Carter v. Commissioner of Social Security

Filing 25

MEMORANDUM OPINION AND ORDER denying 16 Plaintiff's Motion for Summary Judgment; granting 18 Defendant's Motion for Summary Judgment; adopting 21 Report and Recommendation; Plaintiff's Objection 23 is OVERRULED; all claims in the Complaint 1 are DISMISSED (Written Opinion). Signed by Judge Ann D. Montgomery on 9/9/2019. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
James Steven Carter,
Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER
Civil No. 18-1687 ADM/SER

Andrew Saul,
Commissioner of Social Security,
Defendant.
______________________________________________________________________________
Edward A. Wicklund, Esq., Olinsky Law Group, Syracuse, New York; and Edward C. Olson,
Esq., Disability Attorneys of Minnesota, Minneapolis, MN, on behalf of Plaintiff.
Marisa Silverman, Special Assistant United States Attorney, Assistant Regional Counsel, Social
Security Administration, Dallas, TX, on behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the undersigned United States District Judge for a ruling on Plaintiff
James Steven Carter’s (“Carter”) Objection [Docket No. 23] to Magistrate Judge Steven E.
Rau’s June 5, 2019 Report and Recommendation [Docket No. 21] (the “R&R”). Judge Rau
recommends granting Defendant Commissioner of Social Security’s (the “Commissioner”)
Motion for Summary Judgment [Docket No. 18] and denying Carter’s Motion for Summary
Judgment [Docket No. 16]. For the reasons set forth below, Carter’s Objection is overruled and
Judge Rau’s R&R is adopted.
II. BACKGROUND
Carter filed for disability insurance benefits (“DIB”) under Title II of the Social Security
Act, 42 U.S.C. §§ 401-34, and supplemental security income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. § 1381. The facts and procedural history of this matter are set

forth in Judge Rau’s R&R, and are incorporated by reference. Accordingly, only a brief and
abridged version of the relevant facts is presented below.
A. Factual Background
Carter’s relevant medical history of record begins with Dr. Joel S. Giffin’s (“Dr. Giffin”)
examination of Carter on December 9, 2014, Carter’s claimed disability onset date. Admin. R.
[Docket No. 14] at 37, 352. Dr. Giffin ordered x-rays to investigate Carter’s reported chronic
back and knee pain, which Carter reported had been present for over a year. Id. Dr. Giffin read
the x-rays, finding the knee and back “normal,” but found on a hip x-ray, “severe right hip DJD
[degenerative joint disease, or osteoarthritis] with osteophytes, spurring, loss of joint space.” Id.
at 353. As part of the “Assessment/Plan,” Dr. Giffin recorded:
Back and knee pain likely all or mostly from severe right hip DJD. Discussed low
likelihood of pain medications or physical therapy benefitting patient with arthritis
this severe – he was scared of prospect of surgery but will consider it. He wants a
medical opinion form filled out but I won’t do that today on first visit. He states
he’ll come back soon. No pain medications today on first visit either though would
consider at future visits.
Id. Carter returned to Dr. Giffin one week later on December 15, 2014 for a follow-up. Id. at
355. This time, Dr. Giffin filled out a Request for Medical Opinion (“RMO”), which diagnosed
the “severe right hip arthritis” and listed as “employment restriction(s): no lifting more than 10
pounds; no standing or walking without a break.” Id. at 346-47. The prescribed treatment plan
was “consult with Orthopedics.” Id. Dr. Giffin checked “Yes” for the RMO question, “has your
patient followed the treatment plan,” even though Carter had not yet seen an orthopedic
specialist. Id. Based on his assessment, Dr. Giffin stated Carter could work 1-10 hours per week
with “frequent breaks to stand/move around.” Id. at 347.
Carter next visited Dr. Giffin on February 16, 2015. Dr. Giffin reported that Carter “was
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sent to Orthopedics for severe DJD of right hip,
hasn’t gone yet, is scared to do so. Also didn’t go to physical therapy. Would like
something stronger for pain. Is applying for disability, has a functional capacity
form he needs filled out.”
Id. at 357. The Assessment/Plan noted Carter “is reluctant to pursue more advanced treatment at
this time, mostly due to anxiety/fear of surgery.” Also noted,
He is applying for disability and wants a functional capacity evaluation done, will
sent [sic] to physical therapy for that. Will also try some tramadol for his pain.
Id. Dr. Giffin instructed Carter to “make an appointment with Summit Orthopedics to talk about
your hip – just to talk” to a specialist. Id. at 358.
The next medical record was generated almost 8 months later on October 8, 2015 by an
emergency room visit for injuries Carter sustained in a car accident. Id. at 373. On October 13,
2015, Carter returned to Dr. Giffin. On examination, Carter had “stiff gait, limps favoring the
left leg.” Id. at 441. Dr. Giffin instructed Carter to “keep moving–stay loose and active as you
can.” Id. at 442. Carter had a follow-up with Dr. Giffin on October 27, 2015 to address residual
issues from the car accident. Id. at 443. Dr. Giffin found that Carter “is walking easily, though
has some upper neck pain and some elbow and right knee pain.” He also noted, Carter “has
chronic bilateral hip pain that is unchanged.” Id. Dr. Giffin referred Carter to physical therapy.
Carter went to physical therapy in November and December 2015 and reported improvement in
mobility and some good and bad days in terms of pain, and that the exercises helped his pain in
January and February 2016. Id. at 417, 432. Carter started missing therapy appointments in
2016, until he was discharged from physical therapy on March 25, 2016 as he “did not return.”
Id. at 431.
On November 30, 2016, over 8 months after his discharge from physical therapy, Carter
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again consulted Dr. Giffin’s opinion, which was:
he has severe chronic right hip pain, has end-stage arthritis, told h[e] needs a right
hip replacement for at least last year. He has chronic pain and weakness in his right
knee, all worse since he was in an MVA [motor vehicle accident] Oct 2015. He went
to physical therapy for his hip, right knee, shoulder which did help but he still has
pain.
Id. at 445. Dr. Giffin’s assessed Carter “has clear significant arthritis.” Id. In addition, Dr.
Giffin reported, Carter “is very reluctant to pursue even the consideration of surgery,” so Carter
was offered an intra-articular steroid injection, which Carter was willing to consider. Id. at 44546. Finally, Dr. Giffin instructed Carter to get into a routine; “Exercises, getting out of the
house, going to grocery store, etc.” Id. at 446.
B. Procedural Background–the ALJ’s Decision and R&R
On January 15, 2015, Carter applied for DIB and SSI benefits, alleging disability
beginning on December 1, 2013. Admin. R. at 57, 67, 80-81. By letters dated April 3, 2015,
Carter’s claims for benefits were denied. Id. at 80-81. On April 29, 2015, Carter requested
reconsideration. Id. at 115. On June 3, 2015, reconsideration was denied. Id. at 102, 104.
On June 24, 2015, Carter requested an administrative hearing. Id. at 123. On April 28,
2017, the hearing was held. Id. at 33-56. At the hearing, Carter amended his onset date to
December 9, 2014. Id. at 37-39. The Administrative Law Judge (“ALJ”) issued a denial of
benefits on August 21, 2017. Id. at 17–27. The ALJ found that Carter was not disabled using
the five-step analysis articulated in 20 C.F.R. §§ 404.1520(a), 416.920(a). The five-step analysis
requires considering (1) whether the applicant is doing any substantial gainful activity, (2)
whether the applicant has a severe medically determinable physical or mental impairment, (3)
whether the impairment meets or equals one of the listings in 20 C.F.R. Part 404, Subpart P,

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Appendix 1 (the “Listings”), (4) whether the applicant can engage in past work, given his
residual functional capacity, and (5) whether, given an applicant’s residual functional capacity,
the applicant can adjust to other work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). On steps (1)
and (2), the ALJ found Carter met the insured status requirements of the Social Security Act
through December 31, 2014, that Carter was not engaged in substantial gainful activity since the
alleged onset date, and that Carter had severe right hip osteoarthritis with osteophytes, spurring
and loss of joint space. Admin. R. at 19-20. On step (3), however, the ALJ determined Carter
did not have an impairment or combination of impairments meeting the severity of the Listings.
Id. at 21.
Before going from step (3) to step (4), the ALJ assessed Carter’s residual functional
capacity (“RFC”). Id. at 21-25. The ALJ observed at the hearing, Carter “asserted that he needs
a total hip replacement, but there is no documentation of him ever seeing an orthopedic surgeon,
and there is no opinion as to the need for a hip replacement in the record.” The ALJ further
noted “the claimed limits on appeal are entirely out of proportion to the objective findings and
minimal amount of treatment received for the right hip condition.” As part of the analysis of
RFC, the ALJ discussed Carter’s evidence, and lack thereof, of the intensity, persistence, or
functionally limiting effects of his pain. The ALJ gave little weight to Dr. Giffin’s second visit
RMO, and found that Carter’s inconsistent testimony cast doubt on his subjective complaints of
pain in comparison to the objective evidence. Id. at 25. And, on steps (4) and (5), the ALJ
found Carter has the “residual functional capacity to perform light work as defined in 20 C.F.R.
§§ 404.1567(b) and 416.967(b).” Id.
On August 21, 2017, Carter requested a review of the ALJ’s decision by the Social

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Security Administration Appeals Council. Id. at 1-6. On April 16, 2018, the Appeals Council
denied the request for review. Id. at 1.
On June 18, 2018, Carter filed this federal court action. Both parties moved for summary
judgment, and the matter was referred to Judge Rau. Judge Rau concluded substantial evidence
in the record supported the ALJ’s decision, and recommended granting the Commissioner’s
motion for summary judgment. Judge Rau found no error in the ALJ’s findings or conclusions.
Judge Rau considered Carter’s argument that the ALJ should be required to develop the record
further by ordering an examination of Carter by an orthopedic specialist. However, Judge Rau
declined to find error where Carter himself failed to seek an orthopedic specialist opinion,
particularly where the record included sufficient evidence to support the ALJ’s RFC
determination. Carter now objects to the R&R.
III. DISCUSSION
A. Standard of Review
1. Objections to the R&R
A district court must make an independent, de novo review of those portions of an R&R
to which a party objects and “may accept, reject, or modify, in whole or part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also D. Minn.
LR 72.2(b).

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2. Review of ALJ’s Decision
The Commissioner’s decision to deny social security benefits must be affirmed if it
conforms to the law and is supported by substantial evidence in the record as a whole. 42 U.S.C.
§ 405(g); McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013). “Substantial evidence is less
than a preponderance, but enough that a reasonable mind might accept it as adequate to support a
decision.” Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008). The reviewing court must
consider both evidence that supports the Commissioner’s decision and evidence that detracts
from it, and the reviewing court must uphold the Commissioner’s decision if it is supported by
substantial evidence, even when substantial evidence exists in the record that would have
supported a contrary decision or when the reviewing court would have reached a different
conclusion. Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001); see also Chismarich v.
Berryhill, 888 F.3d 978, 980 (8th Cir. 2018).
B. Carter’s Objections to the R&R are Overruled
Carter objects to the ALJ’s decision, not to order an orthopedic consultative examination
to assess the nature and extent of Carter’s limitations, and objects to the R&R’s conclusion that
the ALJ’s decision was not erroneous. Carter argues that the orthopedic specialist was a
“necessary source” to consult about Carter’s condition. Carter also argues that this failure to
consult an orthopedic specialist led the ALJ to undervalue Carter’s subjective complaints, and
thus led to an RFC unsupported by substantial evidence. Carter argues that the R&R ignored
this secondary argument altogether.
After de novo review of those portions of the objected to R&R, the Court adopts the
R&R, finding the ALJ’s decision is supported by substantial evidence. The ALJ did not need to

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order an orthopedic assessment because he had sufficient medical evidence: (a) to properly
assess the nature and extent of Carter’s limitations; and (b) to properly consider Carter’s
subjective complaints of pain.
Prior to step (4), the ALJ was required to assess Carter’s RFC. 20 C.F.R. §
404.1520(a)(4). The ALJ needed to assess Carter’s RFC “based on all the relevant medical and
other evidence” in the record. 20 C.F.R. §§ 404.1520(e), 404.1545. “Medical records, physician
observations, and the claimant’s subjective statements about his capabilities may be used to
support the RFC.” Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012). The ALJ is “required
to order medical examinations and tests only if the medical records presented to him do not give
sufficient medical evidence to determine whether the claimant is disabled.” Johnson v. Astrue,
627 F.3d 316, 320 (8th Cir. 2010) (quoting Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir.
1994)); see also 20 C.F.R. § 404.1519a.
The ALJ was not required to order an orthopedic specialist evaluation to conclude his
RFC analysis because he had the medical reports of Dr. Giffin, physical therapy records, the
neurological exams, and Carter’s own statements at the hearing, plus Carter’s record of nontreatment. The medical records examined by the ALJ gave him sufficient basis to determine if
Carter was disabled. An orthopedic specialist opinion was not a critical piece of evidence
needed to assess the nature and extent of Carter’s limitations. Briefly, Dr. Giffin referred Carter
multiple times to an orthopedist to talk about the possibility of surgery improving Carter’s
mobility and relieving his reported pain, but Dr. Giffin never described surgery as Carter’s only
option. Dr. Giffin also recommended physical therapy, pain medication, and later, steroid
injections for the hip as alternative treatment options. Given Carter’s reports of pain, Dr. Giffin

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was doubtful that such treatment would be effective, but because of Carter’s fear of surgery,
these other treatment options were worth pursuing to see if they would improve Carter’s reported
pain and mobility issues. Carter chose not to pursue these treatment options until many months
later, if at all. Carter never expressed fear of physical therapy or the steroid injections. The
record does not show whether Carter ever sought steroid injections. The record further shows
Carter chose not to get physical therapy until after he was in a car accident, 10 months after his
claimed disability onset date. When he did get the physical therapy, the ALJ observed that
Carter reported some improvement in his pain management and mobility. For whatever reason,
Carter chose not to continue with the physical therapy. This evidence weakens Carter’s claim
that he suffers from disabling hip pain. See Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir.
2003) (“If an impairment can be controlled by treatment or medication, it cannot be considered
disabling.”) (citation omitted). In addition, the ALJ stated Carter was always “without need for
an assistive device for ambulation, and with an entirely normal neurological exam, including
grossly normal movement and muscle tone.” Admin. R. at 25.
Before treatment, Dr. Giffin opined Carter could work 1-10 hours a week with frequent
breaks to stand and move around. The ALJ found that this opinion by Dr. Giffin was meant as a
“temporary” opinion before Carter’s visit to the orthopedics specialist.1 Carter now argues that
in making this finding the ALJ meant the orthopedics specialist referral was “necessary” to
provide a functional capacity analysis. However, it is equally plausible that the ALJ interpreted

1

Although not explicitly stated, the ALJ likely concluded that Dr. Giffin’s RMO was
“temporary” because when Dr. Giffin filled out a Request for Medical Opinion, the prescribed
treatment plan was “consult with Orthopedics.” Id. at 346-47. Dr. Giffin checked “Yes” for the
RMO question, “has your patient followed the treatment plan,” even though Carter had not seen
(and as far as the medical record shows, would not see) an orthopedic specialist.
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the referral as one of several courses of treatment, not as a referral for further diagnosis, or
functional capacity analysis. “[I]f it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the agency’s findings” the decision must be
affirmed. Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993). Even if Dr. Giffin meant for the
orthopedist to provide another functional capacity analysis, the other history of treatment and
Carter’s non-treatment decisions provides substantial evidence for the ALJ to make an informed
decision without the orthopedist’s opinion. Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir.
2010). The ALJ relied on the substantial evidence in this record to find a light work RFC;
therefore, Carter’s first objection is overruled.
The ALJ also assessed Carter’s subjective complaints. Carter argues that the R&R
ignored his subjective complaints argument. But the R&R addressed Carter’s subjective
complaints in conjunction with his claims that a functional analysis was needed from an
orthopedic specialist. R&R at 13-14. The ALJ, and the R&R, compared the objective medical
record to Carter’s subjective complaints of pain. Carter’s failure to pursue any course of
treatment weighed heavily against his claims of disabling pain and limitations of movement. In
finding that the record did not support Carter’s subjective complaints, the ALJ also considered
factors such as Carter’s conservative treatment, failure to follow through on treatment
recommendations, sporadic work history, home and childcare activities, and inconsistent
statements at the administrative hearing. Carter’s disagreement with the ALJ’s conclusions is
not sufficient to find legal error in the ALJ’s analysis, which was thorough and adhered to the
required step-by-step analysis.

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IV. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. James Steven Carter’s Objection [Docket No. 23] is OVERRULED;
2. The Commissioner’s Motion for Summary Judgment [Docket No. 18] is GRANTED;
3. Carter’s Motion for Summary Judgment [Docket No. 16] is DENIED;
4. The Commissioner’s denial of DIB and SSI benefits is AFFIRMED;
5. All claims in the Complaint [Docket No. 1] are DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: September 9, 2019.

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