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Knibbe v. Berryhill

United States District Court, N.D. Iowa, Western Division

May 16, 2019

SHAWN ALAN KNIBBE, Claimant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Mark A. Roberts, United States Magistrate Judge

         Shawn Alan Knibbe (“Claimant”), seeks judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying his application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34 of the Social Security Act. Claimant contends that the Administrative Law Judge (“ALJ”) erred in determining that he was not disabled. For the reasons that follow, I recommend that the District Court affirm the Commissioner's decision.

         I. BACKGROUND

         I adopt the facts set forth in the Parties' Joint Statement of Facts (Doc. 16) and only summarize the pertinent facts here. This is an appeal from a denial of Claimant's request for disability insurance benefits (“DIB”) and supplemental security income (“SSI”).

         Claimant was born on January 13, 1969. (AR[1] at 32.) Claimant has an associate degree in automotive mechanics. (Id. at 51.) The ALJ found Claimant “has at least a high school education and is able to communicate in English.” (Id. at 32.) Claimant allegedly became disabled due to Parkinson's disease, shoulder pain, and lack of strength. (Id. at 303.) He was 48-years-old at the time of the ALJ's original decision on October 13, 2017. (Id. at 21-33.) Claimant filed his initial claim on December 9, 2014. (Id. at 24.) Claimant was initially denied benefits on April 29, 2015. (Id. at 153-62.) Claimant filed for reconsideration on May 12, 2015, and was again denied on August 10, 2015. (Id. at 164-76.) Claimant filed a Request for Hearing on September 21, 2015. (Id. at 179.) A hearing was held on June 7, 2017 in Omaha, Nebraska[2] with Claimant; his then-attorney, Hannah M. Vellinga; vocational expert Holly Berquist Neal; and ALJ David G. Buell present. (Id. at 39-90.) Claimant and the vocational expert both testified. (Id. at 46-89.)

         The ALJ issued his decision denying Claimant benefits on October 13, 2017. (Id. at 21-33.) On November 27, 2017, Claimant filed a Request for the Appeals Council to review the ALJ's decision. (Id. at 259.) On May 18, 2018, the Appeals Council found there was no basis to review the ALJ's decision. (Id. at 1.) Accordingly, the ALJ's decision stands as the final administrative ruling in the matter and became the final decision of the Commissioner. See 20 C.F.R. § 416.1481. On July 23, 2018, Claimant timely filed a complaint in this Court. (Doc. 4.) On January 10, 2019, the Honorable Leonard T. Strand, Chief United States District Court Judge, referred the case to me for a Report and Recommendation.

         II. DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

         A disability is the “inability to engage in any substantial gainful activity by 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), 1382c(a)(3)(A). A claimant has a disability when, due to physical or mental impairments, the claimant

is not only unable to do [the claimant's] previous work but cannot, considering [the claimant's] age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . in significant numbers either in the region where such individual lives or in several regions of the country.

Id. §§ 423(d)(2)(A), 1382c(a)(3)(B). A claimant is not disabled if he or she is able to do work that exists in the national economy, but is unemployed due to an inability to find work, lack of options in the local area, technological changes in a particular industry, economic downturns, employer hiring practices, or other factors. Id. § 404.1566(c).

         To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows the five-step sequential evaluation process outlined in the regulations. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). At steps one through four, the claimant has the burden to prove he or she is disabled; at step five, the burden shifts to the Commissioner to prove there are jobs available in the national economy. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009).

         At step one, the ALJ will consider whether a claimant is engaged in “substantial gainful activity.” Id. If so, the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i). “Substantial activity is significant physical or mental work that is done on a full- or part-time basis. Gainful activity is simply work that is done for compensation.” Dukes v. Barnhart, 436 F.3d 923, 927 (8th Cir. 2006) (citing Comstock v. Chater, 91 F.3d 1143, 1145 (8th Cir. 1996); 20 C.F.R. § 416.972(a), (b)).

         If the claimant is not engaged in substantial gainful activity, at step two, the ALJ decides if the claimant's impairments are severe. 20 C.F.R. § 416.920(a)(4)(ii). If the impairments are not severe, then the claimant is not disabled. Id. An impairment is not severe if it does not significantly limit a claimant's “physical or mental ability to do basic work activities.” Id. § 416.920(c). The ability to do basic work activities means the ability and aptitude necessary to perform most jobs. These include

(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting.

Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (quotation omitted) (numbers added; internal brackets omitted).

         If the claimant has a severe impairment, at step three, the ALJ will determine the medical severity of the impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment meets or equals one of the impairments listed in the regulations (“the listings”), then “the claimant is presumptively disabled without regard to age, education, and work experience.” Tate v. Apfel, 167 F.3d 1191, 1196 (8th Cir. 1999).

         If the claimant's impairment is severe, but it does not meet or equal an impairment in the listings, at step four, the ALJ will assess the claimant's residual functional capacity (“RFC”) and the demands of the claimant's past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). RFC is what the claimant can still do despite his or her limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing 20 C.F.R. §§ 404.1545(a), 416.945(a)). RFC is based on all relevant evidence and the claimant is responsible for providing the evidence the Commissioner will use to determine the RFC. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). “Past relevant work” is any work the claimant performed within the fifteen years prior to his or her application that was substantial gainful activity and lasted long enough for the claimant to learn how to do it. 20 C.F.R. § 416.960(b)(1). If a claimant retains enough RFC to perform past relevant work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).

         At step five, if the claimant's RFC will not allow the claimant to perform past relevant work, then the burden shifts to the Commissioner to show there is other work the claimant can do, given the claimant's RFC, age, education, and work experience. Id. §§ 416.920(a)(4)(v), 416.960(c)(2). The ALJ must show not only that the claimant's RFC will allow the claimant to do other work, but also that other work exists in substantial numbers in the national economy. Eichelberger, 390 F.3d at 591 (citation omitted).

         A. The ALJ'S Findings

         The ALJ made the following findings at each step with regard to Claimant's disability status:

         At step one, the ALJ found that Claimant had not engaged in substantial gainful activity since his alleged onset date. (AR at 26.)

         At step two, the ALJ found that Claimant suffered from the following severe impairments: Parkinson's disease, bilateral shoulder degenerative joint disease, and a cardiac impairment. (Id.)

         At step three, the ALJ found that none of Claimant's impairments met or equaled a presumptively disabling impairment listed in the regulations, specifically listings in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1526, 416.920(d), 416.925 and 416.926). (Id. at 27.)

         At step four, the ALJ found that Claimant had the following RFC:

Claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and 416.967(a), except the following: he remains unable to frequently push and pull, reach overhead, handle and finger. He can occasionally stop, kneel, crouch, and crawl. He is unable to climb ladders and he should avoid exposures to hazards such as unprotected heights and the operation of motor vehicles. He cannot perform work that requires exposure to sustained and concentrated extreme temperatures or vibration.

(Id.) Based on this RFC, the ALJ found at step four that Claimant could not perform his past relevant work as an automobile parts counter clerk, tractor trailer truck driver, or automobile mechanic. (Id. at 31.)

         At step five, the ALJ found that alternative work existed in significant numbers in the national economy as a document preparer, telephone quote clerk, and addressing clerk. (Id. at 32.) Therefore, the ALJ concluded that Claimant was not disabled. (Id. at 33.)

         B. The Substantial Evidence Standard

         The ALJ's decision must be affirmed “if it is supported by substantial evidence on the record as a whole.” Moore, 572 F.3d at 522. “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). The court cannot disturb an ALJ's decision unless it falls outside this available “zone of choice” within which the ALJ can decide the case. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (citation omitted). The decision is not outside that zone of choice simply because the court might have reached a different decision. Id. (citing Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001)); Moore, 572 F.3d at 522 (holding that the court cannot reverse an ALJ's decision merely because substantial evidence would have supported an opposite decision).

         In determining whether an ALJ's decision meets this standard, the court considers all the evidence in the record, but does not reweigh the evidence. Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). A court considers both evidence that supports the ALJ'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 [ALJ'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)).

         C. Duty to Develop the Record

          The administrative hearing is a non-adversarial proceeding, and the ALJ has a duty to “fully develop the record.” Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). Because the ALJ has no interest in denying Social Security benefits, the ALJ must act neutrally in developing the record. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 410 (1971)); Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994) (opining that “[t]he goals of the [ALJ] and the advocates should be the same: that deserving claimants who apply for benefits receive justice”) (quoting Sears v. Bowen, 840 F.2d 394, 402 (7th Cir. 1988)) (bracketed information added).

         III. DISCUSSION

         Claimant alleges that he is entitled to a reversal and an award of benefits, or in the alternative to have his case remanded because (1) the ALJ improperly weighed the medical evidence in the record, (2) the ALJ improperly considered Claimant's subjective complaints, and (3) the ALJ based his RFC on an improper hypothetical question posed to the vocational expert during the hearing. I will address each of Claimant's arguments, in turn.

         A. The ALJ properly weighed the medical evidence.

         Claimant argues that the ALJ improperly weighed the medical evidence in the record. Specifically, Claimant asserts that the ALJ erred in “rejecting the opinions of the treating physicians and relying upon the opinions of the non-examining doctors.” (Doc. 17 at 3.) Claimant argues that the ALJ not only rejected the Claimant's treating physicians' opinions that Claimant was disabled, but also rejected the state agency reviewing physicians' opinions that he could do light work in favor of the ALJ's own unsupported opinion that that Claimant could do sedentary work. (Id. at 5.) Claimant also insists that his “testimony is consistent with limitations and symptoms contained in” his medical records. (Id.) In his reply memorandum, Claimant also seems to assert for the first time that the ALJ failed to mention the treatment notes of Dr. Bhatti, one of Claimant's physicians. (Doc. 19 at 1 ¶ 2.)

         Dr. Case, Dr. Bertoni, and Dr. Bhatti are all “treating sources” because they all have provided Claimant with “medical treatment or evaluation” and have had “an ongoing treatment relationship” with Claimant.[3] See 20 C.F.R. § 404.1527(a)(2). An ALJ's RFC must ordinarily be supported by some medical evidence in the record. See Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007). “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.” Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001)); Martin v. Berryhill, No. 1:18-CV-00004 JM/PSH, 2019 WL 138655, at *6 (E.D. Ark. Jan. 8, 2019) (explaining that “the ALJ must weigh the various medical opinions in the record”) (citation omitted), R. & R. adopted, 2019 WL 334202 (E.D. Ark. Jan. 25, 2019). “Where an ALJ does not rely on opinions from treating or examining sources, there must be some other medical evidence in the record for the ALJ's opinion to be supported by substantial medical evidence on the record.” Shuttleworth v. Berryhill, No. 17-CV-34-LRR, 2017 WL 5483174, at *7 (N.D. Iowa Nov. 15, 2017) (quoting Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004)), R. & R. adopted, 2018 WL 1660084 (N.D. Iowa Apr. 5, 2018). As will be discussed below, I find that the ALJ properly resolved the conflicts in the record and supported his conclusions with citations to the record.

         1. Dr. James Case

         Dr. Case is Claimant's main treating physician. He referred Claimant to the University of Nebraska Medical Center's Movement Disorders Center (“the Movement Disorders Center”) where Claimant was treated by the other physicians who wrote opinions in this case. Dr. Case completed a check-list medical source opinion on April 9, 2015. (AR at 467-69.) Dr. Case opined Claimant could sit for eight hours in an eight-hour workday and stand/walk for three hours in an eight-hour workday; he would need to shift positions at will from sitting, standing, or walking; he could occasionally lift ten pounds or less, could rarely lift 20 pounds, and could never lift 50 pounds; he could occasionally twist and stoop, rarely crouch/squat and climb stairs, but never climb ladders; and he would be able to use each of his hands to grasp, turn, and twist objects 50% of an eight-hour work day; use his fingers for fine manipulation 50% of an eight-hour work day; and reach (including overhead reaching) 25% of an eight-hour work day. (Id. at 468.) Dr. Case further opined that Claimant's symptoms were rarely severe enough to interfere with the attention and concentration needed to perform even simple work tasks and that Claimant would be absent from work on average about three days per month. (Id. at 469.)

         The ALJ assigned Dr. Case's opinion “little weight” because it was inconsistent with the medical evidence in the record, Dr. Case did not include “any rationale for these limitations, ” and Dr. Case's own treatment notes from April 9, 2015 were inconsistent with the opinion. (Id. at 30.) Specifically, the ALJ noted that on that day, Dr. Case stated that Claimant did not exhibit upper extremity tremors, was able to twist, stoop down, and bend at the waist; and that Claimant exhibited fine finger dexterity. (Id.) Claimant argues that the ALJ “rejected” Dr. Case's opinion, but makes no argument in support of his position. (Doc. 17 at 5.)

         I agree with the ALJ that Dr. Case's own treatment notes do not provide a basis for his opinion. “A treating physician's own inconsistency may . . . undermine his opinion and diminish or eliminate the weight given his opinions.” Hacker, 459 F.3d at 937 (citation omitted). In addition, the opinion consists of checklists, cites no medical evidence, and gives no explanation for its conclusions. “‘The checklist format, generality, and incompleteness of the assessments limit [an] assessment's evidentiary value.'” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (quoting Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001) (internal brackets omitted); Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir.1996) (“A treating physician's opinion deserves no greater respect than any other physician's opinion when the treating physician's opinion consists of nothing more than vague, conclusory statements.”). Therefore, a treating source's opinion can be given limited weight if it contains only conclusory statements or inconsistent opinions “that undermine the credibility of such opinions.” Papesh v. Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015) (quotation omitted).

         a. Legal Standard

          “‘A treating physician's opinion is given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record as a whole.”[4] Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010) (quotation omitted). “Even if the treating physician's opinion is not entitled to controlling weight, it should not ordinarily be disregarded and is entitled to substantial weight.” Papesh, 786 F.3d at 1132 (citation and bracket omitted). However, a treating physician's opinion can be given limited weight if it contains only conclusory statements, contains inconsistent opinions “that undermine the credibility of such opinions, ” is inconsistent with the record, or if other medical opinions are supported by “better or more thorough medical evidence.” Id. (citations omitted). An ALJ must “give good reasons” for the weight given to a treating physician's opinion. 20 C.F.R. § 404.1527(c)(2); Walker v. Comm'r, Soc. Sec. Admin., 911 F.3d 550, 554 (8th Cir. 2018) (remanding case to the ALJ for further proceedings because ALJ “simply ignore[d]” treating physician's opinion). A proper evaluation of a physician's opinion requires consideration of the following factors: (1) examining relationship, (2) treatment relationship, (3) supportability, (4) consistency, (5) specialization, and (6) other factors.[5] 20 C.F.R. §§ 404.1527(c)(1)-(5), 416.927(c). “[T]he regulations do not strictly require the ALJ to explicitly discuss each factor under 20 C.F.R. § 404.1527(c).” Kuikka v. Berryhill, No. 17-CV-374 (HB), 2018 WL 1342482, at *5 (D. Minn. Mar. 15, 2018) (quoting Mapson v. Colvin, No. 14-CV-1257 (SRN/BRT), 2015 WL 5313498, at *4 (D. Minn. Sept. 11, 2015) (noting internal brackets omitted)).

         b. Analysis

          i. Examining Relationship

         “Generally, [ALJs] give more weight to the medical opinion of a source who has examined [a claimant] than to the medical opinion of a medical source who has not examined [a claimant].” 20 C.F.R. § 404.1527(c)(1). However, a treating source's opinion may be disregarded in favor of other opinions if it is not supported by substantial evidence in the record. Casey, 503 F.3d at 692. Dr. Case is Claimant's treating neurologist and examined him seven times between December 2, 2013 and April 9, 2015 prior to writing his opinion. Therefore, his opinion should be given more weight unless it is not supported by substantial evidence on the record as a whole. Although Dr. Case is Claimant's treating physician, as discussed below, I find that his opinion is not supported by substantial evidence on the record as whole. At most, this factor is neutral.

         ii. Treatment Relationship

          “Generally, [ALJs] give more weight to the medical opinions from [a claimant's] treating sources. . . . When the treating source has seen [the claimant] a number of times and long enough to have obtained a longitudinal picture of [the claimant's] impairment, [the ALJ] will give the source's opinion more weight than . . . if it were from a nontreating source.” 20 C.F.R. at § 404.1527(c)(2)(i). In addition, “the more knowledge a treating source has about [a claimant's] impairment(s), the more weight the [ALJ] will give the source's opinion.” Id. at ยง 404.1527(c)(2)(ii). As discussed, Dr. Case is Claimant's treating source and has treated him long enough to get a longitudinal picture of Claimant's impairments. In addition, Dr. Case has treated Claimant for his Parkinson's disease, Claimant's main basis for claiming ...


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