Lee v. Saul
OPINION AND ORDER: Plaintiff's Objection to the Report and Recommendation 23 is OVERRULED. The Report and Recommendation 22 is ACCEPTED. Plaintiff's Motion for Summary Judgment 17 is DENIED. Defendant's Motion for Summary Judgment 20 is GRANTED. The decision of the Commissioner of Social Security is AFFIRMED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Judge Eric C. Tostrud on 9/15/2020.(RMM)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
File No. 19-cv-2353 (ECT/LIB)
OPINION AND ORDER
Andrew Saul, Commissioner of Social
Edward C. Olson, Minneapolis, MN, and Karl E. Osterhout, Osterhout Disability Law,
LLC, Oakmont, PA, for Plaintiff Nancy L.
Linda H. Green, Social Security Administration, Office of the General Counsel, Dallas,
TX, for Defendant Andrew Saul.
Plaintiff Nancy L. appealed the Commissioner of Social Security’s denial of her
application for disability insurance benefits. Compl. ¶ 1 [ECF No. 1]. The Parties filed
cross-motions for summary judgment. ECF Nos. 17, 20. In a Report and Recommendation
(“R&R”), Magistrate Judge Leo I. Brisbois recommended denying Nancy L.’s motion and
granting the Commissioner’s motion. R&R at 24 [ECF No. 22]. Nancy L. filed objections
to the R&R [ECF No. 23], and the Commissioner has not filed a response. Because Nancy
L. essentially has objected to the R&R in its entirety, the R&R will be reviewed de novo.
28 U.S.C. § 636(b)(1); accord L.R. 72.2(b)(3).
The administrative law judge (“ALJ”) found that Nancy L. suffers from “the
following severe impairments: generalized anxiety disorder, major depressive disorder,
attention deficit hyperactivity disorder (ADHD), and borderline personality disorder.” R.
at 17.1 Nonetheless, the ALJ determined that Nancy L. “did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. at 18. The ALJ considered
Nancy L.’s impairments under Listings 12.04 (depressive, bipolar, and related disorders),
12.06 (anxiety and obsessive-compulsive disorders), 12.08 (personality and impulsecontrol disorders) and 12.11 (neurodevelopmental disorders). Id. at 18–20. According to
the ALJ, Nancy L.’s impairments did not meet the “[P]aragraph B” criteria, which require
an impairment or combination of impairments to:
result in at least one extreme or two marked limitations in a
broad area of functioning which are: understanding,
remembering, or applying information; interacting with others;
concentrating, persisting, or maintaining pace; or adapting or
managing themselves. A marked limitation means functioning
in this area independently, appropriately, effectively, and on a
sustained basis is seriously limited. An extreme limitation is
the inability to function independently, appropriately or
effectively, and on a sustained basis.
Id. at 18, 20; see 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00(E)–(F). The ALJ determined
that Nancy L. had only a “moderate limitation” in each of the four categories. R. at 18–20.
To match the R&R, this order’s citations to the Administrative Record (“R.”) will
refer to the system of consecutive pagination that spans the exhibits. The relevant page
numbers are listed in the bottom right corner of each document.
Having found that Nancy L. was not presumptively disabled under the “[P]aragraph
B” criteria, the ALJ next found that she had the residual functional capacity (“RFC”) to
perform work that was limited to: (1) “simple, routine, and repetitive tasks in a work
environment involving only simple work related decisions and routine workplace
changes”; (2) “no interaction with the general public and only occasional interaction with
coworkers and supervisors and no tandem tasks”; and (3) “jobs that do not require fast
paced production quotas, defined as jobs requiring more than frequent handling and
fingering.” Id. at 20. Based on the testimony of an independent vocational expert, the ALJ
concluded that “there were jobs that existed in significant numbers in the national economy
that [Nancy L.] could have performed.” Id. at 24. Accordingly, the ALJ determined that
Nancy L. was not disabled from December 31, 2011, the alleged onset date, through
September 30, 2017, the date last insured. Id. at 25.
Nancy L. challenges two steps in the ALJ’s analysis. First, she argues that the ALJ’s
RFC determination is contrary to law and not supported by substantial evidence. Pl.’s
Mem. in Supp. at 4 [ECF No. 18]. In her view, the ALJ ignored evidence, failed to consider
all relevant legal factors, and improperly discounted the opinions of two of her medical
providers. Id. at 6. She believes that the record as a whole shows that her limitations are
far more severe than the ALJ found. Second, she argues that the same flaws that infect the
RFC determination also undermine the ALJ’s finding that she had only “moderate
limitations” under the Paragraph B functional criteria. Id. at 30. Magistrate Judge Brisbois
Acknowledging Nancy L.’s arguments, he concluded that the ALJ had
sufficiently considered the record and reached a result that is supported by substantial
evidence. R&R at 23–24.
Nancy L. first objects that Magistrate Judge Brisbois failed to address her argument
that the ALJ ignored “the extent of support structures” that Nancy L. receives in order to
function. Pl.’s Objs. at 2–3. This matters, according to Nancy L., because “[a]n RFC
finding must represent a claimant’s ability to function independently in the workplace.”
Id. at 3.
Contrary to Nancy L.’s objection, Magistrate Judge Brisbois explicitly
acknowledged this argument at the beginning of his discussion, R&R at 8, but he
nevertheless concluded that the ALJ had adequately considered and discussed the evidence,
id. at 9–12.
The ALJ’s written decision supports Magistrate Judge Brisbois’s conclusion. When
evaluating Nancy L.’s RFC, the ALJ acknowledged that Nancy L. “received case
management services with [Adult Rehabilitation Mental Health Services]” to “assist her
with bill paying and ma[ke] sure she was organized and took her medication timely.” R.
at 21. The ALJ further noted that Nancy L.’s medical records showed “stabilization with
treatment,” but that Nancy L. “reported that she needed a lot of structure in order to
complete activities.” Id. at 23. “[T]o account for” this concern, the ALJ “reduced the skill
level and interaction with others, as well as precluded fast paced production jobs” in the
RFC. Id. Although the ALJ’s discussion on this point is not extensive, the record does not
support Nancy L.’s assertion that the ALJ “fail[ed] to account for the extent of support
structures” that she receives. Pl.’s Objs. at 2. See Craig v. Apfel, 212 F.3d 433, 436 (8th
Cir. 2000) (“Although required to develop the record fully and fairly, an ALJ is not required
to discuss all the evidence submitted, and an ALJ’s failure to cite specific evidence does
not indicate that it was not considered.”).
Nancy L. also raises a more general version of the same attack. She argues that,
throughout the written decision, the ALJ failed to neutrally develop the record and to
“provide [a] reviewable rationale.” Pl.’s Objs. at 4–7. See Craig, 212 F.3d at 436
(acknowledging an ALJ’s duty to develop the record). In support of this argument, Nancy
L. suggests that the relatively short length of the ALJ’s written opinion (11 and a half
pages) shows that the ALJ did not properly consider the whole 2000-plus page
administrative record. Id. at 4. Nancy L. also provides several string citations to portions
of the record that she asserts are inconsistent with the ALJ’s findings. Id. at 5–6 & nn. 2–
3. As Magistrate Judge Brisbois explained, however, the ALJ was not “required to set
forth a factor-by-factor analysis of each and every piece of evidence in the record.” R&R
at 10 (citing Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012); see also Senne v.
Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999) (“[A] deficiency in opinion-writing is not a
sufficient reason for setting aside an administrative finding where the deficiency had no
practical effect on the outcome of the case.”). The record shows that the ALJ adequately
considered the record as a whole, including evidence that detracted from her conclusions.
See R. at 22–24.
The rest of Nancy L.’s arguments concern the ALJ’s factual findings themselves. A
court reviewing such findings is limited to deciding whether the findings are supported by
substantial evidence. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.”).
“Substantial evidence is less than a preponderance, but is enough that a reasonable mind
would find it adequate to support the [ALJ’s] conclusion.” KKC ex rel. Stoner v. Colvin,
818 F.3d 364, 369 (8th Cir. 2016) (quotation omitted). The existence of evidence that
detracts from the ALJ’s findings does not automatically require reversal, see Milam v.
Colvin, 794 F.3d 978, 983 (8th Cir. 2015), “so long as the ALJ’s decision falls within the
‘available zone of choice,’” Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008)
(quoting Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)).
First, when evaluating Nancy L.’s RFC, the ALJ placed significant weight on the
“vast majority” of her objective mental status examinations that had results “within normal
limits”—i.e., “average cognition, normal and intact associations, full orientation, intact
recent and remote memory, normal attention span and concentration, normal thought
content and thought processes, and intact insight and judgment.” R. at 22. Nancy L. argues
that the ALJ placed too much weight on these findings because some of the examinations
did show limitations, and that the exam results did not accurately reflect the degree of
limitations that Nancy L. exhibited elsewhere in the record. Pl.’s Mem. in Supp. at 8 &
n.6. For example, Nancy L. cites mental status examinations showing limited attention
span and concentration, as well as therapy records in which her providers recounted crying
episodes, mood changes, and emotional intensity. Id. at 7–8. As Magistrate Judge Brisbois
recognized, however, the ALJ cited several of these same documents in her decision, R&R
at 10–11, and the ALJ is primarily responsible for resolving inconsistencies in the evidence.
See Johnson v. Colvin, 788 F.3d 870, 872 (8th Cir. 2015) (explaining that a reviewing court
will not “reweigh the evidence presented to the ALJ” (quoting Gonzales v. Barnhart, 465
F.3d 890, 894 (8th Cir. 2006)). The ALJ, faced with subjective reports of Nancy L.’s
limitations, reasonably weighed the results of Nancy L.’s objective mental status
examinations when deciding that “the record fail[ed] to support the degree of limitations
alleged.” R. at 23; see Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (“[T]he ALJ
may disbelieve subjective complaints ‘if there are inconsistencies in the evidence as a
whole.’” (quoting Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004)).
Second, the ALJ assigned “little weight” to three written medical opinions offered
by Nancy L.’s therapy providers—two from Jessica Schmidt, MSW, LCSW, and one from
Joan McNab Jones, APRN-CNP—which supported more severe limitations than those
found by the ALJ. R. at 22–23, 910–12, 914–15 2099–2102. Under the relevant Social
Security regulations, neither of these providers are “acceptable medical source[s]” whose
opinions can “establish ‘a medically determinable impairment.’” Raney v. Barnhart, 396
F.3d 1007, 1010 (8th Cir. 2005) (quoting 20 C.F.R. §§ 404.1513(a)(1)–(5), 416.913(a)(1)–
(5)); see also 20 C.F.R. § 404.1502(a) (defining “[a]cceptable medical source”).2 They
are, however, “other medical sources” who may offer “evidence of the severity of the
claimant’s impairment and the effect of the impairments on the claimant’s ability to work.”
Lawson v. Colvin, 807 F.3d 962, 967 (8th Cir. 2015) (quoting Lacroix v. Barnhart, 465
F.3d 881, 887 (8th Cir. 2006)). ALJs must consider opinions from these “other” sources,
but in doing so, they have “more discretion” than when they are weighing opinions from
The new version of the regulation includes “Licensed Advanced Practice Registered
Nurse[s],” like Jones, in the definition of “[a]cceptable medical source,” but only for claims
filed on or after March 27, 2017. 20 C.F.R. § 404.1502(a)(7). Nancy L. filed her claim in
2016, so the previous version of the regulation applies.
“acceptable medical sources,” and they are “permitted to discount [an opinion] if it is
inconsistent with the evidence in the record.” Id. The relevant regulation provides a
nonexclusive list of factors3 that inform the degree of weight to give opinions from other
medical sources, but it cautions that “[n]ot every factor . . . will apply in every case,” and
ALJs must evaluate the opinions based on “the particular facts in each case.” 20 C.F.R.
§ 404.1527(f)(1); see Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007) (discussing Social
Security Ruling 06-03p, which was later rescinded after being essentially codified in
Nancy L. argues that the ALJ improperly discounted the opinions of Schmidt and
Jones, and for support she again identifies points in the record at which she or her therapists
reported severe functional limitations. Pl.’s Mem. in Supp. at 9–22. But the ALJ gave
specific reasons to give the opinions little weight, and Magistrate Judge Brisbois correctly
concluded that these reasons were valid. R&R at 20, 23. The ALJ explained that Schmidt’s
first medical source statement, completed in April 2017, “fail[ed] to offer any functional
limitations or explanation beyond the conclusory opinion” and was inconsistent with the
“treatment notes and the remainder of the objective evidence in [the] file,” including the
mental status exams. R. at 22. Schmidt’s 2018 medical source statement, according to the
ALJ, “lack[ed] supportability and consistency” because it was “not consistent with [Nancy
These factors include: (1) whether the source of the opinion has examined the
claimant; (2) the length, nature, and extent of the treatment relationship; (3) the
“[s]upportability” of the opinion; (4) the “[c]onsistency” of the opinion with the record as
a whole; (5) the “[s]pecialization” of the source; and (6) “[o]ther factors.” 20 C.F.R.
§ 404.1527(c)(1)–(6), (f)(1).
L.’s] functioning nor supported by the medical evidence of record.” Id. at 23. And
although Schmidt opined that Nancy L.’s limitations extended back to 2011, the alleged
disability onset date, she did not begin caring for Nancy L. until 2016.4 Id. at 22–23.
Finally, the ALJ found Jones’s 2017 letter “unsupported by the lack of supporting treatment
records” and “inconsistent with the minimal and conservative nature of [Nancy L.’s]
mental health treatment and continued level of functioning.” Id. at 22. These comments
are consistent with the regulation and with Eighth Circuit precedent, and they reflect a
reasonable view of the record as a whole. See 20 C.F.R. § 404.1527(f); Lawson, 807 F.3d
at 967. For purposes of judicial review, that’s enough. See Milam, 794 F.3d at 983
(explaining that a court should “not reverse an administrative decision simply because
some evidence may support the opposite conclusion”).
Nancy L. also challenges the ALJ’s finding that her subjectively reported limitations
were inconsistent with the record as a whole. Again, Nancy L. cites examples in the record
where she exhibited severe limitations and argues that the ALJ’s finding fails to account
for this evidence. Pl.’s Mem. in Supp. at 22–28. For example, Nancy L. argues that the
ALJ did not explicitly acknowledge her struggles with panic attacks or the extent of support
she needs to complete daily tasks. Id. at 25–26. As before, the ALJ’s discussion is not
extensive, but it shows that the ALJ adequately considered the evidence and reached a
The ALJ “considered [Nancy L.’s] testimony regarding
The ALJ’s decision says that Nancy L. began seeing Schmidt in 2015, R. at 23, but
a letter from Schmidt indicates that Nancy L. was not “transferred to [her] care” until 2016,
R. at 908.
limitations” and her reports “that she needed a lot of structure in order to complete
activities.” R. at 23. The ALJ also considered the opinions of Nancy L.’s therapy
providers. Id. at 22–23. But the ALJ also noted that Nancy L. had engaged in several
activities that suggested her limitations were less severe than reported. Specifically, she
had volunteered on several occasions, served as a sponsor in a support group, and assisted
her daughter with health and housing difficulties. R. at 22. Nancy L. had also reported
attending a local festival, “socializ[ing] and spen[ding] time watching television and
cooking with friends,” “manag[ing] her own finances with some anxiety,” and being “able
to shop, drive and go out alone.” R. at 19. These activities, combined with the lack of
objective medical evidence supporting Nancy L.’s alleged limitations, provide substantial
evidence to support the ALJ’s finding, even if substantial evidence could potentially
support the opposite finding, too.
At the end of her brief, Nancy L. challenges an earlier part of the ALJ’s decision:
the finding that she was not presumptively disabled because her impairments did not meet
or medically equal a listed impairment. R. at 18–20. As Magistrate Judge Brisbois
observed, Nancy L. raises many of the same arguments here as she does about the RFC
determination, R&R at 23, and those arguments have already been considered and rejected.
Here again, Nancy L. asserts that the ALJ’s discussion of the record was “selective,” and
she highlights portions of the record that she believes are inconsistent with a finding that
she had only “moderate” limitations. Pl.’s Mem. in Supp. at 30–40. All she shows,
however, is that the record contains conflicting evidence.
One example is instructive. When assessing Nancy L.’s functional abilities, the ALJ
noted that she was able to volunteer as a “sound technician” for a “Landmark event.” R.
at 19, 543. Despite feeling “humiliated and embarrassed” by the “challenges that the event
presented” for her, Nancy L. “was able to stay [at] the event and continue working.” R. at
543. Nancy L., in her brief, points to a different therapy record in which she reported
canceling a different volunteer commitment due to an “escalation of panic episodes.” Pl.’s
Mem. in Supp. at 38; R. at 946. It is the ALJ’s responsibility to weigh inconsistencies like
this one and to decide whether a claimant’s subjective reports are consistent with the record
as a whole. See Milam, 794 F.3d at 983. Faced with an extensive and occasionally
contradictory record, the ALJ reached a result within the “available zone of choice.”
Bradley, 528 F.3d at 1115 (citation omitted).
For the foregoing reasons, and based upon all of the files, records, and proceedings
in the above-captioned matter, IT IS HEREBY ORDERED that:
Plaintiff’s Objection to the Report and Recommendation [ECF No. 23] is
The Report and Recommendation [ECF No. 22] is ACCEPTED;
Plaintiff’s Motion for Summary Judgment [ECF No. 17] is DENIED;
Defendant’s Motion for Summary Judgment [ECF No. 20] is GRANTED;
The decision of the Commissioner of Social Security is AFFIRMED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: September 15, 2020
s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court
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