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Brown v. Berryhill

United States District Court, N.D. Iowa, Cedar Rapids Division

February 21, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         This case is before me on a Report and Recommendation (R&R) by the Honorable Kelly K.E. Mahoney, United States Magistrate Judge. See Doc. No. 16. Judge Mahoney recommends that I affirm the decision of the Commissioner of Social Security (the Commissioner) denying plaintiff Sandra Brown's applications for Social Security disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Brown filed timely objections (Doc. No. 17) to the R&R. The procedural history and relevant facts are set forth in the R&R and are repeated herein only to the extent necessary.


         A. Judicial Review of the Commissioner's Decision

         The Commissioner's decision must be affirmed “if it is supported by substantial evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006); see also 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 enough that a reasonable mind might accept as adequate to support a conclusion.” Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003). The Eighth Circuit explains the standard as “something less than the weight of the evidence and [that] allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994).

         To determine whether the Commissioner's decision meets this standard, the court considers “all of the evidence that was before the ALJ, but [it does] not re-weigh the evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers both evidence which supports the Commissioner's decision and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court “must search the record for evidence contradicting the [Commissioner's] decision and give that evidence appropriate weight when determining whether the overall evidence in support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).

         To evaluate the evidence in an appeal of a denial of benefits, the court must apply a balancing test to assess any contradictory evidence. Sobania v. Sec'y of Health & Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, “do[es] not reweigh the evidence presented to the ALJ, ” Baldwin, 349 F.3d at 555 (citing Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if, after reviewing the evidence, the court “find[s] it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the court] must affirm the [Commissioner's] denial of benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). This is true “even if [the court] might have weighed the evidence differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)). The court may not reverse the Commissioner's decision “merely because substantial evidence would have supported an opposite decision.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see also Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005).

         B. Review of Report and Recommendation

         A district judge must review a magistrate judge's R&R under the following standards:

Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to any portion of an R&R, the district judge must undertake a de novo review of that portion.

         Any portions of an R&R to which no objections have been made must be reviewed under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court judge] would only have to review the findings of the magistrate judge for clear error”). As the Supreme Court has explained, “[a] finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under a more-exacting standard even if no objections are filed:

Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

         III. THE R&R

         Brown alleged disability due to fibromyalgia, rheumatoid arthritis, osteoarthritis, cataracts, asthma, sleep apnea, diabetes, neuropathy and surgical thyroid removal. AR 31, 42. In support of her claim, Brown submitted residual functional capacity (RFC) opinions drafted by her treating physician, Kirk W. Kilburg, M.D., a consultative physician, Stanley J. Mathew, M.D., and examining psychologists Luke Hansen, Ph.D., and Harlan J. Stientjes, Ph.D. At issue are the ALJ's evaluation of those opinions, [1]whether ALJ erred in discounting Brown's subjective allegations, and whether the ALJ's RFC was supported by some medical evidence.

         A. Brown's Treating Physicians

         After setting forth the relevant facts, Judge Mahoney summarized the ALJ's assessment of Dr. Kilburg's mental and physical RFC opinions as follows:

The ALJ gave little weight to Dr. Kilburg's opinion at two different steps in the disability analysis.
In rejecting Dr. Kilburg's mental functioning assessment, the ALJ reasoned that “mental functioning . . . falls outside of [Dr. Kilburg's] area of expertise[, ] and he did not provide significant mental health treatment to [Brown].” AR 19. Brown argues that this is not a good reason to reject Dr. Kilburg's opinion and that she did receive significant mental health care from Dr. Kilburg. Doc. 12 at 10-11.
“[An] ALJ [i]s not required to give controlling weight to the opinions of treating physicians insofar as those opinions [a]re . . . outside the doctors' area of expertise.” Nicholson v. Berryhill, 695 Fed.Appx. 998, 999 (8th Cir. 2017 (unpublished per curiam) (citing Wildman v. Astrue, 596 F.3d 959, 965-67 (8th Cir. 2010)). Dr. Kilburg is not a licensed mental health professional. His opinion that Brown suffers from depression that causes several mental impairments, including a marked limitation in maintaining attention and concentration (AR 544-43), is thus outside of his expertise. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000).
Brown provides a lengthy list of citations by which she seeks to establish Dr. Kilburg's significant involvement in her mental health treatment. Doc. 12 at 11. For the most part, these records merely show that Brown's depression was listed as an “active problem” throughout the course of her treatment by Dr. Kilburg. AR 545, 548, 819, 905-06, 912, 918-19, 926, 933, 942, 947, 950, 954-55, 957-58, 960, 964, 971, 974. In only a few places do Dr. Kilburg's treatment notes comment substantively on Brown's mental health, and none support his finding of marked limitation in attention and concentration (indeed, the treatment notes in which Dr. Kilburg evaluated Brown in that category reflect normal findings). Prior to July 2011 (when Brown alleges her disability began), Dr. Kilburg prescribed medication to treat her depression, but she discontinued it. AR 339, 552, 967, see also AR 334, 342. In November 2013, Dr. Kilburg evaluated her mental status as good. AR 546. A note from January 27, 2014-the day Brown brought in disability forms to complete-states that Brown “[d]oes have a personality disorder as well as some chronic depression, ” but notes that “[t]h[e]se have . . . been fairly stable.” AR 954. Brown “report[ed] being a little depressed” in February 2014. AR 948. On January 23, 2015, despite Brown making subjective complaints of anxiety and depression, Dr. Kilburg found that her mood and mental health were “better today.” AR 894, 896-97. And in March and April of 2015, Dr. Kilburg found Brown to have normal mood, affect, judgment, thought content, behavior, cognition, and memory. AR 1075-76, 1083-84. In July 2015, he noted that she appeared down but also that her speech, cognition, and memory were normal. AR 1066-67. In sum, Dr. Kilburg's treatment records lend credence to the ALJ's finding that Brown did not suffer from significant mental-health limitations and that Dr. Kilburg did not provide significant mental-health treatment to Brown. The ALJ gave good reason for affording no weight to Dr. Kilburg's opinions of the limitations caused by Brown's mental impairments. See Craig, 212 F.3d at 436 (affirming the ALJ's decision to discount primary care physician's opinion that claimant suffered from moderate depression because the physician “[wa]s not a licensed mental health professional, ” his treatment notes reflected the problem was reasonably controllable, and claimant did not allege depression as a basis for her claim in her initial disability report).
The ALJ also assigned little weight to Dr. Kilburg's opinion that Brown's capacity to stand, walk, and sit are limited to less than two hours in an eight-hour workday; that she must shift between sitting, standing, and lying down as needed; and that she can lift less than ten pounds (Dr. Kilburg chose the most restrictive option in every category on the form he filled out). AR 26, 542. The ALJ noted that Dr. Kilburg found greater restrictions than Brown alleged in the administrative hearing and further concluded that Dr. Kilburg based his opinion on Brown's discredited subjective complaints (AR 26), which is a proper basis for discounting the opinion of a treating physician. See Vance v. Berryhill, 860 F.3d 1114, 1120-21 (8th Cir. 2017). Brown essentially admits that there is no objective medical evidence or findings in Dr. Kilburg's treatment notes to support his opinion (Doc. 12 at 12-13) but argues that neither is there any evidence to support that Dr. Kilburg based his opinion on Brown's subjective complaints. Dr. Kilburg completed his RFC opinion during an appointment with Brown present. See AR 954-56. As discussed above, Dr. Kilburg opined that Brown suffered from marked limitations in concentrating and paying attention, as she had routinely reported, even though his objective psychological examinations were mostly normal. AR 544, 1066-67, 1075-76, 1083-84. The ALJ could have reasonably found from this evidence that Dr. Kilburg relied on Brown's subjective complaints when evaluating her physical RFC, as he did when evaluating her mental RFC.
Moreover, as the ALJ noted, the objective medical evidence does not support Dr. Kilburg's findings, which further suggests he relied on Brown's subjective complaints. AR 23-26. Dr. Kilburg's physical RFC assessment recognized that Brown suffers from diabetes and related neuropathy, and he perhaps limited his found limitations in part to those impairments. AR 542. The ALJ concluded, however, that clinical evidence from Dr. Kilburg and other physicians demonstrated Brown “did not experience substantial complications from her diabetes, ” aside from “very mild” neuropathy. AR 23. In August 2012, neurological testing performed by a consulting physician produced normal results. AR 437. After more neurological testing in September 2014, a specialist described Brown's neuropathy as “very mild” and noted that Brown displayed “no obvious atrophy of the lower extremities.” AR 1003-05. In November 2014, Dr. Kilburg noted that Brown's gait and station were normal. AR 901. Later, in a March 2015 examination, he found Brown to exhibit normal strength and no sensory defects. AR 1076. During a July 2015 exam, Dr. Kilburg found that Brown's blood sugar levels were “adequately controlled” and that she was not suffering from any diabetes complications, expressly noting that Brown was not suffering from diabetic neuropathy. AR 1060-61.
Dr. Kilburg also attributed Brown's limitations to chronic pain. AR 542. The ALJ recognized that Brown has primarily complained of pain in her knees and back. AR 24-25. But x-rays of Brown's left knee have shown minimal degenerative changes that “would not indicate a reason for . . . significant pain, ” and x-rays of her right knee have shown mild to moderate changes. AR 24, 850-53, 921, 923, 930-31, 941. Although Dr. Kilburg saw Brown for knee pain in July and November 2014, he observed normal gait and station. AR 898, 901, 911, 914. With regard to Brown's back, x-rays and MRIs from 2014 have shown only mild degenerative changes of the spine. AR 24, 868-71, 873-74, 908-09. And as the ALJ noted, Brown has not displayed clinical signs associated with disabling back pain: physical exams by Dr. Kilburg have revealed normal strength, no swelling or tenderness, and (as already mentioned) normal gait and station. AR 901, 907, 914, 1059, 1066-67, 1076, 1084. An August 2014 physical examination by a neurosurgical consultant (at Dr. Kilburg's request) revealed negative straight leg testing, and the doctor also opined that Brown did not appear “particularly in pain.” AR 987. Substantial evidence supports the ALJ's determination that Dr. Kilburg relied on Brown's subjective complaints in determining her physical RFC.
The ALJ also noted that Brown's own statements contradicted Dr. Kilburg's assessment (AR 26), which constitutes another valid reason to give less weight to a treating physician's opinion. See Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (finding claimant's admitted daily activities belied the physical limitations assigned by a treating doctor's physician). Brown testified that “if I can try to keep my mind on the task [of standing], which is hard, I can probably get out two hours, but them two hours like would be normal for you guys, it would feel like 14 hours that I worked.” AR 1156-57. Although this statement is not necessarily inconsistent with Dr. Kilburg's finding that Brown could not stand two hours in an eight-hour workday (as found by the ALJ), other statements more clearly contradict the limitations imposed by Dr. Kilburg. For instance, in disability questionnaires, Brown reported being able to shop in stores for up to four hours at a time (AR 204), to cook for up to six hours (AR 225), and to spend six to eight hours doing housework once a month (AR 225), suggesting that she is able to stand or walk for at least two hours in a day (contrary to Dr. Kilburg's opinion). She also reported a daily routine that involved sitting on the couch all morning, getting up only to fix breakfast and clean her dishes, and watching television daily for two hours, which is inconsistent with Dr. Kilburg's opinion that she could not sit for two hours at a time. AR 200, 227. Also, Dr. Kilburg opined that Brown could not lift ten pounds, but she reported in a January 2013 pain questionnaire that she could lift ten pounds. AR 200, 542. Especially in light of the standard of review, substantial evidence supports that Dr. Kilburg's RFC opinion is inconsistent with Brown's own description of her limitations.

Doc. No. 16 at 7-11. Thus, Judge Mahoney concluded that the ALJ gave sufficient “good reasons” to discount Dr. ...

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