectual functioning.” (Id.)
The ALJ did not reference this opinion in denying Mortensen’s request for benefits in
October 2009.3
Having last seen Dr. Egan sometime in 2003, Mortensen resumed seeing him in
November 2005, after his prior request for disability benefits was denied. (R. at 653;
R&R at 4.) Dr. Egan treated Mortensen in November 2005, April 2006, and October
2006 – though the notes also indicate a meeting in January 2006.

(R&R at 4.)

Dr. Egan’s assessment of Mortensen at these sessions was overall positive and optimistic.
Dr. Egan found Mortensen “well-developed, well-nourished . . . alert, cooperative and
oriented to all spheres” in November 2005. (R. at 653.) Egan also noted during the
November visit: “I think he is really looking for some stimulants here in addition to an
application for Social Security Disability Income.” (Id.)

3

In denying Mortensen’s previous application for disability benefits, the ALJ noted that
it “considered the May 28, 2004, opinion of Timothy J. Egan, M.D. . . . . but gives it little weight
because it is vague and conclusory and is not accompanied by the objective medical evidence
necessary to support his opinion, such as results of mental status examinations or treatment
notes.” (R. at 61.)

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Dr. Egan’s mental status examination in April 2006 found Mortensen to be a
“well-developed, well-nourished man in no acute distress,” and whose thought-processes
were “logical, goal directed, and without evidence of disorder.” (Id. at 652.) “Immediate
recall, recent memory, and remote memory are intact. Insight and judgment are intact.”
(Id.) Dr. Egan’s follow-up visit with Mortensen six months later, in October 2006,
reached the same conclusions. (Id. at 651.) This time Dr. Egan noted, however, that
“Mortensen has really been quite irresponsible with most of his medical care and now
wants to get on SSI.” (Id.)

III.

The ALJ’s Credibility Determination and Treatment of Elkington’s
Testimony
Mortensen asserts that the ALJ “repeatedly relied on Mortensen’s desire to be

granted disability benefits as bearing on his disability.” (Pl.’s Objections to R&R at 10,
Oct. 17, 2011, Docket No. 18.) The ALJ found various inconsistencies in the information
Mortensen provided in connection with his work history, and concluded that, while
perhaps not an intentional attempt to mislead, these inconsistencies suggest that the
information Mortensen provided “generally may not be entirely reliable.” (R. at 17-18.)
The ALJ made no other express findings as to Mortensen’s credibility. The Decision
does recite Dr. Egan’s view, expressed in connection with several different examinations,
that Mortensen’s primary objective in receiving treatment was to build a case for social
security disability. (Id. at 16.)
Mortensen also asserts that the ALJ’s credibility determination fails to take into
account Mortensen’s dependency on his court-appointed social worker Randy Elkington.
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(Pl.’s Objections to R&R at 11.) Elkington generally sees Mortensen twice a week to
take him to doctor’s appointments, remind him to pay bills, and help him keep his mail in
order. (R. at 13, 18-19.) Elkington testified that Mortensen has difficulties concentrating
and waking up for medical appointments. (Id. at 20.) The ALJ stated that he “considered
the testimony of Mr. Elkington and [found] that it is generally consistent with the record
of evidence as a whole.” (Id. at 17.) The ALJ “[gave] some weight [to Elkington’s
testimony] as to his observations of [Mortensen’s] daily activities.” (Id.)
Finally, Mortensen asserts that the ALJ “incorrectly recited the facts,” leading to
an erroneous credibility determination. (Pl.’s Objections to R&R at 10.) Specifically, the
ALJ observed that Mortensen drove himself to an April 2007 medical examination, and
that he drives about 100 miles a week. (R. at 12.) Mortensen clarified, “[I]f I have to go
to town for appointments or usually my mental health practitioner takes me, so I don’t
drive much.” (Id. at 27.) The ALJ also observed that Mortensen “reported that he is
capable of doing his own cleaning, shopping, dishes, cooking, yard work and household
chores.” (Id. at 12.) Mortensen testified, however, that “now that I got a roommate, he
cooks because I have problems . . . remembering I’m cooking, so I burn food . . . .” (Id.
at 26.)

ANALYSIS
I.

STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to a determination

of whether it is supported by substantial evidence on the record as a whole. 42 U.S.C.

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§ 405(g); Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006) (internal quotation marks
omitted).

Substantial evidence “is less than a preponderance, but is enough that a

reasonable mind would find it adequate to support the Commissioner’s conclusion.”
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).

The Court must consider

“evidence that detracts from the Commissioner’s decision as well as evidence that
supports it.”

Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010).

However,

reweighing the evidence is not permitted. Flynn v. Chater, 107 F.3d 617, 620 (8th Cir.
1997). Therefore, even if Mortensen’s impairments support a claim for disability
insurance benefits, the Court must affirm if there is substantial evidence to support the
ALJ’s conclusion to the contrary. See id. This Court cannot reverse the Commissioner’s
decision “merely because substantial evidence exists in the record that would have
supported a contrary outcome.” Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).

II.

MORTENSEN’S OBJECTIONS TO THE R&R
Mortensen lodges three principal objections to the R&R. First, Mortensen argues

that the R&R misinterprets Eighth Circuit cases regarding the importance of Mortensen’s
GAF score in determining whether he is disabled. Second, Mortensen argues that the
R&R gave insufficient weight to Dr. Egan’s dispositive conclusion that he is incapable of
competitive employment. Third, Mortensen argues that the R&R failed to apprehend the

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errors flowing from the ALJ’s incorrect credibility determinations and factual
misstatements.4

A.

Mortensen’s GAF Score

Mortensen first argues that the R&R misapplied Pate-Fires v. Astrue, 564 F.3d
935 (8th Cir. 2009), by failing to conclude that a history of GAF scores below fifty shows
that a plaintiff is unable to work. Pate-Fires overturned the ALJ’s decision and declared
the claimant to be disabled. Id. at 944-45, 47. Mortensen argues that Pate-Fires stands
for the proposition that a history of GAF scores at or below fifty conclusively shows that
the claimant is disabled.

Indeed, Mortensen refers to a GAF score of fifty as the

“disability benchmark.” (Pl.’s Objections to R&R at 5.)
Mortensen’s reading of Pate-Fires is infirm; the R&R correctly rejected it. (R&R
at 16.)5 While the Eighth Circuit did chide the ALJ for failing to consider the many GAF
scores below 50, including scores as low as 10 or 20, Pate-Fires did not hold that a
history of GAF scores below 50 conclusively demonstrates that the claimant is disabled.
See Pate-Fires, 564 F.3d at 944. The language on which Mortensen relies is as follows:
“The history of GAF scores at 50 or below, taken as a whole, indicate [claimant] has
4

These arguments largely reprise the same critiques of the ALJ’s decision that the R&R
considered and recommended rejecting.
5

The R&R principally dealt with Mortensen’s reliance on Brueggeman v. Barnhart, 348
F.3d 689 (8th Cir. 2003), in which the Eighth Circuit endorsed use of GAF scores and found that
the claimant with a GAF score of 50 was unable to work. Id. at 695. As in Pate-Fires six years
later, Brueggeman does not create a presumption that a claimant with a GAF score of 50 or
below is disabled per se. Rather, the GAF score in Brueggeman was but one piece of relevant
evidence to consider. See id.

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‘[s]erious symptoms . . . or any serious impairment in social, occupational or school
functioning . . . .’” See id. (quoting DSM-IV at 32). As the R&R points out, in the very
next paragraph the court went on to articulate that the balance of the record supported the
treating physician’s assessment that Pate-Fires was not capable of employment. See id. at
944-45. The GAF scores, in short, were but one part of the analysis. While Pates-Fires
does highlight the importance of low GAF scores, the ALJ’s failure expressly to rely on
them does not offend Pates-Fires in the face of a record that, considered as a whole,
otherwise provides substantial evidence for the ALJ’s conclusion. See Jones v. Astrue,
619 F.3d 963, 974 (8th Cir. 2010) (“An ALJ may afford greater weight to medical
evidence and testimony than to GAF scores when the evidence requires it.” (internal
quotation marks and citation omitted)).6 For example, Dr. Egan’s evaluations from the
time period under review consistently characterize Mortensen as “alert,” “cooperative,”
“well-developed,” “logical,” and “goal-directed.” Evaluations by other mental health
professionals note Mortensen’s intellectual deficiencies, but none identifies profoundly
disabling characteristics. (See R&R at 5-10) (reviewing record evidence). In the context

6

Mortensen also claims that the R&R mistakenly finds support in Jones v. Astrue, 619
F.3d 963, 974 (8th Cir. 2010). That case distinguished Pate-Fires on the ground that Jones
“[had] not presented a GAF score history indicating that she was at or below a GAF of 50 on
several occasions.” Id. at 974 n.4. That the court took the trouble to distinguish Pate-Fires on
the basis of the absence of a low GAF score history does highlight the potential importance of a
history of low GAF scores. But Jones does not change the result in Pate-Fires, which did not
myopically focus on GAF scores, but rather rested its finding of disability on the totality of the
record. Pate-Fires, 564 F.3d at 944-45, 947 (reviewing GAF scores in the context of the record,
and concluding “the record overwhelmingly supports a finding of disability”). These cases do
not stand for the proposition that failure expressly to consider low GAF scores is reversible error,
or that a history of GAF scores below 50 compels a finding of disability.

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of this record evidence, the ALJ’s failure expressly to rely on Mortensen’s GAF scores is
not error.
Mortensen also complains that the R&R is incorrect to assert that the Eighth
Circuit has repeatedly approved the denial of benefits for claimants with GAF scores
below 50. (See R&R at 17-18 (citing Martise v. Astrue, 641 F.3d 909, 919 (8th Cir. 2011)
(GAF scores in the 40s and 50s); Partee v. Astrue, 638 F.3d 860, 862-63 (8th Cir. 2011)
(GAF scores in the 30s and above); Hurd v. Astrue, 621 F.3d 734, 736-37 (8th Cir. 2010)
(GAF scores of 30, 40, and 75); Jones v. Astrue, 619 F.3d 963, 973 (8th Cir. 2010) (GAF
scores in the mid-40s and low 50s).) Mortensen argues that these cases don’t “negate the
holding in Pate-Fires” that a history of low GAF scores establishes disability. (Pl.’s
Objections to R&R at 6.) Specifically, Mortensen points out that in each of these cases,
the claimant did not contest the ALJ’s failure to consider his or her GAF scores, and thus
the Court did not consider that issue.
Precisely the opposite is true. The Court of Appeals “reviews de novo a district
court decision upholding the denial of social security benefits.” Kluesner v. Astrue, 607
F.3d 533, 536 (8th Cir. 2010) (internal quotation marks omitted). The appellate court
assesses “the record as a whole,” meaning “the evidence that supports the
Commissioner’s decision as well as the evidence that detracts from it,” to determine if the
Commissioner’s decision is supported by substantial evidence. Id. The Eighth Circuit
concluded in each of the cases noted in Mortensen’s objections that substantial evidence
supported a finding of no disability. That the court did not specifically consider the
ALJ’s failure to mention the GAF scores does not change the outcome of these cases:
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each evidences that GAF scores below 50 do not mandate a finding of no disability. Had
the Eighth Circuit felt otherwise, de novo review of the record would have dictated the
opposite result in each case.7
Finally, Mortensen disputes the R&R’s suggestion that his low GAF scores do not
square with other evidence in the record suggesting that he does not have a disability.
Mortensen emphasizes that the low scores must be read in light of past violent behavioral
problems, and that these episodes prove that Mortensen is disabled. To the extent this
argument urges the Court to reopen the record and reweigh the evidence, it must decline
to do so. See, e.g., Flynn, 107 F.3d at 620. The ALJ is permitted to give less weight to
GAF scores if they are inconsistent with medical records as a whole, see Goff v.
Barnhart, 421 F.3d 785, 791 (8th Cir. 2005), and the ALJ’s ostensible decision to do so
here is not unreasonable in view of the substantial evidence, including Dr. Egan’s
positive mental status reports, supporting his conclusion that Mortensen is not disabled.
In any event, the ALJ need not credit every piece of evidence submitted, and failure to
reference a given piece of evidence does not mean that it was not considered. See
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010). In short, the ALJ’s treatment of

7

Mortensen further argues that the R&R underestimates the importance of Dukes v.
Barnhart, 436 F.3d 923 (8th Cir. 2006), in which the Court again overruled the ALJ and found
the claimant to be disabled, even though he was working at the time he applied for benefits and
had a GAF score of 55. See id. at 926, 928. Mortensen argues that Dukes means a GAF score as
high as 55 generally indicates an inability to work. Mortensen reads Dukes too broadly. Like
the other cases the R&R cites, nothing in Dukes suggests that GAF scores are anything other
than one factor among many. See id.

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Mortensen’s GAF scores is not reversible error because substantial evidence on the
record as a whole supports his conclusion.

B.

Weight Given to Dr. Egan’s Opinion

Mortensen next objects to the ALJ’s treatment of Dr. Egan’s opinion.
Specifically, Mortensen argues that the R&R erred by giving insufficient weight to
Dr. Egan’s conclusion that Mortensen is “not capable of maintaining competitive
employment,” a conclusion Egan rooted in Mortensen’s “significant psychiatric
difficulties including attention deficit hyperactivity disorder, depressive disorder,
psychotic features and borderline intellectual functioning.” (R. at 827.) Mortensen
claims “the ALJ engaged in reversible error by ignoring these opinions” in light of the
Social Security regulations’ requirement that treating physicians’ opinions be given
“controlling weight.” (Pl.’s Objections to R&R at 8).
Mortensen’s objection is overruled. As the R&R correctly points out, the ALJ did
rely on Dr. Egan’s assessment of Mortensen’s mental state. (R. at 16-17.) While the ALJ
must give controlling weight to a medical opinion, it need not give controlling weight to
the physician’s ultimate opinion that the patient is disabled. Brown v. Astrue, 611 F.3d
941, 952 (8th Cir. 2010); see also Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009).
Indeed, the question of whether an individual is “disabled” under the SSA is specifically
reserved to the Commissioner. See Davidson, 578 F.3d at 842; see also SSR 96-5p, 1996
WL 374183, at *2 (July 2, 1996) (listing “whether an individual is ‘disabled’ under the
Act” as an example of an “administrative finding[] that [is] dispositive of a case,” not a

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medical opinion entitled to controlling weight). Dr. Egan’s 2004 opinion that Mortensen
“clearly is not going to be capable of maintaining competitive employment” is precisely
the kind of ultimate opinion reserved to the Commissioner.8 In sum, the R&R correctly
found that the ALJ “properly credited Dr. Egan’s diagnosis of Plaintiff’s multiple
conditions and rightly did not give controlling weight to the nonmedical opinion that
Plaintiff was incapable of working.” (R&R at 20.)
Mortensen also claims error in the ALJ’s crediting of the state agency physician,
while not giving good reasons for the weight afforded to the treating physician.
Mortensen is incorrect. The ALJ did explain why he accorded weight to the agency
physician’s opinion, namely because it was consistent with the weight of the objective
medical evidence and because the physician had an opportunity to examine Mortensen.
(R. at 16.)
Finally, Mortensen objects to the R&R’s statement that the state agency physician
opinions were consistent with the record as a whole. Again Mortensen points to the
lengthy history of low GAF scores and Mortensen’s reliance on Elkington in arguing that
Dr. Egan’s 2004 dispositive opinion that Mortensen was unfit to work is the only view
consistent with the record. While the Court must decline Mortensen’s invitation to
reweigh the evidence, see, e.g., Flynn, 107 F.3d at 620, its conclusion about the
substantiality of the evidence must reflect not only facts supporting the ALJ’s decision

8

In any event, the 2004 opinion was already considered in a prior, final adjudicated
application for benefits, and therefore cannot be given undue weight. See Gavin v. Heckler, 811
F.2d at 1200.

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but also the evidence fairly detracting from it. See Gavin, 811 F.2d at 1199. The Court
has already noted that Mortensen’s various positive mental status examinations sit
uneasily with the view that his low GAF scores prove up his disability. Likewise, while
Mortensen’s reliance on Elkington does speak to some deficiencies, this evidence does
not outweigh other record evidence suggesting that Mortensen is capable of the baseline
functioning required to work as a packager.

(R. at 18.)

In terms of Mortensen’s

objections, this evidence includes Dr. Egan’s positive evaluations, which characterize
Mortensen as “alert,” “well-developed,” “logical,” and “goal-directed.” Because the
Court finds that substantial evidence on the record as a whole supports the ALJ’s
conclusion, Mortensen’s objection in this respect will be overruled.

C.

The ALJ’s Credibility Determinations

Finally, Mortensen argues that the R&R failed to correct the ALJ’s erroneous
credibility determinations and misstatements of record facts.

More specifically,

Mortensen argues that the R&R failed to address three other credibility errors and factual
misstatements that the ALJ made. First, the R&R did not address the ALJ’s repeated
reliance on Mortensen’s desire to be granted disability benefits as bearing on his
disability. Second, the R&R did not address the ALJ’s allegedly incorrect recitation of
the facts, which Mortensen claims led to an incorrect conclusion as to credibility. Third,
the R&R found no error in the ALJ’s failure to appreciate Mortensen’s dependency on
social worker Elkington.

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Mortensen’s objections are overruled. “In determining the credibility of the
individual’s statements, the adjudicator must consider the entire case record, including
the objective medical evidence, the individual’s own statements about symptoms,
statements and other information provided by treating or examining physicians or
psychologists and other persons about the symptoms . . . .” SSR 96-7p, 1996 WL
374186, at *1 (July 2, 1996). It is enough to observe that much more than “substantial
evidence” supports the ALJ’s conclusion that Mortensen “generally may not be entirely
reliable.” (R. at 18.) As the R&R concluded, “[t]he record is rife with instances of
exaggerated symptoms, nonexistent symptoms, and positive mental status examinations
(MSEs), including MSEs from Plaintiff’s treating physician.” (R&R at 21-22.)
Moreover, Mortensen’s suggestion that the ALJ “repeatedly relied on Mortensen’s
desire to be granted disability benefits as bearing on his disability” is not accurate. The
ALJ’s only express finding as to credibility related to inconsistencies with his work
history and symptoms. (R. at 17-18.) The ALJ’s observation of Dr. Egan’s suspicions
about Mortensen’s motives for being examined does not suggest that the ALJ rooted his
finding about Mortensen’s credibility in Mortensen’s desire to receive disability benefits.
(See R. at 16.) Regardless, “statements and other information provided by treating or
examining physicians” and “the individual’s own statements” must all be weighed in
determining Mortensen’s credibility. See SSR 96-7p, 1996 WL 374186, at *1 (credibility
determination based on entire record). Of course every applicant for SSI disability
benefits desires to receive them. As Mortensen points out, “that is why they apply.”
(Pl.’s Objections to R&R at 10.) But it is not error for the ALJ to observe Mortensen’s
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admission of his history of attempts to exacerbate his condition in order to be granted
benefits. This history bears on his credibility.
Mortensen also objects that the ALJ discounted Elkington’s testimony and
incorrectly recited the facts, which led to the erroneous conclusion that Mortensen is not
disabled. First, there is little reason to suppose that the ALJ did not credit Elkington’s
testimony, as the decision states that it did. (R. at 17.) While it is clear that Mortensen
relies on Elkington to a certain extent for transportation, and to otherwise help arrange his
affairs, Mortensen also testified that he drives at least sometimes, is capable of cooking,
buys his own food, and performs other basic tasks. (Id. at 26-29.) The ALJ’s conclusion
appears to fairly take this evidence into account.
Second, it is true that some of the ALJ’s factual statements are not precisely in
tune with the record.

Mortensen specifically objects to the ALJ’s observation that

Mortensen drives about 100 miles a week, when Mortensen later clarified that “usually
my mental health practitioner takes me, so I don’t drive much.” (Id. at 27.) Similarly,
the ALJ’s observation that Mortensen is capable of cooking is undermined by
Mortensen’s later clarification that his roommate generally cooks because Mortensen
can’t remember that he’s cooking, and so burns food. (Id. at 26.) Finally, some record
evidence does suggest the ALJ’s observation that Mortensen “reported that he is capable
of doing his own cleaning, shopping, dishes, cooking, yard work and household chores,”
(id. at 12), is something of an overstatement. For example, in response to the ALJ’s
query about whether Mortensen takes care of himself, Mortensen responded: “Try to take
care of myself. . . . I brush my teeth six times a year whenever I can remember.” (Id. at
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28-29.) Nonetheless, these errors in the ALJ’s recitation of the facts, if errors they be, do
not change the Court’s conclusion that substantial evidence on the record as a whole –
including positive mental status examinations from Mortensen’s treating physician
Dr. Egan – supports the ALJ’s finding that Mortensen is not disabled.
Accordingly, the Court will adopt the R&R, deny Mortensen’s motion for
summary judgment, and grant Commissioner Astrue’s motion.

ORDER
Based on the foregoing, and the records, files, and proceedings herein, the Court
OVERRULES Mortensen’s objections [Docket No. 18] and ADOPTS the Report and
Recommendation of the Magistrate Judge dated September 30, 2011 [Docket No. 16]. IT
IS HEREBY ORDERED that:
1.

Plaintiff’s Motion for Summary Judgment [Docket No. 11] is DENIED.

2.

Defendant’s Motion for Summary Judgment [Docket No. 13] is

GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY

DATED: March 12, 2012
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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