Palmer v. Berryhill
Filing
23
ORDER denying 15 Plaintiff's Motion for Summary Judgment; granting 20 Defendant's Motion for Summary Judgment. (Written Opinion) Signed by Magistrate Judge Hildy Bowbeer on 3/22/2019. (JMK)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Michelle P.,
Case No. 17-cv-4286 (HB)
Plaintiff,
v.
ORDER
Nancy A. Berryhill,
Acting Commissioner of Social
Security,
Defendant.
HILDY BOWBEER, United States Magistrate Judge
Pursuant to 42 U.S.C. § 405(g), Plaintiff Michelle P. seeks review of the Acting
Commissioner of Social Security’s (the “Commissioner”) denial of her application for
disability insurance benefits (“DIB”). 1 See (Compl. [Doc. No. 1 at 1]. 2) The parties filed
cross-motions for summary judgment. (Mot., “Pl.’s Mot. for Summ. J.” [Doc. No. 15];
Def.’s Mot. for Summ. J. [Doc. No. 20].) For the reasons set forth below, the Plaintiff’s
Motion for Summary Judgment is denied and the Commissioner’s Motion for Summary
Judgment is granted.
1
The Social Security Administrative Record (“R.”) is available at Doc. No. 11.
The Complaint requests review “of the Commissioner of Social Security denying
Plaintiff’s Application for Social Security Disability and or Supplemental Security
Income Benefits, for lack of disability,” see (Compl. at 1), but the administrative record is
clear that Plaintiff sought DIB only. See, e.g., (R. 53, 62, 73.)
2
I.
BACKGROUND
A.
Procedural History
Plaintiff filed for DIB on February 22, 2014. (R. 53.) Plaintiff alleged she was
unable to work as a result of rheumatoid arthritis, migraine headaches, Raynaud’s
Disease, “auto-immune diseases,” tachycardia, and polycystic ovary syndrome, and
asserted an alleged onset date (“AOD”) of July 26, 2009. 3 See, e.g., (R. 10, 53–54, 173,
199.) Plaintiff’s “date last insured” for DIB purposes was December 31, 2014. 4 See
(R. 10, 12, 173). Plaintiff’s application was denied initially and on reconsideration, and
she requested a hearing before an administrative law judge (“ALJ”). The hearing was
convened on August 2, 2016. (R. 29–51.) Plaintiff and vocational expert Jesse Ogren
testified.
The ALJ issued an unfavorable decision on September 20, 2016. (R. 7–22.)
Pursuant to the five-step sequential evaluation procedure outlined in 20 C.F.R.
§ 404.1520(a), the ALJ first determined that Plaintiff had not engaged in substantial
gainful activity since at least her AOD of July 26, 2009. (R. 12.) At step two, the ALJ
3
Some places in the record suggest that the AOD was July 1, 2009. See, e.g., (R. 62.)
Neither party challenges the July 26, 2009 AOD or suggests that the difference between
the two dates is significant to the outcome, and so the Court uses the AOD of July 26,
2009, in this opinion.
4
“The date last insured (DLI) is the last day of the quarter a claimant meets insured
status for disability or blindness. For Title II Disability Insurance Benefit (DIB) claims,
adjudicators cannot establish onset after the DLI.” SSA POMS DI 25501.320. This
requires the claimant to have recently worked in order to be entitled to benefits. A
claimant must have worked 20 out of the past 40 quarters to be eligible for DIB. See
SSA POMS RS 00301.101-00301.800 (computing date last insured). Put another way,
the date of last insurance is the last date an individual is eligible to receive DIB in view of
her earnings record. Thus, the claimant must establish disability on or before that date in
order to be entitled to DIB.
2
determined that Plaintiff had severe impairments of rheumatoid arthritis, migraine
headaches, patellofemoral syndrome, rotator cuff tendinopathy, tachycardia, and
connective tissue disorder with Raynaud’s symptoms. (Id.) 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 had the residual functional capacity
(“RFC”) 5
to perform light work as defined in 20 CFR 404.1567(b) except no
climbing ladders, ropes, or scaffolds, occasional climbing of ramps and
stairs, occasional stopping, kneeling, and crouching, no crawling, no tasks
that would specifically require the act of balancing for completion, no
extremes of heat and cold, and no concentrated exposure to fumes, dusts,
odors, gases, and poor ventilation, and routine repetitive types of tasks and
instructions with no strict production rate pace such as an assembly line
type work.
(R. 15.) The ALJ also found at step four that Plaintiff was not able to perform her past
relevant work as a cable company worker, scheduler, worker detention deputy,
audio/video teacher’s aide, receptionist, or an administrative assistant. (R. 20.)
At step five, however, considering Plaintiff’s age, education, work experience, and
RFC, the ALJ found Plaintiff could work in jobs that exist in significant numbers in the
national economy, including: fold machine feeder, bagger, and stuffer. (R. 21.) Thus,
the ALJ concluded that Plaintiff was not disabled. (R. 22.)
5
An RFC assessment measures the most a person can do, despite her limitations.
20 C.F.R. § 404.1545(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).
3
Plaintiff sought review by the Appeals Council, which denied her request. (R. 1–
3.) The ALJ’s decision therefore became the final decision of the Commissioner. (Id.);
see also 20 C.F.R. § 404.981. Plaintiff then commenced this action for judicial review.
Plaintiff contends the ALJ erred by (1) failing to afford proper weight to the
opinion of Dr. McLeod, one of her treating physicians; (2) discrediting Plaintiff’s
subjective complaints; and (3) determining that Plaintiff had the RFC to perform “light”
work. See generally (Mem. of Law in Supporting Pl.’s Mot. for Summ. J., “Pl.’s Mem.
in Supp.” [Doc. No. 14 at 15–26].)
B.
Factual Background 6
1.
Plaintiff’s Background and Testimony
As of her date last insured, Plaintiff was 34 years old, and therefore a “younger
person.” See 20 C.F.R. § 404.1563(c); see also (R. 53.) Plaintiff has a high school
education and completed vocational training in a “Firefighter/EMT Training program.”
(R. 200.) She worked consistently until July 2009, but has not worked since. See, e.g.,
(R. 12, 149, 199.)
At the hearing before the ALJ, Plaintiff testified that she had stopped working as a
corrections officer in July 2009 because of health-related issues. See (R. 31.)
Specifically, she said she suffered from chronic migraines and an autoimmune disorder
that affected her joints. (Id.) She also stated that stairs were particularly problematic as
6
The Court has reviewed the entire administrative record thoroughly, 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.
4
were the long periods of being on her feet and the duration of her twelve-hour shifts.
(Id.) Plaintiff testified that she is able to stand for “[n]o more than an hour probably.”
(R 40.) Furthermore, if she is required to sit for long periods, her hips and knees start to
ache. (Id.) Her employer allowed her to go on a year of unpaid leave as she attempted to
address her medical issues, but things did not improve, and Plaintiff testified that she
believes her condition has worsened with the passage of time. See (R. 32.) Plaintiff also
testified that as her condition worsened, she was no longer able to volunteer as a
firefighter. (R. 34.)
When asked about light sensitivity associated with her headaches, Plaintiff
testified that “light can be an onset for the headache. But once the headache [has] taken
effect, light doesn’t make much of a difference.” (R. 33.) Plaintiff stated that fluorescent
lights “will trigger [her] right away.” (R. 39.) She also testified that she is sensitive to
“[a]ny kind of sound” when experiencing her headaches. (R. 33.)
Regarding activities of daily living, Plaintiff testified that she lives alone in a
townhome owned by her parents. (R. 34.) She stated one reason she lives in a townhome
is because her condition prevents her from doing lawn work and snow removal. (Id.)
She also stated that she lives only a few minutes from her parents in case they need to
assist her when she is “very sick.” (R. 34–35.) Plaintiff does not believe she requires
“special assistance,” but noted that she does not shower or care for her hair as much as
she believes she should, due to her impairments. (R. 37.) 7 Plaintiff drives two to three
7
Plaintiff completed a functional capacity report on May 18, 2014. In it, she indicated
no problems with her personal care. (R. 166.) However, in a later functional capacity
5
times per week, but she prefers to do so during the day because “[v]ision is a little
trickier” for her. (R. 35–36.)
Plaintiff testified that her mother does most of her bulk grocery shopping,
although Plaintiff will get “a few small groceries” when she picks up her prescriptions.
(R. 36.) Plaintiff stated that she does most of the remainder of her shopping online and
receives delivery right to her door so she is not required to “carry anything heavy.” (Id.)
She testified that her typical day is spent mostly lying in bed, watching a little TV and
reading. (R. 38.) She only gets out of bed “every once in a while to stretch [her] legs” or
get something to eat. (Id.) Prior to her disability, she cooked meals for both herself and
her family. 8 (Id.) Plaintiff testified that before her disability she used to be very active:
playing both the piano and guitar, drawing, riding horses, and being outside. (R. 39.)
Currently, however, aside from reading and occasionally playing the piano, her
impairments make activities “a bit difficult.” (Id.) That said, she did testify later in the
hearing that she rides horses every few weeks for short periods. (R. 43.) She testified
that her friends do not come to visit because she is embarrassed about the state of her
home. (R. 40.) She believes one of the reasons she cannot do housework is because she
is not capable of prolonged lifting activity, and if she over-exerts herself, she cannot
move the next day. (R. 42.) By way of example, she testified that she could not lift 20 or
25 pounds “for any length of time.” (Id.)
report completed on January 30, 2015, after her date of last insurance, Plaintiff indicated
some exhaustion from self care. (R. 182.)
8
Plaintiff was previously married and was a step-parent, but is now divorced. See
(R. 38–39, 375.)
6
2.
Relevant Medical Evidence
a.
Tachycardia
In 2009, Plaintiff was evaluated for numerous cardiopulmonary complaints,
including shortness of breath and exertional fatigue. See, e.g., (R. 442–447, 470–73; see
also R 16.) The results of the objective tests, including an electrocardiogram and
electromyography, were normal. See, e.g., (R 442, 445, 472.) In September 2009,
however, she was prescribed Inderal for tachycardia. (R. 424–25.) Plaintiff returned
again the next month complaining that the Inderal wore off too quickly at low doses, and
she was prescribed an extended release formulation of the medication. (Id.) Plaintiff also
received at least six follow-up electrocardiograms between 2009 and 2014, with only one
test—in June 2010—indicating an elevated ventricular heart rate; the remaining tests
showed no change from the 2009 baseline test. See, e.g., (R. 465.) Other test results,
such as from electroencephalography, a Holter monitor, chest imaging studies, various
laboratory studies, and pulmonary function testing, were also normal. See, e.g., (R. 413,
414, 416, 446, 466, 470, 472.)
b.
Joint Pain Related to Autoimmune Disease
Plaintiff was seen by several doctors, including her primary care physician
Thomas McLeod, M.D., and her primary rheumatologist Clement Mitchet, M.D.,
regarding her complaints of joint pain and fatigue and concerns about a possible
autoimmune disease, with no clear findings. See, e.g., (R. 341–44, 368–371, 363, 375,
388–91, 411, 416, 467.) For example, on February 23, 2010, Adam Sawatsky, M.D.,
another rheumatologist in Dr. Michet’s practice, opined that Plaintiff “does not meet any
7
rheumatologic picture for a clear diagnosis” and “does not meet any classic criteria for
lupus.” (R. 411.) Objective tests including an ENA panel 9 and a DNA test were also
normal. (Id.) Later that year, it was noted that Plaintiff’s joint pain was stable on her
current doses of medication. (R. 391.)
In June 2010, Plaintiff was seen by Dr. Mitchet in connection with “her possible
early connective tissue disease syndrome.” (R. 407.) Dr. Mitchet reported that she was
tolerating the medication well at the time and that there had been no “observed worsening
of any inflammatory symptoms.” (Id.)
In connection with a visit on February 15, 2011, the first time Dr. McLeod had
seen Plaintiff in more than a year, he reported a normal physical examination with no
evidence of active synovitis, and acknowledged that Plaintiff’s “history and examination
findings are not diagnostic, per se, of a defined collagen vascular disorder” but stated that
her “improvement with Plaquenil therapy suggests possible evolving underlying
connective tissue disorder.” (R. 375–78.) Two months later, Daniel Schaffer, a
physician’s assistant under the supervision of Dr. Mitchet, evaluated Plaintiff. (R. 368–
71.) Schaffer also noted a normal physical examination and reported that Plaintiff had
responded well to a new treatment regimen and that she was feeling “100% [like] her old
self.” (R. 368.)
9
An ENA panel is used to detect the presence of an autoimmune disorder, such as lupus
or a connective tissue disease. See, e.g., Extractable Nuclear Antigen (ENA) Panel,
RheumInfo, https://rheuminfo.com/common-tests/extractable-nuclear-antigen-ena-panel/
(last visited Mar. 17, 2019).
8
In June 2011, Dr. McLeod noted that Plaintiff had a “working diagnosis of illdefined connective tissue disorder (characterized by mildly positive ANA and
inflammatory markers in [the] past, scattered musculoskeletal symptomatology).”
(R. 366.) In November 2011, Dr. McLeod reported that “her status has improved
somewhat and stabilized (though still functionally limited) on well-tolerated Plaquenil
therapy.” (R. 341.)
Throughout the relevant period, 10 Plaintiff’s examinations—including imaging
studies—for joint-related issues were unremarkable. See, e.g., (R. 341–44, 363, 370, 390,
411, 416–17, 467, 490.) Other clinical notes indicate signs of impingement in both
shoulders, although there was no weakness, and “borderline vasospasm in the right 3rd
and left 2nd fingers,” but tests were otherwise unremarkable and the examination was
otherwise normal. (R. 375, 381, 408.) Even on those occasions when Plaintiff
complained of worsening symptoms, the medical records do not indicate that she
presented as being in acute distress. See, e.g., (R. 396 (giving a pain rating of 3 out of
10); R. 489 (giving a pain rating of 0 out of 10).)
10
The relevant period for DIB claims is the time between the “date of alleged onset of
disability and the date she was last insured under the Act.” Reed v. Comm’r, Soc. Sec.
Admin., 750 F. App’x 506, 507 (8th Cir. 2019). Evidence not within the relevant period
can only “be used in helping to elucidate a medical condition during the time for which
benefits might be rewarded.” Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). Thus,
the Court focuses primarily on the evidence within the relevant period, noting as needed
when the evidence outside the relevant period is useful to provide context for Plaintiff’s
impairments.
9
c.
Headaches
Both before and after her AOD, Plaintiff was evaluated for complaints of
headaches by Dr. McLeod. See, e.g., (R. 458 (a March 2009 visit where it was noted she
was last seen for the same issue in August of 2008).) Plaintiff reported to Dr. McLeod
that this was an ongoing issue spanning many years. See (R. 459.) In April 2009 she
reported to Dr. McLeod that her pain was “3” on a scale of 1-10. (R. 450.) Dr. McLeod
noted that she appeared in no acute distress, that her neurological examination was
normal, and that her headaches had improved on Topamax. (Id.) On June 16, 2009,
Plaintiff stated to Dr. McLeod that her headaches were “manageable” and she had
“discontinued the Topomax.” (R. 447.) At a visit in 2011, Dr. McLeod noted Plaintiff
“appears to tolerate the bright florescent lights of the office well.” (R. 377.)
In July 2014, Plaintiff was taking Imitrex to manage her headaches. (R. 489.) She
reported to Dr. McLeod that her Imitrex did not last through the month because her
insurance provider limited her monthly doses and she could not afford more out of
pocket. (Id.) Dr. McLeod also noted that Plaintiff limited her use of Excedrin. 11
11
At the August 2008 visit, Plaintiff had told Dr. McLeod that she would get a headache
every day if she did not take Excedrin, and that she would get “one or two ‘big
headaches’ each month.” (R. 463–64.) Dr. McLeod opined that one cause of the
headaches could be related to “medication overuse” that is “superimposed on her
migrainous disorder.” (R. 464.) They discussed weaning Plaintiff off of Excedrin, (id.),
which would seem consistent with Dr. McLeod’s 2014 note that Plaintiff was limiting her
use of Excedrin notwithstanding continued complaints of headaches.
10
d.
Dr. McLeod’s Opinions on Plaintiff’s Ability to Work
In July 2009, Dr. McLeod opined that Plaintiff should not work with prisoners at
the Adult Detention Center but that Plaintiff could otherwise work with restrictions that
approximated a “light” level of work. See (R. 443; see also R. 17).
Dr. McLeod next opined regarding Plaintiff’s ability to work following Plaintiff’s
February 15, 2011, visit. See (R. 375–78). Dr. McLeod opined that “[h]er symptoms can
be quite limiting, per patient report” and that Plaintiff could not resume “active work in
the Adult Detention Center,” but cited no clinical findings or other bases (beyond
Plaintiff’s self-reported symptoms) for his opinion on work restrictions. (R. 377.)
On June 2, 2016, Plaintiff was seen by Dr. McLeod for the first time that year. 12
(R. 532.) Plaintiff stated she was not in pain during the visit and exhibited no signs of
distress, and her physical examination was normal. (R. 532, 533.) After this visit,
Dr. McLeod completed a medical source statement. See generally (R. 544.) In that
statement, Dr. McLeod opined that Plaintiff was only capable of work in “2 hour stints of
low intensity,” working “twice a week.” (Id.) Dr. McLeod did not explain the basis for
his opinion nor did he provide additional comments. (Id.)
e.
Agency Consultant Opinions
Two agency consultants each independently opined that Plaintiff was not disabled.
See (R. 53–61, 63–71.) In support of their opinions, the agency consultants pointed to
Plaintiff’s activities of daily living, “[t]he location, duration, frequent and intensity of the
12
In addition to visits within the relevant period, Plaintiff saw Dr. McLeod several times
between 2015 and 2016. See, e.g., (id. at 501–07, 532–34, 537–39.) These physical
examinations were also normal. See, e.g., (id. at 502, 506, 533, 538.)
11
individual’s pain and other symptoms,” as well as “[p]recipitating and aggravating
factors” and further observed that Plaintiff’s course of medical treatment did not suggest
the limiting effects suggested by Plaintiff. (R. 57, 67.) The agency consultants also
stated that Plaintiff’s “symptoms [and] their impact on functioning are not supported by
the totality of the evidence.” (R. 58, 67–68.) One agency consultant pointed by way of
example to evidence in the record that Plaintiff’s treatment with medication regarding her
impairments was effective. See (R. 56.) The other consultant cited reconsideration
evaluations of Plaintiff in 2014 of that noted no problems. See (R. 66.) As to limitations,
both consultants opined that Plaintiff was capable of occasionally lifting or carrying
twenty pounds, frequently lifting or carrying ten pounds, but that Plaintiff should never
climb ladders, ropes, or scaffolds, avoid extreme cold and heat, and avoid fumes, odors,
dust, and the like. See (R. 58–59, 68–69.)
3.
Vocational Expert Testimony
Jesse Ogren, a vocational expert, testified before the ALJ. See generally (R. 44–
51.) The ALJ asked Ogren whether a hypothetical person could perform any of
Plaintiff’s past relevant work given the above-described limitations in the RFC regarding
climbing, stooping, kneeling, balancing, and exposure limitations with respect to heat,
cold, fumes, dust, odors, etc. (R. 47.) Ogren opined that the hypothetical person could
return to some of Plaintiff’s past relevant work on the basis of the Dictionary of
Occupational Titles (“DOT”), but not based on Plaintiff’s description of those jobs. (Id.)
After being asked about additional limitations in the RFC, including limitations regarding
repetitive tasks and no strict production rate pace, Ogren opined that the hypothetical
12
person could not return to any of Plaintiff’s past relevant work because the past work was
“all semiskilled or better,” and the additional limitations limited the hypothetical person
to unskilled work only. See (R. 47–48.) In response to a question posed by Plaintiff’s
attorney, Ogren denied that someone who was limited to two-hour shifts twice per week
would be capable of competitive employment activity. (R. 51.)
II.
DISCUSSION
Plaintiff asserts the ALJ’s decision is erroneous for three reasons: (1) the ALJ did
not give Dr. McLeod’s opinions the proper weight normally accorded to opinions of a
treating physician; (2) the ALJ impermissibly disregarded Plaintiff’s subjective
complaints; and (3) the ALJ’s RFC determination that Plaintiff is capable of performing
“light” work is not supported by substantial evidence. See generally (Pl.’s Mem. in Supp.
at 15–26.)
In support of her determination of Plaintiff’s RFC, including her consideration of
Dr. McLeod’s opinions and Plaintiff’s subjective complaints, the ALJ discussed
Plaintiff’s activities of daily living, relatively normal physical examinations, a general
lack of aggressive treatments directed to her alleged impairments, an absence of opinion
by her medical providers in the relevant period that Plaintiff was unable to work,
evidence of noncompliant behavior, and general lack of significant objective medical
findings. See (R. 16–20.) In sum, the ALJ concluded that the RFC limiting Plaintiff to
“light” work “is supported by the comprehensive, objective medical evidence, including
the overall clinical findings and signs; claimant’s courses of and responses to treatments;
13
the claimant’s relatively high-level of independence and broad range of activities; and the
expert medical opinions of the DDS physicians.” (Id. at 20.)
For the reasons set forth in the following discussion, after careful review of the
record, and particularly medical records from the relevant period between July 26, 2009,
and December 31, 2014, the Court is satisfied that the ALJ did not err and that her
determination is supported by substantial evidence in the record as a whole.
A.
Legal Standard
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,
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)). That said, 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).
14
B.
Analysis
1.
The Weight Given to Dr. McLeod’s Opinions
Plaintiff contends the ALJ erred in her consideration of Dr. McLeod’s 2016
opinion regarding Plaintiff’s inability to work. Specifically, Plaintiff argues that
Dr. McLeod’s 2016 medical opinion is not inconsistent with the rest of Plaintiff’s
medical records and the ALJ should therefore have given it controlling weight. (Pl.’s
Mem. in Supp. at 23–25.) But this argument ignores a fundamental element of Plaintiff’s
DIB claim: “[Plaintiff] has to establish her being disabled prior to the expiration of her
insurance to be entitled to disability insurance benefits.” Moore v. Astrue, 572 F.3d 520,
522 (8th Cir. 2009); see also 20 C.F.R § 404.130 (setting out the insurance requirements
for those seeking DIB). The ALJ disregarded the 2016 medical report not only because it
was inconsistent with the medical record during the relevant period, i.e., between the
AOD and date of last insurance, but also because it fell outside the relevant period and
described a worsening of Plaintiff’s condition since the relevant period. See (R. 19–20.)
The Court finds the ALJ’s assessment correct on both counts. First, the record
plainly shows that the Dr. McLeod’s 2016 opinion is inconsistent with other medical
evidence from the relevant period. For example, it is at odds with other medical evidence
showing Plaintiff’s ailments were reasonably controlled through medication. See, e.g.,
(R. 368–371, 377, 447.) Furthermore, it is not consistent with opinions Dr. McLeod
offered during the relevant period, including his 2009 and 2011 opinions. Compare
(R. 544) (suggesting Plaintiff was only capable of two-hour shifts, twice per week) with
(R. 443) (stating that Plaintiff should not work with detainees but may otherwise work
15
with restrictions that approximated a “light” level of work), and (R. 377) (stating only
that Plaintiff should not return to work at the Adult Detention Center.) Moreover, the
record from the interval between the 2011 and 2016 opinions does not support a
substantial worsening of Plaintiff’s conditions over time, and certainly not by the end of
2014. See, e.g., (R. 341–44, 363, 368–371, 370, 377, 390, 407, 411, 416–17, 465, 467,
490.) Thus, it was reasonable for the ALJ to discount Dr. McLeod’s 2016 opinion on the
basis of these inconsistencies. See, e.g., Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir.
2010) (“[A]n ALJ may discount or even disregard the opinion of a treating physician
where other medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions.” (alteration in original) (internal quotation marks omitted)).
Second, it is undisputed that Dr. McLeod’s 2016 medical statement occurred well
after Plaintiff’s date of last insurance. “Evidence from outside the insured period can be
used in helping to elucidate a medical condition during the time for which benefits might
be [awarded].” Moore, 572 F.3d at 522 (internal quotation marks omitted). But
“evidence is required to pertain to the time period for which benefits are sought and
cannot concern subsequent deterioration of a previous condition.” Id. at 525. Here, there
is nothing to suggest that Dr. McLeod’s 2016 medical source statement articulates an
opinion he held during the relevant period or was based solely on Plaintiff’s condition
during that period. The fact remains that the only opinions about Plaintiff’s ability to
work that Dr. McLeod provided during the relevant period are different in scope and
content from the 2016 opinion to which, Plaintiff argues, the ALJ should have given
16
controlling weight. The ALJ rightly disregarded Dr. McLeod’s 2016 opinion for both of
these reasons. Accord Wildman, 596 F.3d at 964; Moore, 572 F.3d at 522.
As for Dr. McLeod’s opinions within the relevant period, Plaintiff does not point
to a specific opinion that she claims was not afforded proper weight by the ALJ. See
(Pl.’s Mem. in Supp. at 23–25.) Moreover, after reviewing the record, the Court finds the
weight that the ALJ gave to Dr. McLeod’s opinions was supported by substantial
evidence. For example, Dr. McLeod opined in February 2011 that Plaintiff could not
resume “active work in the Adult Detention Center,” based on her subjective complaints.
(R. at 377.) But Dr. McLeod made this assessment despite acknowledging that Plaintiff’s
“history and examination findings are not diagnostic, per se, of a defined collagen
vascular disorder” although her “improvement with Plaquenil therapy suggests possible
evolving underlying connective tissue disorder.” (Id.) Furthermore, two months later,
Plaintiff was seen by Schaffer and Dr. Michet, who noted a normal physical examination
and stated that Plaintiff had responded well to a new treatment regimen and was feeling
“100% [like] her old self.” See (R. 368–371.) The ALJ may discredit or disregard
opinions that are premised upon subjective complaints absent objective findings. See
Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (“The ALJ was entitled to give less
weight to Dr. Harry’s opinion, because it was based largely on Kirby’s subjective
complaints rather than on objective medical evidence.”) And, as already noted, the ALJ
may disregard opinions that are inconsistent with other medical evidence in the record.
See Wildman, 596 F.3d at 964. Moreover, as the ALJ noted, the earlier opinions spoke
only to Plaintiff’s ability to do her past work at the Adult Detention Center, not to
17
whether she could do other work consistent with the restrictions incorporated into the
RFC. (R. 17.) Consequently, the ALJ did not err in the weight she gave, or chose not to
give, Dr. McLeod’s opinions.
2.
The ALJ’s Credibility Determination Regarding Plaintiff’s
Subjective Complaints
Plaintiff asserts that the ALJ improperly discounted Plaintiff’s subjective
complaints because she failed to specify how they were inconsistent with the record as a
whole. See (Pl.’s Mem. in Supp. at 21–23.) Specifically, Plaintiff takes exception to the
ALJ’s conclusion that Plaintiff is capable of living independently, and argues that this
incorrect assessment of her activities of daily living contributed to the ALJ’s discounting
of her subjective complaints. (Id. at 20, 23 (citing R. 18).)
In her decision, the ALJ found that “the claimant was able to live independently in
her townhome, attend to her personal care needs, drive a car, shop in stores and by
computer, run errands to the pharmacy, take care of a pet dog, ride her horse, prepare
frozen meals, do some housework, manager her personal finances, watch television,
listen to music, . . . play the piano, and interact with others in person and by telephone.”
(R. 18.) The record demonstrates that that Plaintiff can do those things, although perhaps
not to the extent one might infer from the ALJ’s description. See e.g., (R. 165–72.) For
instance, in Plaintiff’s 2014 functional capacity report, she lists several ways in which she
leans on others to help her shop, care for her pet, and take care of household chores, or is
otherwise limited when it comes to living independently. See, e.g., (R. 166–68.) This is
consistent with her testimony. See, e.g., (R. 34–39.) Thus, Plaintiff argues, the manner
18
in which the ALJ described Plaintiff’s activities suggests that the ALJ had concluded,
contrary to the record, that Plaintiff could and did perform these tasks without limitation.
Significantly, however, the ALJ incorporated a number of limitations into the RFC
that reflect and are consistent with Plaintiff’s testimony about her activities of daily
living. (R. 15, 18–19.) Thus, at most, the ALJ’s characterization of those activities
appears to be a deficiency in opinion writing, and not reversible error. See Hensley v.
Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (“[A]n arguable deficiency in opinion writing
that had no practical effect on the decision . . . is not a sufficient reason to set aside the
ALJ’s decision.” (internal quotation marks omitted) (alterations in in original)).
This conclusion is reinforced by the manner in which the ALJ considered
Plaintiff’s subjective complaints overall. It is well-established that an ALJ must consider
several factors in evaluating a claimant’s subjective symptoms, in addition to whether the
symptoms are consistent with the objective medical evidence. Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984); see also Social Security Ruling (“SSR”) 16-3p,
2016 WL 1119029, at *2 (S.S.A. Mar. 16, 2016). These factors include the claimant’s
daily activities; work history; intensity, duration, and frequency of symptoms; side effects
and efficacy of medications; triggering and aggravating factors; and functional
restrictions. Polaski, 739 F.2d at 1322; SSR 16-3p, 2016 WL 1119029, at *5. The ALJ
need not explicitly discuss each factor, Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir.
2005), however, and a court should defer to the ALJ’s 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).
19
Here, the ALJ considered “the objective medical evidence, examinations,
observations made by providers, the courses of treatment, [and] medications” to conclude
that Plaintiff’s impairments were not as disabling as alleged. (Id. at 16.) For example,
when discussing Plaintiff’s subjective complaints, the ALJ observed that her medical
record is largely comprised of normal test results and physical examinations, despite
Plaintiff’s alleged impairments. See generally (R. 16–18). She correctly noted that “after
2011, the record reflects [Plaintiff’s] visits were less frequent,” 13 and in discussing
Plaintiff’s complaints of headaches observed that “there are no neurological visits or
reports from the years 2012 to 2014, and the medical records do not support the
claimant’s allegedly debilitating headaches occurring 10 to 15 times a month.” (R. 18.) 14
The ALJ also cited the various places in the medical record from the relevant period in
which Plaintiff’s providers stated that her course of medical treatment—particularly with
medications—was adequately managing her conditions. See, e.g., (R. 17 (stating
“Dr. McLeod noted that claimant’s headaches had improved on Topamax”); (R. 18
(stating “claimant’s arthralgias were maintained by hydroxychloroquine, and she was
rarely given an increased dose of prednisone,” and, referring to a subsequent treatment
13
Indeed, there appear to be no treatment records pertaining to any of Plaintiff’s alleged
impairments during the years 2012 and 2013.
14
The ALJ also called attention to the reference in Dr. McLeod’s February 15, 2011,
notes that Plaintiff “appears to tolerate the bright florescent lights of the office well.” See
(R. 17, 377). Plaintiff testified at the hearing that fluorescent lights “will trigger [her]
right away.” (R. 39.) The ALJ may discount subjective complaints where they are
contradicted by the medical record. See Turpin v. Colvin 750 F.3d 989 (8th Cir. 2014)
(stating that the inconsistencies between the claimant’s testimony and the medical record
supported the ALJ’s decision to discount claimant’s credibility).
20
note, that her “connective tissue disorder was doing reasonably well objectively despite
her continued complaints”).) 15
Thus, even if the Court agreed the ALJ mischaracterized Plaintiff’s activities of
daily living (which it does not), they were but one aspect of the ALJ’s credibility
determination. (Id. at 16–20.) The other aspects of the ALJ’s credibility determination
are both supported by substantial evidence and proper under the law. In addition to the
absence of clinical findings in the medical records to support the full extent of Plaintiff’s
subjective complaints, the ALJ also referenced an instance where Plaintiff had not been
medically compliant. See (R. 17 (“In December 2009, the claimant admitted she had not
gone to a recommended physical medicine and rehabilitation consultation and that she
had not started Vivactil as instructed.”)). The ALJ may discredit subjective complaints
on the basis of noncompliant behavior. See Holley v. Massanari, 253 F.3d 1088, 1092
(8th Cir. 2001) (finding it permissible that “[t]he ALJ used the evidence of Holley’s
noncompliance solely to weigh the credibility of Holley’s subjective claims of pain”). In
addition, the ALJ’s observations concerning the reduction in frequency of medical
treatment for her alleged impairments after 2011, (R. 18), was another permissible basis
to discount the credibility of subjective complaints in assessing disability during the
relevant period. See, e.g., Casey v. Astrue, 503 F.3d 687, 693 (8th Cir. 2007) (failure to
15
See also (R. 368-371 (noting in April 2011 that Plaintiff had responded well to the
new course of treatment and was feeling “100% [like] her old self”).)
21
seek regular treatment is not consistent with complaints of disabling pain and citing
cases). 16
Thus, regardless of whether the ALJ may have mischaracterized Plaintiff’s
activities of daily living, the Court concludes the ALJ’s assessment of the credibility of
her subjective complaints under Polaski is supported by substantial evidence in the record
as a whole. That is, based on the objective medical evidence, the lack of treatment
between 2012 and 2014, generally conservative treatment modalities which were
reportedly effective in managing her symptoms, and inconsistencies between Plaintiff’s
testimony and the record evidence, a reasonable mind could conclude that Plaintiff’s
subjective complaints at least as they pertained to the relevant period were not wholly
credible and that she was not as impaired as she alleges. Thus, to the extent the ALJ
erred in her assessment of Plaintiff’s activities of daily living, such error was harmless in
light of all of the other information in the record that supports the ALJ’s credibility
determination regarding Plaintiff’s suggestive complaints. See Polaski, 739 F.2d at 1322;
cf. Moore, 572 F.3d at 522.
3.
The ALJ’s RFC Determination
For reasons primarily related to the arguments discussed above, Plaintiff contends
that “[t]he overall medical history does not support the conclusions of the ALJ that
16
Although Plaintiff did not raise this point, the Court takes issue with the ALJ’s
suggestion that Plaintiff’s reduced use of Excedrin in 2014 indicates that her headaches
were not as frequent or disabling as alleged. See (R. 18.) As previously noted, the
medical records indicate that in August 2008, Dr. McLeod had encouraged Plaintiff to
wean herself off of Excedrin. (R. 464.) Nevertheless, the Court is satisfied for all of the
reasons discussed herein that even if Plaintiff’s limited use of Excedrin is disregarded, the
ALJ’s determination is supported by substantial evidence in the record as a whole.
22
[Plaintiff] remains incapable [sic] of light work” because “[t]here is nothing in the
medical history that the ALJ could point to that contradicted [Plaintiff]’s own description
of her symptoms, or the opinions of Dr. McLeod regarding her ability to work.” (Pl.’s
Mem. in Supp. at 19; see also id. at 15–21.) The Court disagrees that the ALJ’s RFC
determination is unsupported by substantial evidence in the record as a whole. First, as
discussed above, the ALJ did not err when she declined to credit Dr. McLeod’s 2016
opinion that Plaintiff was incapable of working, and Plaintiff points to no error in the
ALJ’s failure to give weight to Dr. McLeod’s earlier opinions. Second, the Court has
also concluded that the ALJ did not err in her consideration of Plaintiff’s subjective
complaints.
Plaintiff also argues that the ALJ’s decision finding Plaintiff incapable of past
relevant work, which included work that involved a “sedentary” exertional level,
necessarily makes the ALJ’s determination that Plaintiff had the RFC to do “light” work
clearly erroneous. See (Id. at 19, 21.) But Plaintiff’s argument ignores the fact that the
ALJ’s finding that Plaintiff could not return to past relevant “sedentary” jobs was based
on the testimony of the vocational expert in response to a hypothetical question that
posited a number of other limitations in the RFC. Specifically, the vocational expert
opined that Plaintiff could not work in past relevant jobs because she was limited to
routine repetitive tasks, in addition to being precluded from climbing ladders, ropes, or
scaffolds, crawling, tasks that require the act of balancing for completion, exposure to
extremes of heat and cold, concentrated exposure to fumes, dust, odors, gases, poor
ventilation, etc. See (R. 47–48.) Plaintiff’s past relevant work had involved one or more
23
of these restricted activities. See (R. 45, 47–48.) Thus, the vocational expert opined that
Plaintiff was incapable of returning to past work based not on the distinction between
“light” and “sedentary” work but on other differences between semi-skilled and unskilled
labor. See (R. 48.)
Except as discussed above, Plaintiff does not identify any other respects in which
she contends the limitations in the hypothetical question propounded to the vocational
expert were unsupported by substantial evidence in the record as a whole. See Hinchey v.
Shalala, 29 F.3d 428, 432 (8th Cir. 1994) (“The ALJ’s hypothetical question to the
vocational expert needs to include only those impairments that the ALJ finds are
substantially supported by the record as a whole.”). The Court also notes that not only
was there no opinion within the relevant period from a treating medical provider who
recommended limitations or restrictions beyond those included by the ALJ in the
hypothetical question to the vocational expert, but the ALJ also gave weight to the
determinations of state agency consultants, who opined that Plaintiff was capable of
occasionally lifting or carrying twenty pounds, frequently lifting or carrying 10 pounds,
but that Plaintiff should never climb ladders, ropes, or scaffolds, avoid extreme cold and
heat, and avoid fumes, odors, dust, and the like. See (R. 58–59, 68–69.) Plaintiff did not
challenge the weight given by the ALJ to the opinions of those consultants. 17 Thus, the
ALJ’s conclusion that Plaintiff could perform “light” work while not being able to return
17
“While . . . the opinion of a consulting physician alone generally does not constitute
substantial evidence, the ALJ can decide to give weight to a consultant opinion if it is
supported by her own independent review of the record.” Betts v. Colvin, No. 14-cv2434 (JJK), 2015 WL 2105855, at *27 (Keyes, Mag. J.) (citing Krogmeier v. Barnhart,
294 F.3d 1019, 1024 (8th Cir. 2002)).
24
to past relevant work that happened, inter alia, to be “sedentary” is supported by
substantial evidence in the record as a whole. See Haggard v. Apfel, 175 F.3d 591, 595
(8th Cir.1999) (“A vocational expert’s testimony based on a properly phrased
hypothetical question constitutes substantial evidence”).
Ultimately, Plaintiff’s arguments regarding the ALJ’s RFC determination ask the
Court to reweigh the evidence, which is not the appropriate standard of review. See
Gonzales, 465 F.3d at 894. Accordingly, after careful review of the record, the Court is
satisfied that the ALJ’s RFC determination is supported by substantial evidence in the
record as a whole.
III.
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiff Michelle P.’s Motion for Summary Judgment [Doc. No. 15] is
DENIED; and
2. The Acting Commissioner of Social Security’s Motion for Summary
Judgment [Doc. No. 20] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 29, 2019
s/ Hildy Bowbeer
HILDY BOWBEER
United States Magistrate Judge
25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?