Perry v. Colvin

Filing 20

ORDER adopting Report and Recommendation 16 denying 8 Motion for Summary Judgment and granting 11 Motion for Summary Judgment. Based on the foregoing, and on all of the files, records, and proceedings herein, the Court ADOPTS the March 27 , 2014 R&R 16 and OVERRULES plaintiff Amber Leigh Perry's objection 18 . Accordingly, IT IS HEREBY ORDERED THAT: 1. Perry's motion for summary judgment 8 is DENIED. 2. Defendant's motion for summary judgment 11 is GRANTED. 3. The complaint is DISMISSED WITH PREJUDICE AND ON THE MERITS. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Patrick J. Schiltz on July 1, 2014. (CLG)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
AMBER LEIGH PERRY,

Case No. 13-CV-0795 (PJS/SER)

Plaintiff,
v.

ORDER ADOPTING REPORT AND
RECOMMENDATION

CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

Neut L. Strandemo, STRANDEMO SHERIDAN & DULAS, P.A., for plaintiff.
Ann M. Bildtsen, UNITED STATES ATTORNEY’S OFFICE, for defendant.
Plaintiff Amber Leigh Perry seeks review of the Commissioner’s denial of her
application for disability-insurance benefits. This matter is before the Court on Perry’s objection
to the March 27, 2014 Report and Recommendation (“R&R”) of Magistrate Judge Steven E.
Rau. In that R&R, Judge Rau recommends that Perry’s motion for summary judgment be
denied, that the Commissioner’s motion for summary judgment be granted, and that this case be
dismissed. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). Based on that review, the Court overrules Perry’s objection and adopts the R&R.
Perry’s objection is limited to one issue: Whether the administrative law judge (“ALJ”)
who evaluated her claim erred in failing to accord controlling weight to the opinion of Perry’s
treating physician, Dr. H.J. Osekowsky. Dr. Osekowsky opined that Perry would be unable to
meet competitive standards with respect to maintaining regular work attendance and completing
a regular workday and workweek (among other things). See Tr. at 25, 604.

In general, the opinion of a treating source is entitled to “controlling weight” as long as
the “treating source’s opinion . . . is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the] case record . . . .” 20 C.F.R. § 404.1527(c)(2). That said, “‘[i]t is permissible for an ALJ to
discount an opinion of a treating physician that is inconsistent with the physician’s clinical
treatment notes.’” Perkins v. Astrue, 648 F.3d 892, 899 (8th Cir. 2011) (quoting Davidson v.
Astrue, 578 F.3d 838, 843 (8th Cir. 2009)). The ALJ concluded that Osekowsky’s opinion as to
Perry’s capabilities was undercut by his own treatment notes, which indicated improvement in
Perry’s condition during the course of treatment. See Tr. at 24, 25. Based on that contradiction,
the ALJ accorded little weight to Osekowsky’s opinion. Id. at 25.
Perry contends that the contradiction between Osekowsky’s opinion and his treatment
notes is illusory. According to Perry, the ALJ’s finding of improvement was based on nothing
more than the fact that, over time, Perry tended to smile more at appointments with Osekowsky.
See Obj. at 2 [ECF No. 18]. This characterization is unfounded. As explained in the R&R,
Osekowsky’s treatment notes are replete with indications that Perry’s condition improved during
the course of treatment. See R&R at 43-44. Perry’s demeanor was only one aspect of that
overall improvement. For example, her Global Assessment of Functioning score improved from
50 in October 2009 (a score indicating serious symptoms) to 55 in June 2011 (a score indicating
only moderate symptoms). See Tr. at 387, 602. Moreover, Osekowsky repeatedly describes
Perry’s overall condition as improving throughout his notes. See, e.g., id. at 549 (“She has been
improving in the face of a reduction in [her medication].”); id. at 550 (“She seems to be
managing substantially better than at [the] time of admission . . . .”); id. at 551 (“The patient

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actually is substantially improved over her status on admission.”); id. at 552 (“The patient is
managing pretty well emotionally . . . .”); id. at 553 (“The patient is substantially improved over
admission.”). The ALJ was justified in concluding that Osekowsky’s opinion as to Perry’s
limitations failed to account for this improvement, and the ALJ acted appropriately in
discounting Osekowsky’s opinion. The Court therefore overrules Perry’s objection.
ORDER
Based on the foregoing, and on all of the files, records, and proceedings herein, the Court
ADOPTS the March 27, 2014 R&R [ECF No. 16] and OVERRULES plaintiff Amber Leigh
Perry’s objection [ECF No. 18]. Accordingly, IT IS HEREBY ORDERED THAT:
1.

Perry’s motion for summary judgment [ECF No. 8] is DENIED.

2.

Defendant’s motion for summary judgment [ECF No. 11] is GRANTED.

3.

The complaint is DISMISSED WITH PREJUDICE AND ON THE MERITS.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 1, 2014

s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge

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