Moua v. Berryhill
Filing
18
ORDER denying 13 Motion for Summary Judgment; granting 16 Motion for Summary Judgment(Written Opinion) Signed by Magistrate Judge Elizabeth Cowan Wright on 5/17/2019. (TMA)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Long M.,
Case No. 18-cv-862 (ECW)
Plaintiff,
v.
ORDER
Nancy A. Berryhill, Acting Commissioner
of Social Security
Defendant.
This matter is before the Court on Plaintiff Long M.’s (“Plaintiff”) Motion for
Summary Judgment (Dkt. No. 13) (“Motion”) and Defendant Acting Commissioner of
Social Security Nancy A. Berryhill’s (“Defendant”) Cross Motion for Summary
Judgment (Dkt. No. 16) (“Cross Motion”). Plaintiff filed this case seeking judicial
review of a final decision by Defendant denying his application for disability insurance
benefits. He specifically challenges the Administrative Law Judge’s (“ALJ”) evaluation
of the treating opinions of Plaintiff’s physician and psychologist and the assessment of
his residual functional capacity (“RFC”). For the reasons stated below, Plaintiff’s Motion
is denied, and Defendant’s Cross Motion is granted
I.
BACKGROUND
Plaintiff filed an application for Disability Insurance Benefits on February 27,
2015, alleging disability beginning February 26, 2014. (R. 188-89.) 1 His application was
1
The Social Security Administrative Record (“R.”) is available at Dkt. No. 12.
denied initially (R. 68) and on reconsideration (R. 95). Plaintiff requested a hearing
before an ALJ, which was held on March 21, 2017 before ALJ Charles Thorbjornsen.
(R. 16.) The ALJ issued an unfavorable decision on June 1, 2017. (R. 13.) Following
the five-step sequential evaluation process under 20 C.F.R. § 404.1520(a), the ALJ first
determined that Plaintiff had not engaged in substantial gainful activity since February
26, 2014, the alleged onset date. (R. 18.)
At step two, the ALJ determined that Plaintiff had the following severe
impairment: major depression. (R. 18.) The ALJ determined that Plaintiff’s other
physical impairments were not severe, including: a cerebrovascular accident (“CVA”)
(stroke); diabetes; hypertension; hyperlipidemia; chronic kidney disease (“CKD”); renal
insufficiency; right eye impairment; loss of bladder and bowel control; and pain,
numbness, and weakness in the upper and lower extremities. (R. 19.) The ALJ noted
that each of these impairments were not severe as they had not been shown to more than
minimally interfere with Plaintiff’s ability to engage in basic work activities. (R. 19-22.)
At the third step, the ALJ determined that Plaintiff does not have an impairment
that meets or medically equals the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (R. 23.) The ALJ considered the “paragraph B”
criteria as to Plaintiff’s mental impairment, namely major depression, but determined that
Plaintiff had mild limitations in understanding, remembering, or applying information
and in adapting or managing oneself. (R. 23-24.) The ALJ determined that Plaintiff had
moderate limitations in interacting with others and in concentrating, persisting, or
maintaining pace. (R. 24.) Because Plaintiff’s mental impairment did not cause at least
2
two “marked” limitations or one “extreme” limitation, the ALJ opined that the
“paragraph B” criteria were not satisfied. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00.
The ALJ also determined that the “paragraph C” criteria were not met. Id. (“To satisfy
the paragraph C criteria, your mental disorder must be ‘serious and persistent’; that is,
there must be a medically documented history of the existence of the disorder over a
period of at least 2 years, and evidence that satisfies the criteria in both C1 and C2 (see
12.00G).”).
At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had
the residual functional capacity (“RFC”) to perform a full range of work at all exertional
levels, but with the following nonexertional limitations:
He is limited to performing simple, routine, repetitive tasks. Interaction with
supervisors is limited to occasional. Interaction with coworkers and the
general public is limited to occasional brief and superficial contact with
superficial contact being defined as no lower than an 8 in terms of the fifth
digit of the DOT code.
(R. 25.) Based on this RFC, the ALJ determined that Plaintiff is capable of past relevant
work as a machine packager, which the vocational expert (“VE”) testified a hypothetical
individual with the determined RFC could perform. (R. 27-28.)
Alternatively, at step five, the ALJ asked the VE what other jobs a hypothetical
person with Plaintiff’s RFC, age, education, and work experience could perform in the
national economy. (R. 28.) Given all the factors, the VE testified that such an individual
could perform jobs such as kitchen helper, laundry worker, hand packager, and cleaner,
which exist in significant numbers in the national economy. (R. 28.) Accordingly, the
ALJ found Plaintiff not disabled. (R. 29.)
3
Plaintiff requested review of the decision. (R. 1.) The Appeals Council denied
Plaintiff’s request for review, which made the ALJ’s decision the final decision of the
Commissioner. (R. 1.) Plaintiff then commenced this action for judicial review. 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.
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), or if the ALJ’s decision resulted from an error of law. Nash v. Comm’r, Soc. Sec.
Administration, 907 F.3d 1086, 1089 (8th Cir. 2018) (citing 42 U.S.C. § 405(g);
Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018)). “Substantial evidence is less
than a preponderance, but enough that a reasonable mind would find it adequate to
support the Commissioner’s conclusions.” Id. (quoting Travis v. Astrue, 477 F.3d 1037,
1040 (8th Cir. 2007)). The Court “considers evidence that detracts from the
Commissioner’s decision as well as evidence that supports it.” Id. “If substantial
evidence supports the Commissioner’s conclusions, this court does not reverse even if it
would reach a different conclusion, or merely because substantial evidence also supports
the contrary outcome.” Id.
“A disability claimant has the burden to establish her RFC.” Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). The Eighth Circuit has held that “a
4
‘claimant’s residual functional capacity is a medical question.’” Id. (quoting Lauer v.
Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). “‘[S]ome medical evidence’ must support the
determination of the claimant’s RFC, and the ALJ should obtain medical evidence that
addresses the claimant’s ‘ability to function in the workplace.’” Id. (quoting Dykes v.
Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam)). However, “there is no
requirement that an RFC finding be supported by a specific medical opinion.” Hensley v.
Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (citing Myers v. Colvin, 721 F.3d 521, 526–27
(8th Cir. 2013); Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th Cir. 2012)).
“[A] treating physician’s opinion is given ‘controlling weight’ if it ‘is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence.’” Reed v. Barnhart, 399 F.3d 917,
920 (8th Cir. 2005) (alteration in original) (quoting Dolph v. Barnhart, 308 F.3d 876, 878
(8th Cir. 2002)). However, an ALJ may properly “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.” Prosch v. Apfel, 201 F.3d 1010, 1013
(8th Cir. 2000) (quoting Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997) and citing
Cruze v. Chater, 85 F.3d 1320, 1324–25 (8th Cir. 1996)). “A treating physician’s own
inconsistency may also undermine his opinion and diminish or eliminate the weight given
his opinions.” Id. (citing Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)); see also
Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012) (“However, ‘[a]n ALJ may
discount or even disregard the opinion of a treating physician where other medical
5
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.’”) (quoting Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)) (alteration in
original) (internal quotation omitted). In any case, “the ALJ must ‘always give good
reasons’ for the particular weight given to a treating physician’s evaluation.” Id. (quoting
20 C.F.R § 404.1527(d)(2)).
An ALJ should consider several factors, in addition to the objective medical
evidence, in assessing a claimant’s subjective symptoms, including daily activities; work
history; intensity, duration, and frequency of symptoms; any side effects and efficacy of
medications; triggering and aggravating factors; and functional restrictions. See Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); Social Security Ruling (“SSR”) 16-3p,
2016 WL 1119029, at *5-7 (S.S.A. Mar. 16, 2016) (listing these 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. See Goff v. Barnhart, 421 F.3d 785, 791
(8th Cir. 2005). “Moreover, an ALJ’s failure to cite specific evidence does not indicate
that such evidence was not considered.” Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir.
2010) (citation omitted) (highly unlikely that ALJ did not consider and reject physician’s
opinion when ALJ made specific references to other findings set forth in physician’s
notes).
III.
DISCUSSION
Plaintiff makes three challenges to the ALJ’s determination. First, Plaintiff argues
that the ALJ’s RFC assessment fails to properly incorporate the mental limitations from
6
Plaintiff’s treating psychologist, Mr. Willie B. Garrett, LP (“Garrett”). Second, Plaintiff
argues that the ALJ’s RFC assessment fails to properly incorporate the physical
limitations from Plaintiff’s treating physician, Shihshen (Angela) Yiu, M.D. (“Dr. Yiu”).
Third, Plaintiff argues that the ALJ was not appointed in a constitutional manner and
therefore lacked authority to decide his case. The Court addresses each argument in turn.
A.
The Weight Assigned to the Treating Psychologist’s Opinion
Plaintiff saw Garrett for psychotherapy on a regular basis from August 2014 to at
least 2017. 2 (R. 694-730; see also R. 272.) Garrett completed two questionnaires
regarding Plaintiff’s mental impairments—one in June 2015 (R. 450-55) and one in
February 2017 (R. 729-30). On June 19, 2015, Garrett filled out a mental impairment
questionnaire for Plaintiff and stated that he had seen Plaintiff monthly for one year. (R.
450.) Garrett indicated that Plaintiff had Major Depression. (R. 450.) Garrett listed a
then-current Global Assessment of Functioning (“GAF”) score of 49 for Plaintiff with 55
as the highest score in the past year. 3 (R. 450.) Garrett described his findings of
Plaintiff’s severity of mental impairment as “cognitively slow + concrete thinking with
2
Defendant does not dispute that Garrett is an “acceptable medical source” and
Plaintiff’s treating source under the regulations. (See Dkt. No. 17 at 8-12.)
3
“The GAF scale, which is described in the [Diagnostic and Statistical Manual of
Mental Disorders (“DSM”)] DSM-III-R (and the DSM-IV), is the scale used in the
multiaxial evaluation system endorsed by the American Psychiatric Association. It does
not have a direct correlation to the severity requirements in our mental disorders listings.”
Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65
Fed. Reg. 50746-01 (Aug. 21, 2000), 2000 WL 1173632; see also Reed v. Comm’r, Soc.
Sec. Admin., 750 Fed. Appx. 506, 2019 WL 421739 *1 (8th Cir. Feb. 4, 2019) (per
curiam).
7
diminished memory resulting from the stroke injury.” (R. 450.) Garrett checked the
following signs and symptoms for Plaintiff: decreased energy; mood disturbances;
difficulty thinking or concentrating; persistent disturbances of mood or affect,
psychological or behavioral abnormalities associated with a dysfunction of the brain with
a specific organic factor judged to be ontologically related to the abnormal mental state
and loss of previously acquired functional abilities; perceptual or thinking disturbances;
memory impairment—short or, intermediate or long term; sleep disturbances; and loss of
intellectual ability of 15 IQ points or more. (R. 451.) As to Plaintiff’s mental abilities
and aptitudes to do unskilled work or semiskilled work, Garrett checked either “unable to
meet competitive standards” or “no useful ability to function” in every category,
identifying “stroke cognitive impairments” as the medical/clinical findings that supported
his assessment (R. 452-53.) With regard to mental abilities and aptitudes needed to do
particular types of jobs, Garrett checked every category with the same two ability levels,
except for Plaintiff’s ability to “adhere to basic standards of neatness and cleanliness,” for
which Garrett checked “seriously limited, but not precluded.” (R. 453.) Garrett checked
that Plaintiff had a low IQ or reduced intellectual functioning, explaining that this was
due to “diminished executive abilities from strokes.” (R. 453.) Garrett next noted that
Plaintiff’s depression exacerbates his pain. (R. 453.) For functional limitations, Garrett
selected “marked” limitations in “restriction of activities of daily living” and “difficulties
in maintaining social functioning” and “extreme” limitations in “difficulties in
maintaining concentration, persistence or pace.” (R. 454.) Garrett checked that Plaintiff
has “[a]n anxiety related disorder and complete inability to function independently
8
outside the area of one’s home.” (R. 454.) Garrett also checked that Plaintiff would miss
more than four days of work per month and Plaintiff’s impairments can be expected to
last at least twelve months. (R. 455.)
Garrett filled out a second mental functioning questionnaire for Plaintiff on
February 20, 2017, in which he indicated that he had seen Plaintiff twice a month for two
years, that Plaintiff had Major Depression, and a then-current GAF score of 40. (R. 729.)
Garrett checked boxes for “Marked Limits (Poor Functioning)”—meaning “there is a
serious limitation of a substantial loss in the ability to function”—for each and every one
of the following mental abilities: (A) understand, remember, and carry out short and
simple instructions; (B) remember work-like procedures and make simple work-related
decisions; (C) sustain an ordinary routine without special supervision; (D) respond
appropriately to changes in a routine work setting; (E) perform at a consistent pace
without an unreasonable number and length of rest periods; (F) work in coordination and
proximately to others; (G) accept instructions and respond appropriately to criticism from
supervisors; (H) get along with co-workers or peers without unduly distracting them or
exhibiting behavioral extremes; (I) interact appropriately with the general public; (J) deal
with normal work stress; and (K) maintain regular attendance and be punctual. (R. 72930.) Garrett also checked boxes for “Extreme” functional limitations in: (A) restriction of
activities of daily living; (B) difficulties in maintaining social function; and (C)
difficulties in maintaining concentration, persistence or pace. (R. 730.) Garrett checked
that Plaintiff would be off task for more than 20% of an 8-hour work day due to
9
concentration difficulties and would be absent more than 4 days per month as a result of
his impairments. (R. 730.)
The ALJ considered Garrett’s opinions, but partly disregarded them, stating:
. . . I have given little weight to [Mr. Garrett’s] opinions because Mr. Garrett
used check-box forms and provided little explanation of the medical or other
evidence relied on in support of his conclusions other than noting a history
of strokes (Id.). Mr. Garrett did not begin treating the claimant until several
years after his stroke, and the limitations he described were not supported by
any neuropsychological testing or other objective evidence. His opinion is
overall inconsistent with other substantial evidence of record, including the
conservative course of mental health treatment pursued for the claimant.
(R. 27 (citation omitted).) Plaintiff contends that the ALJ should have given Garrett’s
opinion controlling weight. (Dkt. No. 14 at 18-21.) Plaintiff argues that the ALJ’s
check-box reason is insufficient and that the ALJ did not give other sufficient reasons for
discounting Garrett’s opinions. (Id. at 19-21.)
Plaintiff is correct that an ALJ cannot discount a treating physician’s opinion
solely because the opinion is “evaluation by box category.” (Id. at 19 (citing Reed v.
Barnhart, 399 F.3d 917, 921 (8th Cir. 2005).) However, the Eighth Circuit has held that
a treating physician’s opinion is entitled to less weight if it is conclusory. Chesser v.
Berryhill, 858 F.3d 1161, 1165 (8th Cir. 2017) (citing Julin v. Colvin, 826 F.3d 1082,
1089 (8th Cir. 2016)). Moreover, where the opinion is “without explanation or support
from clinical findings” and not “not interally consistent with [his] own treatment
notations” regarding Plaintiff’s cognitive and functional abilities, the opinion has little
probative value. Strongson v. Barnhart, 361 F.3d 1066, 1071 (8th Cir. 2004).
10
In his questionnaires, Garrett gave little explanation for the extreme limitations in
functioning he found for Plaintiff, stating only they were “from the stroke injury.” (R.
450; see also R. 453, 729-30.) Garrett noted that Plaintiff’s stroke occurred in 2001 (R.
715), 4 but he does not explain why Plaintiff was able to work until 2014 (R. 196)—i.e.,
for 13 years following the stroke until the alleged onset of disability. Throughout
Garrett’s treatment notes (R. 694-730), Garrett does note some of the symptoms
addressed in his opinion, including major depression, slow and concrete thinking, and
poor executive function, but the degree of disability is inconsistent with the extreme
limitations in his opinions. In all of the treatment notes, Garrett never proposes any
treatment beyond seeing his doctor and returning for additional counseling, which is also
inconsistent with the limitations stated in his opinions. (Id.) The record of this
conservative, routine course of treatment undermines Garrett’s opinion. See Reece v.
Colvin, 834 F.3d 904, 909 (8th Cir. 2016). The ALJ properly noted that Garrett’s
opinions were largely conclusory.
More important, the extreme limitations in Garrett’s opinions are inconsistent with
the medical evidence. In his numerous medical progress notes, Plaintiff generally
presented as “alert and oriented,” as “cooperative and engaged in interview” (R. 401,
408), with “affect appropriate for situation.” (R. 401, 408, 411, 415, 419.) His primary
care physician reported Plaintiff’s symptoms of depression and anxiety as moderate in
4
Garrett’s notes indicate a second “documented” stroke and that “doctors suspect a
third as well” (R. 715), but there is an absence of evidence of a second “documented”
stroke or possible third stroke. (See, e.g., R. 283, 286, 289 (referencing only 2001
stroke); see also R. 46 (testifying about “my stroke”).)
11
August 2014 through January 2015. (R. 406-07, 409-10, 413-13, 417-18, 425-26.) In
January 2015, after starting on Prozac, Plaintiff reported to his primary care physician
that he was feeling better (R. 425). See Brace v. Astrue, 578 F.3d 882, 886 (8th Cir.
2009) (noting inconsistency in treating physician’s opinion when mental impairment is
controlled by prescribed medication). For these reasons, the Court finds that Garrett’s
opinions are inconsistent with the medical evidence. See Stormo v. Barnhart, 377 F.3d
801, 805-06 (8th Cir. 2004) (finding that the opinions of treating physicians “are given
less weight if they are inconsistent with the record as a whole or if the conclusions consist
of vague, conclusory statements unsupported by medically acceptable data”).
The ALJ did take into account some of the impairments noted in Garrett’s
opinions, albeit with less severe limitations than what Garrett opined. (R. 25.) The ALJ
included the following nonexertional limitations:
He is limited to performing simple, routine, repetitive tasks. Interaction with
supervisors is limited to occasional. Interaction with coworkers and the
general public is limited to occasional brief and superficial contact with
superficial contact being defined as no lower than an 8 in terms of the fifth
digit of the DOT code.
(Id.) The Court concludes that substantial evidence—including some medical
evidence—supports the ALJ’s RFC determination.
B.
The Weight Assigned to the Treating Physician’s Medical Opinion
Plaintiff saw Dr. Yiu for primary care on a regular basis at least between June
2013 and September 2016. (R. 376-432, 500-36, 542-70, 657-60; see also R. 272.) On
June 12, 2015, Dr. Yiu completed a physical RFC questionnaire in which she diagnosed
Plaintiff with diabetes, hypertension, CVA, renal insufficiency, and depression. (R. 445.)
12
Dr. Yiu listed Plaintiff’s symptoms as including fatigue, language deficit, communication
deficit, depressive mood, and decreased physical strength. (R. 445.) Dr. Yiu listed the
following clinical findings and objective signs: difficulty in communication, weakness,
and lack of concentration. (R. 445.) Dr. Yiu listed “N/A” for both severity of pain and
for treatment side effects. (R. 445.) Dr. Yiu checked that Plaintiff is not a malingerer
and that emotional factors—depression and anxiety—contribute to the severity of his
symptoms and functional limitations. (R. 446.) Dr. Yiu checked that Plaintiff frequently
would experience pain or other symptoms severe enough to interfere with attention and
concentration to perform simple work tasks and that Plaintiff would be incapable of even
low stress jobs because it would worsen depression. (R. 446.) Dr. Yiu opined that
Plaintiff could walk two city blocks without rest, could sit for more than two hours, and
could stand for one hour before needing to sit down or walk. (R. 446.) Dr. Yiu checked
that Plaintiff could sit for at least six hours and stand/walk for less than two hours in an 8hour workday. (R. 447.) Dr. Yiu also checked that Plaintiff would need 10-minute
periods of walking every 90 minutes during an 8-hour day but would not need a cane or
other assistive device. (R. 447.) In addition, Dr. Yiu checked that Plaintiff needs a job
that permits shifting position at will and would need hourly 10-minute rests before
returning to work. (R. 447.) Dr. Yi checked that Plaintiff could frequently lift less than
10 pounds, occasionally lift 10 pounds, rarely lift 20 pounds, and never lift 50 pounds.
(R. 447.) Dr. Yiu checked no limitations or mild limitations in Plaintiff’s ability to
perform head control activities or twisting, crouching, and climbing activities. (R. 44748.) Dr. Yiu checked that Plaintiff would be absent more than four days per month as a
13
result of the impairments. (R. 448.) Lastly, Dr. Yiu noted that “Patient’s disability is
main[ly] cognitive functions. He has less physical limitations.” (R. 448.)
Regarding Dr. Yiu’s opinion, the ALJ stated as follows:
I have given little weight to Dr. Yiu’s opinion for several reasons. First, she
used a checkbox form and provided little explanation of the medical or other
evidence relied on in support of her conclusions, especially with regard to
the degree of absenteeism she cited (See Id.). She did state that the claimant's
“disability” was mainly cognitive deficits and that he had less physical
limitations. This does not explain the rather significant exertional and
postural restrictions checked on the form. Dr. Yiu’s opinion is overall
inconsistent with other substantial evidence of record, including her
treatment records discussed earlier in this decision that repeatedly
documented largely unremarkable physical examination findings (See e.g.
Exhibits 7F, pages 38, 41, 45, 49, 53, 60, 1 lF, pages 28, 48, 57-58, 73, 88,
110, 12F, pages 16, 27, 37, 50, and 16F, page 94). I also note that Dr. Yiu is
a general practitioner and not a relevant specialist.
(R. 23.) Although not dispositive of the weight entitled to the opinion, the Court finds
that substantial evidence supports the ALJ’s decision to discount Dr. Yiu’s opinion
because it is conclusory, in addition to the reasons that follow. See Strongson, 361 F.3d
at 1071 (discounting a treating physician’s opinion that was “without explanation or
support from clinical findings” and not “consistent with his findings of little to moderate
limitations”).
Plaintiff argues that Dr. Yiu is entitled to controlling weight because it is well
supported by the medical evidence, in particular as it relates to Plaintiff’s CKD and
carpal tunnel syndrome. 5 (Dkt. No. 14 at 23-28.)
5
Plaintiff does not challenge the ALJ’s finding at step two that Plaintiff’s CKD and
carpal tunnel syndrome are not severe impairments. (R. 18 (“I find all other impairments,
alleged and found in the record, are non-severe or not medically determinable as they
have been responsive to treatment, cause no more than minimal vocationally relevant
14
On June 18, 2014, Dr. Sandeep Gupta, Plaintiff’s nephrologist, diagnosed Plaintiff
with Stage 3 CKD. (R. 300-01.) Dr. Gupta noted that Plaintiff should avoid
nephrotoxins such as NSAIDs or aspirin. (R. 300.) Plaintiff underwent medical imaging
on June 25, 2015, which determined that Plaintiff’s kidneys were within normal limits for
size without atrophy and were mildly hyperechoic 6 bilaterally, which was likely
secondary to the CKD, had simple bilateral renal cysts, and no hydronephrosis. (R. 302.)
On February 8, 2016, Dr. Gupta determined that Plaintiff’s CKD “has remained stable”
and “is well controlled per patient report.” (R. 938.)
Substantial evidence supports the ALJ’s finding that Plaintiff’s CKD did not
interfere with his functioning. (See R. 26.) Although Plaintiff had occasional complaints
of fatigue at office visits after his CKD diagnosis, Dr. Yiu’s notes indicate she thought
the fatigue was caused by Plaintiff’s depression. (See, e.g., R. 427, 645.) The treatment
for Plaintiff’s CKD was conservative, involving only avoiding certain nephrotoxins and
diet changes (R. 942). See Reece, 834 F.3d at 909 (physician’s opinion undermined by
claimant’s conservative, routine course of treatment). In nearly every office visit,
limitations, have not lasted or are not expected to result in more than minimal workrelated restriction for a continuous period of at least 12 months, are not expected to result
in death, and/or have not been properly diagnosed by an acceptable medical source as
defined in the regulations (20 CFR 404.1502, 404.1509, 404.1521, 404.1522(a), 416.902,
416.909, 416.921, and 416.922(a)).).) These issues are therefore waived. See Melder v.
Colvin, 546 F. App’x 605, 606 (8th Cir. 2013) (unpublished) (undeveloped argument is
deemed waived).
6
Hyperechoic: “In ultrasonography, pertaining to material that produces echoes of
higher amplitude, or density than the surrounding medium.” STEDMAN’S MEDICAL
DICTIONARY, 1576 (28th ed. 2006).
15
Plaintiff was noted as physically unremarkable, well-nourished and normally developed,
with normal gait. (E.g., R. 623, 634, 644, 764, 784, 794, 824, 862, 883, 896, 921 935,
940.) This evidence is inconsistent with the limitations identified in Dr. Yiu’s opinion.
Plaintiff argues that stage 3 CKD necessitates a finding of capable of performing
no more than light work and cites a number of opinions from other districts in which
courts determined that plaintiffs with stage 3 CKD were limited to light or sedentary
work. (Dkt. No. 14 at 24-25.) Although it is true that the opinions cited by Plaintiff
establish that someone with stage 3 CKD may be limited to a light RFC, none of the
opinions stand for the proposition that every person with stage 3 CKD must be limited to
a light RFC. First, the Court notes that Plaintiff did not challenge the ALJ’s finding that
Plaintiff’s CKD is not a severe limitation at step two. Second, “it is not the diagnosis that
becomes part of the RFC,” instead the RFC “describes a Plaintiff’s capabilities and
limitations as a result of medical conditions.” See Lappat v. Colvin, 12-4249-CV-CODS, 2013 WL 3288169, at *9 (W.D. Mo. June 28, 2013) (rejecting the argument that a
diagnosis of fibromyalgia “means one is automatically disabled”). Thus, the diagnosis of
stage 3 CKD alone does not dictate any particular RFC. Instead, the ALJ properly
considered the diagnosis and considered all the evidence in formulating the RFC.
Plaintiff next contends that the ALJ failed to account for his carpal tunnel
syndrome in the RFC. (Dkt. No. 14 at 26-27.) On March 2, 2016, Masood Ghazali,
M.D. examined Plaintiff and found “evidence of a mild left carpal tunnel syndrome
(median neuropathy at the wrist), affecting the sensory components.” (R. 930.) Plaintiff
saw Dr. Yiu on March 20, 2016, who noted that Plaintiff did not want to have surgery
16
and instead wanted to try conservative treatment. (R. 623.) Plaintiff’s left wrist was
splinted. (R. 624.) Two months after the initial diagnosis, on May 4, 2016, Allan
Ingenito, M.D. found no evidence of carpal tunnel syndrome, cervical radiculopathy,
lumbar radiculopathy or generalized peripheral. (R. 927.) Substantial evidence supports
the ALJ’s finding that the carpal tunnel syndrome did not last for a continuous period of
12 months. (R. 22.) On April 22, 2016, Dr. Yiu encouraged Plaintiff to “increase
exercise,” stating that “[w]alking will help with your feet pain too.” (R. 635.) Moreover,
Dr. Yiu’s opinion did not include any limitations related to reaching, handling, or
fingering. (R. 448.)
The ALJ also properly noted the inconsistency between Dr. Yiu’s extreme
exertional and postural restrictions and her statement that Plaintiff’s “disability is
main[ly] cognitive functions [and] less physical limitations” (R. 448). 7 (R. 23.) “A
treating physician’s own inconsistency may also undermine his opinion and diminish or
eliminate the weight given his opinions.” Hacker v. Barnhart, 459 F.3d 934, 937 (8th
Cir. 2006) (citing Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)). The ALJ
properly noted that Dr. Yiu is a general practitioner and not a relevant specialist such as a
psychologist (R. 23), and thus did not have to give significant weight to Dr. Yiu's genreal
assessment of Plaintiff's cognitive functions. See Hinchey v. Shalala, 29 F.3d 428, 432
7
It is also important to note that Plaintiff’s past work—in particular his work as a
Personal Care Assistant (“PCA”) from 2012 to 2014, long after his stroke in 2001—
involved frequently lifting 50 pounds or more with the heaviest being 100 pounds or
more. (R. 235, 237.) Plaintiff reported that this involved “[l]ifting and carrying [a
disabled person] to bed and to get down” as a PCA. (Id.)
17
(8th Cir. 1994) (citing 20 C.F.R. § 416.927(d)(5)) (“We generally give greater weight to
the opinion of a specialist about medical issues related to his or her area of specialty than
to the opinion of a source who is not a specialist.”).
C.
Appointments Clause Challenge
Plaintiff lastly argues that remand is appropriate in this case because the ALJ who
decided his claim was an inferior officer who was not constitutionally appointed at the
time of the decision in this case. (Dkt. No. 14 at 33.) Plaintiff admits that he did not
raise this issue before the Social Security Office. (Id. at 33 n.2.)
In support of this argument, Plaintiff relies on the decision by the United States
Supreme Court in Lucia v. SEC, 138 S. Ct. 2044 (2018). In Lucia, the Supreme Court
held that executive agency ALJs are “officers of the United States” and are therefore
governed the to the Appointments Clause of the United States Constitution, Article II,
section 2, clause 2. See Lucia, 138 S. Ct. at 2055. The Appointments Clause provides
that the President:
Shall nominate, and by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the
[S]upreme Court, and all other Officers of the United States, whose
Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.
U.S. Constitution, Art. II, § 2, cl. 2 (emphasis added).
In Lucia, the plaintiff timely contested the validity of the ALJ’s appointment by
raising the challenge before the Securities and Exchange Commission, as well as in the
Court of Appeals and the Supreme Court. 138 S. Ct. at 2055 (finding that the plaintiff
18
“made just such a timely challenge: He contested the validity of [the ALJ’s] appointment
before the Commission, and continued pressing that claim in the Court of Appeals and
this Court.”). The Eighth Circuit has determined that a constitutional challenge under the
Appointments Clause is non-jurisdictional, and, therefore, a party may forfeit an
Appointments Clause claim by failing to raise it at the administrative level. See N.L.R.B.
v. RELCO Locomotives, Inc., 734 F.3d 764, 798 (8th Cir. 2013) (holding that a party
waived the Appointments Clause challenge by failing to raise the issue before the
agency).
Plaintiff cites to Sims v. Apfel, 530 U.S. 103, 112 (2000), for the proposition that
his failure to raise the Appointments Clause challenge at the administrative level is not
fatal to his argument because there is no issue exhaustion requirement in Social Security
appeals. In Sims, the Supreme Court held: “Claimants who exhaust administrative
remedies need not also exhaust issues in a request for review by the Appeals Council in
order to preserve judicial review of those issues.” Id. However, it is important to note
that the Supreme Court in Sims did not reach the issue of whether a claimant needed to
raise an issue sometime during the administrative review, noting that “[w]hether a
claimant must exhaust issues before the ALJ is not before us.” Id. at 107. While Plaintiff
may not have to raise the Appointments Clause challenge to the Commissioner via the
Appeals Council, Lucia made it clear that, with regard to Appointments Clause
challenges, only “one who makes a timely challenge” to the administrative body is
entitled to relief. 138 S. Ct. at 2055 (citation omitted); see also Stearns v. Berryhill, No.
C17-2031-LTS, 2018 WL 4380984, at *5 (N.D. Iowa Sept. 14, 2018). The Eighth
19
Circuit has concluded that a Social Security disability claimant’s failure to raise a
disability claim to an ALJ “waived [the claim] from being raised on appeal.” Anderson v.
Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (“Anderson never alleged any limitation in
function as a result of his obesity in his application for benefits or during the hearing.
Accordingly, this claim was waived from being raised on appeal.”). As such, given that
Plaintiff failed to raise the Appointments Clause challenge at any point during the
administrative process, he has waived this claim.
IV.
ORDER
Based on the files, records, and proceedings herein, IT IS ORDERED THAT:
1. Plaintiff Long M.’s Motion for Summary Judgment (Dkt. No. 13) is DENIED;
2. Defendant Acting Commissioner of Social Security Nancy A. Berryhill’s Cross
Motion for Summary Judgment (Dkt. No. 16) is GRANTED; and
3. This case is DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: May 17, 2019
s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
20
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