Jorgensen v. Colvin

Filing 39

MEMORANDUM OPINION AND ORDER: the Court OVERRULES Plaintiffs Objections 37 and ADOPTS the Report and Recommendation of the Magistrate Judge 35 ; Accordingly, IT IS HEREBY ORDERED that: Plaintiff's Motion for Summary Judgment 27 is DENIED. Defendant's Motion for Summary Judgment 33 is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Chief Judge John R. Tunheim on 3/13/2018. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
BRIANA DALE JORGENSEN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

Civil No. 16-1025 (JRT/SER)

MEMORANDUM OPINION
AND ORDER

Defendant.

Jennifer G. Mrozik, HOGLUND, CHWIALKOWSKI & MROZIK,
PLLC, 1781 West County Road B, Roseville, MN 55113, for plaintiff.
Ann M. Bildtsen, Assistant United States Attorney, UNITED STATES
ATTORNEY’S OFFICE, 300 South Fourth Street, Suite 600,
Minneapolis, MN 55415, for defendant.

Plaintiff Briana Dale Jorgensen brought this action against Defendant Nancy
Berryhill, the Acting Commissioner of Social Security (“the Commissioner”), seeking
review of the denial of Jorgensen’s application for disability insurance benefits. The
parties filed cross-motions for summary judgment.

United States Magistrate Judge

Steven E. Rau issued a Report & Recommendation (“R&R”) that Jorgensen’s motion be
denied and the Commissioner’s granted. Jorgensen objects. After a careful review of the
record, the Court will find that the Commissioner’s decision conforms to the law and is
supported by substantial evidence from the record as a whole as required by 42 U.S.C.
§ 405(g). As such, the Court will overrule Jorgensen’s objections and adopt the R&R.

BACKGROUND
The facts of this case are described extensively in the R&R and are therefore
summarized here only as relevant to Jorgensen’s objections. (See R&R at 1-9, Jan. 26,
2018, Docket No. 35.) In 2012, Jorgensen filed for Social Security disability benefits on
the ground that a variety of cognitive issues limit her ability to work. (Admin. R. at 264,
267, Feb. 22, 2017, Docket No. 24.) As relevant here, state agency psychologist Dr.
Michael

DeSanctis

determined

that

Jorgensen’s

“difficulties

in

maintaining

concentration, persistence, or pace” were “marked,” an opinion with which a second state
agency psychologist concurred. (Id. at 136, 153.) Ultimately, however, both opined that
Jorgensen was not disabled. (Id. at 141, 153.)
Jorgensen’s claim was denied initially and on reconsideration. (Id. at 16.) After a
hearing, the claim was denied again by an Administrative Law Judge (“ALJ”). (Id. at 3031.) As relevant here, the ALJ found that Jorgensen has “moderate limitations” in her
“ability to maintain concentration, persistence, and pace.” (Id. at 20.) Despite finding
“moderate” rather than “marked” limitations, the ALJ found “the State agency
psychological consultants opinions generally consistent with the evidence in record and
gives their opinions weight to the extent that they support the above described residual
functional capacity findings.” (Id. at 29.) The Appeals Council denied review. (Id. at 1.)
Jorgensen brought this action after exhausting the administrative appeals process
within the Social Security Administration. (Compl., Apr. 19, 2016, Docket No. 1.) The
parties filed cross-motions for summary judgment, and the Magistrate Judge
recommended that Jorgensen’s motion be denied and the Commissioner’s granted. (R&R
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at 15; Def.’s Mot. for Summ. J., June 22, 2017, Docket No. 33; Pl.’s Mot. for Summ. J.,
Apr. 24, 2017, Docket No. 27.)

Jorgensen objects, arguing that the Commissioner

committed legal error by failing to properly evaluate the opinions of the two state agency
psychologists, and that the Magistrate Judge erroneously claimed that the ALJ’s error
was harmless. (Objs. at 1-2, Feb. 9, 2018, Docket No. 37.)
DISCUSSION
I.

STANDARD OF REVIEW
After a magistrate judge files an R&R, a party may file “specific written

objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2);
accord D. Minn. LR 72.2(b)(1). “The objections should specify the portions of the
magistrate judge’s report and recommendation to which objections are made and provide
a basis for those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774, at *2
(D. Minn. Sept. 28, 2008).

For dispositive motions, the Court reviews de novo a

“properly objected to” portion of an R&R. Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR
72.2(b)(3). “Objections which are not specific but merely repeat arguments presented to
and considered by a magistrate judge are not entitled to de novo review, but rather are
reviewed for clear error.” Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012,
1017 (D. Minn. 2015). Because motions for summary judgment are dispositive, the
Court will review Jorgensen’s objections de novo to the extent that they are specific and
do not merely repeat arguments presented to and considered by the Magistrate Judge.

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II.

ANALYSIS
Jorgensen raises two objections to the Magistrate Judge’s proposed finding that

the ALJ’s determination was supported by substantial evidence. First, Jorgensen argues
that the Commissioner “failed to properly evaluate the opinions of the state agency
psychological consultants as mandated under 20 C.F.R. § 404.1527.”

(Objs. at 1.)

Second, Jorgensen argues that the R&R erroneously claimed that any legal error was
harmless. (Id. at 5-6.)
A.

Explicit Evaluation

In moving for summary judgment, Jorgensen argued that “[t]he ALJ’s use of stock
language to ‘weigh’ [state agency psychological] opinions to support his conclusions are
meaningless without findings of fact.” (Pl.’s Mem. Supp. at 15, Apr. 24, 2017, Docket
No. 28). The Magistrate Judge considered and rejected Jorgensen’s argument because
substantial evidence in the record as a whole supports the ALJ’s conclusion. (R&R at 1214 (citing Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006); Jones v. Astrue, 619 F.3d
963, 970 (8th Cir. 2010)).) Jorgensen now argues that the ALJ committed legal error by
failing to provide “an explicit rationale” for not giving controlling weight to the state
agency psychologists’ opinion that Jorgensen has marked difficulties in maintaining
concentration, persistence, or pace. (Objs. at 3-4.) Jorgensen submits that the ALJ
provided only “canned language, not a rationale.” (Id. at 4.)
It is true that an ALJ is required consider certain enumerated factors in
determining the weight to be afforded a particular medical opinion; as such, canned

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language does not suffice. See 20 C.F.R. § 404.1527; Wildman v. Astrue, 596 F.3d 959,
966 (8th Cir. 2010) (noting that the ALJ is “required to develop the record fully and
fairly”). But Jorgensen is mistaken in suggesting that the ALJ must set forth an explicit
rationale with regard to each and every portion of a medical opinion. Setting aside
whether that rule would be desirable, it is not the law. See Karlix, 457 F.3d at 746 (“The
fact that the ALJ did not elaborate on [a particular] conclusion does not require reversal,
because the record supports her overall conclusion.”).
Here – as the Magistrate Judge found – the ALJ’s statement assigning weight to
the state agency psychological opinions came after the ALJ fully and fairly developed the
record with regard to Jorgensen’s ability to maintain concentration, persistence, and pace.
(See Admin R. at 25-27; R&R at 13.) This case stands in stark contrast to situations
where an ALJ’s determination should be overturned. See Singh v. Apfel, 222 F.3d 448,
452 (8th Cir. 2000) (overturning an ALJ for failing to properly credit a treating
physician’s opinion when the record was “replete with evidence that substantiates the
opinion”); Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990) (overturning an ALJ for
improperly substituting his own lay opinion for that of the treating physician). As such,
the Court finds that the ALJ did not commit legal error.
B.

Harmless Error

Jorgensen submits that the R&R claims that any legal error that may have
occurred was harmless, citing a portion of the R&R that describes as noteworthy the fact
that the state agency consultants ultimately opined that Jorgensen was not disabled – even

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though they believed that she suffered from certain marked limitations. (Objs. at 5; R&R
at 14.) But the Magistrate Judge was merely explaining that there is evidence in the
agency consultants’ own opinions – along with substantial evidence in the record as a
whole – to support the ALJ’s conclusion. 1 The Court agrees.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES Plaintiff’s Objections [Docket No. 37] and ADOPTS the Report
and Recommendation of the Magistrate Judge [Docket No. 35]. Accordingly, IT IS
HEREBY ORDERED that:
1.

Plaintiff’s Motion for Summary Judgment [Docket No. 27] is DENIED.

2.

Defendant’s Motion for Summary Judgment [Docket No. 33] is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: March 13, 2018
at Minneapolis, Minnesota.

_______s/John R. Tunheim______
JOHN R. TUNHEIM
Chief Judge
United States District Court

1

The ALJ also mentioned that the consultants had opined that “the claimant could
maintain persistence and pace for simple, 1 and 2 step routine, repetitive, concrete, and hands on
tasks of an unskilled nature.” (Admin. R. at 29.) This is another instance of evidence in the
consultants’ opinions that supports the ALJ’s ultimate conclusion.

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