Rice v. Berryhill

Filing 16

ORDER denying 12 Motion for Summary Judgment; granting 14 Motion for Summary Judgment(Written Opinion). Signed by Magistrate Judge Tony N. Leung on 9/17/2018. (GFK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

John Rice,

Case No. 17-cv-1462 (TNL)
Plaintiff,

v.

ORDER

Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.

Benjamin L. Reitan and Jacob P. Reitan, Reitan Law Office, PLLC, 1454 White Oak
Drive, Chaska MN 55318 (for Plaintiff); and
Bahram Samie, Assistant United States Attorney, United States Attorney’s Office, 300
South Fourth Street, Suite 600, Minneapolis MN 55415 (for Defendant).

I.

INTRODUCTION
Plaintiff John Rice brings the present action, contesting Defendant Commissioner

of Social Security’s denial of his application for disability insurance benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. §§ 401–34, and supplemental security
income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381. The parties
have consented to a final judgment from the undersigned United States Magistrate Judge
in accordance with 28 U.S.C. § 636(c) and D. Minn. LR 7.2. This matter is before the
Court on the parties’ cross motions for summary judgment. For the reasons set forth
below, the Court denies Plaintiff’s motion and grants Defendant’s motion.

II.

BACKGROUND
A. Procedural History
Plaintiff filed the instant action for DIB and SSI in March 2014, alleging a

disability onset date of October 30, 2011. Plaintiff alleges impairments of depression,
anxiety disorder, and mood disorder. Plaintiff was found not disabled on February 4,
2015. That finding was affirmed upon reconsideration. Plaintiff then requested a hearing
before an Administrative Law Judge. A hearing was held January 13, 2016 and, on
March 9, 2016, the ALJ issued a decision denying Plaintiff’s claim for benefits. Plaintiff
sought review of the ALJ’s decision through the Appeals Council, which denied his
request for review. Plaintiff then sought review in this Court.
B. The ALJ’s Decision
The ALJ found that Plaintiff had the severe impairments of: “major depressive
disorder; generalized anxiety disorder; and chemical dependency reportedly in remission
since October 2013.” (Tr. 20). The ALJ next found and concluded 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. pt. 404, subpt. P, app. 1. (Tr. 20).
The ALJ looked at Listings 12.04 (affective disorders), 12.06 (anxiety related disorders),
and 12.09 (substance addiction disorders). (Tr. 20–23). Following this, the ALJ found
Plaintiff has the residual functioning capacity (“RFC”) to perform a full range of work at
all exertional levels with certain nonexertional limitations: “limited to simple, routine,
repetitive tasks; occasional changes in work setting; brief and superficial interaction with
supervisors, co-workers, and the public; no complex decision-making; no rapid,
2

assembly-line paced work, defined as a meeting daily quotas but not hourly quotas; and
no contact or access to illicit drugs or alcohol.” (Tr. 23). The ALJ next concluded that
there are jobs that exist in significant numbers in the national economy that Plaintiff can
perform, when considering his age, education, work experience, and RFC. (Tr. 30–31).
Accordingly, Plaintiff was found not disabled from October 30, 2011 through the date of
the ALJ’s decision. (Tr. 31).
III.

ANALYSIS
A. Legal Standard
Disability benefits are available to individuals determined to be under a disability.

42 U.S.C. §§ 423(a)(1), 1381a; accord 20 C.F.R. §§ 404.315, 416.901. An individual is
considered disabled if he is unable “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), 1382c(a)(3)(A); see also
20 C.F.R. § 404.1505(a). This standard is met when a severe physical or mental
impairment, or impairments, renders the individual unable to do his previous work or
“any other kind of substantial gainful work which exists in the national economy” when
taking into account his age, education, and work experience. 42 U.S.C. §§ 423(d)(2)(A),
1382c(a)(3)(B); see also 20 C.F.R. § 404.1505(a). Disability is determined according to a
five-step, sequential evaluation process. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
To determine disability, the ALJ follows the familiar five-step process,
considering whether: (1) the claimant was employed; (2) she was severely
impaired; (3) her impairment was, or was comparable to, a listed
3

impairment; (4) she could perform past relevant work; and if not,
(5) whether she could perform any other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010) (citing 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4)). In general, the burden of proving the existence of
disability lies with the claimant. 20 C.F.R. § 404.1512(a); Thomas v. Sullivan, 928 F.2d
255, 260 (8th Cir. 1991).
This Court reviews whether the ALJ’s decision is supported by substantial
evidence in the record as a whole. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011)
(citing Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004)); 42 U.S.C. § 405(g).
“Substantial evidence means less than a preponderance but enough that a reasonable
person would find it adequate to support the decision.” Boettcher, 652 F.3d at 863 (citing
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)). This standard requires the
Court to “consider the evidence that both supports and detracts from the ALJ’s decision.”
Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012) (citing Ellis v. Barnhart, 393 F.3d
988, 993 (8th Cir. 2005)).
The ALJ’s decision “will not [be] reverse[d] simply because some evidence
supports a conclusion other than that reached by the ALJ.” Perks, 687 F.3d at 1091
(citing Pelkey v. Barnhart, 433 F.3d 575, 578) (8th Cir. 2006)). “If, after reviewing the
record, the court finds it is possible to draw two inconsistent positions from the evidence
and one of those positions represents the [ALJ’s] findings, the court must affirm the
[ALJ’s] decision.” Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). In
reviewing the record for substantial evidence, the Court may not substitute its own

4

judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441,
445 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). Likewise,
courts “defer to the ALJ’s determinations regarding the credibility of testimony, so long
as they are supported by good reasons and substantial evidence.” Pelkey, 433 F.3d at 578.
Under 20 C.F.R. §§ 404.1527(c), 416.927(c), medical opinions from treating
sources are weighed using several factors: (1) the examining relationship; (2) the
treatment relationship, such as the (i) length of the treatment relationship and frequency
of examination and the (ii) nature and extent of the treatment relationship;
(3) supportability; (4) consistency; (5) specialization; and (6) other factors. If a treating
source’s medical opinion on the nature and severity of a claimant’s impairments is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the] case record,” it is given
controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Treating sources are
defined as licensed physicians, licensed or certified psychologists, licensed optometrists,
licensed

podiatrists,

and

qualified

speech-language

pathologists.

20

C.F.R.

§§ 404.1513(a), 416.913(a). “A treating physician’s opinion that a claimant is disabled or
cannot be gainfully employed gets no deference because it invades the province of the
Commissioner to make the ultimate disability determination.” House v. Astrue, 500 F.3d
741, 745 (8th Cir. 2007). An ALJ “may give a treating doctor’s opinion limited weight if
it provides conclusory statements only.” Samons v. Astrue, 497 F.3d 813, 818 (8th Cir.
2007) (citing Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995)). And “[a]
treating physician’s own inconsistency may . . . undermine his opinion and diminish or
5

eliminate the weight given his opinions.” Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir.
2006) (citing Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)).
B. The Opinion of Nurse Russell
Plaintiff asserts that the ALJ did not give any weight to, or even address, the
March 27, 2013 opinion of psychiatric mental health certified nurse specialist Terri
Russell. (ECF No. 13, at 5–6).
On March 27, 2013, Plaintiff saw Russell for a psychiatric diagnostic assessment.
(Tr. 414–18). Plaintiff presented with daily functioning “significantly below baseline.”
(Tr. 414). Plaintiff reported depressive symptoms, mood swings, and significant levels of
anxiety. (Tr. 414). Russell noted Plaintiff’s “remarkable situational variables appear to be
the same as the sources of stress.” (Tr. 414). On examination, Plaintiff’s activity was
increased with frequent body movements and repositioning in his chair; speech was clear
with increased rate and normal volume; he was alert and attentive; eye contact was
generally good; mood was “quite agitated, anxious, and somewhat desperate”; cognitive
functioning and estimated IQ appeared to be impaired at the time due to anxiety and
depression; insight was fair; he was undergoing “significant situational stressors and
changes” over the last 1.5 years; affect was extremely restricted; judgment and impulse
control appeared to be fair at the time, but anxiety and depression may contribute to
impulsive action; Plaintiff reported significant memory and concentration problems, but
he was able to answer questions clearly during the interview; and he was oriented to time,
place, person, and had clear thought processes. (Tr. 417). Russell’s diagnosis was: major
depressive disorder, recurrent, moderate; adjustment disorder with anxiety; and panic
6

disorder without agoraphobia ruling out generalized anxiety disorder. (Tr. 417). Plaintiff
was to discontinue his sertraline 1 slowly, begin taking citalopram, 2 take lorazepam, 3 and
begin individual therapy. (Tr. 417–18). Russell’s summary was that Plaintiff was
experiencing a wide variety of situational stressors which are contributing
to his symptoms of depression and anxiety. [Plaintiff’s] prognosis is good
based on his history of stability and employment. If his symptoms are left
untreated, he is at risk of continued or increased emotional turmoil.
[Plaintiff’s] symptoms include depression, anxiety, panic symptoms, mood
changes and decreased memory and concentration. It appears these
symptoms began in 2011. They have increased in intensity since July, 2012
and especially over the last few weeks. His degree of functional impairment
is severe. [Plaintiff’s] strengths include his intelligence, motivation for
treatment, and willingness to participate in recommended treatment options.
(Tr. 418).
Contrary to Plaintiff’s assertion, the ALJ did discuss this March 2013 psychiatric
diagnostic assessment. (Tr. 24). Specifically, the ALJ recounted the mental status
examination, Russell’s assessment, Russell’s medication decisions, and Russell’s
estimation of Plaintiff’s prognosis. (Tr. 24). While the ALJ did not specifically quote the
single sentence that Plaintiff cites—“His degree of functional impairment is severe”—it
is clear the ALJ considered the March 2013 assessment. Thus, Plaintiff’s argument that
the ALJ did not address Russell’s opinion is squarely contradicted by the record.
1

Sertraline is an SSRI “used to treat depression, obsessive-compulsive disorder, panic disorder,
premenstrual dysphoric disorder, posttraumatic stress disorder, and social anxiety disorder.” Sertraline
(By mouth), PubMed Health, Nat’l Ctr. for Biotechnology Info., available at
https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0012108/ (last visited September 17, 2018).
2
Citalopram is an SSRI used to treat depression. Citalopram (By mouth), PubMed Health, Nat’l Ctr. for
Biotechnology Info., available at https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0009639/ (last
visited September 17, 2018).
3
Lorazepam is “used to treat anxiety disorders. It is also used for short-term relief of the symptoms of
anxiety or anxiety caused by depression. Lorazepam is a benzodiazepine that works in the brain to relieve
symptoms of anxiety.” Lorazepam (By mouth), PubMed Health, Nat’l Ctr. for Biotechnology Info.,
available at https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0010988/ (last visited September 17,
2018).

7

The Court now turns to Plaintiff’s argument that the ALJ erred by failing to assign
any weight to Russell’s opinion. At the outset, the Court notes that Russell is not
considered an “acceptable medical source” but instead an “other source” that the ALJ
may use as evidence to show the severity of Plaintiff’s impairments. 20 C.F.R.
§§ 404.1513(d)(1), 406.913(d)(1). Lacroix v. Barnhart, 465 F.3d 881, 886 (8th Cir.
2006). “In determining what weight to give ‘other medical evidence,’ the ALJ has more
discretion and is permitted to consider any inconsistencies found within the record.”
Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005); Tindell, 444 F.3d at 1005.
As the record shows, the March 27, 2013 assessment of Plaintiff by Russell was
Plaintiff’s first encounter with Russell. Thus, the only information Russell had to rely
upon when making her assessment was Plaintiff’s self-reported symptoms and the
observations she made that day; there were no longitudinal considerations. As such,
Russell’s assessment that Plaintiff’s “degree of functional impairment is severe” was
made without any reference to Plaintiff’s baseline capabilities. Moreover, Russell
contemporaneously observed inconsistencies in Plaintiff’s self-reported capabilities,
noting that Plaintiff reported significant memory and concentration problems, but was
nonetheless able to answer questions clearly during the interview. Russell’s reliance on
Plaintiff’s self-reported capabilities that she herself called into question is misplaced and
the ALJ was well within his discretion to consider these inconsistencies.
Russell’s opinion that Plaintiff’s “degree of functional impairment is severe”
stands alone and includes no specific functional limitations. It was fair for the ALJ to
afford no weight to Russell’s opinion where it provided only a conclusory opinion.
8

Samons, 497 F.3d at 818 (citing Chamberlain, 47 F.3d at 1494). As best this Court can
conclude, Russell could be referring to Plaintiff’s daily functioning, which she stated was
“significantly below baseline.” Again, this evaluation is based on Plaintiff’s self-reports
which Russell herself questioned. Nonetheless, Russell’s opinion that Plaintiff had severe
functional impairment, with no additional description, provides nothing for the ALJ to
weigh when determining Plaintiff’s ability to work. Beck v. Colvin, 2016 WL 5923421, at
*6 (N.D. Iowa Oct. 11, 2016) (“An ALJ need only give specific, legitimate reasons for
discounting an opinion if it contains specific work functions and limitations.”) (citing
SSR 96-5p and 20 C.F.R. § 404.1527(a)(2), (e)). This single, conclusory sentence from
an “other source” does not provide sufficient basis to find error in the ALJ’s decision. See
Barnett v. Barnhart, 363 F.3d 1020, 1022–23 (8th Cir. 2004).
The record of Plaintiff’s treatment with Russell and her colleagues following his
initial assessment undermines Russell’s statement that Plaintiff’s “degree of functional
impairment is severe.” In his first appointment following the assessment, on April 17,
2013, Plaintiff had anxious presentation, but less so than his previous appointment.
(Tr. 340, 411). His mood was neutral and he was more optimistic towards future
employment. (Tr. 340, 411). He was oriented x3, his judgment and insight were fair, but
he appeared to make impulsive decisions. (Tr. 340, 411).
On April 23, 2013, following a hospitalization, 4 Plaintiff declined to work on his
anxiety treatment until “he has started his new job and [is] settled in.” (Tr. 338, 428).

4

Plaintiff was hospitalized from April 5 through 8, 2013 when his sister reported Plaintiff had strange
behaviors. (Tr. 539–48). Plaintiff’s behavior was consistent with possible ingestion of excess quantities of

9

Plaintiff’s mood appeared within normal limits; his affect was flat; his anxiety was within
normal limits; his behavior was within normal limits; but he had disconnected thinking
and difficulty with sequencing. (Tr. 337, 427).
On May 7, 2013, Plaintiff had anxious presentation following a problem at work,
but his mood was positive and more optimistic. (Tr. 333, 408). Plaintiff reported
significant improvement. (Tr. 333, 408).
On May 29, 2013, was sleeping and eating well following being laid off after three
weeks of employment due to budget constraints at a local golf course. (Tr. 330–31, 423–
24). Plaintiff reported his medications were stable and working well and that he had
nothing to talk about in therapy and was to return as needed. (Tr. 331, 424). Indeed,
Plaintiff discontinued treatment as of August 23, 2013, which was occurring on an asneeded basis, because he cancelled all but two appointments between April 18 and July
24. (Tr. 422, 326).
Plaintiff next had therapy on October 1, 2013, following ending a stint of
employment on September 1. (Tr. 324, 402). Plaintiff “believe[d] his employer wanted
him to leave. [He] was drinking at the time but he doesn’t know if it played a part.”
(Tr. 324, 402). Plaintiff’s mood was depressed, he was oriented x3, judgment and insight
were poor, speech was clear with decreased rate and volume, thought processes were
clear, recent and remote memory was fair, and affect restricted. (Tr. 324, 402).

lorazepam, but Plaintiff “denied taking lorazepam as a means of suicide attempt.” (Tr. 539). Plaintiff
reportedly took lorazepam “due to unclear instructions on bottle.” (Tr. 539).

10

On November 15, 2013, Plaintiff was “highly organized” and anxious, “hygiene
and grooming are immaculate,” able to express himself verbally and speech was normal,
thought processes were goal directed, and recent and remote memory were fair. (Tr. 321,
399). Plaintiff was similar in a visit on December 13, 2013; in addition, his concentration
and attention were good and his judgment and insight were fair. (Tr. 318, 396). Plaintiff’s
“[d]epressive symptoms have remitted and he is sleeping well.” (Tr. 318). Plaintiff was
also doing well on January 17, 2014. (Tr. 315, 393).
Far from having “severe” functional impairment opined by Russell at their first
meeting, this course of treatment shows continuous improvement. Indeed, as the record
shows (and is discussed additionally below), Plaintiff did not attend any further mental
health treatment until he began seeing Dr. Carrie Parente some four months later. This
treatment record does not support the severe impairment opined by Russell. Thus, even if
the ALJ were required to weigh her opinion, his rejection of Russell’s opinion is
supported by the record.
In sum, the ALJ’s consideration of Russell’s March 27, 2013 opinion is supported
by substantial evidence in the record as a whole.
C. The Opinion of Dr. Parente
Plaintiff’s main argument is that the ALJ did not give appropriate weight to the
opinion of Dr. Parente, his treating psychiatrist. (ECF No. 13, at 6–11).

11

On November 5, 2015, Dr. Parente completed a form entitled “Mental Impairment
Questionnaire (RFC & Listings).” 5 (Tr. 531–37). Dr. Parente noted she had seen Plaintiff
11 times from April 2014 through October 2015. (Tr. 531). Dr. Parente indicated
Plaintiff’s diagnoses were: major depressive disorder, recurrent; alcohol use disorder;
panic disorder; and adjustment disorder with anxiety. (Tr. 531). Dr. Parente noted
Plaintiff’s treatment of medication management, lifestyle changes, and therapy were “all
equally as important.” (Tr. 531). Dr. Parente indicated mental status examinations
showed Plaintiff was “notable for blunted affect.” (Tr. 531). Dr. Parente rated Plaintiff’s
prognosis as fair. (Tr. 531). In a check-the-box section, Dr. Parente noted Plaintiff’s signs
and symptoms, per Plaintiff’s reports, are: anhedonia; decreased energy; blunt affect;
feelings of guilt or worthlessness; mood disturbance; difficulty thinking or concentrating;
persistent disturbances of mood or affect; substance dependence; emotional withdrawal
or isolation; deeply ingrained, maladaptive patterns of behavior; autonomic hyperactivity;
memory impairment; 6 and recurrent severe panic attacks manifested by a sudden
unpredictable onset of intense apprehension, fear, terror, and sense of impending doom
occurring on the average of at least once a week. (Tr. 532).
In the next check-the-box section, Dr. Parente rated Plaintiff’s mental abilities and
aptitude to do unskilled work. (Tr. 533). Dr. Parente indicated Plaintiff had “limited but
satisfactory” ability to be aware of normal hazards and take appropriate precautions.

5

A check-the-box form used to provide a medical opinion limits its evidentiary value. McCoy v. Astrue,
648 F.3d 605, 615 (8th Cir. 2011) (citing Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2011));
Papesh v. Colvin, 786 F.3d 1126, 1133–34 (8th Cir. 2015).
6
Dr. Parente did not indicate, as the form permits, whether the memory impairment is short, intermediate,
or long term. (Tr. 532).

12

(Tr. 533). Plaintiff has “seriously limited, but not precluded” ability to: understand and
remember very short and simple instructions; carry out very short and simple
instructions; work in coordination with or proximity to others without being unduly
distracted; make simple work-related decisions; ask simple questions or request
assistance; and get along with co-workers or peers without unduly distracting them or
exhibiting behavioral extremes. (Tr. 533). Plaintiff is “unable to meet competitive
standards” in the following areas: remember work-like procedures; maintain attention for
two hour segment; sustain an ordinary routine without special supervision; accept
instructions and respond appropriately to criticism from supervisors; and respond
appropriately to changes in a routine work setting. (Tr. 533). Plaintiff has “no useful
ability to function” in these areas: maintain regular attendance and be punctual within
customary, usually strict tolerances; complete a normal workday and workweek without
interruptions from psychologically based symptoms; perform at a consistent pace without
an unreasonable number and length of rest periods; and deal with normal stress.
(Tr. 533). Dr. Parente declined to explain these limitations even though the check-the-box
form asks for an explanation and provides space to do so. (Tr. 533).
Concerning Plaintiff’s mental abilities and aptitude needed to do semiskilled and
skilled work, Dr. Parente noted Plaintiff has “no useful ability to function” with respect to
the following: understand and remember detailed instructions; carry out detailed
instructions; set realistic goals or make plans independently of others; and deal with
stress of semiskilled and skilled work. (Tr. 534). With respect to Plaintiff’s mental
abilities and aptitude for particular types of jobs, Dr. Parente rated Plaintiff as “seriously
13

limited, but not precluded” with respect to his ability to adhere to basic standards of
neatness and cleanliness. (Tr. 534). Plaintiff is “unable to meet competitive standards”
with respect to his ability to maintain socially appropriate behavior. (Tr. 534). And
finally, Plaintiff has “no useful ability to function” with respect to the following: interact
appropriately with the general public; travel in unfamiliar place; and use public
transportation. (Tr. 534).
Concerning Plaintiff’s functional limitations, Dr. Parente rated Plaintiff as having
marked restriction of daily living activities, extreme difficulties in maintaining social
functioning, extreme difficulties in maintaining concentration, persistence, and pace, and
having one or two episodes of decompensation within a 12-month period. (Tr. 535). With
respect to how Dr. Parente anticipated Plaintiff’s impairments would cause him to be
absent from work, Dr. Parente wrote that it “depends on the job.” (Tr. 536). Dr. Parente
indicated Plaintiff’s impairment has lasted or can be expected to last at least twelve
months. (Tr. 536). In response to a question asking whether Plaintiff is a malingerer, Dr.
Parente did not check yes or no, but instead handwrote: “unknown, unlikely” followed by
“but he likely overinflates his symptoms.” (Tr. 536). Dr. Parente estimated Plaintiff’s
impairments are reasonably consistent with the symptoms and functional limitations
described in the evaluation. (Tr. 536). Dr. Parente noted Plaintiff’s mental health does not
preclude him from working with the general public and that alcohol or substance abuse
does not contribute to his limitations. (Tr. 536). Dr. Parente did not indicate the earliest
date that Plaintiff’s symptoms and limitations applied. (Tr. 537).

14

In considering Dr. Parente’s November 5, 2015 opinion, the ALJ gave it “little
weight,” noting:
[Dr. Parente] assessed [Plaintiff] with severe and extreme limitations that
would prevent him from performing unskilled work. In her opinion and
assessment, Dr. Parente acknowledged that [Plaitniff’s] symptoms and
signs were based on his self-report. Dr. Parente provided no detail [sic]
explanation or reasoning as to why the severe and extreme limitations were
warranted. In her clinical note, October 2015, Dr. Parente indicated that
[Plaintiff] was likely overinflating his mental symptoms. Dr. Parente also
noted that [Plaintiff] reported he was “completely unable to function” but
he was willing to consider an IOP as that would indicate he was severely
ill. Moreover, as discussed thoroughly above, Dr. Parente’s mental status
examinations had remained without significant abnormalities. For these
reasons, little weight has been placed on Dr. Parente’s opinion and
assessment.
(Tr. 29).
1.

Examining and Treatment Relationship

Dr. Parente examined Plaintiff from April 2, 2014, (Tr. 311–14), through the date
of her November 5, 2015 opinion, seeing him for 11 medication management
appointments. Dr. Parente practices psychiatry and saw Plaintiff for his psychiatric needs.
There is no dispute that Dr. Parente qualifies as a treating source given that she is a
licensed physician. 20 C.F.R. §§ 404.1513(a), 416.913(a). Thus, Dr. Parente’s examining
and treatment relationships generally weigh in favor of Dr. Parente’s opinion. 20 C.F.R.
§§ 404.1527(c), 416.927(c).
2.

Supportability and Consistency

Plaintiff argues that the ALJ “cherry pick[ed] one statement from Dr. Parente’s
notes and turn[ed] it into a basis for defining her whole treatment record.” (ECF No. 13,
at 10). This Court disagrees. As noted, “[a] treating physician’s own inconsistency
15

may . . . undermine his opinion and diminish or eliminate the weight given his opinions.”
Hacker, 459 F.3d at 937 (citing Prosch, 201 F.3d at 1013). The record shows that Dr.
Parente consistently expressed doubts about Plaintiff’s self-reported symptoms. She even
noted in her opinion itself that it was based on Plaintiff’s self-reports, (Tr. 532), and that
she believes Plaintiff likely “overinflates his symptoms,” (Tr. 536). Nonetheless, Dr.
Parente provided an opinion that endorsed those symptoms and disregarder her own
doubts.
In his first meeting with Dr. Parente, on April 2, 2014, Plaintiff reported impaired
memory/concentration, sleep, and appetite, low energy, dysphoric mood with “increased
depression,” severe anxiety, and stopping lamotrigine 7 because “it is for seizures.”
(Tr. 312, 390). On examination, Plaintiff was alert and oriented x3 and attentive to the
conversation; he was clean and neatly attired; made good eye contact; his speech was
regular; affect was blunted; thought process was linear and logical; his insight was good;
and judgment was intact. (Tr. 312, 390). Dr. Parente encouraged exercise and healthy
diet. (Tr. 313, 391).
On June 5, 2014, Plaintiff reported impaired memory/concentration, stating he had
“zero” concentration and trouble with memory and focus; impaired sleep; impaired
appetite, but Dr. Parente noted Plaintiff was drinking a Mountain Dew throughout the
session; low energy; dysphoric mood as “extremely depressed”; and anxiety. (Tr. 370,

7

Lamotrigine is used to treat seizures and bipolar disorder (manic-depressive illness). Lamotrigine (By
mouth), PubMed Health, Nat’l Ctr. for Biotechnology Info., available at
https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0010856/?report=details (last visited September 17,
2018).

16

387). On examination, Plaintiff was alert and oriented x3 and attentive to the
conversation; he was clean and appropriately attired; made good eye contact; his speech
was regular; affect was blunted; thought process was linear and logical; his insight was
good; and judgment was intact. (Tr. 370, 387). Plaintiff and Dr. Parente discussed a
disability form. Plaintiff stated he thought “there was a miscommunication about the
medical opinion form” and requested that Dr. Parente change it. (Tr. 370, 387). In only
the second session with Plaintiff, Dr. Parente began noting a disconnect between
Plaintiff’s reported symptoms and her observations, writing the following:
[Plaintiff] states “I am not doing well at all.” We had a long discussion on
disability, whether having disability changes the way he sees himself, the
form I filled out last week, and information contained on the form. He said
he had never tried to hide his alcohol abuse, but it was not an active issue
when he first came to [treatment.] He respected the need for more
information before I could complete the Medical Opinion form for
disability more precisely.
(Tr. 370–71, 387–88). Plaintiff reported daily panic attacks, not sleeping well, unable to
maintain daily hygiene, and problems with concentration and poor memory. (Tr. 371,
388). Dr. Parente had a “[l]ong discussion of sleep hygiene,” but Plaintiff “appear[ed]
reluctant to implement core strategies to help improve sleep.” (Tr. 371, 388). Plaintiff
was “reminded that no one action (including medication) is a magic cure-all, but all help
incrementally and synergistically.” (Tr. 371, 388).
On June 26, 2014, Plaintiff reported impaired memory/concentration; impaired
sleep; no appetite; low energy; dysphoric mood as “extremely depressed”; and anxiety.
(Tr. 367, 384). On examination, Plaintiff was alert and oriented x3 and attentive to the
conversation; he was clean and appropriately attired; made good eye contact; his speech
17

was regular; affect was blunted; thought process was linear and logical; his insight was
good; and judgment was intact. (Tr. 367, 384). Dr. Parente again “[r]eiterated how a
healthy lifestyle is important in treating depression and anxiety.” (Tr. 367–68, 384–85).
Plaintiff reported he “gets some exercise” every other weekend when his son visits. (Tr.
368, 385). Dr. Parente recommended daily exercise. (Tr. 368, 385).
On August 11, 2014, Plaintiff reported impaired memory/concentration; impaired
sleep; poor, inconsistent appetite; low energy; dysphoric mood as “horrible” and
“extremely depressed”; and anxiety. (Tr. 364, 381). On examination, Plaintiff was alert
and oriented x3 and attentive to the conversation; he was clean and appropriately attired;
made good eye contact; his speech was regular; affect was blunted; thought process was
linear and logical; his insight was good; and judgment was intact. (Tr. 364, 381). Plaintiff
reported he “cannot get motivated to exercise.” (Tr. 364, 381). Dr. Parente reminded
Plaintiff that “regular exercise is part of his treatment plan.” (Tr. 364, 381). Dr. Parente
again discussed sleep hygiene. (Tr. 365, 382).
On September 22, 2014, Plaintiff reported impaired memory/concentration;
impaired sleep; no appetite; no energy; mood changes; and anxiety. (Tr. 378, 361). On
examination, Plaintiff was alert and oriented x3 and attentive to the conversation; he was
clean and appropriately attired; made good eye contact; his speech was regular; affect
was blunted; thought process was linear and logical; his insight was good; and judgment
was intact. (Tr. 378, 361). Plaintiff was “in a hurry” and did “not want to discuss his
mental health in depth.” (Tr. 379, 362). Dr. Parente again recommended exercise.
(Tr. 379, 362).
18

On October 27, 2014, Plaintiff reported impaired memory/concentration; impaired
sleep; improved appetite; low energy; dysphoric mood; and anxiety, noting he “breathes
through” panic attacks. (Tr. 375, 360). On examination, Plaintiff was alert and oriented
x3 and attentive to the conversation; he was casually groomed; made good eye contact;
his speech was regular; affect was blunted; thought process was organized; his insight
was good; and judgment was intact. (Tr. 375, 360). Plaintiff was “unsure whether he
[was] feeling better.” (Tr. 375, 360). Dr. Parente noted Plaintiff “still has problems
describing his symptoms and feelings.” (Tr. 375, 360). Dr. Parente discussed the benefits
of regular exercise, but Plaintiff “continued to be resistant.” (Tr. 375, 360). Plaintiff also
stated he would be unable to journal. (Tr. 375, 360). Plaintiff “continue[d] to have
anxiety regarding finances and leaving his home. He hasn’t heard back from social
security.” (Tr. 375, 360). Dr. Parente again recommended exercise. (Tr. 376, 358).
On January 5, 2015, Plaintiff reported impaired memory/concentration; impaired
sleep; adequate appetite; poor/low energy; dysphoric mood; and anxiety with panic
attacks every morning. (Tr. 524). On examination, Plaintiff was alert and oriented x3 and
attentive to the conversation; he was casually groomed; made good eye contact; his
speech was regular; affect was constricted; thought process was organized; his insight
was good; and judgment was intact. (Tr. 524). Dr. Parente noted the following:
“Discussed benefits (again) of regular exercise, but he continues to be resistant. He
reports problems with short term memory, and states he is unable to read the newspaper
or recall why he walked into a certain room. He does not forget to remind of having
lawyer’s letter photocopied.” (Tr. 524). Plaintiff believed his “increasing paperwork” was
19

the cause for his panic attacks.” (Tr. 524). Dr. Parente noted Plaintiff had not “increased
exercise nor cut back on caffeine as recommended at his last appointment.” (Tr. 525). Dr.
Parente “strongly recommended (again) regular exercise 5-6 days/week as treatment for
depression/anxiety.” (Tr. 525).
On February 26, 2015, Plaintiff reported impaired memory/concentration with
“more prob[lem]s with [short term] memory and focus; impaired, interrupted sleep; poor
appetite; poor/low energy; dysphoric mood; and anxiety with panic attacks. (Tr. 520). On
examination, Plaintiff was alert and oriented x3 and attentive to the conversation; he was
poorly groomed; made good eye contact; his speech was regular; affect was blunted;
thought process was organized; his insight was good; and judgment was intact. (Tr. 520).
Plaintiff “ha[d] not increased exercise nor cut back on caffeine as recommended at his
last appointment. Indeed, he has increased caffeine and tobacco use.” (Tr. 520). Plaintiff
stated he was denied social security. (Tr. 520). Plaintiff reported he could not see his son
at a visitation be “he was just so depressed.” (Tr. 521). Plaintiff reported he had not
bathed for three weeks and was not “keeping up” his home, such as dishes or laundry.
(Tr. 521). Plaintiff reported his anxiety and panic attacks have worsened, experiencing
panic attacks thrice daily and his anxiety was worse in the morning and night. (Tr. 521).
Dr. Parente prescribed a new medication—viibryd 8—and noted it was ok for Plaintiff to
put exercise “on hold for 1 month while waiting for medication to become therapeutic.”
(Tr. 521).
8

Viibryd is the brand name for vilazodone, which is an SSRI used to treat depression. Vilazodone (By
mouth), PubMed Health, Nat’l Ctr. for Biotechnology Info., available at
https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0012635/ (last visited September 17, 2018).

20

On April 16, 2015, Plaintiff reported impaired memory/concentration, both as
“very, very poor”; variable sleep; variable appetite; no energy; dysphoric mood; and
anxiety with severe panic attacks every morning. (Tr. 517). On examination, Plaintiff was
alert and oriented x3 and attentive to the conversation; he was poorly groomed; made
good eye contact; his speech was regular; affect was blunted; thought process was
organized; his insight was good; and judgment was intact. (Tr. 517). Plaintiff experienced
significant nausea with viibryd, so it was discontinued. (Tr. 517). Plaintiff “believe[d]
much of his depression stems from environmental stressors. He is trying to send in all
paperwork for benefits.” (Tr. 518). Dr. Parente prescribed nortriptyline. 9 (Tr. 518).
On June 24, 2015, Plaintiff reported impaired memory/concentration; variable
sleep; variable appetite; low energy; dysphoric mood; and anxiety with “pretty severe”
panic attacks. (Tr. 514). On examination, Plaintiff was alert and oriented x3 and attentive
to the conversation; he was poorly groomed; made good eye contact; his speech was
regular; affect was blunted; thought process was organized; his insight was good; and
judgment was intact. (Tr. 517). Plaintiff reported no benefit from the nortriptyline.
(Tr. 514). Plaintiff reported mowing his sister’s yard weekly with a push mower as his
only exercise. (Tr. 514). Dr. Parente again “encouraged him to incorporate exercise into
his daily life.” (Tr. 514–15).
On October 28, 2015, Plaintiff reported impaired concentration; impaired sleep;
poor appetite; low energy; dysphoric mood; and anxiety with severe panic attacks.
9

Nortriptyline is used to treat depression. Nortriptyline (By mouth), PubMed Health, Nat’l Ctr. for
Biotechnology Info., available at https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0011451/ (last
visited September 17, 2018).

21

(Tr. 528). On examination, Plaintiff was alert and oriented x3 and attentive to the
conversation; he was cleanly groomed; made good eye contact; his speech was regular;
affect was blunted; thought process was organized; his insight was good; and judgment
was intact. (Tr. 528). Plaintiff stated he has “really been feeling bad” for the “past month
and a half.” (Tr. 528). Plaintiff reported “appetite poor, not sleeping, poor hygiene (says
hasn’t showered in a month), poor concentration, unable to get off of couch.” (Tr. 528).
Plaintiff reported issues with not being able to see his son. (Tr. 529). When Dr. Parente
encouraged Plaintiff to attend therapy concerning his son more often than every two
months, Plaintiff “appear[ed] surprised that therapy is usually more frequent.” (Tr. 529).
Dr. Parente then noted the following:
I do not doubt [Plaintiff] suffers from significant debilitating depression.
However I have difficulty believing the severity of all of [sic] symptoms he
reports. For example, at first he reports not being able to sleep at all. When
it was suggested trazodone 10 should be discontinued if it was not helping
him sleep, he reports trazodone “helps sometimes” and will get 6-7 hours of
sleep a night 3-4 days/week. He reports being “completely unable to
function”, but is unwilling to consider an Intensive Outpatient program as
that would indicate he is severely ill.
(Tr. 529). Dr. Parente discussed changing medications because Plaintiff reported no
significant benefit from nortriptyline, but Plaintiff “would prefer to increase dose of this
medication as it ‘may’ have had mild benefit.” (Tr. 529). Dr. Parente “[a]gain[] advised
[Plaintiff] that exercise, therapy, healthy diet are not mere suggestions but are part of his
treatment plan.” (Tr. 529).

10

Trazodone is used to treat depression. Trazodone (By mouth), PubMed Health, Nat’l Ctr. for
Biotechnology Info., available at https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0012504/ (last
visited September 17, 2018).

22

Dr. Parente then completed her opinion approximately one week later, on
November 5, 2015. It strains credulity to write “I have difficulty believing the severity of
all of [the] symptoms [Plaintff] reports” to then complete a check-the-box form that
endorses those same symptoms one week later, particularly where Dr. Parente started
expressing doubts about Plaintiff’s reported symptoms in their second ever meeting and
continued expressing doubts throughout Plaintiff’s course of treatment.
Dr. Parente was not alone among Plaintiff’s treatment providers to doubt his
reported symptoms. On April 1, 2013, in Plaintiff’s first meeting with a therapist
following the assessment by Russell, he “presented a somewhat convoluted and
contradictory story of be[ing] kicked out of the home by the mother of his son, being
homeless for the past several years[,] and having an on[]going dispute with her that was
recently settled.” (Tr. 346, 430). The clinician, Michael Scott, noted Plaintiff at times
“was not consistent or sequential in his presentation. He stated at one time that he
attempted to obtain disability for his psychological problems but then reported that he
wanted a second opinion from Neurology because the Neurologist said he would work
half time.” (Tr. 346, 430).
About halfway through his treatment relationship with Dr. Parente, on April 3,
2015, Plaintiff started seeing Dr. Paul Hill for therapy for treatment of his depression and
anxiety. Dr. Hill found Plaintiff to be “somewhat vague and perhaps a little defensive
when describing his symptoms. However, on the intake forms he endorsed nearly every
depressive and anxious symptom.” (Tr. 559). Dr. Hill noted Plaintiff’s “caffeine and
nicotine use may well be contributing to his anxiety” but Plaintiff was “not willing to
23

consider controlling his use of these substances.” (Tr. 559). Plaintiff reported isolating
himself “mainly because of his ‘shame over not working.’” (Tr. 560). On examination,
Plaintiff was oriented x3; speech was normal; mood was depressed; flat affect; he had no
observed defects in memory; attention and concentration were intact and unremarkable;
judgment was good; and his motivation for treatment was “unclear.” (Tr. 560). Dr. Hill’s
plan, given Plaintiff’s “currently level of inactivity and withdrawal” was to focus on
behavioral activation, addressing “routine physical exercise and a rationale for including
this in his daily routine,” as well as increasing rewarding life activities. (Tr. 561).
On May 8, 2015, after discussing some concerns about Plaintiff and his son, Dr.
Hill noted Plaintiff was
very anxious about disability. Concerned that he will not qualify and
concerned that providers will not support him. Suggested that many
providers believe it would be better for his depression and anxiety if he
were to work. [Plaintiff] very reactive to this idea. Very anxious and noted
that he does not believe he is capable of working. Feeling desperate about
social security.
(Tr. 557).
On October 30, 2015, Dr. Hill asked Plaintiff to “produce evidence of the anxiety
and any logical basis for [his] extensive worry. [Plaintiff’s] fears were analyzed” and his
“ability to control the outcome of circumstances was examined, and the effectiveness of
his worry on that outcome was examined also.” (Tr. 551). Plaintiff “responds during
session, but not clear that intervention has lasting impact.” (Tr. 551).
On November 13, 2015, Dr. Hill noted that Plaintiff
very quickly engages in catastrophic thinking and panic. [Dr. Hill] [g]ently
suggested that [they] should start talking about a secondary plan in case he
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is not approved for SSDI. [Plaintiff] immediately panic[k]ed and
interpreted that to mean [Dr. Hill] did not think he was going to get SSDI,
that [Dr. Hill] was not supporting him, etc.
(Tr. 549). Dr. Hill noted Plaintiff “has no alternative plan and engages in dire negative
thinking and hopelessness.” (Tr. 549). Plaintiff reported that he cannot manage anxiety
now that he is sober. (Tr. 549). Dr. Hill “[r]evisited idea of day treatment,” and Plaintiff
was “angry with psychiatrist for suggesting this.” (Tr. 549). Dr. Hill explained “this was
[a] logical recommendation when people are not improving from current treatment
regimen.” (Tr. 549). Plaintiff “[c]ontinues to say that he will consider day treatment.”
(Tr. 549).
Thus, rather than “cherry pick[ing] one statement from Dr. Parente’s notes and
turn[ing] it into a basis for defining her whole treatment record,” (ECF No. 13, at 10), the
ALJ appropriately limited the weight of Dr. Parente’s opinion due to a common thread
running throughout Plaintiff’s mental health treatment: that his providers questioned
Plaintiff’s reports.
Additionally, as the record above shows, Dr. Parente repeatedly stressed the
importance of exercise and other non-pharmacological life changes in treating Plaintiff’s
depression and anxiety. Plaintiff, however, was noncompliant with this portion of his
treatment plan. Dr. Parente was not alone in stressing such treatment for Plaintiff as a
remedy to his ailments, because on July 31, 2015, Dr. Hill developed a “plan for routine
physical exercise” with Plaintiff and “a rationale for including this in his daily routine.”
(Tr. 555). A “claimant’s noncompliance can constitute evidence that is inconsistent with
a treating physician’s medical opinion and, therefore, can be considered in determining
25

whether to give that opinion controlling weight.” Owen v. Astrue, 551 F.3d 792, 800 (8th
Cir. 2008). Thus, it was not error to discount Dr. Parente’s opinion given Plaintiff’s
noncompliance with treatment, particularly where Dr. Parente’s opinion did not account
for Plaintiff’s noncompliance. See id. (“In light of Owen’s failure to attend his physical
therapy appointments, stop smoking, and follow regular exercise and dietary plans, the
ALJ did not err in considering Dr. Paulsrud’s failure to account for Owen’s
noncompliance.”) (emphasis added).
Plaintiff asserts that Dr. Parente’s recommendation of intensive outpatient
treatment and his subsequent commencement of such treatment lends support to Dr.
Parente’s opinion. The Court disagrees. First, the treatment notes from October 28, 2015
included a sizable recitation outlying Dr. Parente’s doubts concerning Plaintiff’s reported
symptoms. Within that recitation, Dr. Parente wrote that Plaintiff “reports being
‘completely unable to function’, but [he] is unwilling to consider an Intensive Outpatient
program as that would indicate he is severely ill.” (Tr. 529). In her treatment plan
following this session, Dr. Parente’s recommendations were regular exercise, decreased
tobacco use, decreased caffeine use, and returning in two to three months. (Tr. 529). Far
from being a recommendation for immediate psychiatric intervention, these
recommendations were in line with Dr. Parente’s previous recommendations and display
no urgency whatsoever. Instead, the consideration of intensive outpatient treatment
appears to be Dr. Parente’s challenge of Plaintiff’s self-reported symptoms. Put simply,
Plaintiff’s unwillingness to consider intensive outpatient treatment, combined with his

26

continued noncompliance with simple recommendations such as minimal daily exercise,
undermined Plaintiff’s claim that he was “completely unable to function.”
Turning to Plaintiff’s assertion that he in fact entered an intensive treatment
program, the only record is from April 19, 2016 when Plaintiff had an initial day
treatment diagnostic assessment. (Tr. 564–68). Plaintiff reported high levels of anxiety
and that his depression symptoms “have increased since he was declined social security
disability benefits.” (Tr. 565). Plaintiff reported trouble sleeping and inability to do daily
activities. (Tr. 565). On examination, Plaintiff was oriented x3; made intermittent eye
contact; was well-groomed; had normal speech; mood was anxious, depressed, and
irritable; his affect was flat; logical thought content; and focused attention span and
concentration. (Tr. 566–67). Plaintiff reported his depression, anxiety, and panic attack
symptoms started in childhood. (Tr. 567). The assessing therapist recommended Plaintiff
begin a day treatment program to “learn anxiety reducing techniques to decrease the
frequency and intensity of his panic attacks so that he is able to return to the workforce.”
(Tr. 568). Thus, while this assessment recommends Plaintiff begin a day treatment
program, there is scant to no evidence that he actually began such a program.
Moreover, the ALJ already considered evidence that Plaintiff was referred to
intensive outpatient treatment as of January 5, 2016. (Tr. 563, 40, 50). The fact that
Plaintiff did not undergo an assessment until three months later undercuts the severity of
the symptoms alleged. As such, Plaintiff’s supposed initiation of an intensive treatment
program over six months after Dr. Parente’s opinion, three months after referral, and one

27

month after the ALJ denied Plaintiff’s application for benefits does not serve to buttress
Dr. Parente’s opinion after-the-fact.
In sum, based on the foregoing, the ALJ’s weighing of Dr. Parente’s November 5,
2015 opinion is supported by substantial evidence in the record as a whole.
IV.

CONCLUSION
Based upon the record, memoranda, and proceedings herein, and for the reasons

stated above, IT IS HEREBY ORDERED that Plaintiff’s Motion for Summary
Judgment, (ECF No. 12), is DENIED, Defendant’s Motion for Summary Judgment,
(ECF No. 14), is GRANTED, and this matter is DISMISSED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Date: September 17, 2018

s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Rice v. Berryhill
Case No. 17-cv-1462 (TNL)

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