Oswald v. Colvin

Filing 20

ORDER denying 16 Motion for Summary Judgment; granting 18 Motion for Summary Judgment. (Written Opinion) Signed by Magistrate Judge Becky R. Thorson on 2/15/17. (kt)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Keith W. Oswald,

Civ. No. 15-4289 (BRT)

Plaintiff,
v.

MEMORANDUM
OPINION AND ORDER

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

Karl E. Osterhout, Esq., Osterhout Disability Law, LLC, and Edward C. Olson, Esq.,
Attorney at Law, counsel for Plaintiff.
Gregory G. Brooker, Esq., United States Attorney’s Office, counsel for Defendant.

BECKY R. THORSON, United States Magistrate Judge.
Keith W. Oswald seeks judicial review of the Commissioner of Social Security’s
final decision denying his application for disability insurance benefits. 42 U.S.C.
§ 405(g). This matter is before the Court on the parties’ cross-motions for summary
judgment. D. Minn. LR 7.2(c)(1). For the reasons stated below, the Court concludes the
Administrative Law Judge’s decision is supported by substantial evidence in the record.
Therefore, Plaintiff’s Motion for Summary Judgment is denied and Defendant’s Motion
for Summary Judgment is granted.

BACKGROUND
I.

Procedural History
Plaintiff, Keith W. Oswald, filed a Title II application for Disability Insurance

Benefits (“DIB”) and a Title XVI application for Supplemental Security Income (“SSI”)
on September 20, 2011, alleging a disability onset date of June 1, 2010. (Tr. 181, 187.) 1
Plaintiff’s claims were denied initially on April 13, 2012, and upon reconsideration on
November 9, 2012. (Tr. 97, 112.) Plaintiff requested a hearing, which was held on
February 26, 2014. (Tr. 39.) The Administrative Law Judge (“ALJ”) issued a decision
denying Plaintiff’s claims on July 18, 2014. (Tr. 11–33.) On October 7, 2014, the
Appeals Council denied review, making the ALJ’s July 18, 2014 decision the final
decision of the Commissioner. (Tr. 1–6); see 20 C.F.R. §§ 404.981, 416.1481.
On December 3, 2015, Plaintiff timely filed this action pursuant to 42 U.S.C.
§ 405(g), seeking review of the final decision of the Commissioner. (Doc. No. 1.) The
parties filed cross-motions for summary judgment pursuant to D. Minn. LR 7.2(c). (Doc.
Nos. 16, 18.) Plaintiff argues that the ALJ erred by discounting the opinions of an
examining consultative psychologist and a non-examining state agency psychologist.
(Doc. No. 17, Def.’s Mem. 4–19.) Defendant asks the Court to affirm the
Commissioner’s decision because the ALJ properly addressed those opinions, and the
denial of benefits is supported by substantial evidence. (Doc. No. 19, Def.’s Mem. 7–13.)

1

Throughout this Order and Opinion, the abbreviation “Tr.” is used to reference the
Administrative Record (Doc. No. 13).
2

II.

General Background
Plaintiff was forty-three years old on June 1, 2010, his alleged onset date.

(Tr. 410.) He graduated from high school and was in the United States Army from 1985
until 1989, stationed at Fort Bragg in North Carolina. (Tr. 213, 406.) While in the Army,
he completed a metal working course, and then received a general discharge. (Tr. 214,
406.) He worked as a carpet installer from 1985 to 2008; a small engine
mechanic/repairman from 1985 to 2010; and a welder/assembler from 2005 to 2007. (Tr.
214, 232.) Plaintiff also worked intermittently as a cook. (Id.) Plaintiff’s last job was as a
part-time stir fry cook at a Chinese restaurant. (Tr. 302.) He left that job due to an anxiety
attack in October 2013. (Tr. 44, 61.) Since September 2011, Plaintiff has lived in an
apartment in Hibbing, Minnesota. (Tr. 43.)
III.

The ALJ’s Findings and Decision
In his decision dated July 18, 2014, the ALJ found that Plaintiff was not disabled

as defined by the Social Security Act and denied Plaintiff’s application for DIB and SSI.
(Tr. 33.) The ALJ proceeded through the five-step evaluation process provided in the
social security regulations. See 20 C.F.R. § 404.1520(a)(4). These steps are as follows:
(1) whether the claimant is presently engaged in “substantial gainful activity”; (2)
whether the claimant is severely impaired; (3) whether the impairment meets or equals a
presumptively disabling impairment listed in the regulations; (4) whether the claimant
can perform past relevant work; and, if not, (5) whether the claimant can perform other
jobs available in sufficient numbers in the national economy. Id. § 404.1520(a)–(f).

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At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since June 1, 2010, the alleged onset date. (Tr. 13.) At step two, the ALJ found
that Plaintiff has the following severe impairments: spine impairment with radiculopathy
status post 2010 fusion; degenerative joint disease; right shoulder impairment; residual
pain status post bilateral knee surgeries; chronic pain syndrome; vertigo; affective mood
disorder; anxiety disorders; somatic dysfunction; attention deficit hyperactivity disorder;
and a history of alcohol abuse. (Id.) The ALJ concluded that the following impairments
or conditions were non-severe: carpal tunnel syndrome; bilateral arm numbness; right
epicondylitis (tennis elbow); obesity; smoking; right finger soft tissue injury; shingles;
sinus bradycardia; hypertension; and headaches. (Tr. 13–15.) The ALJ reasoned that
these impairments “were not shown to result in more than minimal interference with
[Plaintiff’s] ability to perform work-related activity.” (Tr. 14.) The ALJ also noted that a
state examiner considered the autism listing, but the evidence “failed to establish autism
as a medically determinable impairment.” (Tr. 15.)
At step three, the ALJ found that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. § Part 404, Subpart P, Appendix 1. (Tr. 15.) The ALJ
considered listings for physical and mental impairments. (Tr. 15–18.)
Before reaching step four, the ALJ found that Plaintiff had the residual functional
capacity (“RFC”) to perform “light work as defined in 20 CFR 404.1567(b) and
416.967(b).” (Tr. 18.) The ALJ also included the following limitations in Plaintiff’s RFC:
can never climb ladders, ropes, or scaffolds; can only occasionally climb stairs and
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ramps; can occasionally stoop, kneel, crouch, crawl, and engage in activities requiring
balance; can occasionally engage in overhead reaching bilaterally; should avoid all
exposure to operational controls of moving machinery and unprotected heights; limited to
simple, routine, and repetitive tasks; limited to work in a low-stress environment defined
as requiring only occasional decision-making and only occasional changes in work
setting; and limited to only occasional, brief, and superficial interaction with the public
and co-workers. (Tr. 18.) The ALJ made these findings after considering Plaintiff’s
symptoms, objective medical evidence, and opinion evidence. (Id.) According to the ALJ,
his RFC assessment “was supported by [Plaintiff’s] admitted activities of daily living, the
underlying treatment record, and by the state examiners’ opinions, all of which suggested
some degree of impairment but not to the degree alleged.” (Tr. 31.) The ALJ addressed
Plaintiff’s allegations of disabling limitations, such as balance issues, panic attacks
brought on by stress, struggles with lifting, and difficulty reaching overhead. (Tr. 19.)
Ultimately, the ALJ concluded that Plaintiff’s “alleged limitations were not fully
persuasive” and he “retained the capacity to perform work activities” within the
limitations set forth in the RFC. (Id.)
At step four, the ALJ found that Plaintiff has no past relevant work, noting the
vocational expert’s testimony that all past work was precluded by Plaintiff’s RFC. (Id.)
At step five, the ALJ found, pursuant to the vocational expert’s testimony, that Plaintiff
could perform jobs that exist in significant numbers in the national economy in light of

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Plaintiff’s age, education, work experience, and RFC. 2 (Tr. 32.) Thus, the ALJ concluded
that Plaintiff was not disabled under the Social Security Act. (Tr. 33.)
DISCUSSION
I.

Standard of Review
The Commissioner’s final determination not to award DIB and SSI following an

administrative hearing is subject to judicial review. 42 U.S.C. § 405(g); 42 U.S.C.
§ 1383(c)(3). The Court has the authority to “enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.” §
405(g) (sentence four).
“Disability” under the Social Security Act means the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§ 423(d)(1)(A). “An individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy.” Id. § 423(d)(2)(A).

2

Those jobs were marker (500,000 jobs nationwide), wire harness worker (325,000
jobs nationwide), and garment folder (311,000 jobs nationwide). (Tr. 32.)
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The Court “must affirm the Commissioner’s decision if it is supported by
substantial evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577
(8th Cir. 2006). 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). On review, the Court considers “both evidence that
detracts from and evidence that supports the Commissioner’s decision.” Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004). If it is “possible to draw two inconsistent
positions from the evidence and one of those positions represents the Commissioner’s
findings,” the Commissioner’s decision must be affirmed. Dixon v. Barnhart, 353 F.3d
602, 605 (8th Cir. 2003). In other words, the denial of benefits will not be disturbed “so
long as the ALJ’s decision falls within the available zone of choice. An ALJ’s decision is
not outside the zone of choice simply because [the reviewing court] might have reached a
different conclusion had [it] been the initial trier of fact.” Bradley v. Astrue, 528 F.3d
1113, 1115 (8th Cir. 2008); see also Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988)
(“The concept of substantial evidence . . . embodies a zone of choice within which the
Secretary may grant or deny benefits without being subject to reversal on appeal.”).
The claimant bears the burden of proving his or her entitlement to disability
benefits under the Social Security Act. See 20 C.F.R. § 404.1512(a); Young v. Apfel, 221
F.3d 1065, 1069 n.5 (8th Cir. 2000). Once the claimant demonstrates that he or she
cannot perform past work due to a disability, “the burden of proof shifts to the
Commissioner to prove, first that the claimant retains the residual functional capacity to
do other kinds of work, and, second that other work exists in substantial numbers in the
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national economy that the claimant is able to do.” Nevland v. Apfel, 204 F.3d 853, 857
(8th Cir. 2000).
II.

Analysis of the ALJ’s Decision
A.

The ALJ Properly Analyzed the Opinion of Dr. James Huber, the
SSA’s Examining Psychologist

Plaintiff argues that the ALJ erred by failing to provide good reasons for
discounting the opinion of the SSA’s examining psychologist, Dr. James Huber. Plaintiff
was referred to Dr. Huber for a consultative psychological evaluation on November 5,
2012. (Tr. 405.) Dr. Huber opined that Plaintiff (1) appeared able to understand and
follow at least relatively simple instructions with reminders; (2) was moderately impaired
in his ability to sustain attention and concentration; (3) was markedly impaired in his
ability to carry out work-like tasks with reasonable persistence and pace on a consistent
basis; (4) appeared able to respond appropriately to brief and superficial contacts with
coworkers and supervisors; and (5) appeared able to tolerate only relatively low levels of
stress and pressure in the workplace. (Tr. 409.)
Plaintiff argues, in particular, that more weight should have been given to the third
part of Dr. Huber’s opinion (i.e., that Plaintiff was markedly impaired in his ability to
consistently carry out work-like tasks with reasonable persistence and pace), to which the
ALJ gave “little weight.” (Tr. 30.) The ALJ observed that Plaintiff’s presentation to Dr.
Huber conflicted with “other observations throughout the record” because he “repeatedly
demonstrated intact memory on subsequent exams” and “demonstrated adequate to good
attention and concentration on multiple exams.” (Id.) The ALJ also noted that Plaintiff
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was teaching his daughter to cook, which indicated that Plaintiff “could not only
remember and comprehend instructions, he could also relay such instructions to others.”
(Id.) Further, the ALJ found the record suggested “possible exaggeration or symptom
magnification, which cast doubt on [Plaintiff’s] physical presentation throughout the
record.” (Id.) Thus, the ALJ concluded that Dr. Huber’s opinion regarding pace,
persistence, and a need for reminders was not consistent with the underlying record. (Id.)
Plaintiff argues that Dr. Huber’s opinion should have been credited, in part,
because of his status as an examining source. Generally, it is true that examining source
opinions are given “more weight” than opinions from non-examining sources. 20 C.F.R.
§ 404.1527(c)(1). The examining relationship, however, is only one factor to be used in
evaluating medical opinion evidence. The other factors are the length, nature, and extent
of the treatment relationship; supportability; consistency “with the record as a whole”;
and specialization. Id. § 404.1527(c)(2), (c)(3), (c)(4), (c)(5). These factors support the
ALJ’s evaluation of Dr. Huber’s opinion.
First, since Dr. Huber was a consulting source, his opinion is not entitled to
controlling weight under the treating physician factor. Id. § 404.1527(c)(2) (“Generally,
we give more weight to opinions from your treating sources, since these sources are
likely to be the medical professionals most able to provide a detailed, longitudinal picture
of your medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative examinations or brief
hospitalizations.”) (Emphasis added).
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Further, the ALJ’s conclusion that Dr. Huber’s opinion was not consistent with the
record is supported by substantial evidence. For example, the ALJ noted that Plaintiff
“repeatedly demonstrated intact memory on subsequent exams” and “demonstrated
adequate to good attention and concentration on multiple exams.” (Tr. 30.) The ALJ’s
record citations confirm that his analysis was correct. (Tr. 502 (indicating intact memory
on November 8, 2012); Tr. 553 (stating the following on April 3, 2013: “Recent and
remote memory intact. Good attention span. Concentration appears adequate for
interview”); Tr. 567 (stating the following on December 3, 2013: “Recent and remote
memory both intact. Attention and concentration both good”).) Additionally, on April 5,
2012, Dr. Roger Ralston, M.D., a consulting/examining physician, documented a normal
mental status for Plaintiff (Tr. 382.) Dr. Ralston specifically noted that Plaintiff “focuses
his attention and is able to shift from subject to subject without difficulty.” (Id.)
Furthermore, on November 7, 2012, Dr. Vivian Pearlman, a state agency
psychologist, explicitly rejected Dr. Huber’s diagnoses and report. (Tr. 85.) According to
Dr. Pearlman, Dr. Huber’s opinion regarding impaired persistence and pace was in excess
of Plaintiff’s reports regarding his functions and activities of daily living and was not
supported by the medical evidence of record or current level of care. (Tr. 85.) The ALJ
afforded “significant weight” to Dr. Pearlman’s opinion, which noted “mild impairment
in activities of daily living and moderate deficits in social functioning and concentration,
persistence or pace, . . . .” (Tr. 27.) State agency psychologists, such as Dr. Pearlman, are
considered to be “highly qualified . . . experts in Social Security disability evaluation.” §
404.1527(e)(2)(i).
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B.

Dr. Pearlman’s Opinion Does Not Support a Limitation to 3–4 Step
Tasks, and the ALJ’s Failure to Include a 3–4 Step Limitation in the
RFC was Harmless

Plaintiff argues that the ALJ erred when he gave Dr. Pearlman’s opinion
dispositive weight, but then, implicitly and without explanation, rejected Dr. Pearlman’s
limitation to the performance of routine, repetitive, 3–4 step tasks. (Tr. 83.) This
limitation was not included in the ALJ’s RFC. Dr. Pearlman, however, did not actually
limit Plaintiff to the performance of 3–4 step tasks. Instead, Dr. Pearlman opined that
Plaintiff’s “ability to handle stress and pressure in the work place would be reduced, but
adequate to handle the stresses of a routine, repetitive, or 3–4 step work setting. It would
be moderately impaired for the stresses of a detailed or complex/technical work setting.
Avoid frequent or rapid changes.” (Tr. 84) (emphasis added). This opinion is consistent
with the ALJ’s RFC and supported by substantial evidence in the record.
Moreover, the jobs that the vocational expert stated Plaintiff could perform––
marker (Dictionary of Occupational Titles (4th ed. 1991 ) (“DOT”) 209.587-034), wire
harness worker (DOT 728.684-010), and garment folder (DOT 789.687-066)––do not, as
Plaintiff argues, require the performance of tasks involving more than 3–4 steps. The job
tasks of a marker, for example, are as follows:
Marks and attaches price tickets to articles of merchandise to record price
and identifying information: Marks selling price by hand on boxes
containing merchandise, or on price tickets. Ties, glues, sews, or staples
price ticket to each article. Presses lever or plunger of mechanism that pins,
pastes, ties, or staples ticket to article. May record number and types of
articles marked and pack them in boxes. May compare printed price tickets
with entries on purchase order to verify accuracy and notify supervisor of
discrepancies. May print information on tickets, using ticket-printing
machine.
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DOT 209.587-034. Plaintiff characterizes each duty as a separate step towards a single
task, but this is incorrect. Instead, each duty is a separate task involving only one or two
steps. For example, “[m]arks and attaches price tickets to articles of merchandise to
record price and identifying information” requires two steps; “[m]arks selling price by
hand on boxes containing merchandise, or on price tickets” requires one step; and “[m]ay
record number and types of articles marked and pack them in boxes” requires two steps.
Id. Similarly, a wire harness assembler “[r]eads instructions, such as work orders,
diagrams, and wire lists to determine materials needed and sequence of assembly” (one
step), “[s]elects wires of specified color, marking, or length, and loops wires between
guide pegs on harness board, following color-coded lines or sequential numbers on board
or diagram” (two steps), and “[w]raps and ties wires together at designated points to form
harness, manually or using tie-wrap gun” (two steps), among other duties. DOT 728.684010. And a garment folder “[f]olds garments for bagging or boxing, following guide
marks on table or using folding board (cardboard or metal form)” (one step) and
“[s]ecures folds with metal clips” (one step). DOT 789.687-066. Ultimately, these three
jobs are unskilled work, consistent with Dr. Pearlman’s opinion that Plaintiff “can
understand, remember, and carry-out unskilled to semi-skilled tasks.” (Tr. 85.)
C.

Conclusion

In sum, there is substantial evidence in the record as a whole to support the ALJ’s
findings. The ALJ did not err by refusing to give significant weight to Dr. Huber’s
opinion that Plaintiff was markedly impaired in his ability to work with reasonable
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persistence and pace. The ALJ also did not err in his reliance on Dr. Pearlman’s opinion.
Dr. Pearlman, as noted, did not limit Plaintiff to the performance of 3–4 step tasks. Even
if she did, the duties for the jobs identified by the vocational expert do not exceed 3–4
steps. Therefore, the ALJ’s decision that Plaintiff is not disabled was within his “zone of
choice.” See Bradley, 528 F.3d at 1115; Bland, 861 F.2d at 535.
ORDER
Based on the foregoing, and all the files, records, and submissions herein, IT IS
HEREBY ORDERED that:
1.

Plaintiff’s Motion for Summary Judgment (Doc. No. 16) is DENIED;

2.

Defendant’s Motion for Summary Judgment (Doc. No. 18) is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Date: February 15, 2017.

s/ Becky R. Thorson_________________
BECKY R. THORSON
United States Magistrate Judge

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