Hey v. Colvin

Filing 25

ORDER adopting Report and Recommendations re 16 Report and Recommendation and 22 Plaintiff's Objection to the Magistrate Judge's Report and Recommendation is Overruled. Signed by Senior Judge David S. Doty on 9/30/2015. (DLO)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 14-1704(DSD/FLN)
Angela Kristie Hey,
Plaintiff,
ORDER

v.
Carolyn W. Colvin,
Acting Commissioner of
Social Security,
Defendant,

Lionel H. Peabody, Esq., Peabody Law Office, P.O. Box 10,
Duluth, MN 55801, counsel for plaintiff.
Pamela Marentette, United States Attorney’s Office, 300 South
4th Street, Suite 600, Minneapolis, MN 55415, counsel for
defendant.

This

matter

is

before

the

court

upon

the

objection

by

plaintiff Angela Kristie Hey to the July 29, 2015, report and
recommendation of United States Magistrate Judge Franklin L. Noel
(R&R).

In the R&R, the magistrate judge recommends that the court

deny the motion for summary judgment by Hey and grant the motion
for

summary

judgment

by

defendant

Carolyn

W.

Commissioner of Social Security (Commissioner).

Colvin,

Acting

After a de novo

review, and for the following reasons, the court overrules Hey’s
objection and adopts the report and recommendation in its entirety.

BACKGROUND
Hey

seeks

judicial

review

of

the

decision

to

deny

her

application for Social Security disability insurance benefits and
supplemental security income.

The background of this action is

fully set forth in the report and recommendation, and the court
briefly summarizes the history of the present action. Hey filed an
application for disability insurance benefits on May 17, 2011, and
subsequently filed an application for supplemental security income
on June 1, 2011.

A.R. at 86-87.

date of August 1, 2010.

Hey initially alleged an onset

Id. at 174.

The Commissioner denied the

applications initially and again upon reconsideration.
110, 115, 126, 132.

Id. at 32,

Hey then requested a hearing before an

administrative law judge.
On February 26, 2013, at the hearing before the ALJ, Hey
amended her alleged onset date to February 1, 2012.
On

March

13,

2013,

the

ALJ

affirmed

the

Id. at 42.

denial

of

Hey’s

applications.

The Appeals Council denied Hey’s request for review

on April

2014,

24,

making

the

ALJ’s

determination

the

final

decision of the Commissioner.
On May 30, 2014, Hey filed this action, seeking judicial
review of the ALJ’s determination to deny benefits.
moved for summary judgment.

Both parties

On July 28, 2015, Magistrate Judge

Noel recommended granting the Commissioner’s motion.

2

Hey objects.

DISCUSSION
I.

Standard of Review
The

court

reviews

the

report

and

recommendation

of

the

magistrate judge de novo, and the findings and decisions of the ALJ
for substantial evidence on the record as a whole.

See 28 U.S.C.

§ 636(b)(1)(c); Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
2001).

“Substantial evidence is less than a preponderance, but

enough that a reasonable mind would find it adequate to support the
[ALJ’s] conclusion.”

Byes v. Astrue, 687 F.3d 913, 915 (8th Cir.

2012) (citation omitted).
evidence

that

detracts

On review, the court considers “both
from

and

evidence

that

supports

the

Commissioner’s decision.” Hartfield v. Barnhart, 384 F.3d 986, 988
(8th Cir. 2004) (citation omitted).
“reverse

the

Commissioner’s

The court, however, may not

decision

evidence supporting a different result.”

simply

because

there

is

Hall v. Chater, 109 F.3d

1255, 1258 (8th Cir. 1997) (citation omitted).

“If the evidence

supports two inconsistent conclusions, one of which is that reached
by the Commissioner’s conclusion, [the court] must affirm the
decision.”

Id. at 1258.

Moreover, a court may not substitute its

judgment for that of the ALJ.
983 (8th Cir. 2003).

Fastner v. Barnhart, 324 F.3d 981,

The court will disturb the ALJ’s decision to

deny benefits only if “the record contains insufficient evidence to
support the outcome.”

Nicola v. Astrue, 480 F.3d 885, 886 (8th

Cir. 2007) (citation omitted).

3

II.

Disability Determination
The Commissioner employs a five-step sequential analysis in

making a disability determination. See 20 C.F.R. § 404.1520(a)(4).
The ALJ must consider (1) whether the claimant has engaged in
substantial gainful activity during the alleged disability period,
(2) the medical severity of the impairments, (3) whether the
impairments meet or medically equal the criteria of any enumerated
impairments, (4) the claimant’s residual functional capacity (RFC)
and past relevant work and (5) whether the impairments and other
relevant circumstances preclude the claimant from engaging in other
work.

Id. at (a)-(f); see Goff v. Barnhart, 421 F.3d 785, 790 (8th

Cir. 2005).
At step one, the ALJ found that Hey had not engaged in
substantial gainful activity during the alleged disability period
beginning on February 1, 2012.

A.R. at 25.

Next, at step 2, the

ALJ determined that Hey had a severe impairment of autosomaldominant

familial

cerebellar

§§ 404.1520(c), 416.920(c)).

ataxia.

Id.

(citing

20

C.F.R.

At step three, the ALJ determined

that this impairment does not meet or medically equal any of the
enumerated impairments.

Id. at 27.

Because he found that Hey’s

impairment did not meet or equal an enumerated an impairment, the
ALJ made an assessment of Hey’s RFC and found that Hey had the RFC
to perform light work with the following limitations:

4

[S]he requires a sit/stand option in which she can stand
and walk short distances up to 1-1.5 hours at a time and
4 hours total in an 8-hour workday, with no limitations
in sitting. If she works on the feet 4 hours total, she
can spend the balance of the day in a seated position or
otherwise work the entire shift seated. She is limited to
occasional postural adjustments, but cannot climb
ladders, ropes, or scaffolds. She can occasionally lift
and carry about 15 pounds, but is unable to lift or carry
frequently even negligible amounts of weight. She cannot
tolerate temperature extremes, excessive humidity, work
at unprotected heights, dangerous work settings, unusual
work stressors, fast pace production work, or driving as
part of an occupation, but can get to the job site. She
does not require an assistive device to ambulate.
Id.

at

27.

statements

In

determining

regarding

the

Hey’s

intensity,

RFC,

the

ALJ

persistence,

effects of her symptoms were not entirely credible.

found
and

Hey’s

limiting

Id. at 28-29.

The ALJ granted limited weight to the opinions of Dr. Engberg,
Hey’s primary care physician, but attributed significant weight to
the opinion of consultative examiner Dr. Johnson and persuasive
weight to the opinions of the state-agency physicians who reviewed
this matter.

See id. at 29-30.

At step four, the ALJ found that

Hey was able to perform her past work as a telemarketer, and in the
alternative, at step five found that she was capable of making a
successful adjustment to other sedentary unskilled positions, such
as tile work and jewelry preparing.

Id. at 30.

As a result of

these findings, the ALJ determined that Hey was not disabled within
the meaning of the Social Security Act, and therefore denied her
application for disability insurance benefits and supplemental
security income.

Id. at 32.

5

In reviewing the ALJ’s decision, the magistrate judge found
that the ALJ did not err in determining Hey’s RFC.

R&R at 18.

The

magistrate judge also found that the ALJ fairly and completely
developed the record.

Id. at 24.

Further, the magistrate judge

found that the ALJ’s credibility determination of Hey was supported
by substantial evidence. Id. at 26. Finally, the magistrate judge
found that the ALJ properly found that Hey’s impairment did not
meet the requirements of 20 C.F.R. Part 404, Subpart P, App. 1 §
11.17 (Listing 11.17).

Id. at 28.

Hey argues that the ALJ and the magistrate judge erred in (1)
determining

Hey’s

RFC

and

questioning

the

vocational

expert

accordingly, (2) evaluating Hey’s credibility, and (3) determining
that Hey’s impairment does not meet the requirements of Listing
11.17.
A.

Residual Functioning Capacity
Hey first argues that the ALJ’s finding of her residual

functional capacity is not supported by substantial evidence on the
record as a whole. Hey points to three specific alleged errors the
ALJ made in this determination.

First, Hey claims that the

hypothetical the ALJ posed to the Vocational Expert (VE) failed to
include all of her limitations.

Second, she argues that the ALJ

should have taken into account her complaints about double vision
and migraines when determining her RFC. Third, Hey argues that the
ALJ erred in affording “little weight” to her treating physician

6

while weighing the credibility of doctors with conflicting medical
testimony.
1. The ALJ’s Hypothetical to the VE
“Testimony from a VE based on a properly-phrased hypothetical
question constitutes substantial evidence.” Roe v. Chater, 92 F.3d
672, 675 (8th Cir. 1996).

A hypothetical posed to a VE is

therefore considered sufficient when it “sets forth impairments
supported by substantial evidence in the record and accepted as
true by the ALJ.”
2001).

Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir.

The hypothetical need include only those impairments that

the ALJ has found are substantially supported by the record as a
whole.

Roe, 92 F.3d at 675.

As more fully set out in the R&R, at Hey’s hearing, the ALJ
posed a detailed hypothetical to the VE, including an indication
that “[t]he individual will be awkward, and, and, and not swift in
doing work-like activities requiring her to walk.”

A.R. at 58.

Hey argues that this hypothetical was deficient because it did not
indicate a need for an assistive device for ambulation.

However,

the ALJ need not be precise in his descriptions of the applicant’s
impairments.

Rather, the phrases used by the ALJ should “capture

the concrete consequences” of Hey’s deficiencies. See Roe, 92 F.3d
at 677.
The substantial evidence on the record indicates that the ALJ
described Hey’s impairments to the VE in a way that explained their

7

effect on her capacity to work.

Indeed, following the ALJ’s

hypothetical, the VE asked a clarifying question to inquire as to
whether the individual was capable of walking.

A.R. at 59.

The

ALJ responded, “at the option of the worker she may need an
assistive device.”

Id.

After taking into account Hey’s use of an

assistive device, the VE found that Hey could perform seated work.
Id. at 61-62.
perform

Specifically, the VE found that such a worker could

Hey’s

occupations
polisher.

of

Id.

past

work

inspection

as

a

telemarketer,

table

worker

and

as

well

jewelry

as

the

preparer

It is therefore clear that the ALJ understood that

the hypothetical included Hey’s use of an assistive device, and the
ALJ’s hypothetical to the VE was proper.
2. The ALJ’s Determination that Hey’s Migraines and Double
Vision Are Not Severe Medically Determinable Impairments
Hey next argues that the ALJ should have concluded that her
migraines and double vision were severe medically determinable
impairments and given them more credence in his RFC analysis.

The

burden of proving the existence of a medically severe impairment is
on the plaintiff.
1994).

Brown v. Shalala, 15 F.3d 97, 99 (8th Cir.

A medically determinable impairment must result from

“anatomical, physiological, or psychological abnormalities which
are demonstrable by medically acceptable clinical and laboratory
diagnostic techniques.” 42 U.S.C. § 423(d)(3). To be “severe,” an
impairment must significantly limit the ability of the individual
to perform basic work activities.
8

20 C.F.R. §§ 404.1520(c),

416.920(C).
“severe”

On the other hand, an impairment is not considered

where

medical

evidence

establishes

only

a

slight

abnormality that would have no more than a minimal effect on an
individual’s ability to work.

Id. §§ 404.1521, 416.921.

The ALJ found that Hey’s migraines did not constitute a severe
medically determinable impairment for two reasons.

First, Hey’s

MRI taken March of 2012 did not demonstrate any abnormal signals or
evidence of migraines.
Hey

testified

her

A.R. at 481.

headaches

were

Second, the ALJ noted that
effectively

treated

with

prescriptive medication, and the nausea and vomiting associated
with the migraines was also eased with medication.

Id. at 47-48.

Hey argues that “migraines cannot be demonstrated by MRI.” To
support this argument, Hey cites to Strickland v. Barnhart.

In

Strickland, the Seventh Circuit found that negative neurological
tests for migraines did not undercut the plaintiff’s claims.
Strickland v. Barnhart, 107 Fed. App’x 685, 2004 WL 1873223, at *4
(7th Cir. Aug. 19, 2004).

However, other courts within this

circuit have accepted ALJ conclusions that MRIs can confirm the
presence of migraines and severe headaches.

See, e.g., Sadler v.

Colvin, No. C12-2092, 2013 WL 5675869, at *14 (N.D. Iowa, Oct. 13,
2013) (indicating that the presence of white matter is often
associated with migraines); Yost v. Astrue, No. 09-3148, 2010 WL
1268050, at *2 (W.D. Mo. Apr. 1, 2010)(indicating that after
plaintiff complained of migraines, she was sent to the hospital for

9

an MRI, the results of which suggested she was suffering from a
Chiari I malformation, resulting in severe headaches).

Moreover,

regardless of whether MRI alone can prove or disprove the existence
of migraines, “Hey simply has not shown clinical or laboratory
diagnostic evidence that her migraines or vision-related problems
would

interfere

with

basic

work

activities

classification of ‘severe’ is appropriate.”

such

that

R&R at 21.

a
Her

statements about her migraines cannot, without more, be considered
conclusive evidence of disability.

See Marolf v. Sullivan, 981

F.2d 976, 978 (8th Cir. 1992)(“[P]roof of a disabling impairment
must be supported by at least some objective medical evidence.”).
Additionally, the MRI results were not the only reason the ALJ
found Hey’s migraines were non-severe.

He also relied on the fact

that her migraines are responsive to treatment.

See A.R. at 26

(“Moreover, she testified she experienced migraines 1-3 times a
week, but admitted they went away with medication.
reported

to

Dr.

medication.”).

Johnson

improved

nausea

and

She also

vomiting

with

Hey argues the frequency of her migraines means

they cause her to be nonfunctional often enough that they preclude
employment and are “severe despite responding to treatment.”

If

her migraines “can be controlled by treatment or medication, [they]
cannot be considered disabling.”

Wildman v. Astrue, 596 F.3d 959,

965 (8th Cir. 2010) (citation omitted).

The ALJ therefore did not

err in determining Hey’s migraines were treatable and non-severe.

10

3. Weight to treating physician
Hey argues that the ALJ and magistrate judge did not afford
adequate weight to the testimony of her treating physician, Dr.
Engberg. However, “[a] treating source’s opinion is not inherently
entitled to controlling weight.”
525 (8th Cir. 2013).

Myers v. Colvin, 721 F.3d 521,

A treating physician’s opinion “is entitled

to controlling weight only to the extent it is consistent with
medically

acceptable clinical

or

laboratory

diagnostic

Casey v. Astrue, 503 F.3d 687, 692 (8th Cir. 2007).

data.”

“It is well

established that an ALJ may grant less weight to a treating
physician’s

opinion

when

that

opinion

conflicts

with

substantial medical evidence contained within the record.”
v. Apfel, 201 F.3d 1010, 1014-15 (8th Cir. 2000).

other
Prosch

“When an ALJ

discounts a treating physician’s opinion, he should give good
reasons for doing so.”

Brown v. Astrue, 611 F.3d 941, 951-52 (8th

Cir. 2010) (citation omitted).
Here, Dr. Enberg opined in 2013 that Hey could stand and walk
less than two hours in an eight-hour work day, lift very little,
and could not sustain work activity because she could not stand
well, had poor strength and coordination, and disorganization of
motor function in her extremities.

A.R. at 499.

The ALJ did not

adhere to this physical assessment in his determination of Hey’s
RFC, and Hey argues that the ALJ failed to give good reasons for
granting little weight to Dr. Engberg.

11

ECF No. 11, at 28.

The ALJ gave little weight to Dr. Engberg’s opinion because it
was inconsistent with the other medical evidence in the record,
including the examinations from Drs. McKee and Johnson. See A.R. at
29.

“It is well established that an ALJ may grant less weight to

a treating physician’s opinion when that opinion conflicts with
other substantial medical evidence contained within the record.”
Prosch, 201 F.3d at 1013-14.

Contrary to Dr. Engberg’s findings,

Dr. Johnson found Hey
demonstrated only mild difficulty with getting
on and off the exam table, tandem walking,
squatting, and heel-to shin movements, with
clear speech, negative Romberg with ‘just a
hint of minimal wavering, no localized
weakness, the ability to walk across the exam
room without her walker, a mildly wide-based
gait, and full use of her hands with the
ability to button, pick up a coin, and open a
door.
A.R. at 29, 531-32.

Dr. Johnson determined that Hey had the

ability to perform sedentary work.

Id. at 534-39.

Dr. McKee found

that scans of Hey’s brain were normal, and she had no cognitive
decline or ataxia of the extremities.

Id. at 473.

Dr. McKee went

on to state, “Her MRI is normal. Her symptoms consisting of
intermittent sudden loss of balance are not consistent with the
diagnosis.
Id. at 474.

In fact, her presentation appears to be functional.”
Additionally, the ALJ found that Dr. Johnson’s

testimony was consistent with the evidence on the record, including
examination evidence, Hey’s activities of daily living, and her
improvements with physical therapy.
12

Id. at 30.

After review, the court finds that the ALJ did not err in
discounting the opinions of the treating physician.

Indeed, the

ALJ declined to give controlling weight to Dr. Engberg for a good
and well-supported reason.

See Goff v. Barnhart, 421 F.3d 785,

790-91 (8th Cir. 2005) (“[A]n appropriate finding of inconsistency
with other evidence alone is sufficient to discount [the treating
physician’s] opinion.”). As a result, the court finds that the ALJ
did not err in granting little weight to Dr. Engberg’s testimony,
and overrules that portion of the objection.

The court also finds

that the ALJ’s calculation of RFC was supported by substantial
evidence on the record.
B.

Hey’s Credibility
Next, Hey argues that the ALJ and magistrate judge failed to

evaluate her credibility appropriately, resulting in a credibility
finding that she claims is not supported by substantial evidence on
the record as a whole.

When determining the credibility of a

claimant’s testimony and subjective complaints, an ALJ must examine
“1. the claimant’s daily activities; 2. the duration, frequency and
intensity of the pain; 3. precipitating and aggravating factors; 4.
dosage, effectiveness and side effects of medication; [and] 5.
functional restrictions.”

Polaski v. Heckler, 739 F.2d 1320, 1322

(8th Cir. 1984), vacated on other grounds by Bowen v. Polaski, 476
U.S. 1167 (1986).

“Subjective complaints may be discounted if

there are inconsistencies in the evidence as a whole.”

13

Id.

Therefore,

“[i]f

an

ALJ

explicitly

discredits

a

claimant’s

testimony and gives a good reason for doing so, [courts] will
normally defer to that judgment.”

Finch v. Astrue, 547 F.3d 933,

935-36 (8th Cir. 2008) (citations omitted).
The

ALJ

determined

that

Hey’s

statements

regarding

the

intensity, persistence, and limiting effects of her symptoms were
inconsistent

with

objective

evidence

therefore “not entirely credible.”

in

the

record

A.R. at 28.

and

were

The ALJ cited to

several instances where Hey’s claims were not supported by medical
evidence

or

were

inconsistent

activities of daily living.

with

her

Id. at 29.

own

reports

of

her

When the ALJ finds that

the severity of complainant’s claims are inconsistent with the
complainant’s work history, daily activities, medical opinions, and
personal

demeanor

at

the

hearing,

the

ALJ’s

resolution

of

conflicting testimony is supported by substantial evidence on the
record as a whole.

Johnson v. Apfel, 240 F.3d 1145, 1148 (8th

Cir. 2001).
The ALJ found that there was inconsistency between Hey’s
reported limitations and the findings of physicians, and found that
“the medical examination evidence fails to support the severity of
limitations reported.” A.R. at 28-29. Specifically, the ALJ found
that though Hey has indicated she has trouble with slurred speech,
Dr. Engberg did not observe slurring or word searching, and Dr.
McKee also described clear speech.

14

Id. at 28.

Though Hey

indicated that she could not perform tasks using her hands, Dr.
Johnson reported she was able to button and pick up a coin.
29.

Id. at

While Hey testified that she has a problem with dizziness and

falling that causes her to be unable to walk, Dr. Sinaki reported
that Hey was able to walk on her toes and heels if supported, and
by February

of

2013

she

was

tolerating

functional gains and improved balance.

treatment

Id. at 28.

well,

with

Dr. Johnson

also indicated that Hey demonstrated only mild difficulty getting
on and off the exam table, squatting, tandem-walking, and with
heel-to-shin movements, and had clear speech.

Id. at 29.

The ALJ also found discrepencies between Hey’s testimony and
her activities of daily living. The ALJ noted, for example, that
Hey stated that she “can’t look at a computer screen for any longer
than 45 minutes,” but also that she watched TV and played video
games for several hours per day.

Id. at 29, 47.

Additionally, Hey

reported difficulties with double vision and walking more than 100
feet, but admitted she was able to make meals, vacuum, sweep, shop
for groceries, and drive short distances.

Id.

As a result, there

is substantial evidence in the record from which the ALJ could
conclude that Hey’s subjective testimony was not wholly credible.
Thus, Hey’s argument is unavailing and the court overrules that
portion of her objection.
C.

Listing 11.17
Finally, Hey argues that the ALJ erred in finding that her

15

impairment doesn’t meet the requirements of Listing 11.17 because
he improperly weighed the medical opinion evidence in the record.
“The burden of proof is on the plaintiff to establish that his or
her impairment meets or equals a listing.”
390 F.3d 1067, 1070 (8th Cir. 2004).

Johnson v. Barnhart,

Listing 11.17 requires an

impairment that is a “[d]egenerative disease not listed elsewhere
. . . [w]ith: A. Disorganization of motor function as described in
11.04B; or B. Chronic brain syndrome. Evaluate under 12.02.”
C.F.R. Part 404 Subpt. P, App. 1, § 11.17.

Hey relies solely on

11.17A, arguing that she meets the criteria of 11.04B.
11.04B,

the

claimant

must

have

20

“[s]ignificant

and

Under

persistent

disorganization of motor function in two extremities, resulting in
sustained disturbance of gross and dexterous movements, or gait and
station.”

Id. § 11.04B.

equal Listing 11.17.

The ALJ found that Hey did not meet or

A.R. at 27.

Hey argues that she meets these

criteria because she cannot ambulate without an assistive device.
The ALJ, however, found that the medical evidence suggesting
that Hey required an assistive device was mainly from Drs. Engberg
and Sinaki, physicians to whom the ALJ granted little weight.
A.R. at 29.

See

In contrast, the medical opinion evidence of Drs.

Johnson and McKee, to whom the ALJ attributed “significant weight,”
indicates that Hey was not impaired to the degree required by
Listing 11.17.

Id. at 30.

The ALJ determined that the evidence

offered by Drs. Johnson and McKee was consistent with the evidence

16

in the record, including examination evidence, Hey’s activities of
daily living, and her improvements with physical therapy.
30.

Id. at

Given the substantial evidence in the record that the ALJ

considered, the ALJ did not err in finding that Hey’s impairments
did not meet the criteria for Listing 11.17.

Therefore, the court

overrules that portion of the objection.
After a de novo review, the court finds that the ALJ’s
decision is supported by substantial evidence on the record as a
whole.

As a result, the court overrules Hey’s objection to the

R&R.
CONCLUSION
Therefore, IT IS HEREBY ORDERED that:
1.

Plaintiff’s objection [ECF No. 22] to the magistrate

judge’s report and recommendation is overruled;
2.

The magistrate judge’s report and recommendation [ECF No.

16] is adopted in its entirety;
3.

Plaintiff’s motion for summary judgment [ECF No. 10] is

denied;
4.

Defendant’s motion for summary judgment [ECF No. 12] is

granted; and

17

5.

The case is dismissed with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

September 30, 2015
s/David S. Doty
David S. Doty, Judge
United States District Court

18