Kassemi v. Kijakazi

Filing 18

MEMORANDUM AND OPINION (Written Opinion) Signed by Magistrate Judge John F. Docherty on 8/30/2024. (RM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Fatholah K.,

Case No. 23-cv-1013 (JFD)
Plaintiff,
ORDER

v.
Martin J. O’Malley, Commissioner
of Social Security,
Defendant.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Fatholah K., the claimant below, seeks
judicial review of a final decision by the Defendant Commissioner of Social Security
denying Plaintiff’s application for disability insurance benefits. For the reasons discussed
below, the Court concludes that substantial evidence supports the Commissioner’s decision
and therefore affirms it.
I.

Background
Plaintiff holds a Bachelor’s Degree in Physics, a Master’s Degree in Aerospace

Engineering, and a Ph.D. Degree in Mathematics. (Soc. Sec. Admin. R. (hereinafter “R.”)
14. 1) He taught college-level math and physics for 16 years. (R. 56.) He last worked as a
professor at the University of Jamestown, North Dakota, until he was asked to leave in
2017, which was also the last date he had earnings. (R. 221.)

The administrative record is filed at Dkt. No. 8. The record is indexed as consecutively
paginated, and the Court cites to that pagination rather than to the docket page.
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Plaintiff said he had back problems that caused him discomfort if he sat for a time
without getting up and moving around. (R. 14.) He maintains that he could initially sit no
longer than 45 minutes to an hour before needing to get up and walk. (R. 18.) After that
initial period of sitting, he could only sit for periods of about 10 to 15 minutes, rather than
the longer period of initial sitting. (Id.) He regularly saw a physical therapist and also
occasionally saw a chiropractor. (R. 62–63.) Because of his difficulty sitting for long
periods of time, Plaintiff was unable to hold regular office hours as a college faculty
member, which he believes was the reason why he was asked to leave. (R. 38.)
On November 13, 2018, Plaintiff applied for disability insurance benefits under
Article II of the Social Security Act, alleging disability beginning June 25, 2018, at the age
of 65. (R. 65.) He last met the insured status requirements of the Social Security Act on
March 31, 2019. (R. 11). The Social Security Administration first denied his claim on June
4, 2019 (R. 92), and again on September 5, 2019, following reconsideration (R. 99.)
Plaintiff, representing himself, subsequently sought a hearing before an administrative law
judge (“ALJ”). (R. 104.)
ALJ Amy Benton held a hearing on December 1, 2020 (R. 49–63), and at Plaintiff’s
request, the ALJ held a supplemental telephone hearing on October 21, 2021 (R. 31–48).
At the hearings, Plaintiff testified that although he experienced less pain from standing and
walking than from sitting, his lower back pain also made it difficult for him to drive long
distances or to lift heavy objects. (R. 39.) He further explained that he lived with his wife
and could perform light housework as long as he did not need to bend forward or lift

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anything heavy that would irritate his lower back. (R. 40–41.) Plaintiff spent most of the
day lying on his back watching TV, and he was unable to perform any yard work. (Id.)
Vocational Expert Christina Beatty-Cody also testified at the October 21, 2021
supplemental hearing. The ALJ asked her to assume, as part of a hypothetical:
“a person who is capable of performing at the light exertional level, but
the person is further limited in that they can only occasionally climb stairs
and ramps; they can never climb ladders or scaffolds; they can frequently
balance but only occasionally stoop, kneel, crouch, and crawl; and they
must avoid concentrated exposure to hazards such as unprotected heights
and moving mechanical parts and slippery, wet surfaces.”
(R. 45.) The vocational expert then opined that, in this first hypothetical, “such a person
[would] be able to perform . . . the college faculty member position . . . as typically and
actually performed.” (Id.)
In another hypothetical, the ALJ asked the vocational expert to assume the same set
of limitations, but adding that “the person would need to change position approximately
every five minutes.” (Id.) The expert opined that “[t]he past work, as typically and actually
performed, would be excluded with that additional limitation.” (R. 46.)
In reaching a decision, the ALJ followed the familiar five-step, sequential analysis
for Social Security disability determinations described in 20 C.F.R. § 416.1520. The ALJ
must evaluate:
(1)

whether the claimant engages in substantial gainful activity;

(2)

whether the claimant has a severe impairment;

(3)

whether the claimant’s impairment meets or equals one of the impairments
listed in the Social Security regulations;

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(4)

whether the claimant can perform his past work; and

(5)

whether the claimant was capable of performing work in the national
economy.

20 C.F.R. § 404.1520.
At step one of the analysis, the ALJ determined that Plaintiff did not engage in
substantial gainful activity as defined under the Act. 20 C.F.R § 404.1572(a)–(b) (activity
that involves “significant physical or mental activities” and is done for pay or profit).
At step two, the ALJ found that Plaintiff suffered from two severe impairments
through the date he was last insured, namely degenerative disc disease of the lumbar spine
and osteoarthritis. (R. 11.) He also suffered from a number of non-severe impairments,
including gastroesophageal reflux disease (“GERD”), hypertension, hyperlipidemia, and
obesity, with a body mass index (“BMI”) slightly above 30. (R. 11.) The ALJ found that
these conditions were non-severe because they had been responsive to treatment, the
vocationally relevant limitations they caused were no more than minimal, and they had not
lasted, nor were they expected to last, at a “severe” level for a continuous period of 12
months. (R. 12.)
At step three, the ALJ determined that Plaintiff’s spinal condition was not severe
enough to meet the factors of one of the presumptively disabling impairments, 20 C.F.R.
§§ 404.1520(d), 404.1525, 404.1526, because he could walk with a normal gait and he did
not require the assistance of a walker. (R. 13.)

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Before proceeding to step four, the ALJ determined that, with Plaintiff’s limitations,
his residual functional capacity (“RFC”) 2 was reduced to performing light work, except he
could occasionally climb ramps and stairs, but not ladders or scaffolds. (R. 19.) The
Dictionary of Occupational Titles (“DOT”) describes Plaintiff’s past vocational work as a
college faculty member as involving only light exertional activity. (R. 44.)
Therefore, at step four, the ALJ concluded that, even with the limitations
incorporated in Plaintiff’s RFC, he was capable of performing his past relevant work as a
college faculty member. (R. 20.) Plaintiff was thus found not disabled under the Social
Security Act and not eligible for disability insurance benefits. 3 (R. 16.)
The Social Security Administration’s Appeals Council denied Plaintiff’s petition
for review of the ALJ’s decision. (R. 1–5.) Plaintiff now seeks judicial review by this
Court. He claims that the ALJ’s determination that he was not disabled is not supported by
substantial evidence.
II.

Legal Standards
To succeed on his claim for disability insurance benefits, Plaintiff must show that

he became disabled before his date last insured, March 31, 2019, and that his disability
persisted for at least 12 consecutive months. See 20 C.F.R. §§ 404.130, 404.131; Hensley

An RFC is a measure of “the most [a claimant] can still do despite his limitations.” 20
C.F.R. § 416.945(a)(1).

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Because the ALJ concluded that Plaintiff could perform his past relevant work as a
college professor, she did not proceed to step five to determine if Plaintiff could adjust to
other work the numbers of which are significant in the national economy. Id. §
404.1520(a)(4)(v).
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v. Colvin, 829 F.3d 926, 929 (8th Cir. 2016) (a claimant must prove she was disabled some
time before the expiration of her insured status under Title II). The Social Security Act
defines disability as the “inability to engage in any substantial gainful activity” because of
a medically determinable physical or mental impairment. 42 U.S.C. § 423(d)(1)(A); see id.
§ 416(i)(1)(A); 20 C.F.R. § 404.1505(a).
Judicial review of the Commissioner’s denial of benefits is limited. The district
court “reverses the findings of the Commissioner only if they are unsupported by
substantial evidence or result from an error of law.” Nash v. Comm’r, Soc. Sec. Admin.,
907 F.3d 1086, 1089 (8th Cir. 2018) (citing 42 U.S.C. § 405(g)). “Substantial evidence is
less than a preponderance but is enough that a reasonable mind would find it adequate to
support the Commissioner's conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th
Cir. 2002) (citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). The reviewing
court must examine “evidence that detracts from the Commissioner’s decision as well as
evidence that supports it.” Id. (citing Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)).
The court may not reverse the Commissioner’s decision simply because substantial
evidence would support a different outcome or because the court would have decided the
case differently. Id. (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). In other
words, if it is possible to reach two inconsistent positions from the evidence and one of
those positions is that of the Commissioner, the reviewing court must affirm the decision.
Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

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III.

Discussion
Plaintiff asserts that the ALJ’s decision is not supported by substantial evidence.

(Dkt. No. 13 at 1.) More specifically, Plaintiff argues that the ALJ erroneously focused on
his statements about his health at the time of the hearings rather than his health during the
period for which he claims disability. (Id. at 1.) Plaintiff also maintains that the ALJ erred
by accepting the vocational expert’s testimony because it was based on statistics rather than
first-hand knowledge of Plaintiff’s condition. (Id.) The Court considers these arguments as
it reviews the Commissioner’s five-step analysis.
A.

Step One—Substantial Gainful Employment

At step one, the Commissioner must determine whether the claimant engages in
“substantial gainful activity”; if so, then the claimant is not disabled. 20 C.F.R.
§ 404.1520(a)(4)(i); McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011).
Here, the ALJ found that Plaintiff “did not engage in substantial gainful activity
during the period from his alleged onset date of June 25, 2018[,] through his date last
insured of March 31, 2019.” (R. 11.) Plaintiff cannot, and does not appear to, challenge
this finding, which in any event is favorable to him.
B.

Step Two—Severe Impairments

At step two, the Commissioner must determine whether the claimant has “a severe
medically determinable physical or mental impairment that meets the [required 12-month
duration], or a combination of impairments that is severe and meets the duration
requirement”; if the claimant does not have a severe impairment, the claimant is not
disabled. 20 C.F.R. § 404.1520(a)(4)(ii); McCoy, 648 F.3d at 611. To be severe, an
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impairment must “significantly limit[] [the claimant’s] physical or mental ability to do
basic work activities.” 20 C.F.R. § 404.1520(c).
Here, the ALJ found that, through the date last insured, Plaintiff had the following
severe impairments: “degenerative disc disease of the lumbar spine and osteoarthritis.”
(R. 11.) In addition, the ALJ found Plaintiff suffered from other, non-severe impairments,
namely gastroesophageal reflux disease (“GERD”), hypertension, hyperlipidemia, and
obesity. (Id.) Plaintiff, again, does not challenge these findings, which, as before, are
favorable to him.
C.

Step Three—Severe Impairments

At step three, the Commissioner must evaluate whether a claimant’s impairment
meets or equals one of the impairments listed in 20 C.F.R. part 404, subpart P, appendix 1
(commonly referred to as the “listings”). 20 C.F.R. § 404.1520(a)(4)(iii); McCoy, 648 F.3d
at 611. If a claimant has such an impairment, the Commissioner will find the claimant
disabled; if not, the Commissioner proceeds to the next step of the process. 20 C.F.R. §
404.1520(d); McCoy, 648 F.3d at 611.
Here, the ALJ found that Plaintiff’s lumbar degenerative disc disease did not
medically equal or exceed Listing 1.15 for disorders of the skeletal spine. Specifically,
factor D of the listing requires Plaintiff to show a documented medical need for a walker,
bilateral device, or wheeled device. (R. 13.) See 20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526. Plaintiff does not challenge this finding.
And, in any event, substantial evidence in the record supports the ALJ’s finding:
There are multiple medical records prior to Plaintiff’s last insured date that documented
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his ability to walk with a normal, non-antalgic gate. (R. 19, 631, 629, 642, 645, 649, 687,
699, 708, 713, 717, 721, 729, 735, 738.) The Court thus finds no error here.
D.

Step Four—Residual Functional Capacity & Past Relevant Work

At step four, the Commissioner assesses the claimant’s RFC, 20 C.F.R. §
404.1520(a)(4). The Commissioner then determines whether the claimant can return to his
or her past relevant work by comparing the claimant’s RFC with the physical and mental
demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1520(f); McCoy, 648 F.3d at 611. If the claimant retains the RFC to perform past
relevant work, then he or she is not disabled (and the analysis does not proceed further). 20
C.F.R. §§ 416.920(a)(4)(iv), 404.1520(f); McCoy, 648 F.3d at 611.
1.

Consideration of Plaintiff’s Subjective Complaints

An RFC must be “based on all the relevant evidence, including medical records,
observations of treating physicians and others, and claimant’s own description of her
limitations.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (citing Page, 484 F.3d at
1043). “It is the ALJ’s function to resolve conflicts among the opinions of various treating
and examining physicians. The ALJ may reject the conclusions of any medical expert,
whether hired by the claimant or the government if they are inconsistent with the record as
a whole.” Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001).
Pain from prolonged periods of sitting is the main, limiting symptom Plaintiff
alleges he endures from his severe impairment of degenerative disc disease. (R. 39.) The
ALJ found that this pain was not unrelenting as Plaintiff’s condition continued to improve
over the period between the alleged onset date and his hearings before the ALJ. (Id.)
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Specifically, in September 2018, Plaintiff reported only being able to sit for 30 minutes,
but by September 2020 he could sit for one hour without pain. (R. 608, 763.) Plaintiff’s
back pain continued to improve substantially. (Id.)
In any event, the main inconsistency between Plaintiff’s statements and the medical
record is his assertion that, after a first prolonged sitting followed by ambulation, he is then
able to continuously sit for only about 10 to 15 minutes before needing another brief
walking break. (R. 39.) Medical records of Plaintiff’s difficulty sitting show a selfassessment of only being able to sit for 30 minutes in September 2018, which increased to
one hour by September 2020. (R. 608, 763.) Plaintiff did not submit any medical opinions
in support of his testimonial statements.
The ALJ even adjusted her determination of Plaintiff’s RFC to only occasional
kneeling and crouching, based on observations from state agency medical consultants. See
Julin v. Colvin, 826 F.3d 1082, 1089 (8th Cir. 2016) (ALJ permissibly excluded greater
limitations from RFC after finding record was not consistent with degree of symptoms
alleged). Both state agency physicians supported their opinions with imaging and
noteworthy office visits related to Plaintiff’s lower back impairments. (R. 15, 42, 71–73,
83–85.) The findings by those experts were consistent with the record, which demonstrated
Plaintiff’s comfort in walking and standing, but difficulty with prolonged sitting. See
Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001) (“The ALJ may discount subjective
complaints of pain if inconsistencies are apparent in the evidence as a whole.”); Masterson
v. Barnhart, 363 F.3d 731, 739 (8th Cir. 2004) (ALJ properly discredited claimant’s pain
complaints, in part by noting that objective tests showed only mild to moderate
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abnormalities and that the claimant’s reported activities were inconsistent with extreme
pain complaints). The ALJ properly considered the entire record, including objective
medical records and Plaintiff’s subjective statements, in determining that Plaintiff could
perform a reduced range of light work with minor modifications, and that these limitations
did not preclude Plaintiff working at his past relevant employment as a college professor.
This quantity of persuasive evidence meets or exceeds the requirement that the
ALJ’s decision be supported by substantial evidence. Specifically, substantial evidence
supports the ALJ’s RFC finding and does not provide a basis for remand. See Despain v.
Berryhill, 926 F.3d 1024, 1028–29 (8th Cir. 2019) (ALJ’s consideration of treatment notes,
course of treatment, daily activities, and consultants’ opinions constituted substantial
evidence supporting RFC determination); see also Hamman v. Berryhill, 680 F. App’x 493,
495 (8th Cir. 2017) (per curiam) (even if ALJ erred by citing lack of objective medical
evidence in discrediting claimant’s complaints, reversal was not warranted, as ALJ’s
findings that claimant’s treatment history and daily activities were inconsistent with alleged
limitations provided substantial evidence to support adverse credibility determination).
Plaintiff’s argument that the ALJ erroneously focused on his health at the time of
the hearings rather than his health during the period for which he claims disability is also
without merit. To the contrary, the administrative record shows that the ALJ considered
Plaintiff’s health from the date of alleged disability through the hearing date. As just one
example, the ALJ adopted the opinions of the two state agency physicians “with minimal
modifications” because they were of “significant persuasive value.” (R. 19) Those opinions

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included summaries of evidence going back to the date of alleged disability itself, June 25,
2018 (R. 76; Dr. Mendonca); (R. 88; Dr. Ruiz).
2. Consideration of Vocational Expert’s Testimony
In considering a claimant’s RFC, the ALJ also may—but is not required to—use a
vocational expert’s testimony to formulate the claimant’s RFC when the vocational expert
responds to properly framed hypothetical questions that capture the “concrete
consequences” of the claimant’s limitations. Lacroix v. Barnhart, 465 F.3d 881, 889 (8th
Cir. 2006).
A hypothetical is properly framed “if it sets forth the impairments which are
accepted as true by the ALJ.” Kraus v. Saul, 988 F.3d 1019, 1025 (8th Cir. 2021). The
hypothetical does not need to use the specific diagnostic terms used in medical reports.
Lacroix, 465 F.3d at 889. A hypothetical must only contain the concentration, persistence,
or pace limitations to be sufficient. Newton v. Charter, 92 F. 3d 688, 695 (8th Cir. 1996).
“A hypothetical is not insufficient because it does not include all the health limitations
alleged by the claimant.” Kraus, 988 F.3d at 1027 (answer to hypothetical about “whether
a hypothetical person with the impairments [claimant] alleged could work . . . was not
substantial evidence”).
Here, the vocational expert’s testimony—although not required—also constitutes
substantial evidence because the ALJ’s first hypothetical was phrased using the
impairments she accepted as true and stated in the RFC. (R. 49.) It is not necessary for the
vocational expert to examine the claimant to give her opinion because the hypothetical was
supported by substantial evidence in the record as a whole. (R. 20.) And, the ALJ was not
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required to give evidentiary value to the second hypothetical since it posed a scenario that
was based on only Plaintiff’s allegations and was not supported by medical evidence. See
Kraus, 988 F.3d at 1025; Holley v. Colvin, 975 F. Supp. 2d 467, 484 (D.N.J. 2013) (“ALJ
was not required to accept the vocational expert’s testimony in response to other
hypothetical questions not supported by the record”).
Plaintiff argues that he is a statistical outlier and even if the experts conclude that,
statistically speaking, he can perform his job with his limited RFC with his pain, he is not
able to do so. (R. 47, 51). However, contrary to Plaintiff’s claim, the ALJ’s decision is not
statistically based; as discussed above, the ALJ made her RFC findings after reviewing the
record as a whole and in some cases (such as the restriction on kneeling and crouching)
tailoring the RFC to Plaintiff’s individual situation. Because the ALJ did not err in
formulating Plaintiff’s RFC, it follows that she also did not err in relying on the vocational
expert’s testimony that was based on that assessment. See Lacroix v. Barnhart, 465 F.3d
881, 889 (8th Cir. 2006) (ALJ’s hypothetical question to vocational expert need only
include limitations that ALJ finds are substantially supported by record as whole); Johnson
v. Astrue, 627 F.3d 316, 320-21 (8th Cir. 2010) (where medical evidence supported
limitations in RFC determination, hypothetical question to vocational expert using those
limitations was acceptable, and substantial evidence supported finding that claimant was
not disabled).
And, in any event, the vocational expert’s testimony was not necessary—and, thus,
irrelevant—here because the ALJ’s determination at step four—that Plaintiff was able to
perform his past relevant work—ended the inquiry. See Lewis v. Barnhart, 353 F.3d 642,
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648 (8th Cir. 2003) (“Vocational expert testimony is not required at step four where the
claimant retains the burden of proving she cannot perform her prior work.”).
In short, the Court finds that the ALJ’s decision is supported by substantial evidence
in the record. The ALJ properly posed hypotheticals to the vocational expert and also
properly considered the vocational expert’s testimony. There are no grounds for remand
here.
IV.

Order
Accordingly, based on the foregoing, and on all of the files, records, and

proceedings herein, IT IS HEREBY ORDERED THAT:
1.

The relief requested in Plaintiff Fatholah J.’s brief (Dkt. No. 13) is DENIED;

2.

Defendant Commissioner of Social Security Administration’s request to
affirm the Administration’s decision (Dkt. No. 15) is GRANTED;

3.

The Administration’s decision is AFFIRMED; and

4.

JUDGMENT SHALL BE ENTERED ACCORDINGLY.

Date: August 30, 2024

/s John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge

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