Zimmer v. Berryhill
ORDER ADOPTING REPORT AND RECOMMENDATION (Written Opinion). Signed by Judge Patrick J. Schiltz on 3/7/2018. (CLG)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DARREL K. ZIMMER,
Case No. 16‐CV‐3939 (PJS/BRT)
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Stephanie M. Balmer, FALSANI, BALMER, PETERSON & QUINN, for
Ann M. Bildtsen, UNITED STATES ATTORNEY’S OFFICE, for defendant.
After the Commissioner of Social Security (the “Commissioner”) denied plaintiff
Darrel Zimmer’s application for disability benefits, Zimmer brought this action asking
the Court to either (1) reverse the Commissioner’s decision and award him the
disability benefits that he seeks or (2) remand his case to the Commissioner for another
This matter is before the Court on Zimmer’s objection to Magistrate Becky R.
Thorson’s January 3, 2018 Report and Recommendation (“R&R”). Judge Thorson
recommends denying Zimmer’s motion for summary judgment and granting the
Commissioner’s motion for summary judgment. The Court has conducted a de novo
review. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Based on that review, the
Court agrees with Judge Thorson that the Commissioner’s decision was supported by
substantial evidence, overrules Zimmer’s objection, and adopts Judge Thorson’s R&R.
Only a couple of matters merit comment:
First, Zimmer argues that Judge Thorson applied the wrong standard of review
when Judge Thorson wrote that “the discrepancy between Plaintiff’s stated limitations
and the results of objective testing can be explained by Plaintiff’s desire to obtain
disability benefits.” ECF No. 16 at 17. Zimmer points out that “can be explained” is not
the same thing as “substantial evidence.” ECF No. 18 ¶ 1. It is abundantly clear,
however, that Judge Thorson applied the substantial‐evidence standard, to which she
consistently and repeatedly referred in the R&R. See ECF No. 16 at 12‐15, 17, 19. Judge
Thorson used the phrase “can be explained” in the course of explaining why the
administrative law judge (ALJ)’s decision met the substantial‐evidence standard, not as
a substitute for the substantial‐evidence standard. See id. at 17.
Second, Zimmer argues that hearsay statements in medical records cannot
constitute substantial evidence. ECF No. 18 ¶¶ 1‐2. This is not true. In some cases, an
anonymous report by an unidentified author may not constitute substantial evidence.
See McClees v. Sullivan, 879 F.2d 451, 452‐53 (8th Cir. 1989). In most cases, however,
“a written report by a licensed physician who has examined the claimant . . . may be
received as evidence in a disability hearing . . . despite its hearsay character . . . and . . .
may constitute substantial evidence,” as long as “the claimant has not exercised his
right to subpoena” and cross‐examine the physician. Richardson v. Perales, 402 U.S. 389,
402 (1971); see also Bell Helicopter Int’l, Inc. v. Jacobs, 746 F.2d 1342, 1343‐44 (8th Cir. 1984).
Finally, Zimmer argues that the R&R erred in unduly relying on “state agency
examiner opinions which do not constitute substantial evidence.” ECF No. 18 ¶ 4. This
argument is also unpersuasive. A consulting physician’s opinion generally will not
constitute substantial evidence if it is not supported by any other evidence. See
Krogmeier v. Barnhart, 294 F.3d 1019, 1023‐24 (8th Cir. 2002). But when an opinion of a
consulting physician or a state agency examiner is supported by other medical
evidence, a court may rely on that opinion to conclude that an ALJ’s decision is
supported by substantial evidence. See Ponder v. Colvin, 770 F.3d 1190, 1194‐96 (8th Cir.
2014) (concluding that substantial evidence supported the ALJ’s decision when “[t]hree
physicians who reviewed Ponder’s medical record . . . concluded that Ponder could . . .
perform sedentary work”); Cash v. Colvin, No. 4:14CV3159, 2015 WL 1346163, at *5 (D.
Neb. Mar. 25, 2015) (“Plaintiff further claims that the ALJʹs RFC assessment was
improper because the opinion of the state agency examiner . . . does not constitute
substantial evidence . . . . This argument is not persuasive. . . . . The ALJ did not err by
relying on [the state agency examiner’s] opinion.”).
As Judge Thorson made clear, the question for this Court is not whether it would
have made the same decision as the ALJ, but whether the ALJ’s decision is supported
by substantial evidence. Having reviewed the record, the Court concludes that the
decision of the ALJ is indeed supported by substantial evidence.
Based on the foregoing, and on all of the files, records, and proceedings herein,
the Court OVERRULES plaintiff’s objection [ECF No. 18] and ADOPTS Judge Thorson’s
R&R [ECF No. 16]. IT IS HEREBY ORDERED THAT:
Plaintiff’s motion for summary judgment [ECF No. 11] is DENIED.
Defendant’s motion for summary judgment [ECF No. 14] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 7, 2018
s/Patrick J. Schiltz
Patrick J. Schiltz
United States District Judge
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