Anderson v. Berryhill

Filing 25

ORDER denying 17 Motion for Summary Judgment; granting 22 Motion for Summary Judgment(Written Opinion) Signed by Magistrate Judge Hildy Bowbeer on 9/24/2018. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Sheila A.,

Case No. 17-cv-2161 (HB)
Plaintiff,

v.

ORDER

Nancy A. Berryhill, Acting Commissioner
of Social Security,
Defendant.
HILDY BOWBEER, United States Magistrate Judge1
Pursuant to 42 U.S.C. § 405(g), Plaintiff Sheila A. seeks judicial review of a final
decision by the Acting Commissioner of Social Security denying her applications for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The
case is before the Court on the parties’ cross-motions for summary judgment [Doc. Nos.
17, 22]. For the reasons set forth below, the Court denies Plaintiff’s motion for summary
judgment and grants the Commissioner’s motion for summary judgment.
I.

Procedural Background
Plaintiff filed an application for DIB on March 22, 2015, alleging she was not able

to work as of July 18, 2013, because of a disabling condition. (R. 215-19.) 2 She filed an
application for SSI on September 7, 2015. (R. 223-26.) Plaintiff claimed impairments of

1

The parties have consented to have a United States Magistrate Judge conduct all
proceedings in this case, including the entry of final judgment.
2
The Social Security Administrative Record (“R.”) is available at Doc. No. 9.

chronic pain, back injury, neck injury, prolonged recovery, and depression. (R. 71.) Her
applications were denied initially and on reconsideration, and she requested a hearing
before an administrative law judge (“ALJ”). The hearing was convened on November
22, 2016. (R. 41-70.) Plaintiff and vocational expert Norman Mastbaum testified.
The ALJ issued an unfavorable decision on January 26, 2017. (R. 8-22.) Pursuant
to the five-step sequential evaluation procedure outlined in 20 C.F.R. § 404.1520(a)(4)
and 20 C.F.R. § 416.920(a)(4), the ALJ first determined that Plaintiff had not engaged in
substantial gainful activity since July 18, 2013. (R. 13.) At step two, the ALJ determined
that Plaintiff had severe impairments of “degenerative disc disease of the cervical spine;
degenerative disc disease of the lumbar spine; possible ankylosing spondylitis; chronic
pain syndrome or somatic symptoms disorder; anxiety; and depression.” (R. 13.) The
ALJ found at the third step that no impairment or combination of impairments met or
medically equaled the severity of an impairment listed in 20 C.F.R. part 404, subpart P,
appendix 1. (R. 14.)
At step four, the ALJ determined that Plaintiff retained the residual functional
capacity (“RFC”) 3 to perform sedentary work that allowed for a brief change of position
from sitting to standing every thirty minutes, and that was routine, repetitive, and simple
work. (R. 16.) With that RFC, the ALJ concluded that Plaintiff could not perform her

3

An RFC assessment measures the most a person can do, despite her limitations.
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). The ALJ must base the RFC “on all relevant
evidence, including medical records, observations of treating physicians and others, and
the claimant’s own descriptions of his or her limitations.” Eichelberger v. Barnhart,
390 F.3d 584, 591 (8th Cir. 2004).
2

past relevant work as a prop attendant/photo stylist. (R. 20.) At step five of the
sequential analysis, however, the ALJ determined that Plaintiff could make a successful
adjustment to other work that existed in significant numbers in the national economy,
specifically the occupations of account clerk, optical goods worker, and surveillance
system monitor. (R. 21.) Therefore, the ALJ found Plaintiff was not disabled.
Plaintiff sought review by the Appeals Council, which denied the request. (R. 1.)
The ALJ’s decision thus became the final decision of the Commissioner. (R. 1.) Plaintiff
then commenced this action for judicial review. She contends the ALJ (1) erred in
assessing the credibility of her subjective complaints; (2) erred in evaluating the opinions
of her treating providers; and (3) erred at step five of the sequential evaluation by posing
a hypothetical question that did not set forth all of her impairments. (Pl.’s Mem. Supp.
Mot. Summ. J. at 30 [Doc. No. 19].)
The Court has reviewed the entire administrative record, giving particular
attention to the facts and records cited by the parties. The Court will recount the facts of
record only to the extent they are helpful for context or necessary for resolution of the
specific issues presented in the parties’ motions.
II.

Standard of Review
Judicial review of the Commissioner’s denial of benefits is limited to determining

whether substantial evidence on the record as a whole supports the decision. 42 U.S.C.
§ 405(g). “Substantial evidence is less than a preponderance but is enough that a
reasonable mind would find it adequate to support the Commissioner’s conclusion.”
Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Prosch v. Apfel,
3

201 F.3d 1010, 1012 (8th Cir. 2000)). The Court must examine “evidence that detracts
from the Commissioner’s decision as well as evidence that supports it.” Id. (citing Craig
v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)). The Court may not reverse the ALJ’s
decision simply because substantial evidence would support a different outcome or the
Court would have decided the case differently. Id. (citing Woolf v. Shalala, 3 F.3d 1210,
1213 (8th Cir. 1993)). In other words, if it is possible to reach two inconsistent positions
from the evidence, and one of those positions is that of the Commissioner, the Court must
affirm the decision. Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).
A claimant has the burden to prove disability. See Roth v. Shalala, 45 F.3d 279,
282 (8th Cir. 1995). The claimant must establish that he or she 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). The disability, not just the impairment, must have lasted or be expected
to last at least twelve months. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
III.

Discussion
A.

Whether the ALJ Failed to Properly Evaluate Plaintiff’s Subjective
Complaints

Plaintiff argues the ALJ erred in evaluating the intensity, persistence, and limiting
effects of her symptoms. It is well-established that an ALJ must consider several factors,
in addition to the objective medical evidence, in assessing the credibility of a claimant’s
subjective symptoms: daily activities; work history; intensity, duration, and frequency of
4

symptoms; any side effects and efficacy of medications; triggering and aggravating
factors; and functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984); see also Social Security Ruling (“SSR”) 16-3p, 2016 WL 1119029, at *5 (S.S.A.
Mar. 16, 2016) (listing the same factors as relevant in evaluating the intensity,
persistence, and limiting effects of a person’s symptoms). But the ALJ need not
explicitly discuss each factor, Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005), and a
court should defer to the ALJ’s credibility findings when the ALJ expressly discredits the
claimant and provides good reasons for doing so, Dixon v. Sullivan, 905 F.2d 237, 238
(8th Cir. 1990).
Here, the ALJ specifically discussed the objective medical evidence and explained
how Plaintiff’s subjective complaints were inconsistent with that evidence. (R. 17-19.)
The ALJ also explicitly discussed Plaintiff’s daily activities and work history and
explained how those factors weighed against the claimed severity and limiting effects of
her symptoms. (R. 19-20.) Ultimately, the ALJ determined that the severity, persistence,
and limiting effects of Plaintiff’s subjective complaints were not as significant as Plaintiff
claimed. (R. 16.)
1.

Activities of Daily Living

Plaintiff first contends the ALJ mischaracterized her daily activities. (Pl.’s Mem.
Supp. Mot. Summ. J. at 36-37.) In the ALJ’s decision, the ALJ identified evidence that
Plaintiff had friends and romantic relationships, maintained social relationships,
socialized with friends twice a week, drove herself to medical apartments or managed to
use medical cabs or public transportation, shopped for groceries, prepared simple meals,
5

loaded the dishwasher, performed light cleaning, and went swimming at a lake. (R. 1920.) Plaintiff does not actually identify any misstatements or mischaracterizations by the
ALJ, and the Court finds daily activities recounted by the ALJ well-supported by the
record. The ALJ found Plaintiff’s daily activities inconsistent with the severity of
symptoms and limiting effects she claimed, and substantial evidence supports this
determination.
Plaintiff argues the ALJ erroneously considered her ability to do these daily
activities to find that she could perform full-time competitive work, but that argument
misstates the context of the ALJ’s discussion. The ALJ considered Plaintiff’s daily
activities in assessing whether the severity, persistence, and limiting effects of Plaintiff’s
subjective complaints were as significant as she claimed. An ALJ’s consideration of
daily activities in that context is not only allowed, but required, under the applicable law
and administrative framework. See Polaski, 739 F.2d at 1322; SSR 16-3p, 2016 WL
1119029, at *5.
2.

Side Effects of Medication

Plaintiff next argues the ALJ failed to account for her medication side effects
when evaluating her symptoms. Plaintiff testified at the hearing that her muscle relaxant
medication made her feel sleepy, sedated, and drowsy, and that she did not drive or “do
much at all” when she took it. (R. 53.) Plaintiff also testified that medication for her
anxiety and depression caused attention and concentration problems. (R. 54.)
Plaintiff’s reports of side effects from medication are sporadic in the record. (E.g.,
R. 1218, 1230, 1246, 1270-74, 1368, 1370.) When evidence of side effects is sparse, the
6

ALJ does not err in disregarding it. Evans v. Colvin, No. 14-cv-1011 (JRT/TNL),
2015 WL 5009327, at *25 (D. Minn. Aug. 24, 2015). Moreover, when Plaintiff did
mention side effects to her providers, the side effects frequently were not significantly
limiting, or her prescription was changed. (E.g., R. 62, 1220, 1224, 1229, 1232, 1246,
1248, 2073, 2090.) Finally, contrary to Plaintiff’s testimony concerning mental side
effects, mental status examination progress notes often indicated that Plaintiff was alert,
oriented, and able to concentrate and pay attention. (E.g., R. 1360-61, 1369, 1380-81,
1502-03, 1564-65, 1608, 2069-87.)
An ALJ does not err by not discussing explicitly a particular Polaski factor as long
as the ALJ identifies inconsistencies in the record as a whole and gives good reasons for
discounting credibility. Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011). Here, the
ALJ did not err by failing to discuss explicitly the side effects from Plaintiff’s
medications.
3.

Complaints of Fatigue

Plaintiff next faults the ALJ for not asking her about her fatigue and how it affects
her daily activities. (Pl.’s Mem. Supp. Mot. Summ. J. at 37.) The Court finds the ALJ
did not err in this respect. The record contains sparse evidence of fatigue, mainly in the
form of Plaintiff’s self-reports, and her providers did not treat it as a significant symptom
or condition. (E.g., R. 1132-35, 1338, 1529-32, 1692-1702.) Plaintiff does not explain
why the ALJ should have asked specific questions about her fatigue. Moreover, the ALJ
asked Plaintiff at the hearing why she was unable to work and how her pain affected her,
but Plaintiff did not mention fatigue. (R. 48-49, 53.) Nor did Plaintiff’s attorney ask her
7

about fatigue at the hearing. (R. 59-62.) Consequently, the Court finds the ALJ did not
err in failing to ask Plaintiff specifically about her subjective complaint of fatigue.
4.

Flareups of Pain

Plaintiff claims the ALJ erred in assessing her subjective complaints by not
considering specifically how flareups in pain would affect her daily activities and ability
to work. (Pl.’s Mem. Supp. Mot. Summ. J. at 35.) Relatedly, Plaintiff argues that the
ALJ failed to consider how painful flareups affect her depression. (Pl.’s Mem. Supp.
Mot. Summ. J. at 38.) The Court finds that the ALJ properly considered the severity,
persistence, and limiting effects of Plaintiff’s subjective complaints together, and was not
required to assess independently the intensity, persistence, and limiting effects of each
subjective complaint, such as pain flareups. Plaintiff’s pain flareups were a particular
manifestation of her pain, which the ALJ discounted as inconsistent with the objective
medical evidence, daily activities, and work history. The reasons the ALJ gave for
discounting the severity and limiting effects of Plaintiff’s claimed pain in general would
also apply to any specific manifestations of pain. In addition, an ALJ is not required to
discuss every piece of evidence in the record. Wildman v. Astrue, 596 F.3d 959, 966 (8th
Cir. 2010).
5.

Patient Health Questionnaire Scores

Next, Plaintiff contends the ALJ failed to discuss her PHQ-9 scores as part of the
evaluation of her subjective complaints. (Pl.’s Mem. Supp. Mot. Summ. J. at 38.) A
Patient Health Questionnaire (“PHQ”) is completed by a patient prior to or at an
appointment and “is used to screen, diagnose, monitor, and measure the severity of
8

depression.” Ramo v. Colvin, No. 13-cv-1233 (JRT/JJK), 2014 WL 896729, at *5 n.12
(D. Minn. Mar. 6, 2014). “As a self-administered exam, the PHQ-9 exam does not
constitute a medical opinion which the ALJ must explicitly discuss.” Mapson v. Colvin,
No. 14-cv-1257 (SRN/BRT), 2015 WL 5313498, at *27 (D. Minn. Sept. 11, 2015).
Because the content on a PHQ is derived exclusively from the patient’s subjective
complaints, it is subject to being credited or discredited for the same reasons as other
subjective complaints. Here, the ALJ determined that the intensity, limiting effects, and
persistence of Plaintiff’s symptoms were not as severe as she claimed; this finding would
also apply to the PHQ scores, whether or not the ALJ explicitly discussed them.
6.

The ALJ’s Reference to a Normal EMG

Plaintiff submits that the ALJ erred by referring in the credibility evaluation to an
EMG that is not in the record. (Pl.’s Mem. Supp. Mot. Summ. J. at 34 (citing R. 17).) In
assessing the objective medical evidence, the ALJ remarked that “an EMG was
reportedly normal.” (R. 17.) The record to which the ALJ referred was a consultation
progress note authored by Dr. Carrie P. Noran Jaeger, M.D., in January 2014, which
reflected Plaintiff’s self-report to Dr. Jaeger that a recent EMG was normal. (R. 1132.)
Dr. Jaeger’s corresponding examination findings were consistent with a normal EMG.
Dr. Jaeger found no neurological defects or weaknesses, no muscle weakness, normal
muscle bulk, normal gait, normal strength in the arms and legs, normal reflexes, and
normal sensation. (R. 1134.) Plaintiff had restricted lumbar flexion, however, and
tenderness to palpation. (R. 1134.) Dr. Jaeger thought Plaintiff would benefit from a
holistic approach to her pain, and remarked, “I do not believe she is disabled. I do
9

believe she can do light duty and eventually return to normal work.” (R. 1134-35.)
In addition, Plaintiff offers no reason why the ALJ should not have accepted her
own report to a provider of a normal EMG. She never sought to correct or supplement
the record with the EMG, nor has she shown that the EMG would add to the record or
contradict her own statement to Dr. Jaeger. Finally, the EMG was one minor component
of the ALJ’s credibility analysis, and excluding it from the discussion would not
undermine the ALJ’s decision.
7.

Dr. Wengler’s Independent Medical Examination Report

In considering the consistency of the objective medical evidence and Plaintiff’s
subjective complaints, the ALJ discussed an independent medical examination report
completed by Dr. Robert A. Wengler, M.D., on January 23, 2015. (R. 17; see R. 206568.) The ALJ referred to a portion of the report in which Dr. Wengler noted no sensory
or motor changes, positive straight-leg raise tests at 45 degrees, tenderness to palpation,
and pain with range of motion testing. (R. 17.) The ALJ contrasted these findings with
other treatment records reflecting negative straight leg raise tests, normal gait, no sensory
deficits, normal strength, the ability to walk on the heels and toes, and the ability to rise
from a seated position. (R. 17.) Plaintiff now faults the ALJ for not considering
Dr. Wengler’s statement that she was “totally disabled from the work activity as a photo
stylist as she described it” and Dr. Wengler’s findings that she had three herniated discs.
(Pl.’s Mem. Supp. Mot. Summ. J. at 34 (citing R. 17, 2065).)
Plaintiff discusses Dr. Wengler’s report in the context of the ALJ’s credibility
evaluation, so that is the context in which the Court will discuss it. The ALJ did not
10

disagree with Dr. Wengler’s statement that Plaintiff could not perform her past relevant
work as a photo stylist. Indeed, the ALJ determined that she could not perform her past
relevant work as a prop attendant or photo stylist. (R. 20.) That finding is therefore
consistent with Dr. Wengler’s statement.
As to Dr. Wengler’s statement that Plaintiff had disc herniations in three locations,
the ALJ gave Dr. Wengler’s opinion no weight because it was a vocational opinion
rendered for the purpose of worker’s compensation, not a medical opinion rendered for
the purpose of disability benefits, and because Dr. Wengler did not identify any specific
physical limitations caused by the herniated discs. (R. 17.) These are valid reasons to
reject a medical opinion. See 20 C.F.R. § 404.1527(c)(3) (listing supportability as a
factor to consider when deciding the weight to give a medical opinion); 20 C.F.R.
§ 416.927(c)(3) (same); Strother v. Berryhill, No. 4:16-cv-1221 (DDN), 2017 WL
4163924, at *6 (E.D. Mo. Sept. 20, 2017) (finding the ALJ did not err in giving little
weight to the opinion of a physician who performed a one-time evaluation for worker’s
compensation purposes); Brown v. Colvin, No. 4:12-cv-3260, 2014 WL 200234, at *11
(D. Neb. Jan. 16, 2014) (finding the ALJ did not err in reducing the weight of an opinion
made for worker’s compensation benefits in part because the standards differed from
those for social security benefits). Moreover, an opinion that a claimant is medically
disabled and unable to work, even if rendered under the relevant social security
regulations, is not entitled to any deference because such a determination is reserved
exclusively to the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d). Finally, as
Dr. Wengler noted, imaging of Plaintiff’s spine had revealed only “mild degenerative
11

changes . . . with small left-sided herniations,” which caused only a “slight mass effect on
the dural sac.” (R. 2066-67) (emphasis added). A lumbar study showed only “a small
right lateral recess protrusion at L5-S1,” which only slightly displaced the right S1 nerve
root. (R. 2067) (emphasis added). Thus, Dr. Wengler’s findings do not support the
extent and limiting effects of pain claimed by Plaintiff.
8.

Objective Medical Evidence of Limitations in Walking, Sitting,
and Standing

Plaintiff contends the ALJ should have accepted her testimony that she was very
limited in her ability to walk, sit, and stand, because those symptoms are documented by
objective medical evidence. (Pl.’s Mem. Supp. Mot. Summ. J. at 35.) But the records to
which Plaintiff cites are either based on her self-reported limitations to providers, are not
supported by examination or clinical findings, or indicate that the limitations were
temporary or exaggerated. (See R. 858, 861, 1045-48, 1083, 1090-91, 1094, 1102, 1338,
1475, 1555, 1653, 1703.) Thus, the ALJ did not err in excluding them from the
credibility analysis. Moreover, as already noted, the ALJ was not required to discuss
every piece of evidence in the record. See Wildman, 596 F.3d at 966.
In addition, the ALJ cited multiple medical records that were inconsistent with
Plaintiff’s subjective complaints, such as MRI imaging that showed only slight
protrusions and mild mass effect (R. 533); the normal EMG, as reported by Plaintiff to
Dr. Jaeger, and Dr. Jaeger’s contemporaneous examination findings (R. 1132-35);
records of physical examinations documenting no ongoing neurological loss, negative
straight leg raise tests, normal gait, no sensory deficits, full extremity strength, ability to
12

walk on heels and toes, and ability to rise from a seated position (R. 1132, 1458-61,
1463-66, 1573); and Plaintiff’s self-reports of being able to stand and walk for at least
two hours in an eight-hour day, walk up to an hour, walk nine blocks easily, walk up to a
mile, and sit for ten to thirty minutes (R. 1045, 1092, 1458-61). (R. at 17.) The ALJ also
cited independent medical examinations by Dr. Tilok Ghose, M.D., who found no
restrictions or limitations based on a normal physical examination (R. 2125-30), and
Dr. Rajan Jhanjee, M.D., who completed a similar report (R. 1231-37). (R. 17.) Though
the ALJ did not give these opinions any particular weight under 20 C.F.R. §§ 404.1527(c)
and 416.927(c), the ALJ did consider them insofar as they were inconsistent with
Plaintiff’s claimed limitations.
In sum, substantial evidence of record supports the ALJ’s finding that Plaintiff’s
claimed limitations in walking, sitting, and standing were not supported by objective
medical evidence.
9.

The ALJ’s Finding that the Diagnosis of Ankylosing Spondylitis
Did Not Meet the Twelve-Month Durational Requirement

Part of Plaintiff’s challenge to the ALJ’s credibility analysis is to the ALJ’s
finding that a diagnosis of ankylosing spondylitis did not occur until December 2015 and
thus did not meet the twelve-month durational requirement. (Pl.’s Mem. Supp. Mot.
Summ. J. at 34.) In support of her argument, Plaintiff contends that the ALJ did not
account for Dr. Parastoo Fazeli’s treatment record dated December 18, 2015, in which the
doctor “highly suspect[ed] ankylosing spondylitis” (R. 1535); an MRI on December 29,
2015 (R. 1537); Dr. Orlando Charry-Rodriguez’s treatment record dated January 27,
13

2016 (R. 1567-75); and Dr. Zeller’s opinion dated March 18, 2016, in which she
suspected that Plaintiff may have begun experiencing flareups from ankylosing
spondylitis as far back as 2012 (R. 2089-98).
The Court questions whether this argument belongs in the credibility discussion,
but will address it briefly here since that is the context in which it was presented by
Plaintiff. Whether Plaintiff’s symptoms resulted from ankylosing spondylitis or some
other condition did not affect the ALJ’s consideration of her subjective complaints. The
ALJ considered the severity, persistence, and limiting effects of all of her claimed
symptoms, regardless of their etiology. Consequently, the ALJ’s finding that a diagnosis
of ankylosing spondylitis did not occur until December 2015 simply had no effect on the
credibility analysis.
10.

The Effect of Plaintiff’s Pain on Her Depression

Plaintiff argues the ALJ failed to consider how flareups in pain affected her
depression in evaluating her claimed psychological symptoms. (Pl.’s Mem. Supp. Mot.
Summ. J. at 38.) To the contrary, the ALJ specifically considered and discussed the
relationship between Plaintiff’s physical and mental symptoms. (R. at 19.) The ALJ
found Plaintiff’s mental symptoms were overstated and not credibly reported, consistent
with the Minnesota Multiphasic Personality Inventory-II test administered by Dr. Marvin
L. Logel, Ph.D. (R. 19; see R. 2076, 2085.) As the ALJ observed, Dr. Logel concluded
that Plaintiff should return to work part-time and increase to full-time work with no
mental limitations. (R. 2087.) The ALJ further noted that Plaintiff’s mental health
treatment had been conservative and that mental status examinations were inconsistent
14

with her claimed mental symptoms. (R. 19; see R. 1458-61, 1564-65, 1568, 1644, 1697,
2069-87.) The ALJ specifically cited a treatment note from Dr. Bernadette Lee
Clevenger, M.D., in January 2016, in which Dr. Clevenger wrote that Plaintiff reported
crying the previous week and was tearful at the appointment due to a flareup of pain, but
Dr. Clevenger recommended food sensitivity testing and did not refer her for mental
treatment. (R. 19; see R. 1644.) The Court finds the ALJ adequately considered the
effects of Plaintiff’s pain on her depression in evaluating her subjective complaints.
B.

Whether the ALJ Erred in Evaluating the Opinions of Plaintiff’s
Treating Providers

A treating source’s opinion on the nature and severity of a claimed impairment is
entitled to controlling weight if the opinion “is well-supported by medically acceptable
clinical and laboratory techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(c)(2); see 20 C.F.R.
§ 416.927(c)(2). Correspondingly, an ALJ need not give controlling weight to an opinion
that is not well-supported by clinical findings or laboratory techniques or is inconsistent
with other substantial evidence. Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009).
If the opinion of a treating source is not afforded controlling weight, the ALJ must
consider the following factors in deciding what weight is due: (1) the existence of an
examining relationship; (2) the nature of the treatment relationship, such as length of
treatment and frequency of examination; (3) the degree to which the opinion is supported
by medical evidence such as medical signs and laboratory findings; (4) consistency with
the record; (5) the source’s specialty; and (6) any other relevant factors. 20 C.F.R.
15

§§ 404.1527(c), 416.927(c). The ALJ is not required to explicitly discuss each and every
factor, as long as he or she considers all the factors and gives good reasons for the weight
assigned. See Combs v. Colvin, No. 8:12-cv-429, 2014 WL 584741, at *11 (D. Neb.
Feb. 12, 2014); Derda v. Astrue, No. 4:09-cv-1847 AGF, 2011 WL 1304909, at *10
(E.D. Mo. Mar. 31, 2011).
Plaintiff argues the ALJ erred in the weight given to the opinions of Dr. Carrie P.
Noran Jaeger, M.D.; Molly McNaughton, C.N.P.; Dr. Bernadette Clevenger, M.D.;
Dr. Parastoo Fazeli, M.D.; Dr. Marvin L. Logel, Ph.D.; and Dr. Kristen Zeller, M.D.
Plaintiff also faults the ALJ for not discussing opinions from Julia Fischer, D.P.T.;
Dr. Orlando Charry-Rodriguez, M.D.; Donald Darling, D.P.T.; Dr. Mary Beth
Lardizabel, D.O.; Stephanie Drew, C.N.P.; and Mark Roa, M.A., L.P.
1.

Dr. Jaeger

Plaintiff claims that the ALJ erred by giving only some weight to Dr. Jaeger’s
January 2014 opinion that Plaintiff could do light-duty work and needed work hardening.
(Pl.’s Mem. Supp. Mot. Summ. J. at 29, 41; R. 18, 1132-35.) Dr. Jaeger’s treatment note
is summarized supra Part III.A.6.
Plaintiff does not identify a specific reason why the ALJ’s consideration of
Dr. Jaeger’s report was erroneous. (Pl.’s Mem. Supp. Mot. Summ. J. at 29, 41.)
She simply lists Dr. Jaeger as one of the many providers whose opinion the ALJ
ostensibly erred in discussing. Plaintiff’s failure to develop this argument results in a
waiver. See Johnson v. Comm’r of Soc. Sec., No. 11-cv-1268 (JRT/SER), 2012 WL
4328413, at *17 (D. Minn. July 11, 2012), R. & R. adopted, 2012 WL 4328389 (D. Minn.
16

Sept. 20, 2012).
Furthermore, Dr. Jaeger’s clinical findings that Plaintiff had no neurological
defects or weaknesses, no muscle weakness, normal muscle bulk, normal gait, normal
strength in the arms and legs, normal reflexes, and normal sensation, and Dr. Jaeger’s
statement that Plaintiff was not disabled and could perform light-duty work, actually
support the ALJ’s finding that Plaintiff could do a limited range of sedentary work.
Finally, the ALJ gave a good reason to accord only some weight to Dr. Jaeger’s opinion:
Dr. Jaeger did not explain what functional restrictions and other limitations were
encompassed in her definition of “light duty” work. (R. at 18; see R. 1135); see
20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).
2.

Molly McNaughton

Plaintiff contends the ALJ erred in giving no weight to nurse practitioner Molly
McNaughton’s opinion that Plaintiff should be limited to working no more than five
hours a day. (Pl.’s Mem. Supp. Mot. Summ. J. at 29.) The ALJ rejected the opinion
because there was no supporting basis given for that limitation. (R. 18.) The ALJ also
noted that the corresponding treatment note pertained to Plaintiff’s impairments before
the alleged onset of disability date.
As with Dr. Jaeger, Plaintiff does not identify a specific reason why the ALJ’s
consideration of McNaughton’s opinion was erroneous. She simply includes
McNaughton in a list of providers whose opinions the ALJ discussed and discounted.
(Pl.’s Mem. Supp. Mot. Summ. J. at 29, 41.) Plaintiff’s failure to develop her argument
results in a waiver. But even so, the ALJ gave two good reasons for discounting the
17

weight given to McNaughton’s suggestion that Plaintiff be limited to working only five
hours a day: (1) McNaughton did not explain the rationale for the limitation, and (2) the
opinion related to Plaintiff’s condition as it existed before the relevant time period. (R. at
18.) Accordingly, the ALJ did not err in evaluating McNaughton’s opinion.
3.

Dr. Clevenger

Plaintiff’s primary care physician Dr. Clevenger opined that Plaintiff would have
the following work restrictions due to symptoms from mild/early sacroiliitis,
degenerative disc disease, and chronic musculoskeletal pain: unable to sit more than one
hour in an eight-hour workday, unable to stand more than one hour in an eight-hour
workday, and needing to walk five minutes every twenty minutes, shift positions at will,
take unscheduled breaks. (R. 1554-55.) Dr. Clevenger further opined that Plaintiff could
never use her hands to grasp, turn, or twist objects; that Plaintiff could never lift or carry
any amount of weight, twist, stoop, or crouch; and that pain, muscle weakness, limitation
of motion, and side effects of medication restricted the use of her upper extremities.
(R. 1555-56.) Further, Plaintiff would be “off task” 25% of the day, could not perform
even low-stress jobs, and would miss more than four days of work a month. (R. 1556.)
The ALJ found the work restrictions were not entitled to any weight because they
were not supported by physical examination results or clinical findings. 4 (R. 18.) In
making that determination, the ALJ identified and discussed the relevant medical
evidence; specifically, progress notes of examinations—including Dr. Clevenger’s

4

The ALJ accepted the opinion of Dr. Clevenger insofar as it limited Plaintiff to a range
of sedentary work.
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progress notes—generally documented normal findings, including normal upper
extremity strength, normal muscle strength, normal range of motion, and normal
mobility. The ALJ accepted Dr. Clevenger’s opinion to the extent it corresponded with
an ability to perform a range of sedentary work. (R. 18.)
Plaintiff contends the ALJ erred by not giving any weight to the work restrictions
opined by Dr. Clevenger. (Pl.’s Mem. Supp. Mot. Summ. J. at 42.) The Court disagrees.
The limitations in Dr. Clevenger’s opinion are almost entirely unsupported by clinical or
laboratory diagnostic techniques, and are also inconsistent with other substantial
evidence. See 20 C.F.R. § 404.1527(c)(2), (3), (4); § 416.927(c)(2), (3), (4). As
discussed supra and infra, physical examinations generally revealed normal strength in
the extremities, full strength and use of the hands, normal muscle strength, and only
mildly to moderately restricted range of motion and mobility. Moreover, Dr. Clevenger
did not provide any support or rationale for her opinion that Plaintiff would miss more
than four days of work a month. See Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir.
2008) (stating that “a treating physician’s opinion does not deserve controlling weight
when it is nothing more than a conclusory statement”). Consequently, Dr. Clevenger’s
opinion was not entitled to any weight, much less controlling weight. The ALJ gave
good reasons for the weight she gave Dr. Clevenger’s opinion, and those reasons are
well-supported by substantial evidence of record.
4.

Dr. Fazeli

Dr. Fazeli opined that Plaintiff would be limited to less than full-time sedentary
work and would miss work more than four times a month. (R. 1558-59.) The ALJ gave
19

this opinion no weight because Dr. Fazeli indicated that he expected Plaintiff to improve
in six to twelve months and he did not provide any reasons why Plaintiff would miss
more than four days of work a month. (R. 18.)
These are valid reasons to reduce the weight of Dr. Fazeli’s opinion. An
impairment “must have lasted or be expected to last for a continuous period of at least 12
months.” 20 C.F.R. §§ 404.1509, 416.909. Yet Dr. Fazeli noted that Plaintiff would
“possibly” be able to return to work in less than twelve months. (R. 1558.) It is clear
from Dr. Fazeli’s opinion that he considered Plaintiff’s symptoms relatively impermanent
and remediable with medication. As to his opinion that Plaintiff would miss more than
four days of work a month, that was not only impermanent but was also a conclusory
statement not tied to any rationale or particular findings. See Hamilton, 518 F.3d at 610.
Notably, the ALJ accepted Dr. Fazeli’s opinion to the extent it corresponded with an
ability to perform a range of sedentary work. (R. 18.)
5.

Dr. Logel

Plaintiff contends the ALJ erred in giving only some weight to the opinion of
Dr. Logel, who performed an independent psychological evaluation. Plaintiff does not
articulate a particular reason why the ALJ’s grant of some weight to the opinion was
erroneous; she simply lists Dr. Logel as one of the many providers whose opinions the
ALJ discussed and discounted. (Pl.’s Mem. Supp. Mot. Summ. J. at 29, 41.) Plaintiff’s
failure to develop a specific argument concerning Dr. Logel operates as waiver of the
argument.
Moreover, the only aspect of Dr. Logel’s opinion the ALJ did not credit was the
20

suggestion that the diagnosis of a somatic symptom disorder should further reduce
Plaintiff’s RFC. The ALJ explained that this diagnosis did not affect the RFC because
Dr. Logel ultimately concluded that Plaintiff could “return to work on a graduated
schedule . . . starting with two hours per day for the first two weeks and increasing by
two hours per work day at two-week intervals thereafter, up to full-time work.” (R. 19;
see R. 2087.) In light of the temporary nature of the suggested work limitations, the ALJ
did not err in finding that Dr. Logel’s diagnosis of a somatic symptom disorder would not
affect Plaintiff’s RFC. See 20 C.F.R. §§ 404.1545(c), 416.945(c) (in assessing a
claimant’s mental abilities, the ALJ considers the effects on work ability “on a regular
and continuing basis”). Consequently, the ALJ did not err in evaluating Dr. Logel’s
opinion.
6.

Dr. Zeller

On March 18, 2016, Dr. Zeller performed an independent medical evaluation of
Plaintiff. (R. 2089-98.) Dr. Zeller documented physical examination findings of a
normal gait, normal flexion and extension, normal stability, reduced lumbar spine range
of motion, spine pain, tenderness to palpation along the spine, and full strength and range
of motion in the wrists, elbows, shoulders, ankles, knees, and hips. (R. 2090-91.)
Dr. Zeller took note of an MRI on December 29, 2015, that revealed “no erosive
changes” in the sacroiliac joints and “possible mild sacroiliitis.” (R. 2095.) She also
documented a recent diagnosis of ankylosing spondylitis by Dr. Fazeli in December
2015. (R. 2095.)
Dr. Zeller distinguished Plaintiff’s previous, work-related injuries, which she
21

concluded were “certainly” not disabling, from the ankylosing spondylitis diagnosis,
which she believed had gone undiagnosed but could be treated successfully with
medication. (R. 2096-97.) Dr. Zeller found that no other symptoms or conditions could
be considered disabling. (R. 2098 (“Her disability is solely related to her ankylosing
spondylitis.”).) She commented that Plaintiff’s doctors had focused, wrongly, on
previous work injuries as the cause of her pain and other symptoms, and stated that
Plaintiff’s “case is a classic presentation of flaring ankylosing spondylitis, which can be
quite disabling to some people, particularly when it is untreated or uncontrolled as is the
case with Ms. Plaintiff.” (R. 2098.) Dr. Zeller believed Plaintiff would benefit from
treatment from a rheumatologist and finding a course of medication that could improve
her symptoms. (R. 2097.) Until Plaintiff’s symptoms were controlled, however,
Dr. Zeller believed Plaintiff would not be able to work. (R. 2097.) Dr. Zeller therefore
thought Plaintiff would be entitled to disability benefits, but only until her ankylosing
spondylitis was treated and under control. “Then, she can go off Social Security
Disability. Again, as noted previously, her disability is not related to any of her claimed
work injuries.” (R. 2098.)
The ALJ did not give any weight to the opinion that Plaintiff was not able to work
because that opinion was rendered for the purpose of obtaining worker’s compensation
benefits, was not supported by contemporaneous clinical findings, and indicated that
work restrictions were temporary and that symptoms were remediable with proper
medication. These are legitimate reasons for giving no weight to the opinion that
Plaintiff was not able to work. 20 C.F.R. §§ 404.1527(c)(3), (4); 404.1545(c);
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416.927(c)(3), (4); 416.945(c); Strother, 2017 WL 4163924, at *6; Brown, 2014 WL
200234, at *11. Dr. Zeller was clearly under the misimpression that DIB and SSI may be
awarded on a short-term basis. Furthermore, an opinion that a claimant is medically
disabled and unable to work is not entitled to any deference. 20 C.F.R. §§ 404.1527(d),
416.927(d). In sum, the ALJ did not err in giving no weight to Dr. Zeller’s opinion that
Plaintiff was not able to work until she got her ankylosing spondylitis under control.
7.

Julia Fischer

Plaintiff identifies two treatment records from physical therapist Julia Fischer, one
in April 2015 and one in June 2015, that she claims the ALJ did not explicitly discuss.
(Pl.’s Mem. Supp. Mot. Summ. J. at 41 (citing R. 1090-92).) In fact, the ALJ specifically
mentioned Plaintiff’s report to Fischer that she could walk nine blocks without her back
hurting. (R. 17; see R. 1092.) As to other aspects of the treatment records, an ALJ is not
required to discuss every piece of evidence in the record, Wildman, 596 F.3d at 966, and
Plaintiff has not identified the specific opinion the ALJ failed to consider. Finally, the
treatment records are consistent with the ALJ’s findings; in particular, Fischer
documented “fairly good range of motion in her cervical and lumbar spine” and “minimal
complaints of pain” in April 2015. (R. 1092.) The Court finds the ALJ did not err in her
consideration of Fischer’s physical therapy records.
8.

Dr. Charry-Rodriguez

Plaintiff contends the ALJ erred by failing to mention an opinion by Dr. CharryRodriguez. Dr. Charry-Rodriguez completed a pain management evaluation at the
request of therapist Mark Roa on January 27, 2016. (R. 1567-75.) Plaintiff told
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Dr. Charry-Rodriguez at the evaluation that her pain was mainly located in her neck and
low back; averaged a five on a ten-point scale; worsened with occasional flareups;
temporarily improved with acupuncture, chiropractic treatment, counseling, yoga,
medications, ice, hot baths, and rest; and affected almost all activities, including sleep.
(R. 1570.) A review of the musculoskeletal system was negative, except for arthritis,
back and neck pain, and stiffness. (R. 1572.) On physical examination, Dr. CharryRodriguez wrote “None” and “Appears calm and comfortable” under “Pain behavior.”
(R. 1572.) Dr. Charry-Rodriguez described Plaintiff’s posture as normal, her spine as
well-aligned but with a decreased range of motion, the range of motion in her joints as
within functional limits, her gait as normal, and her lower and upper extremity strength as
5/5. (R. 1572-73.) He did note low back pain with FABER and Gaenslen’s maneuvers.
(R. 1573.) Dr. Charry-Rodriguez’s assessment was chronic low back pain due to
“recently diagnosed ankylosing spondylitis and remote history of low back trauma,” neck
pain, depression, anxiety, deconditioning, and “chronic pain syndrome with significant
psychosocial components and maladaptive behaviors; symptom focused with poor selfcare habits.” (R. 1568.) His impressions were (1) a subtle bone marrow edema with
minimal enhancement along the iliac side of the inferior left sacroiliac joint; and (2) mild
disc desiccation at L5-S1. (R. 1574.) Dr. Charry-Rodriguez hoped for a “rapid
functional rehabilitation.” (R. 1567.)
Contrary to Plaintiff’s argument, the ALJ not only mentioned—but discussed and
credited—Dr. Charry-Rodriguez’s evaluation. (R. 17 (discussing Dr. Charry-Rodriguez’s
treatment record dated January 27, 2016; referring to numerous findings therein; and
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referencing “27F/14,” which is a page of the evaluation).) Moreover, Dr. CharryRodriguez’s evaluation is consistent with and provides substantial evidence for the ALJ’s
decision.
9.

Donald Darling

Plaintiff faults the ALJ for not considering a letter from physical therapist Donald
Darling dated March 2, 2016. (Pl.’s Mem. Supp. Mot. Summ. J. at 44.) In that letter,
Darling described findings made at an initial appointment earlier that day of “significant
muscle and soft tissue imbalances,” tight musculature, poor core strength, deconditioning,
positive upper limb tension tests bilaterally, and significant trigger points. (R. 1648.)
Darling expected significant improvement in six to eight months. (R. 1649.)
The Court finds the ALJ did not err in not discussing Darling’s letter. First, an
ALJ is not obligated to discuss every treatment record. Wildman, 596 F.3d at 966.
Second, Darling’s treatment record was not a “medical opinion,” as defined by 20 C.F.R.
§§ 404.1527(a)(1) and 416.927(a)(1). “Medical opinions are statements from acceptable
medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do
despite impairment(s), and your physical or mental restrictions.” See 20 C.F.R.
§ 404.1527(a)(1). As a physical therapist, Darling was not an “acceptable medical
source.” 20 C.F.R. § 404.1513(a) (effective Sept. 3, 2013; amended Mar. 26, 2017). 5
Nor did the letter include a diagnosis or an independent evaluation of what Plaintiff could

5

The Court applies the version of the regulation in effect on the date of the ALJ’s
decision.
25

do despite her impairments and restrictions.
10.

Dr. Lardizabel

Plaintiff submits the ALJ failed to consider Dr. Lardizabel’s opinion concerning
the mental effects of pain and other mental impairments. But an ALJ need not discuss
every treatment record, Wildman, 596 F.3d at 966, and Dr. Lardizabel’s treatment notes
do not constitute a “medical opinion” as defined by §§ 404.1527(a)(1) and 416.927(a)(1),
because they do not reflect Dr. Lardizabel’s judgments about what Plaintiff could still do
despite her impairments and restrictions.
Furthermore, Plaintiff cites primarily the subjective complaints she reported to
Dr. Lardizabel, rather than to Dr. Lardizabel’s objective findings. Those objective
findings included appropriate responses to questions, fluent and articulate speech, normal
memory, normal concentration, appropriate judgment and insight, good mood, and bright
affect (R. 1376, 1385, 1609, 1632), and those findings are consistent with the ALJ’s
assessment of Plaintiff’s mental impairments at step three and step four of the sequential
evaluation. (R. 14-16, 19.) Consequently, the ALJ did not err concerning Dr.
Lardizabel’s treatment records.
11.

Stephanie Drew

Plaintiff argues the ALJ failed to consider and discuss the opinions of nurse
practitioner Stephanie Drew, but Plaintiff does not identify any specific opinion she
believes the ALJ should have considered. (Pl.’s Mem. Supp. Mot. Summ. J. at 29, 41,
45.) As such, Plaintiff has waived this argument.
Moreover, though Plaintiff lists several treatment records by Drew, the portions of
26

the records identified by Plaintiff are not “medical opinions” as defined by 20 C.F.R.
§§ 404.1527(a)(1) and 416.927(a)(1), and Drew is not an “acceptable medical source” as
defined by 20 C.F.R. § 404.1513(a) (effective Sept. 3, 2013; amended Mar. 26, 2017).
Finally, the ALJ was not required to discuss every treatment record, Wildman, 596 F.3d
at 966, but even so, many of the treatment records from Drew contain substantial
evidence in support of and consistent with the ALJ’s findings (See, e.g., R. 1219-20
(normal mood and affect, normal gait, normal lower extremity muscle tone, normal lower
extremity strength, and mild spasm); 1226-29 (normal upper extremity strength and
improved functioning with medication); 1262 (denial of handicap placard in light of
Plaintiff’s report of ability to walk for one hour); 1267 (recommendation that Plaintiff
return to work part-time).) The ALJ did not err with respect to Drew’s treatment records.
12.

Mark Roa

Plaintiff asserts the ALJ erred by failing to consider the opinion of Mark Roa,
M.A., L.P. But Roa did not offer a “medical opinion” as defined by §§ 404.1527(a)(1)
and 416.927(a)(1), because he never opined what Plaintiff could or could not do in view
of her impairments and restrictions.
As far as the treatment records authored by Roa, contrary to Plaintiff’s argument,
the ALJ did specifically consider and discuss relevant evidence. (R. 19.) Specifically,
the ALJ noted that Roa documented good eye contact, logical thoughts, tight
associations, normal affect, and appropriate conversation. (R. 19.) The ALJ was not
required to discuss every treatment record from Roa. See Wildman, 596 F.3d at 966.
Nevertheless, the Court has reviewed the other records and finds that other objective
27

findings by Roa are consistent with and support the ALJ’s findings. (See, e.g., R. at
1341-42 (cooperative behavior, appropriate eye contact, normal speech, normal gait and
motor coordination, normal attention and concentration, oriented to place and time,
organized thought processes, no impairment in memory, intact associations, normal
mood, appropriate affect, above-average intelligence, and good judgment and insight);
R. 1516-17 (alert, oriented, good eye contact, logical thoughts, no speech or language
problems, normal affect, and appropriate mood).)
C.

Whether the ALJ Framed an Erroneous Hypothetical Question

Plaintiff contends the ALJ did not propound an adequate hypothetical question to
the vocational expert at the hearing because the question did not include all of Plaintiff’s
impairments and limitations. A hypothetical question posed to a vocational expert is
considered sufficient when it “sets forth impairments supported by substantial evidence
in the record and accepted as true by the ALJ.” Hunt v. Massanari, 250 F.3d 622, 625
(8th Cir. 2011). Here, the ALJ included in the hypothetical question all of the
impairments she found true and supported by substantial evidence. Consequently, the
ALJ did not err in framing the hypothetical question.

Accordingly, based on all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff Sheila A.’s Motion for Summary Judgment [Doc. No. 17] is DENIED;
and
2. Commissioner Nancy A. Berryhill’s Motion for Summary Judgment [Doc. No. 22]
28

is GRANTED.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: September 24, 2018

s/ Hildy Bowbeer
HILDY BOWBEER
United States Magistrate Judge

29