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Knibbe v. Saul

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

August 12, 2019

SHAWN ALAN KNIBBE, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

          Leonard T. Strand, Chief Judge.

         I. INTRODUCTION

         This case is before me on a Report and Recommendation (R&R) filed by the Honorable Mark R. Roberts, United States Magistrate Judge. See Doc. No. 21. Judge Roberts recommends that I affirm the decision by the Commissioner of Social Security (the Commissioner) denying Shawn Alan Knibbe's application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401-34, 1381-83f. Knibbe filed timely objections (Doc. No. 22). The Commissioner did not file a response. The background is set forth in the R&R and is repeated herein only to the extent necessary.

         II. APPLICABLE STANDARDS

         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 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).

         In determining 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 that 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)).

         In evaluating 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, does 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 finds 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 in cases where 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 Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because some evidence may support the opposite conclusion.”).

         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, 573-74 (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

         Knibbe applied for disability insurance benefits and supplemental security income on December 9, 2014, alleging disability beginning December 1, 2014, due to Parkinson's disease, shoulder pain and lack of strength. Doc. No. 21 at 2 (citing AR 24, 303). After a hearing, an Administrative Law Judge (ALJ) applied the familiar five-step evaluation and found that Knibbe was not disabled as defined in the Act. Knibbe argues the ALJ erred by: (1) improperly weighing the medical evidence in the record, (2) improperly considering Knibbe's subjective complaints, and (3) basing the residual functional capacity (RFC) on an improper hypothetical question posed to the vocational expert (VE) during the hearing. Judge Roberts addressed each argument separately.

         With regard to the weighing of the medical evidence, Knibbe argues the ALJ erred in “rejecting the opinion of the treating physicians and relying upon the opinions of the non-examining doctors.” Id. at 7 (citing Doc. No. 17 at 3). He also argues that the ALJ erred by rejecting both the treating physician and state agency physician opinion in favor of the ALJ's own unsupported opinion that Knibbe was limited to sedentary work. Id. at 7-8. He argues his testimony was consistent with the limitations and symptoms described in his medical records. Finally, he asserts the ALJ failed to mention the treatment notes of his physician, Dr. Bhatti. Id. at 8.

         Judge Roberts noted that the record identified Dr. Case, Dr. Bertoni and Dr. Bhatti as Knibbe's treating sources. Id. Judge Roberts identified Dr. Case as Knibbe's main treating physician. Dr. Case provided a medical source opinion on April 9, 2015, in which he opined Knibbe could: sit for eight hours in an eight-hour workday, stand/walk for three hours in an eight-hour workday, occasionally lift ten pounds or less, rarely lift 20 pounds, never lift 50 pounds, occasionally twist and stoop, rarely crouch/squat and climb stairs, never climb ladders, use each of his hands to grasp, turn and twist objects 50 percent of an eight-hour workday, use his fingers for fine manipulation 50 percent of an eight-hour workday and reach (including overhead reaching) 25 percent of an eight-hour workday. Id. at 9 (citing AR 468). He would also need to shift positions at will from standing, walking and sitting. Id. Dr. Case found Knibbe's symptoms were rarely severe enough to interfere with the attention and concentration needed to perform simple work tasks, but that Knibbe would be absent from work on average about three days per month. Id. (citing AR 469).

         The ALJ gave Dr. Case's opinion “little weight” because it was inconsistent with the medical evidence in the record, did not include “any rationale for these limitations” and was inconsistent with Dr. Case's own treating notes from April 9, 2015. Id. at 9-10. Judge Roberts agreed that Dr. Case's treatment notes did not provide a basis for his opinion. Id. at 10. He then considered whether the ALJ's reasons for giving Dr. Case's opinion less than controlling weight were supported by substantial evidence based on the factors under 20 C.F.R. §§ 404.1527(c), 416.927(c).

         The first factor is the examining relationship. Judge Roberts noted that Dr. Case examined Knibbe as his treating neurologist seven times between December 2, 2013, and April 9, 2015, prior to providing his opinion in this case. Id. at 12. As a treating physician, Judge Roberts noted that Dr. Case's opinion was entitled to greater weight unless it was not supported by substantial evidence on the record as a whole. For reasons discussed below, he agreed with the ALJ that Dr. Case's opinion was not supported by substantial evidence on the record as a whole. Id. Judge Roberts considered the examining relationship a neutral factor.

         The second factor is the treatment relationship. Given that Dr. Case was a treating source and had treated Knibbe for his Parkinson's disease, Judge Roberts concluded this factor weighed in favor of giving Dr. Case's opinion increased weight. Id.

         The third factor is supportability. Judge Roberts noted that Dr. Case stated he based his opinion on “physical assessments, over time.” Id. (citing AR 469). While this indicated some basis for his opinion, Judge Roberts noted that it provided little information to determine whether Dr. Case's conclusions were supported because he did not document the types of deficiencies he noticed, the tests he ran and the interventions he attempted to help mediate Knibbe's symptoms. Id. at 12-13. Judge Roberts agreed with the ALJ that the checklist format and lack of support within Dr. Case's opinion justified giving it less weight. Id. at 13. Judge Roberts noted the ALJ also found Dr. Case's opinion was inconsistent with his own treatment notes. Id. With regard to anticipated absences of three days per month, the ALJ found there was no documentation to support this limitation such as missed appointments or other important events. Id. Judge Roberts reviewed Dr. Case's treatment notes and agreed there was no mention of missed events in Knibbe's life among the otherwise comprehensive discussion of all relevant topics covered in Dr. Case's examinations of Knibbe. Id. Finally, the ALJ cited inconsistencies in Dr. Case's treatment notes dated the same day as his opinion. Id. Dr. Case found that Knibbe exhibited fine finger dexterity, did not have tremors and could twist, stoop and bend at the waist. Id. at 14. However, his opinion limited the amount that Knibbe could be expected to perform these tasks in the workplace. Judge Roberts concluded the record supported this reason as well.

         While some of the limitations expressed in Dr. Case's opinion were supported by his treatment notes, others were not. For example, Judge Roberts noted there was nothing in Dr. Case's treatment notes to support the lifting limitations he had identified. Indeed, there was no indication that Dr. Case had ever tested Knibbe's lifting limits or that Knibbe had ever reported difficulties with lifting. The only thing close to a lifting limitation (other than Knibbe's overall diagnosis of generalized bradykinesia[2]), was a March 31, 2014, note stating Knibbe's strength was “normal” and a June 20, 2014, treatment note documenting Knibbe's report that he “[felt] weak and encumbered trying to work overhead.” Id. (citing AR 454, 456). Judge Roberts reasoned that while there was some evidence in Dr. Case's treatment notes supporting his opinion, there was other evidence that did not. He concluded this factor supported the ALJ's decision to give Dr. Case's opinion little weight.

         The fourth factor is consistency. The ALJ determined that Dr. Case's opinion was not supported by other evidence in the record as a whole and cited to specific pages documenting that Knibbe did not have “debilitating tremors or severe range of motion limitations.” Id. at 14-15 (citing AR 30). Upon reviewing the record, Judge Roberts agreed with the ALJ that Dr. Case's opinion was not supported by the record as a whole and cited specific inconsistencies. He concluded this factor supported giving Dr. Case's opinion limited weight. Id. at 15.

         The fifth factor is specialization. Judge Roberts noted that Dr. Case is a neurologist who gave an opinion in his area of expertise about a patient under his care. Id. While Dr. Case's opinion was not supported by the record as a whole, Judge Roberts concluded that this factor weighed slightly in favor of giving the opinion more weight. Id.

         Finally, Judge Roberts discussed other factors. With regard to a specific walking limitation of 200 feet without an assistive device that Knibbe cited from a one-sentence letter written by Dr. Case on September 16, 2015, Judge Roberts noted this limitation was not supported by Dr. Case's own treatment notes. Id. at 16. He noted the narrative sections of Dr. Case's treatment notes did not document that Knibbe discussed walking difficulties with Dr. Case or that Knibbe reported the need to use an assistive device when walking. Id. While Dr. Case described Knibbe's walking as “quite slow for age with slow turns, ” Judge Roberts noted there was no support in the record for a 200-foot walking distance limitation as Knibbe alleged. Id. at 16-17. Judge Roberts concluded that the ALJ's decision to assign “little weight” to Dr. Case's opinion was supported by substantial evidence in the record as a whole. Id. at 17.

         Judge Roberts next considered the opinion of Dr. Bertoni, who completed a one-page check box form at the request of Knibbe's attorney dated May 11, 2015. Id. (citing AR 470). Dr. Bertoni has treated Knibbe for his Parkinson's disease since November 2014. Id. Dr. Bertoni marked that Knibbe had significant rigidity and bradykinesia and that those conditions resulted in the following limitations: sustained disturbance of gross and/or dexterous movement and sustained disturbance of gait and/or station. Id. This was the entire extent of his opinion. The ALJ gave his opinion “little weight” ...


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