Mayer v. Berryhill
Filing
22
ORDER denying 15 Motion for Summary Judgment; granting 17 Motion for Summary Judgment (Written Opinion) Signed by Magistrate Judge Steven E. Rau on 4/5/2019. (NCP)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Angela M.
Case No. 18-cv-1258 (SER)
Plaintiff,
ORDER
v.
Nancy A. Berryhill,
Acting Commissioner of Social Security,
Defendant.
STEVEN E. RAU, United States Magistrate Judge
Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks review of the Acting Commissioner
of Social Security’s (the “Commissioner”) denial of her application for disability insurance
benefits (“DIB”). (ECF No. 4). The parties filed cross-motions for summary judgment.
(ECF Nos. 15, 17). For the reasons set forth below, the Court denies Plaintiff’s motion and
grants the Commissioner’s motion.
I.
BACKGROUND
A.
Procedural History
Plaintiff filed for DIB on June 11, 2014, citing an alleged onset date of October 26,
2013. (Admin. R. at 98, 112, 117, ECF No. 14). Plaintiff alleged disability due to
impairments of obesity, generalized anxiety with elements of panic, sleep apnea, carotid
artery dissection, chronic headaches and migraines, fibromyalgia, Reynaud’s disease,
anemia, chronic subjective dizziness, restless leg syndrome, vasovagal syncope episodes,
1
somatization disorder, irritable bowel syndrome, acid reflux, ADHD, major depressive
order, and residual traumatic stress. (Admin. R. at 98–99, 102, 112–13). Plaintiff’s claims
were denied initially and upon reconsideration. (Admin. R. at 3, 12). Following a hearing,
the administrative law judge (the “ALJ”) denied benefits to Plaintiff on March 29, 2017.
(Admin. R. at 25). The Appeals Council denied Plaintiff’s request for review, rendering
the ALJ’s decision final. (Admin. R. at 7). Plaintiff then initiated the instant lawsuit. (ECF
No. 4).
B.
Factual Background
The Court reviewed the entire Administrative Record but summarizes only the
evidence necessary to determine the issues before the Court.
1.
Migraines
Plaintiff has a long history of migraine headaches, beginning from age sixteen.
(Admin. R. at 690). In March 1991, she underwent a resection of the left C1 lesion which
proved to be a schwannoma. 1 (Admin. R. at 690). Between 1991 and 2015, Plaintiff had
difficulty controlling her migraines and was on a variety of medications. 2 (Admin. R. at
690). In June 2010, the headache pattern changed and was associated with light and noise
sensitivity as well as nausea. (Admin. R. at 690). She tried different medications but her
1
“A schwannoma is a type of nerve tumor of the nerve sheath . . . Schwannomas are rarely
cancerous, but they can lead to nerve damage and loss of muscle control.” Schwannoma, MAYO
CLINIC, https://www.mayoclinic.org/diseases-conditions/schwannoma/cdc-20352974 (Mar. 08,
2018).
2
The medications listed are nortriptyline, amitriptyline, verapamil, propranolol, topiramate,
valproic acid, and nadolol. (Admin. R. at 690). The Court finds it unnecessary to delve into the
medications because they do not affect the Court’s analysis.
2
headaches persisted. (Admin. R. at 690). In September 2010, Plaintiff’s neurological exam
showed right Horner syndrome but was otherwise normal. 3 (Admin. R. at 690). In January
2011, her condition improved as she had three or four headaches per month instead of a
daily, continuous headache. (Admin. R. at 691). By May 2011, her headaches were under
reasonably good control. (Admin. R. at 691).
In September 2011, Plaintiff’s headaches became more severe. (Admin. R. at 691).
She had one headache lasting three days that caused her to take nine days off work and
school. (Admin. R. at 691). She had an MRI and MRA of her head in the emergency room
but neither showed any abnormalities. (Admin. R. at 691). In October 2011, she was
experiencing a “continuous daily ‘dull headache’” with cervical and trapezius muscle pain.
(Admin. R. at 691). Her neurological exam was normal and her doctor noted “good
strength and reflexes,” a normal gait, normal sensory exam, no muscle tenderness, but
“limited volitional motor mobility of her neck and tenderness in both trapezius muscles.”
(Admin. R. at 691). Plaintiff’s doctor recommended a physiatrist. (Admin. R. at 691).
In January 2012, Plaintiff continued to have neck pain radiating into her trapezius
muscles and experienced pain in her right thigh and arm. (Admin. R. at 691). She also
experienced imbalance and disequilibrium. (Admin. R. at 691). She had a normal
neurological exam, aside from the partial right Horner syndrome which was long-standing.
3
Horner syndrome is “caused by the disruption of a nerve pathway from the brain to the face and
eye on one side of the body.” Horner Syndrome, MAYO CLINIC https://www.mayoclinic.org/
diseases-conditions/horner-syndrome/symptoms-causes/syc-20373547 (May 11, 2018). This
“results in a decreased pupil size, a drooping eyelid and decreased sweating on the affected side
of your face.” Id.
3
(Admin. R. at 691). Plaintiff’s doctor noted “multiple tender points in the cervical and
lumbar paraspinal muscles as well as the limbs.” (Admin. R. at 691). Her doctor
recommended a visit to a fibromyalgia clinic along with a visit to a vestibular lab and a
behavioral psychology clinic. (Admin. R. at 691). Plaintiff visited a vestibular lab, had a
normal vestibular evaluation, and participated in vestibular rehab which she found helpful.
(Admin. R. at 691–92). She also went to the Fibromyalgia Clinic but there are no notes on
whether that was helpful. (See Admin. R. at 692).
In August 2012, Plaintiff was “virtually headache-free.” (Admin. R. at 692). In
March 2013, she had a particularly severe headache. (Admin. R. at 692). In May 2013,
Plaintiff experienced daily headaches again but her neurological exam was normal.
(Admin. R. at 692).
In October of 2014, Plaintiff went to the doctor with complaints of a headache after
fainting. (Admin. R. at 506–07). In the same month, she also had a CT scan of her head
which did not show any hemorrhage, lesion, or infarction and only reflected changes from
her earlier craniotomy. (Admin. R. at 520). Similarly, Plaintiff had an MRI scan of her
head showing no acute intracranial abnormality. (Admin. R. at 405–09). Plaintiff’s doctor
recommended Botox injections to help with the headaches but Plaintiff testified she
declined to try the Botox because the injections seemed “riskier.” (Admin. R. at 51–52,
496, 516).
In February 2015, she had a normal neurological exam but continued to have
headaches. (Admin. R. at 692). Plaintiff fell behind in her college courses because of her
headaches. (Admin. R. at 692). In September of 2016, Plaintiff experienced headaches
4
three to five days a week, which caused her to miss work as a receptionist. (Admin. R. at
692).
2.
Plaintiff’s Medical Providers
Dr. Beithon was Plaintiff’s primary care physician and opined Plaintiff’s
impairments, including Plaintiff’s headaches and other physical ailments, would preclude
her from performing basic work activities and would require unscheduled breaks during an
eight-hour day. (Admin. R. at 338). Dr. Beithon also opined Plaintiff would miss four or
more workdays a month and would likely be off task for 25% of the time or more. (Admin.
R. at 339).
Ken Little was one of Plaintiff’s therapists and treated her between 2009 and 2014.
(Admin. R. at 452). He opined Plaintiff was unable to meet competitive standards and had
no useful ability to function on most mental abilities and aptitudes needed to work. (Admin.
R. at 454–55). Little stated Plaintiff could only handle simple tasks in short segments and
noted a number of physical symptoms in his findings such as fibromyalgia pain and
frequent, incapacitating pain. (Admin. R. at 455–56). Little reported Plaintiff had problems
managing daily routines and fell behind in her college classes because of her anxiety and
mental state. (Admin. R. at 457–59). Little opined Plaintiff would miss more than four days
a month of work because of her physical and mental impairments. (Admin. R. at 456).
Dr. Hal Baumchen, another therapist, evaluated Plaintiff for psychological
difficulties and depression. (Admin. R. at 747). In a December 2013 report, he stated
Plaintiff had severe depression, signs of emotional distress, poor concentration, post-
5
traumatic stress nightmares and flashbacks, difficulties in concentration and attention,
negative expectations, and confusion. (Admin. R. at 747–52).
Greg Walsh, a licensed social worker, also saw Plaintiff for mental health treatment.
(Admin. R. at 755–59). Walsh opined that Plaintiff did not have the limited abilities or
aptitudes necessary for unskilled or skilled work. (Admin. R. at 757–58). Walsh stated
Plaintiff would miss more than four days of work per month because of her impairments.
(Admin. R. at 759).
3.
Other Conditions
Plaintiff was treated for restless leg syndrome, sleep apnea, and narcolepsy. (Admin.
R. at 335–36, 370). Plaintiff was also diagnosed with Barett’s esophagus, which caused
gastrointestinal pain and diarrhea. (Admin. R. at 439, 495). The Court does not go into
detail on these conditions because they are not at issue in the instant motion.
C.
The ALJ’s Decision
Consistent with the Social Security Administration’s regulations, the ALJ
conducted the five-step eligibility analysis. (Admin. R. at 10–22); see also 20 C.F.R.
§ 404.1520(a)(4). At step one, the ALJ found Plaintiff had not engaged in substantial
gainful activity since her alleged onset date. (Admin. R. at 17). At step two, the ALJ found
Plaintiff had the severe impairments of obesity, obstructive sleep apnea, migraine
headaches, a history of right internal carotid artery dissection in 2010, and fibromyalgia
with myofascial pain. (Admin. R. at 17–18). The ALJ did not find Plaintiff’s mental
impairments to be severe because they did not cause more than a minimal limitation in her
ability to perform basic mental work activities. (Admin. R. at 18).
6
At step three, the ALJ considered Listing 11.02 for epilepsy and altered awareness
but stated Plaintiff “did not have an impairment or combination of impairments that met or
medically equaled the severity [of the Listing].” (Admin. R. at 20). 4 The ALJ found
Plaintiff to have the residual functional capacity (“RFC”) “to perform light work . . . which
does not involve work at unprotected heights or near hazards.” (Admin. R. at 21). At step
four, the ALJ found Plaintiff capable of performing past relevant work as an order clerk
because this “work did not require the performance of work-related activities precluded by
the claimant’s residual functional capacity.” (Admin. R. at 24). The ALJ thus concluded
Plaintiff was not disabled. (Admin. R. at 25).
II.
DISCUSSION
A.
Legal Standard
If “substantial evidence” supports the findings of the Commissioner, then these
findings are conclusive. 42 U.S.C. § 405(g). The Court’s review of the Commissioner’s
final decision is deferential because the decision is reviewed “only to ensure that it is
supported by substantial evidence in the record as a whole.” Hensley v. Barnhart, 352 F.3d
353, 355 (8th Cir. 2003) (internal quotation marks omitted). The Court’s task is limited “to
review[ing] the record for legal error and to ensur[ing] that the factual findings are
supported by substantial evidence.” Id. This Court must “consider evidence that detracts
4
The ALJ also considered Plaintiff’s obesity using the criteria of the musculoskeletal, respiratory, digestive,
and cardiovascular impairments under Listings 1.00Q, 3.00I, and 4.00F; Plaintiff’s fibromyalgia under
Listing 11.09 for multiple sclerosis and Listing 1.02 for the musculoskeletal system; Plaintiff’s sleep-apnea
under Listing 3.02 for sleep-related breathing disorders; and Plaintiff’s digestive problems under Listing
5.06 for inflammatory bowel disease. (Admin. R. at 20–21). The parties do not challenge the ALJ’s findings
with respect to these listings.
7
from the Commissioner’s decision as well as evidence that supports it.” Burnside v. Apfel,
223 F.3d 840, 843 (8th Cir. 2000). A court cannot reweigh the evidence or “reverse the
Commissioner’s decision merely because substantial evidence would have supported an
opposite conclusion or merely because [a court] would have decided the case differently.”
Harwood v. Apfel, 186 F.3d 1039, 1042 (8th Cir. 1999).
B.
Analysis
Plaintiff argues that the ALJ erred in evaluating whether Listing 11.02 was equaled,
that the ALJ’s analysis of Plaintiff’s headaches was flawed, the ALJ erred in rejecting the
opinion of Dr. Beithon, the ALJ’s subjective symptom analysis was flawed, and the ALJ
erred in evaluating Plaintiff’s mental impairments. The Court addresses each argument in
turn.
1.
Listing 11.02
Plaintiff argues the ALJ erred in evaluating whether Plaintiff’s impairments met or
medically equaled Listing 11.02 for neurological impairments. Plaintiff asserts the Social
Security Agency’s policy recognizes that migraines are similar in nature to epilepsy—
which the ALJ noted—and that Plaintiff has a long history of severe headaches and
migraines. Plaintiff also claims the ALJ only considered Listing 11.02(D) even though
there are three other ways to meet that listing.
Plaintiff correctly notes that the ALJ did not reference two subsections—Listings
11.02(A) or 11.02(C). Both involve “a loss of consciousness and violent muscle
contractions,” with 11.02(A) requiring them at least once a month for at least three
consecutive months and 11.02(C) requiring them at least once every two months for at least
8
four consecutive months. 20 C.F.R., Part 404, Subpart P, Appendix 1, § 11.02 (emphasis
added). While the ALJ did not analyze whether Plaintiff experienced these symptoms, the
Court does not find any instances in the record where Plaintiff experienced “a loss of
consciousness and violent muscle contractions.” The record only shows one instance where
Plaintiff fell unconscious from her migraines. (Admin. R. at 506–07). This single episode
does not fit the frequency required in either 11.02(A) or 11.02(C). The record is devoid of
any instances where Plaintiff experienced violent muscle contractions, let alone any violent
muscle contractions in relation to a loss of consciousness. Therefore, even though the ALJ
did not specifically analyze Plaintiff’s conditions for Listings 11.02(A) or 11.02(C), the
Court finds the ALJ did not err in finding Plaintiff did not meet Listings 11.02(A) or
11.02(C) because the record as a whole supports the ALJ’s determination. See Scott ex rel.
Scott v. Astrue, 529 F.3d 818, 822 (8th Cir. 2008) (“As a general rule, we have held that an
ALJ’s failure to adequately explain his factual findings is not a sufficient reason for setting
aside an administrative finding where the record supports the overall determination.”
(internal quotation marks omitted)).
Plaintiff incorrectly asserts the ALJ did not consider Listing 11.02(B). The ALJ
expressly referenced 11.02(B) and 11.02(D) when she stated:
The listing provides for a frequency of dyscognitive seizures occurring once
weekly for three consecutive months while following prescribed treatment
[referencing 11.02(B)], or occurring at least once every two weeks for at least
3 consecutive months despite adherence to prescribed treatment AND
marked limitation in physical functioning or understanding, remembering or
applying information or interacting with others or concentrating, persisting
or maintaining pain, or managing oneself [referencing 11.02(D)].
9
(Admin. R. at 20). The language used by the ALJ mirrors that found in the listings and
shows that the ALJ in fact considered both Listings 11.02(B) and 11.02(D).
While the ALJ did not discuss the medical evidence related to Plaintiff’s migraines
at step three, she discussed it at length later in her opinion. The ALJ pointed to multiple
instances in the record to support her finding that the record is “inconsistent with the degree
of limitation alleged by the claimant.” (Admin. R. at 22). The ALJ noted Plaintiff’s
schwannoma in 1991 and her history of right internal carotid artery dissection in 2010.
(Admin. R. at 22, 681). But the ALJ explained that the “evaluations from the relevant
period include an October 24, 2014 CT scan of the head, which failed to show any
hemorrhage, lesion or infarction and only indicated post-operative changes from the earlier
craniotomy, and MRI scan of the head showing no acute intracranial abnormality.”
(Admin. R. at 22, 405–09, 520). The ALJ also discussed how Plaintiff “was not observed
with headaches at the severity reported during the relevant period.” (Admin. R. at 22). The
ALJ cited to a host of evidence in the record including numerous occasions where Plaintiff
was not observed in acute distress, the lack of emergency room visits or the use of strong
medication for Plaintiff’s headaches during the relevant period, and multiple normal
neurological exams. (Admin. R. at 22–23, 347, 352, 357, 361, 369, 373, 514–15). While
Plaintiff asserts there is a host of evidence to support that Listing 11.02 was medically
equaled, the Court cannot “reverse the Commissioner’s decision merely because
substantial evidence would have supported an opposite conclusion . . . .” Harwood, 186
F.3d at 1042. The Court therefore finds the ALJ did not err in determining Plaintiff did not
10
meet the Listing because substantial evidence in the record supports the ALJ’s
determination.
Plaintiff also claims Social Security Ruling 96-6p requires the ALJ to obtain
medical expert testimony to give an updated opinion on whether Plaintiff meets Listing
11.02. An updated opinion is only required when the ALJ believes the evidence suggests a
finding of equivalence or when additional medical evidence is received that may change
the state agency medical consultant’s finding that the impairment is not equivalent to a
listing. SSR 96-6P, 1996 WL 374180. Here, neither situation applies. No new medical
evidence during the relevant period entered the record after the state medical consultants
issued their opinions and the ALJ’s conclusions did not suggest a finding of medical
equivalence.
In sum, the Court finds the ALJ did not err in finding that Plaintiff did not meet
Listing 11.02 because substantial evidence in the record supports the ALJ’s determination.
2.
Plaintiff’s Migraines
Plaintiff argues the ALJ’s analysis of her migraines is flawed because the ALJ did
not properly consider all the medical evidence on the record. Plaintiff first argues the ALJ
failed to address Dr. Beithon’s treatment note that Plaintiff’s 2010 dissection restricted
effective migraine treatment. Plaintiff is mistaken. The ALJ acknowledged Plaintiff’s 2010
dissection, and stated the evaluations from the relevant period did not show any brain
hemorrhages, lesions, or any other abnormalities. (Admin. R. at 22). Plaintiff also claims
the ALJ did not review Dr. Beithon’s medical notes on how treating Plaintiff’s migraines
with medication was difficult due to her depression, anxiety, and chronic fatigue. Contrary
11
to Plaintiff’s assertion, the ALJ discussed Dr. Beithon’s treatment notes throughout her
decision. For example, the ALJ expressly discusses and cites Dr. Beithon’s notes on
Plaintiff’s migraines from November 2013, December 2013, January 2014, and December
2014. (Admin. R. at 22–23).
Plaintiff next argues the ALJ did not explain why she rejected Plaintiff’s limitations
from her headaches and migraines. Plaintiff claims anyone with her frequency and severity
of headaches would be unable to engage in substantial gainful activity. As discussed above,
the ALJ described numerous evaluations and medical treatment notes from the relevant
period that did not show any brain abnormalities or note Plaintiff in acute distress from her
headaches. (Admin. R. at 22–23, 347, 352, 357, 361, 369, 373, 405–09, 514–15, 520). The
ALJ therefore did not err in discounting Plaintiff’s subjective complaints of pain when the
medical records did not support Plaintiff’s allegations of the frequency and severity of her
headaches. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (“The ALJ may discount
subjective complaints of pain if inconsistencies are apparent in the evidence as a whole.”).
Plaintiff also argues the ALJ erred in noting Plaintiff declined recommended Botox
treatment. Plaintiff contends she rejected Botox treatment due to fear of its side effects.
Plaintiff does not cite any legal authority on why the ALJ erred by noting declined
recommended medical treatment. See Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)
(“[A] failure to seek treatment may indicate the relative seriousness of a medical
problem.”). Nor does Plaintiff explain how omitting this detail would have changed the
outcome in this case. See Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008) (“There
is no indication that the ALJ would have decided differently . . . and any error by the ALJ
12
was therefore harmless.”). Regardless, even if the ALJ erred in noting Plaintiff declined
recommended Botox treatment, the ALJ listed a host of other evidence in the record in
concluding that the frequency of headaches reported by Plaintiff was not corroborated. (See
Admin. R. at 22–23).
3.
Dr. Beithon’s Opinion
Plaintiff contends the ALJ improperly rejected the opinion of her treating physician,
Dr. Beithon, in favor of the agency’s non-treating physicians. Dr. Beithon assessed
significant restrictions for Plaintiff. For instance, Dr. Beithon opined Plaintiff was
precluded from performing basic work activities and would require unscheduled breaks
during an eight-hour workday. (Admin. R. at 338). Dr. Beithon also opined Plaintiff would
miss four or more workdays per month and would likely be off task for 25% of the time or
more. (Admin. R. at 339).
A treating physician’s opinion should not ordinarily be disregarded and is entitled
to substantial weight. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (citation omitted).
The regulations require the ALJ to give reasons for giving weight to or rejecting the
statements of a treating physician. See 20 C.F.R. § 404.1527(d)(2). “The ALJ may discount
or disregard such an opinion if other medical assessments are supported by superior
medical evidence, or if the treating physician has offered inconsistent opinions.” Hogan v.
Apfel, 239 F.3d 958, 961 (8th Cir. 2001).
The Court finds the ALJ gave ample reason to discount Dr. Beithon’s opinion. For
instance, the ALJ discussed how Dr. Beithon did not note Plaintiff as being in acute distress
on numerous occasions Dr. Beithon saw Plaintiff. (Admin. R. at 22; see e.g., 357, 365, 369,
13
373, 377). The ALJ also pointed to the lack of emergency room visits related to headaches
during the relevant period and the lack of strong medication for headaches. (Admin. R. at
23). The ALJ went on to point out that Plaintiff’s neurological exams and MRIs showed
no brain abnormalities. (Admin. R. at 22–23, 347, 352, 357, 361, 369, 373, 514–15).
Accordingly, the ALJ did not err in discounting Dr. Beithon’s opinion because Dr.
Beithon’s assessment of Plaintiff’s headaches was inconsistent with the record.
Plaintiff also claims the ALJ improperly weighed the state agency medical
physicians, who had not examined Plaintiff, over Dr. Beithon. The Eighth Circuit Court of
Appeals noted two exceptions to the rule when consultative physicians’ opinions do not
constitute substantial evidence: (1) when “other medical assessments are supported by
better or more thorough medical evidence,” or (2) when a treating physician offers
inconsistent opinions. Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000) (internal
quotations and citations omitted). As explained above, this case falls within the second
exception. Under these circumstances, the ALJ may give “great weight to the opinions of
state agency medical consultants because they are generally supported by the record, were
made by individual[s] familiar with the disability evaluation process, and new records
submitted since the time of those reviews does not support greater restrictions.” (Admin.
R. at 24). Thus, the ALJ properly weighed and considered Dr. Beithon’s opinions and the
state agency physicians’ opinions.
4.
Plaintiff’s Subjective Symptoms
Plaintiff argues the ALJ failed to adequately consider her subjective symptoms and
did not articulate reasons for rejecting Plaintiff’s evidence of her disability. The ALJ found
14
that Plaintiff’s daily living activities are consistent with her finding that Plaintiff had an
RFC allowing her to perform her past relevant work as an order clerk. (Admin. R. at 24).
While an ALJ “is not free to accept or reject the claimant’s subjective complaints solely on
the basis of personal observations, [s]ubjective complaints may be discounted if there are
inconsistencies in the evidence as a whole.” Polaski v. Heckler, 739 F.2d 1320, 1322 (1984)
(emphasis added).
Here, the ALJ properly considered Plaintiff’s subjective complaints in light of the
record as a whole. Plaintiff “reported daily activities including washing dishes, cleaning,
grocery shopping, simple cooking, loading the washer and dryer, driving, paying bills, and
watching television.” (Admin. R. at 24, 51, 250–52). Plaintiff drove her children to school
and to appointments, attended parent-teacher conferences for her children, and took online
college courses. (Admin. R. at 24, 36, 49, 692). Plaintiff also represented herself in childcustody litigation. (Admin. R. at 24, 708). The ALJ cited to substantial evidence in the
record to support her determination that Plaintiff had an RFC that allowed her to perform
her past work. Because the ALJ discussed the inconsistencies in the record upon which she
relied in discrediting Plaintiff’s subjective complaints, the ALJ’s analysis of Plaintiff’s
subjective symptoms was not flawed.
5.
Plaintiff’s Mental Impairments
Finally, Plaintiff claims the ALJ erred in evaluating Plaintiff’s mental health issues
by rejecting the medical opinions of Mr. Little, Dr. Baumchen, Mr. Walsh, and the state
agency physicians. “Medical opinions of a treating physician are normally accorded
substantial weight.” Singh, 222 F.3d at 452. “However, medical opinions must be
15
supported by acceptable medical evidence and must not be inconsistent with other evidence
on the record as a whole.” Dixon v. Barnhart, 353 F.3d 602, 606 (8th Cir. 2003).
Ken Little, a therapist, opined Plaintiff was unable to meet competitive standards
and had no useful ability to function on most mental abilities and aptitudes needed to work.
(Admin. R. at 455). The ALJ noted that Plaintiff’s ability to go to court without an attorney
for child custody proceedings was “inconsistent with more than mild limitations from her
mental impairments.” (Admin. R. at 19, 708). Little also opined Plaintiff could only handle
simple tasks in short segments. (Admin. R. at 455). The ALJ gave no weight to this opinion
“because the findings cited, such as memory loss, speech problems, needing supervision to
stay on task, stress tolerance, and problems with concentration and speaking in groups, are
not reflected in [Little’s] own treatment notes or supported by the treatment notes of Dr.
Silas or the results of the neuropsychological testing.” (Admin. R. at 19; see also Admin.
R. at 452–56). Similarly, the ALJ discounted the physical impairments Little assessed for
Plaintiff, such as frequent pain and fibromyalgia pain, because, as a mental health clinician,
Little was not qualified to assess these. (Admin. R. at 19, 455). Finally, the ALJ discounted
Little’s opinion on Plaintiff’s frequency of missing work because Little did not provide a
basis for his opinion. (Admin. R. at 19); see also Admin. R. at 452–56). The Court finds
that substantial evidence supports the ALJ’s determination that Little’s evaluation of
Plaintiff was inconsistent with the record as a whole.
Dr. Hal Baumchen, another therapist, opined Plaintiff had severe depression and
poor concentration. (Admin. R. at 750). Yet, in the same report, Dr. Baumchen noted
Plaintiff had appropriate affect, logical thinking, appropriate thought content, fair social
16
judgment, was cooperative, and had “no gross behavioral abnormalities.” (Admin. R. at
750). Dr. Baumchen also noted “[t]here is a significant probability that she [Plaintiff] has
endorsed the items [on the psychological evaluation] inaccurately by reporting more
symptoms and behaviors than seen in most psychiatric patients.” (Admin. R. at 750). At a
different evaluation by Dr. Cohen two months later, Plaintiff was also noted to have
average scores on testing of attention. (Admin. R. at 19, 790). The Court finds that
substantial evidence supports the ALJ’s determination that Dr. Baumchen’s evaluation of
Plaintiff was inconsistent with the record as a whole.
Greg Walsh, a licensed social worker, opined Plaintiff would miss four days of work
per month and would be off task twenty-five percent of the time. (Admin. R. at 18–20, 339,
759). Yet, Dr. Beithon, Plaintiff’s primary care provider, “failed to document any observed
limitations from the mental impairments during the relevant period.” (Admin. R. at 19).
Indeed, Plaintiff did not display any signs of acute distress and displayed normal mood and
affect on every occasion during the relevant time period. (Admin. R. at 19; see e.g., 357,
365, 369, 373, 377). The Court finds that substantial evidence supports the ALJ’s
determination that Walsh’s evaluation of Plaintiff was inconsistent with the record as a
whole.
The state agency psychological consultant stated Plaintiff’s mood disorder and
anxiety may sometimes impact her ability to concentrate and effectively relate to others.
(Admin. R. at 123). But this same consultant noted “the totality of the evidence indicates
that the claimant has the ability to complete simple repetitive tasks, on a sustained basis, in
a low demand setting in which they do not have to make frequent work related decisions,
17
or to adapt to frequent changes in the work setting.” (Admin. R. at 123). The state
psychological consultant’s report was inconsistent and, as the ALJ noted, these findings
were “made without the benefit of neuropsychological testing.” (Admin. R. at 20).
Furthermore, Plaintiff’s mental capacity assessments during the relevant time showed few
limitations. For instance, a 2014 assessment showed Plaintiff was not significantly limited
in her ability to carry out short and simple instructions, maintain attention and
concentration for extended periods, maintain regular attendance, sustain an ordinary
routine without supervision, work in coordination with others, and make simple-work
related decisions. (Admin. R. at 107–08). The only limitations noted were moderate
limitations to carry out detailed instructions and to complete a normal workday because
Plaintiff’s mood disorder may at times impact her ability to concentrate and relate to others.
(Admin. R. at 107–08). The Court finds that substantial evidence supports the ALJ’s
determination that the state agency psychology consultants’ evaluation of Plaintiff was
inconsistent with the record as a whole.
Even if the ALJ should have credited one of the medical opinions and found
Plaintiff’s mental impairments severe, Plaintiff has not shown reversible harm from the
ALJ’s alleged error. To show that an error was not harmless, Plaintiff “must provide some
indication that the ALJ would have decided differently if the error had not occurred.” Byes
v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012). Here, even if the ALJ had found Plaintiff’s
mental impairments severe, the ALJ would have still found Plaintiff not disabled at step
four because the ALJ found Plaintiff could perform her past work. (Admin. R. at 24–25).
The Court therefore rejects Plaintiff’s assertions of error.
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III.
CONCLUSION
Based on all the files, records, and proceedings herein, IT IS HEREBY
ORDERED that:
1.
Plaintiff Angela M.’s Motion for Summary Judgement (ECF No. 15) be
DENIED; and
2.
The Acting Commissioner of Social Security’s Motion for Summary
Judgment (ECF No. 17) be GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: April 5, 2019
s/ Steven E. Rau
STEVEN E. RAU
United States Magistrate Judge
19
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