Bass v. Colvin
Filing
19
ORDER denying 12 Motion for Summary Judgment; granting 15 Motion for Summary Judgment(Written Opinion) Signed by Magistrate Judge Franklin L. Noel on 3/28/2018. (TMA)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Dianna Bass,
Civil No. 16-4198 (FLN)
Plaintiff,
v.
ORDER
Nancy Berryhill,
Acting Commissioner of Social Security,
Defendant.
___________________________________________________
Edward Olson and Karl Osterhout, for Plaintiff.
Ann Bildtsen, Assistant United States Attorney, for Defendant.
___________________________________________________
Plaintiff Dianna Bass seeks judicial review of the final decision of the Acting
Commissioner (“Commissioner”) of the Social Security Administration (“SSA”), who denied her
application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”)
under Title II and Title XIV of the Social Security Act. This Court has jurisdiction over
Plaintiff’s claim pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), 28 U.S.C. § 636(c), and Rule
73 of the Federal Rules of Civil Procedure. The parties have submitted cross motions for
summary judgement. See ECF Nos. 12 and 15. For the reasons set forth below, the
Commissioner’s decision is AFFIRMED and the case is DISMISSED WITH PREJUDICE.
I. INTRODUCTION 1
A. Background
On October 28, 2000, Bass fell from a ladder while cleaning gutters. Administrative
Record [hereinafter “AR”] 851, ECF No. 11. This case stems from the multiple head injuries
Bass sustained attendant to that accident, and her subsequent challenges in securing and
maintaining competitive employment in light of those injuries. See generally ECF No. 1.
On November 22, 2013, Bass applied for DIB and SSI. AR 10. Bass alleges that her
disability began on January 1, 2010. Id. Bass was fifty-two years-old when she applied for DIB
and SSI. AR 24. Bass’ applications for DIB and SSI were denied initially on March 17, 2014,
and on reconsideration on October 29, 2014. Id.; AR 77–90; 142–143.
On November 13, 2015, an administrative hearing was held before Administrative Law
Judge (“ALJ”) Peter Kimball. AR 32–76. At the hearing, Bass testified and was represented by a
claimant advocate, Bart Painter. AR 34. Steve Bosch, a vocational expert (“VE”), and Dr. Mary
Stevens, a neutral medical expert, also testified at the hearing. Id. On December 11, 2015, the
ALJ denied Bass’ applications for DIB and SSI, and found that Bass was not disabled. AR 10–
26.
On October 19, 2016, the SSA Appeals Council denied Bass’ request for review,
rendering the ALJ’s decision final for purposes of judicial review. AR 1–3; see 20 C.F.R. §
404.981. On December 15, 2016, Bass commenced this civil action, seeking an award of
benefits, or alternatively, reversal and remand for further proceedings. ECF No. 1 at 2.
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This Court adopts the ALJ’s findings regarding Bass’ medical treatment history.
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B. The ALJ’s Decision
In determining that Bass was not disabled, the ALJ followed the five-step sequential
process established by the SSA. See 20 C.F.R. § 404.1520(a)(4).
The first step in the sequential evaluation is to evaluate the claimant’s work history to
determine if they are engaged in substantial gainful activity. See 20 C.F.R. §§ 404.15071 and
416.971. If the claimant has performed substantial work activity then they are not disabled. Id.
At step one, the ALJ found that although Bass had worked part-time, she had not engaged in
substantial work activity since her alleged disability onset date. AR 15.
The second step in the sequential evaluation is to determine whether the claimant has a
severe, medically-determinable impairment, or combination of impairments, that significantly
limits an individual’s ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(c) and
416.920(c). At step two, the ALJ found that Bass had the following severe impairments: history
of a traumatic brain injury secondary to a closed head injury suffered in 2000, cognitive disorder,
and persistent depressive disorder with anxiety. AR 15.
The third step in the sequential evaluation requires the ALJ to determine whether the
claimant has an impairment that meets or equals one of the listings in 20 C.F.R. Part 404,
Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d), 404.1525, 404.1526. Here, the ALJ determined
Bass does not have an impairment or combination of impairments that meets or medically equals
the severity of one of the impairments listed in Appendix 1. AR 16. The ALJ specifically
considered Listings 12.02, 12.04, and 12.06, and Dr. Stevens’ testimony in making his step-three
determination. AR 16.
If the claimant’s impairment does not meet or equal one of the listings in Appendix 1,
then the ALJ must make an assessment of the claimant’s Residual Function Capacity (“RFC”).
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See 20 C.F.R. § 416.920(e). Here, after reviewing the entire record, including the VE’s
testimony, the ALJ concluded that Bass had the RFC to: “perform a full range of work at all
exertional levels[,] but with the following nonexertional limitations: in terms of understanding,
remembering, and carrying out instructions, she is able to perform simple, routine tasks; she is
able to frequently respond appropriately to supervisions, coworkers, and the public.” AR 18. In
making this determination, the ALJ found that Bass’ medically determinable impairments could
reasonably be expected to cause the alleged symptoms, however, the ALJ found that Bass’
statements concerning the intensity, persistence, and limiting effects of those symptoms were not
entirely credible. See AR 18–19.
In the fourth and fifth steps of the sequential evaluation process, the ALJ must determine
whether the claimant has the RFC to perform either their past relevant work or any other jobs
that exist in significant numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(iv)–
(v). If the claimant cannot perform their past relevant work, then the burden shifts to the
Commissioner to establish, first, that the claimant has the RFC to perform other kinds of work,
and, second, that other work exists in substantial numbers in the national economy. See
Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000).
At step four, the ALJ found that Bass was not able to perform her past relevant work as
either a truck-driver or computer technical support staff. AR 24. This finding was based on the
VE’s testimony that a hypothetical person with the comparable limitations, age, education, and
past work experience could not perform any of Bass’ past relevant jobs because the mental
demands of those jobs exceeded Bass’ RFC. Id. At step five, the ALJ concluded that considering
Bass’ age, education, work experience, and RFC, jobs exist in significant numbers in the national
economy that Bass can perform: officer helper, hand packager, and bench assembly. AR 25. This
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determination was based on the VE’s testimony, which the ALJ found consistent with the
information contained in the Dictionary of Occupational Titles. Id.
II. STANDARD OF REVIEW
Congress has prescribed the standards by which Social Security disability benefits may
be awarded. “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
is disabled under the Social Security Act “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.” 42 U.S.C. § 423(d)(2)(A).
Judicial review of the final decision of the Commissioner is restricted to a determination
of whether the decision is supported by substantial evidence in the record as a whole. See 42
U.S.C. § 405(g); see also Quals v. Apfel, 158 F.3d 425, 427 (8th Cir. 1998); Gallus v. Callahan,
117 F.3d 1061, 1063 (8th Cir. 1997); Wilson v. Sullivan, 886 F.2d 172, 175 (8th Cir. 1989).
Substantial evidence means more than a mere scintilla; it means sufficient relevant evidence that
a reasonable person might accept as adequate to support a conclusion. See Richard v. Perales,
402 U.S. 389, 401 (1971). In determining whether evidence is substantial, a court must also
consider whatever is in the record that fairly detracts from its weight. See Warburton v. Apfel,
188 F.3d 1047, 1050 (8th Cir. 1999); see also Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir.
1989).
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A court, however, may not reverse merely because substantial evidence would have
supported an opposite decision. See Roberts v. Apfel, 222 F.3d 466, 468 (8th Cir. 2000); see also
Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir. 1996). “As long as substantial evidence in the
record supports the Commissioner’s decision, we may not reverse it because substantial evidence
exists in the record that would have supported a contrary outcome . . . or because we would have
decided the case differently.” Roberts, 222 F.3d at 468 (citing Craig v. Apfel, 212 F.3d 433, 436
(8th Cir. 2000); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). Therefore, this Court’s
review of the ALJ’s factual determinations is deferential, and does not re-weigh the evidence nor
review the factual record de novo. See Flynn v. Chater, 107 F.3d 617, 620 (8th. Cir. 1997); see
also Roe v. Chater, 92 F.3d 672, 675 (8th. Cir. 1996). The Court must “defer heavily to the
findings and conclusions of the SSA.” Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001).
III. ANALYSIS
Bass argues that the ALJ erred by “reject[ing] the opinions” of Dr. Stevens, and Bass’
treating medical providers, Dr. Kathyrn Lombardo and Leah Holmes, L.P., and failed to provide
sufficient reasons for discrediting their opinions. See ECF No. 13 at 4. Bass also argues that the
ALJ’s failure to properly weigh the opinion evidence resulted in an improper RFC. Id. The
Commissioner argues that the ALJ “properly evaluated the opinion evidence.” ECF No. 16 at 5.
Because substantial evidence in the record as a whole supports the ALJ’s decision to deny Bass’
applications for DIB and SSI, this Court affirms. See 42 U.S.C. § 405(g).
A.
The ALJ Properly Weighed the Opinion Evidence
1.
Substantial evidence supports the weight assigned to Dr. Lombardo’s and
Holmes’ opinions.
Dr. Lombardo treated Bass’ brain injuries throughout 2014 and 2015. AR 839. On
December 2, 2014, Dr. Lombardo opined that Bass would not be able to sustain competitive
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employment in the foreseeable future, AR 861, and on March 22, 2015, Dr. Lombardo found that
Bass would have “moderate to extreme impairment in her ability to perform basic work duties in
a normal competitive work environment and would be absent from work more than three days a
month.” AR 23; AR 844. Although Bass argues that the ALJ “rejected” Dr. Lombardo’s opinion,
in fact, the ALJ gave “little weight” to Dr. Lombardo’s opinion because her findings regarding
Bass’ impairment severity were inconsistent with the record as a whole. AR 23.
Generally, a “treating physician’s opinion is entitled to controlling weight,” so long as it
is “supported by medically acceptable techniques and is not inconsistent with substantial
evidence in the record.” Julin v. Colvin, 826 F.3d 1082, 1088 (8th Cir. 2016). The ALJ must
“always give good reasons . . . for the weight [attributed to the claimant’s] treating source’s
opinion.” 20 C.F.R. § 404.1527(c)(2).
Substantial evidence supports the ALJ’s conclusion that Dr. Lombardo’s opinion was
inconsistent with the record as a whole. See Julin, 826 F.3d at 1088. Here, the ALJ discounted
Dr. Lombardo’s opinion because her treatments of Bass were spondaic, and the treatment notes
showed that Bass’ global assessment of function score never dropped below 55, which the ALJ
observed “does not support the severity of the symptoms alleged.” AR 23; see, e.g., Hacker v.
Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (reasoning that “[a] treating physician’s own
inconsistency may . . . undermine his opinion and diminish or eliminate the weight given his
opinions.”). The ALJ also noted that Dr. Lombardo’s finding that Bass suffered from moderate
to extreme functioning impairment was inconsistent with other medical records showing that
Bass’ memory was intact, she was alert, and she was conversant and pleasant. AR 869. The ALJ
also found that Bass’ testimony belied her alleged symptom severity given that she stated that
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was able to use a computer, attend college courses, complete her degree, drive a car, care for her
apartment, and work part-time at various points after her alleged disability onset date. AR 38–52.
This Court’s review of the ALJ’s factual determinations is deferential and it neither reweighs the evidence, reviews the factual record de novo, nor reverses when an ALJ’s decision
falls within a reasonable “zone of choice.” Hacker, 459 F.3d at 936. Here, the ALJ sufficiently
explained why he assigned little weight to Dr. Lombardo’s opinion, and articulated how Dr.
Lombardo’s opinion was inconsistent with the record as a whole. See Julin, 826 F.3d at 1088.
Accordingly, this Court will not disturb the weight assigned to Dr. Lombardo’s opinion.
Like Dr. Lombardo, Holmes treated Bass throughout 2014. AR 23. In March 2014,
Holmes opined that Bass could not sustain competitive employment because of residual brain
trauma and injury, difficultly in multi-taking, sustaining attention and cognitive endurance, and
that Bass could not work an eight-hour day without frequent breaks. AR 716. The ALJ gave no
weight to Holmes’ opinion because it was inconsistent with the record as a whole. AR 23.
Specifically, the ALJ noted that Bass had recently secured part-time work editing an online book
for a Canadian businessman, completed her degree, and her mental status testing demonstrated a
satisfactory ability to learn new material and concentrate. AR 23. In addition, Bass testified that
she read up to two hours a night. AR 66. Because the ALJ provided an adequate explanation and
offered good reasons for affording no weight to Holmes’ opinion, see 20 C.F.R. §
404.1527(c)(2), and identified objective medical evidence inconsistent with Holmes’ opinion
regarding Bass’ limitations, see Julin, 826 F.3d at 1088, this Court will not disturb the weight
assigned to Holmes.
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2.
Substantial evidence supports the weight assigned to Dr. Stevens’ opinion.
During her testimony at the November 13, 2015, administrative hearing, neutral medical
examiner Dr. Stevens opined that Bass is capable of only simple, routine tasks, and could not
sustain the requisite concentration needed for full employment, AR 69, and that over time, Bass’
brain injury would worsen. AR 66. Dr. Stevens opined that Bass’ injuries satisfied Listings 12.02
and 12.04. Id. The ALJ gave Dr. Stevens’ opinion no weight “due to [a] lack of evidentiary
support.” AR 19.
“[T]he opinions of nonexamining medical sources are generally given less weight than
those of examining sources.” Papesh v. Colvin, 786 F.3d 1126, 1133 (8th. Cir. 2015). While the
opinion of a non-examining physician does not constitute substantial evidence independently, an
ALJ may permissibly consider such an opinion as one aspect of a broader record. See Johnson v.
Astrue, No. 10-cv-4373(DWF/JJG), 2012 WL 1004992, at *8 (D. Minn. Mar. 26, 2012). When
deciding the weight to give an opinion, the ALJ considers factors including: (1) the examining
relationship; (2) treatment relationship; (3) supportability; (4) consistency; (5) specialization; and
(6) other factors. See 20 C.F.R. § 416.927(c).
Here, the ALJ articulated sufficiently good reasons for assigning no weight to Dr.
Stevens’ opinion. The ALJ identified objective testing showing that Bass’ Intelligence Quotient
scores were average to above average, her concentration was only mildly impaired, her cognitive
functioning was improved, and that her symptoms were being adequately managed. AR 19. The
ALJ again noted that since Bass’ alleged disability onset, she had attended and finished a college
degree program, had secured online employment, and was able to tend to her daily activities. Id.
The ALJ properly discounted Dr. Stevens’ findings because they were inconsistent with the
objective medical record and were not supported by Bass’ testimony regarding the severity of her
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functional limitations. See, e.g., Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (holding that
the ALJ has the authority to weigh conflicting evidence and resolve disagreement in the medical
record). Accordingly, the ALJ’s decision to assign no weight to Dr. Stevens’ opinion will not be
disturbed.
The ALJ gave great weight to the opinions of state medical examiners, Dr. Gregory Salmi
and Dr. Paul Ossmann that Bass does not suffer from a severe physical impairment. AR 22. An
ALJ can assign a state agency consultant’s opinion more weight than a treating source if the state
agency consultant’s opinion is supported by substantial evidence in the record. See Davis v.
Apfel, 239 F.3d 962, 967–68 (8th 2001). Dr. Salmi noted that Bass does not satisfy Listing 12.02
and 12.04 criteria, AR 83, and that her self-reporting symptom severity was far worse than the
objective medical evidence, “likely due to psychosocial or emotional concerns.” Id. Dr. Salmi
also noted that although Bass’ concentration and persistence were moderately impacted, her
ability to understand, carry out and remember simple instructions, make judgments
commensurate with functions of unskilled work, to respond appropriately to brief supervision,
and interactions with coworkers were not impaired. AR 100. In addition, Dr. Salmi noted that
Bass’ memory scores demonstrated average to upper average intelligence, and that testing
performed in 2002 showed that she functioned within normal limits. AR 95. Similarly, Dr.
Ossmann noted a 2011 Mayo evaluation summary, which showed that Bass’ cognition disorder
was largely resolved and that her performance across measures were within the average range.
AR 116. Dr. Ossmann also stated that the medical evidence of record does not show a worsening
of Bass’ mental health, id., and that Bass was not significantly impaired to the extent that she
satisfied a Listing criteria. AR 116–117. Here, the ALJ’s decision to afford Dr. Salmi’s and Dr.
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Ossmann’s opinion great weight is supported by the objective medical record. See Davis, 239
F.3d at 968.
B.
The ALJ Did Not Err in Fashioning Bass’ RFC
It is “the ALJ’s responsibility to determine [the claimant’s] RFC based on all the relevant
evidence, including medical records, observations of treating physicians and others, and [the
claimant’s] own description of her limitations.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.
2007) (internal citations omitted). “[A] claimant’s [RFC] is a medical question” that requires
“[s]ome medical evidence” in support. Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). Here,
in fashioning Bass’ RFC, the ALJ opined that Bass’ daily activities in the record belied her
disability claims, specifically those activities related to daily living, such as completing
household chores, driving, taking college courses and completing a degree program, and
working-part time. See AR 66; see, e.g., Hensley v. Barnhard, 352 F.3d 353, 356–57 (8th Cir.
2003) (reasoning that the claimant’s allegation of limited mobility was undermined by his
admission to providing care for his children and disabled sister).
Here, the record shows that the ALJ’s RFC determination included, at minimum, some
medical evidence. Dr. Salmi, consistent with the ALJ’s RFC, concluded that Bass could not
perform her past relevant work, but was nonetheless not disabled because she suffered from only
moderate limitations in adaptive functioning. AR 89–90, AR 100, AR 103. Similarly, Dr.
Ossmann found that although Bass could not perform her past relevant work, AR 122, she was
not disabled and was not significantly limited in concentration and persistence, carrying out
detailed instructions, sustaining an ordinary routine without supervision, and the ability to make
simple-work related decisions. AR 118. Indeed, the ALJ stated that he considered the “entire
record” in fashioning Bass’ RFC. AR 18. Although the ALJ must not “succumb to the temptation
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to play doctor and make their own medical findings,” Pate-Fires v. Asutre, 564 F.3d 935, 947
(8th Cir. 2009), in this case, Bass does not argue that the ALJ went beyond the presented
evidence to make independent factual findings. Again, this Court’s review of the ALJ’s factual
determination is deferential, and it neither re-weighs the evidence, reviews the factual court de
novo, see Flynn, 107 F.3d at 620, nor reverses when an ALJ’s decision falls within a reasonable
“zone of choice.” Hacker, 459 F.3d at 936. Because the ALJ’s RFC determination relied on a
sufficient examination of the record, the Court concludes that substantial evidence exists to
support the ALJ’s RFC determination. See id.
IV. CONCLUSION AND ORDER
If the ALJ’s decision is supported by substantial evidence in the record, this Court cannot
reverse simply because “substantial evidence . . . would have supported a contrary outcome . . .
or because we would have decided the case differently.” Roberts, 222 F.3d at 468 (citing Craig,
212 F.3d at 436). Here, substantial evidence supports the ALJ’s findings and ultimate
determination that Bass is not disabled.
Based upon the foregoing and all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.
Plaintiff’s motion for summary judgement (ECF No. 12) is DENIED;
2.
Defendant’s motion for summary judgement (ECF No. 15) is GRANTED;
3.
The Commissioner’s decision is AFFIRMED and the case is
DISMISSED WITH PREJUDICE.
LET JUDGEMENT BE ENTERED ACCORDINGLY.
DATED: March 28, 2018
s/Franklin L. Noel
FRANKLIN L. NOEL
United States Magistrate Judge
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