Doerr v. Kijakazi

Filing 20

ORDER denying 14 SSA Brief; granting 16 SSA Brief. Signed by Magistrate Judge Tony N. Leung on 3/7/2025. (Written Opinion) (EPD)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Jamie D.

Case No. 23-cv-3032 (TNL)
Plaintiff,
ORDER

v.
Leland Dudek 1,
Acting Commissioner of Social Security
Administration,
Defendant.

Kirk C. Thompson, Law Office of Kirk C. Thompson, 1201 Marquette Avenue, Suite
110, Minneapolis, MN 55403 and Wes Kappelman, Kappelman Law Firm, P.O. Box
1792, Ames, IA 50010 (for Plaintiff); and
Ana H. Voss, United States Attorney’s Office, 300 South Fourth Street, Suite 600,
Minneapolis, MN 55415; James D. Sides, Linda H. Green, and Sophie Doroba, Social
Security Administration, Office of Program Litigation, Office 4, 6401 Security
Boulevard, Baltimore, MD 21235 (for Defendant).
I. INTRODUCTION
Plaintiff Jamie D. challenges Defendant Commissioner of Social Security’s denial
of his application for disability insurance benefits under Title II of the Social Security Act,
42 U.S.C. § 401. The parties have consented to a final judgment from the undersigned
United States Magistrate Judge in accordance with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73,
and D. Minn. LR 72.1(c).

Lee Dudek is currently serving as the Acting Commissioner of Social Security. Pursuant to Federal Rule of Civil
Procedure 25(d), he is automatically substituted as Defendant in this suit. See Fed. R. Civ. P. 25(d).
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Pursuant to the Federal Rules of Civil Procedure’s Supplemental Rules governing
actions seeking judicial review of the Commissioner’s decision, this action “is presented
for decision by the parties’ briefs.” Fed. R. Civ. P. Supp. SS Rule 5. Plaintiff filed a brief,
see Pl.’s SSA Brief, ECF No. 14, requesting the Court to reverse the Commissioner’s
decision and remand. Defendant filed a brief, see Def.’s SSA Brief, ECF No. 16, requesting
the Court to affirm the Commissioner’s decision.
For the reasons that follow, the Court denies Plaintiff’s request for relief, grants
Defendant’s request for relief, and affirms the Commissioner’s decision.
II. PROCEDURAL HISTORY
In his application for disability insurance benefits, Plaintiff claimed that he has been
disabled since November 9, 2018, due to chronic abdominal pain, hernias, diverticulitis,
and anxiety. Tr. 269, 451, ECF No. 13. Plaintiff’s application was denied initially and again
upon reconsideration. Tr. 149-51, 154. Plaintiff then requested a hearing before an
administrative law judge (“ALJ”) and a hearing was held in January 2023 after which the
ALJ issued an unfavorable decision to Plaintiff in February 2023. Tr. 56-70, 78-105, 15960. The Appeals Council denied Plaintiff’s request for review. Tr. 1-4. As a result, the
ALJ’s February 2023 decision became the final decision of the Commissioner subject to
judicial review. See 42 U.S.C. § 405(g). Plaintiff seeks review by this Court.
III. THE ALJ’s DECISION
The ALJ found that Plaintiff satisfied the insured status requirements of the Social
Security Act through March 31, 2023 and has not engaged in substantial gainful activity
since the alleged onset date of November 9, 2018. Tr. 58. The ALJ further found that
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Plaintiff has the following severe impairments: left knee degenerative joint disease; left
shoulder degenerative joint disease status post-surgery; bilateral hip degenerative joint
disease; mild lumbar degenerative disc disease status post-surgery; chronic abdominal pain
status post procedures for diverticulitis and hernias; and obesity. Tr. 59. The ALJ next
concluded that Plaintiff does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments under 20 C.F.R.
Part 404, Subpart P, Appendix 1. Tr. 61.
As for Plaintiff’s residual functional capacity, the ALJ found that Plaintiff has the
residual functional capacity to perform light work (lift/carry, push/pull up to 20 pounds
occasionally and 10 pounds frequently; sit for about 6 hours, and stand/walk for about 6
hours total in an 8-hour workday) except that Plaintiff is limited to frequent climbing,
stooping, and crawling and is precluded from reaching overhead with the left arm and
exposure to extreme cold or hazards. Tr. 63. The ALJ next determined that Plaintiff is not
able to perform any past relevant work, Tr. 68, but can perform other jobs in the national
economy that exist in significant numbers. Tr. 69. Accordingly, the ALJ found that Plaintiff
was not disabled from November 9, 2018 through the date of the ALJ’s February 2023
decision. Tr. 69-70.
IV. ANALYSIS
A. Legal Standards
Disability benefits are available to individuals who are determined to be under a
disability. 42 U.S.C. §§ 423(a)(1), 1381a; accord 20 C.F.R. § 404.315. An individual is
considered to be disabled if he is unable “to engage in any substantial gainful activity by
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reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C.
§ 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a). This standard is met when a severe
physical or mental impairment, or impairments, renders the individual unable to do his
previous work or “any other kind of substantial gainful work which exists in the national
economy” when taking into account his age, education, and work experience. 42 U.S.C. §
423(d)(2)(A); accord 42 U.S.C. § 1382c(a)(3)(B); see also 20 C.F.R. § 404.1505(a).
Disability is determined according to a five-step, sequential evaluation process. 20
C.F.R. § 404.1520(a)(4).
To determine disability, the ALJ follows the familiar five-step
process, considering whether: (1) the claimant was employed;
(2) []he was severely impaired; (3) h[is] impairment was, or
was comparable to, a listed impairment; (4) []he could perform
past relevant work; and if not, (5) whether []he could perform
any other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). In general, the burden of proving
the existence of disability lies with the claimant. 20 C.F.R. § 404.1512(a). Once the
claimant demonstrates that he cannot perform past work due to a disability, “the burden of
proof shifts to the Commissioner to prove, first that the claimant retains the residual
functional capacity to do other kinds of work, and, second that other work exists in
substantial numbers in the national economy that the claimant is able to do.” Nevland v.
Apfel, 204 F.3d 853, 857 (8th Cir. 2000).

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This Court reviews whether the ALJ’s decision is supported by substantial evidence
in the record. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). “[T]he threshold for such
evidentiary sufficiency is not high.” Id. “It means—and means only—such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
(quotation omitted); see, e.g., Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018)
(defining “substantial evidence as less than a preponderance but enough that a reasonable
mind would find it adequate to support the conclusion” (quotation omitted)).
This standard requires the Court to “consider both evidence that detracts from the
[ALJ’s] decision and evidence that supports it.” Boettcher v. Astrue, 652 F.3d 860, 863
(8th Cir. 2011). The ALJ’s decision “will not [be] reverse[d] simply because some evidence
supports a conclusion other than that reached by the ALJ.” Id. Thus, “[i]f, after reviewing
the record, the court finds it is possible to draw two inconsistent positions from the evidence
and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s
decision.” Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012). “The court must affirm
the [ALJ’s] decision if it is supported by substantial evidence on the record as a whole.”
Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016) (quotation omitted).
B. The ALJ’s Credibility Assessment
Plaintiff challenges the ALJ’s credibility determination of Plaintiff’s testimony and
alleged symptoms. See Pl.’s SSA Brief at 32-38. “To assess [Plaintiff’s] credibility, the
ALJ [must] consider all of the evidence, including prior work records and observations by
third parties and doctors regarding daily activities, the duration, frequency, and intensity
of pain, precipitating and aggravating factors, the dosage, effectiveness, and side effects of
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medication, and functional restrictions.” Lowe v. Apfel, 226 F.3d 969, 971-72 (8th Cir.
2000) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). These
considerations are known as the Polaski factors. Bryant v. Colvin, 861 F.3d 779, 782 (8th
Cir. 2017). The ALJ, however, is not required to “explicitly discuss each factor.” Schwandt
v. Berryhill, 926 F.3d 1004, 1012 (8th Cir. 2019) (citation omitted). The Court “will defer
to credibility determinations that are supported by good reasons and substantial evidence.”
Id. “Subjective complaints may be discounted if there are inconsistencies in the evidence
as a whole.” Polaski, 739 F.2d at 1322. “[A]n ALJ is entitled to make a factual
determination that a claimant’s subjective pain complaints are not credible in light of
objective medical evidence to the contrary.” Gonzales v. Barnhart, 465 F.3d 890, 895 (8th
Cir. 2006) (quotation omitted).
Substantial evidence supports the ALJ’s determination that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely
consistent with the medical evidence and other evidence in the record.” Tr. 65. The ALJ
complied with the regulations and considered inconsistencies between Plaintiff’s
complaints and the medical record. See Tr. 64-68. For example, the ALJ considered
Plaintiff’s own alleged symptoms, obesity, procedures, treatments, exam history, and the
effect of his medication regimen and concluded that Plaintiff’s subjective complaints were
inconsistent with clinical notes showing pain improvements and increased daily living
activities. See Tr. 64-67; see e.g., Tr. 835, 841, 911, 917 (treatment notes from 2020
showing Plaintiff’s pain manageable with medication regimen which allowed for increased
daily living activities, physical therapy increased strength, and pain reported as stable); Tr.
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1144 (treatment notes from 2021 showing 60% of pain relief from medication regimen);
Tr. 1622 (treatment notes from 2022 showing increased activity and improvements in
pain).
Plaintiff takes issue with the ALJ’s lack of an explicit list of activities of daily living
in the decision and points to the function reports to argue that the listed activities in the
function reports were consistent with Plaintiff’s subjective complaints. See Pl.’s SSA Brief
at 34. As discussed above, a careful review shows that the ALJ’s decision considered and
cited to clinical notes stating Plaintiff’s daily activities increased which was inconsistent
with Plaintiff’s subjective complaints. See Reece v. Colvin, 834 F.3d 904, 909 (8th Cir.
2016) (“A lack of complaints to a treating physician detracts from a claimant’s allegations
of a disabling impairment.”). Some of the function reports 2 Plaintiff points to contain
Plaintiff’s subjective complaints, see Tr. 402-09, however, “statements about your pain or
other symptoms will not alone establish that you are disabled.” 20 C.F.R. § 404.1529(a);
see 42 U.S.C. § 423(d)(5)(A) (“An individual’s statement as to pain or other symptoms
shall not alone be conclusive evidence of disability.”). Again, the ALJ must “consider
whether there are any inconsistencies in the evidence and the extent to which there are any
conflicts between [Plaintiff’s] statements and the rest of the evidence, including
[Plaintiff’s] history, the signs and laboratory findings, and statements by [Plaintiff’s]
medical sources or other persons about how [Plaintiff’s] symptoms affect [Plaintiff].” 20
C.F.R. § 404.1529(c)(4); see SSR 16-3p, 2017 WL 5180304. Plaintiff also points to two

The other function report completed by Plaintiff’s fiancé was properly considered and rejected by the ALJ. See Tr.
68.

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medical opinions to argue that both of those medical opinions are consistent with Plaintiff’s
subjective complaints. See Pl.’s SSA Brief at 33-36. The Court rejects this argument
because, as discussed further below, the ALJ properly found those medical opinions
unpersuasive. See Tr. 67.
In sum, the ALJ complied with the regulations. The Court concludes that good
reasons and substantial evidence supports the ALJ’s creditability assessment.
C. The ALJ’s Evaluation of Medical Opinion Evidence
Next, Plaintiff challenges the ALJ’s evaluation of two medical opinions. See Pl.’s
SSA Brief at 38-41. Plaintiff specifically argues that the ALJ committed legal error by only
evaluating the medical opinions for supportability and consistency and not all the factors
the regulations require the ALJ to consider. Id. at 39-40.
In evaluating the persuasiveness of medical opinions, an ALJ must consider “(1)
whether they are supported by objective medical evidence, (2) whether they are consistent
with other medical sources, (3) the relationship that the source has with the claimant, (4)
the source’s specialization, and (5) any other relevant factors.” Bowers v. Kijakazi, 40 F.4th
872, 875 (8th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)). “The first two factors—
supportability and consistency—are the most important.” Id. (citing 20 C.F.R. §
404.1520c(a)). As for the other factors, the ALJ “may, but [is] not required to, explain how
[he] considered the factors in paragraphs (c)(3) and through (c)(5) . . . when [he]
articulate[s] how [he] consider[s] medical opinions and prior administrative medical
findings.” 20 C.F.R. § 404.1520c(b)(2).

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Upon this Court’s review, the ALJ’s evaluation of the opinion evidence did not
constitute a legal error. Contrary to Plaintiff’s assertion, the regulations do not require the
ALJ to explain how he considered the factors under paragraphs (c)(3) through (c)(5), the
ALJ must only consider those factors. The ALJ’s decision explicitly provides that he
“considered the medical opinion(s) and prior administrative medical finding(s) in
accordance with the requirements of 20 C.F.R. [§] 404.1520(c).” Tr. 64. Therefore, the
ALJ complied with the regulations. And when the ALJ does not find medical opinions to
be supported and consistent with the record, which is the case here, “the ALJ [is] not
required to articulate how the other factors were considered.” Michael B. v. Kijakazi, No.
21-cv-1043 (NEB/LIB), 2022 WL 5119107, at *6 n.5 (D. Minn. July 20, 2022) (citing 20
C.F.R. § 404.1520c(b)(2)-(3)), report and recommendation adopted as modified, 2022 WL
4463901 (D. Minn. Sept. 26, 2022). 3
D. The ALJ’s Development of the Record
Plaintiff’s last challenge focuses on the ALJ’s duty to fully and fairly develop the
record. See Pl.’s SSA Brief at 41-45. Plaintiff specifically claims that the ALJ erred by not
ordering a consultative examination “on how the combination of [Plaintiff’s] impairments
limited his ability to work.” Id. at 42.

In addition, the ALJ’s supportability and consistency analysis of the two medical opinions at issue complied with
the regulations. Substantial evidence in the record supports the ALJ’s finding, see Tr. 67 (citing Tr. 1124, 1800-02,
1123, 1534-35), that the two medical opinions at issue are unpersuasive because both took the form of checked boxes,
lacked explanations, and are inconsistent with the record. See Nolen v. Kijakazi, 61 F.4th 575, 577 (8th Cir. 2023)
(finding “[t]he opinion’s bare, formulaic conclusion presumptively warranted little evidentiary weight because it was
rendered on a check-box and fill-in-the-blank form” (quotation omitted)); Thomas v. Berryhill, 881 F.3d 672, 675 (8th
Cir. 2018) (finding assessments to have “little evidentiary value” when they “consist of nothing more than vague,
conclusory statements—checked boxes, circled answers, and brief fill-in-the-blank responses,” and when they “cite
no medical evidence and provide little to no elaboration”).
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“Well-settled precedent confirms that the ALJ bears a responsibility to develop the
record fairly and fully, independent of the claimant’s burden to press his case.” Snead v.
Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). However, “[a]n ALJ need not request a
consultative examination when []he has sufficient information to make an informed
decision.” Brent Z. v. Kijakazi, No. 22-cv-511 (JWB/JFD), 2023 WL 1110449, at *9 (D.
Minn. Jan. 30, 2023) (citing McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011)), report
and recommendation adopted, 2023 WL 2414594 (D. Minn. Mar. 8, 2023).
The record contains substantial evidence to allow for the ALJ to make an informed
decision. See Tr. 63-68. More specifically, the record contained Plaintiff’s testimony,
information on his workers compensation, function reports completed by him and his
fiancé, as well as numerous clinical notes from treating physicians, primary care providers,
and physical therapists. Results from treatments include procedures, physical therapy, and
medication plans. The record is also comprised of an independent medical evaluation,
medical opinions from a treating physician, physical therapist, and state agency medical
consultants. The above constitutes substantial evidence to allow the ALJ to make an
informed decision. See Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001) (finding
medical reports from treating physicians, consulting physicians, and psychologists; testing
results from medical exams; disability reports; supplemental disability outlines and
questionnaires; and hearing transcripts to be substantial evidence for an ALJ to reach an
informed decision).
Furthermore, “reversal due to failure to develop the record is only warranted where
such failure is unfair or prejudicial.” Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995).
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Plaintiff has not made the required prejudice showing and this is the first time Plaintiff has
raised his lack of evidence argument which “suggests that any additional evidence would
have been minimally useful.” Brent Z., 2023 WL 1110449, at *10; see Shannon, 54 F.3d
at 488 (“Although the ALJ has a duty to develop the record despite the claimant’s
representation by counsel, the fact that Shannon’s counsel did not obtain (or, so far as we
know, try to obtain) the items Shannon now complains of suggests that these alleged
treatments have only minor importance.”).
At the hearing, the ALJ explicitly asked: “Is the record complete at this time?” to
which Plaintiff’s counsel replied that there was a missing note from a physical therapist
but conceded that the note was not consequential. See Tr. 82. The ALJ nevertheless kept
the record open for an additional 14 days for counsel to submit the note and indicated he
would further extend the deadline if requested. See Tr. 82-83. Further, the Appeals
Council’s denial of review noted that the additional records submitted did not relate to the
period at issue and therefore concluded that the additional records did not affect the ALJ’s
decision. See Tr. 2. There is no evidence before the Court to suggest that a consultative
exam should have been ordered by the ALJ and the record in this matter contains
substantial evidence to support the ALJ’s decision. See Anderson v. Shalala, 51 F.3d 777,
779 (8th Cir. 1995) (“An ALJ is permitted to issue a decision without obtaining additional
medical evidence so long as other evidence in the record provides a sufficient basis for the
ALJ’s decision.”).

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V. CONCLUSION
Based upon the record, memoranda, and proceedings herein, and for the reasons
stated above, IT IS HEREBY ORDERED that:
1. Plaintiff’s request for relief, ECF No. 14, is DENIED.
2. Defendant’s request for relief, ECF No. 16, is GRANTED.
3. The Commissioner’s decision is AFFIRMED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Date: March 7, 2025

s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Jamie D. v. Dudek,
Case No. 23-cv-3032 (TNL)

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