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Olson v. Saul

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

September 19, 2019

CANDI OLSON, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security,[1] Defendant.

          MEMORANDUM OPINION AND ORDER ON REPORT ANDRECOMMENDATION

          LEONARD T. STRAND, CHIEF JUDGE.

         I. INTRODUCTION

         This case is before me on a Report and Recommendation (R&R) filed by the Honorable Mark A. Roberts, United States Magistrate Judge. See Doc. No. 16. Judge Roberts recommends that I affirm the decision by the Commissioner of Social Security (the Commissioner) denying Candi Olson’s application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401-34. Olson filed timely objections (Doc. No. 17). 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

         Olson applied for disability insurance benefits on February 11, 2015, alleging disability beginning July 1, 2012, due to fibromyalgia, chronic back and joint pain, arthritis, degenerative disc disease, depression and anxiety. Doc. No. 16 at 2 (citing AR 162, 198). After a hearing, an Administrative Law Judge (ALJ) applied the familiar five-step evaluation and found that Olson was not disabled as defined in the Act. Olson argues the ALJ erred by: (1) improperly evaluating the opinion of her treating physician, Dr. Kahl; (2) improperly evaluating her subjective complaints and failing to give her the opportunity to present her best disability case and (3) relying on a defective hypothetical. Id. at 7-8 (citing Doc. No. 12 at 1). Judge Roberts addressed each argument separately.

         Judge Roberts first addressed Dr. Kahl’s opinion as well as other medical opinions in the record. Dr. Kahl began treating Olson on March 24, 2015, and wrote her opinion on May 28, 2015. Doc. No. 16 at 8. Dr. Kahl stated Olson was incapable of performing either full-time or part-time work. Id. (citing AR 590). She concluded Olson could stand and walk two hours during an eight-hour workday and sit four hours during an eight-hour workday. Id. (citing AR 593). She also found that Olson was limited to lifting and carrying 10 pounds or less occasionally. Id. (citing AR 591). Dr. Kahl noted Olson’s orthopedist restricted Olson’s lifting to 15 pounds.[2] Id. Olson could occasionally twist, climb, kneel, crouch, reach, pull, push, firmly grasp with both hands, finely grasp with both hands, work overhead, use static neck flexion, frequently rotate her neck and walk up an incline. Id. (citing AR 592). She could never bend, stoop or crawl. Id. Dr. Kahl estimated Olson would need four 15 to 20-minute unscheduled breaks during the workday in addition to standard breaks and lunch. Id. at 9 (citing AR 591). Finally, she concluded Olson’s impairments would cause her to be absent from work four or more times per month. The ALJ gave her opinion little weight. Id.

         Judge Roberts next considered the opinions of the state agency medical consultants, Dr. Cromer and Dr. Hunter. On June 9, 2015, Dr. Cromer opined that Olson could occasionally lift and/or carry 10 pounds; frequently lift and/or carry 10 pounds; stand and/or walk two hours in an eight-hour day; sit six hours in an eight-hour day; occasionally balance, stoop, kneel, crouch and climb ramps and stairs; frequently handle and finger; do unlimited pushing and/or pulling with a 10-pound limit; do unlimited reaching; never climb ladders, ropes or scaffolds, or crawl; and should avoid concentrated exposure to extreme cold and vibration. Id. (citing AR 60-61). Dr. Hunter affirmed this opinion on July 30, 2015. Id. (citing AR 77). The ALJ assigned these opinions great weight, finding they were consistent with the medical evidence of record. Id. (citing AR 21).

         The record also contained opinions from a consultative examiner, Dr. Keizer, and a state agency psychological consultant, Dr. Ryan, concerning Olson’s mental impairments. After examining Olson, Dr. Keizer issued her opinion on May 15, 2015, finding Olson would experience some limitations in her ability to maintain attention, concentration and mental pace for an eight-hour day and this would likely fluctuate given her level of pain, use of medications and “amount of restorative sleep.” Id. at 10 (citing AR 587). She found Olson would have mild limitations in her ability to respond appropriately to changes in the workplace, but that her ability to interact in the workplace was appropriate. Id. The ALJ gave Dr. Keizer’s opinion great weight, stating “the expert is a specialist who is familiar with social security policy and regulations, she personally examined the claimant, and provided an explanation with references [to] her examination findings to support her opinion.” Id. (citing AR 21).

         The ALJ gave Dr. Ryan’s March 20, 2014, opinion substantial weight. Dr. Ryan opined Olson had mild restrictions in activities of daily living; no difficulties in maintaining social functioning; and moderate difficulties in maintaining concentration, persistence, or pace. Id. (citing AR 62-64). She found Olson could carry out instructions consisting of three to four steps and perform work tasks consistent with that ability. Id. (citing AR 64). Dr. Tashner, another state agency psychological consultant affirmed Dr. Ryan’s opinion on July 31, 2015. Id. (citing AR 79). The ALJ disagreed that Olson had only mild limits in her ability to maintain concentration, persistence and pace, but otherwise found the opinions were “well supported with specific references to medical evidence, [were] . . . internally consistent as well as consistent with the evidence as a whole, [and because there was] no objective evidence contradicting” their opinions. Id. (citing AR 21).

         After reviewing the regulations and case law related to medical opinion evidence, Judge Roberts considered Olson’s arguments related to Dr. Kahl’s opinion. Id. at 11-12. Olson argues Dr. Kahl’s opinion was consistent with other treatment notes in the record documenting her various diagnoses and treatment. Id. at 12 (citing Doc. No. 12 at 4-5). Judge Roberts noted that because the ALJ did not give Dr. Kahl’s opinion controlling weight, she was required to consider the following factors in determining its weight: (1) length of the treatment relationship and frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability, (4) consistency, (5) specialization and (6) other factors. Id. (citing 20 C.F.R. § 404.1527(c)(2)). As such, he considered the ALJ’s analysis of Dr. Kahl’s opinion in light of these factors.

         As for the length and frequency of the treatment, Judge Roberts noted the ALJ cited the short treatment relationship (less than two months) as one of the reasons for giving her opinion less weight. Id. at 13 (citing AR 22). Within that time frame, Dr. Kahl saw Olson only on two occasions for “recheck of chronic lumbar back pain,” “recheck of obesity,” and “recheck of anxiety,” as well as a general physical. Id. (citing AR 603-07). Judge Roberts considered Olson’s argument that she was a long-time patient of the Family Medicine Clinic where Dr. Kahl practices, but he noted Olson cited no precedent in support of this argument and the record lacked any references to other Family Medicine Clinic records or findings by any of Dr. Kahl’s colleagues at the clinic. Judge Roberts concluded this factor supported the ALJ’s decision of giving Dr. Kahl’s opinion little weight. Id. at 13-14.

         Next, Judge Roberts examined the nature and extent of the treatment relationship. Id. at 14. He noted that Dr. Kahl prescribed and refilled Olson’s medications and that Olson’s visits typically consisted of Olson describing her symptoms and a discussion of whether her medications were providing sufficient relief. Id. (citing AR 597, 600-07). It appeared from the record that Dr. Kahl performed one physical examination of Olson before writing her opinion. Id. (citing AR 604-05). Olson reported no joint or muscle pain or weakness. Objective testing and observations of her lumbar spine and lower extremities were all normal except for some pain and tightness in her paraspinal muscle. Id. Olson was also stable on her then-current anxiety medications. Id. She noted Olson’s degenerative lumbar disc caused her chronic pain resulting in “chronic narcotic use x years, impairs ability to work [secondary] to difficulty standing and pain meds interfere with concentration, no work x 3 years now. Disability forms completed please see attached.” Id. Dr. Kahl stated that she relied on a previous MRI and the lifting restriction from Olson’s orthopedist in reaching her conclusions. Id. Judge Roberts noted “[t]o the extent Dr. Kahl’s treatment notes support the limits she puts on Claimant’s ability to work, those limits appear to be the result of Claimant’s self-reports, and not any clinical assessments.” Id. He pointed out that the ALJ determined Olson’s subjective complaints were not credible and that this factor weighed in favor of affording Dr. Kahl’s opinion little weight.

         As to supportability, Judge Roberts noted that Dr. Kahl’s opinion consisted of a check box form. Id. at 16. She provided no reasons or support for the limitations identified in her opinion, but simply checked boxes for all limitations, including that working would cause an “extreme” increase in the severity of Olson’s symptoms. Id. at 17. Judge Roberts noted that it also did not appear from Dr. Kahl’s records that she had ever tested Olson’s lifting capabilities. Id. The ALJ gave Dr. Kahl’s opinion little weight based, in part, on the fact that her opinion appeared “to be the product of pre-printed questionnaires, submitted to Dr. Kahl by the claimant’s attorney, that includes a number of leading questions and similar inducements which are not designed for objective responses, but rather for verification of legal conclusions about the claimant’s alleged impairments.” Id. at 18 (quoting AR 22). The ALJ also noted that while the form provides for both negative and positive “check-off responses,” the form “appears to be intended to further the claimant’s litigation interests rather than provide an objective medical evaluation of the functional limitations because the opinions related to functional limitations are not supported with objective medical findings and are inconsistent with the substantial evidence of record.” Id.

         To the extent the ALJ found the checklist form was biased in Olson’s favor, Judge Roberts disagreed. He noted it demonstrated an effort to be complete and obtain information about many relevant issues that may reflect on a claimant’s health and ability to work. Nonetheless, he noted that as a form, it suffers from many of the deficiencies the Eighth Circuit cautions against – no room for narrative or opinion, the result of a series of conclusory statements, checked blanks “circled answers, and brief fill-in-the-blank responses.” Id. (quoting Thomas v. Berryhill, 881 F.3d 672, 675 (8th Cir. 2018)). The only narrative Dr. Kahl provided was that her opinions related to Olson’s “fair to poor ability” to understand and carry out any type of job instructions is “secondary to [her] anxiety and [due to] pain medication side effects.” Id. (quoting AR 594). She also stated that her opinions related to Olson’s abilities to function in the workplace would be fair to poor because of anxiety and medication side effects. Id. (citing AR 594-95).

         Judge Roberts found these two narrative pieces did not help bolster Dr. Kahl’s opinion. Her treatment notes indicate that medication side effects and how anxiety affects Olson come from Olson’s self-reports. Id. at 19 (citing AR 603, 605). Dr. Kahl did not document these side effects anywhere else in her treatment notes. Dr. Kahl’s treatment notes also did not contain any mental health assessments or tests. Dr. Kahl’s treatment notes even state that Olson’s anxiety does not cause Olson difficulty concentrating. Id. Judge Roberts also noted that the sitting and standing limitations also appeared to stem from Olson’s self-reports because there were no assessments in Dr. Kahl’s treatment notes. Id. (citing AR 603). Indeed, Dr. Kahl’s physical examination on the date she wrote the opinion yielded normal results except for pain and tightness of the paraspinal muscles lumbar. Id. at 20. None of Dr. Kahl’s treatment notes indicated Olson had hand or finger problems and there was no documentation of any episodes of decompensation in her treatment notes. Id. The treatment notes also did not contain any discussion of Olson’s need to take several breaks a day. Overall, Judge Roberts concluded Dr. Kahl’s treatment notes did not support her opinion that Olson was incapable of performing a full-time job and that the supportability factor weighed in favor of the ALJ’s decision to give her opinion little weight.

         Next, Judge Roberts examined the consistency of Dr. Kahl’s opinion with the record as a whole. Id. He noted that Dr. Kahl wrote her opinion on May 28, 2015. The ALJ observed that two months prior, on March 18, 2015, Olson reported to the Social Security Administration that her pain/fatigue did not affect her ability to concentrate or think. Id. (citing AR 217). She also reported she could pay attention “all the time” and that her ability to follow spoken instructions was “good.” Id. (citing AR 224). Olson further represented she got along with authority figures “very well” and her ability to handle stress with changes in routine was “good.” Id. at 21 (citing AR 225). The only side effect she identified from her medications (which at that time included morphine and hydrocodone) was “tiredness.” Id. (citing AR 216). Olson then stopped taking morphine and since that time reported no side effects from her pain medications. Id. (citing AR 249, 259). She indicated in a function report dated July 22, 2015, that she could pay attention, finish what she starts and follow written and spoken instructions “ok.” Id. (citing AR 257).

         Olson argues that Dr. Kahl’s opinion was consistent with the “opinion” of Dr. Wisco, who found Olson’s body pain complaints consistent with fibromyalgia. Id. (citing Doc. No. 12 at 4). Judge Roberts noted the ALJ found that fibromyalgia was one of Olson’s severe impairments. Id. He stated that aside from Olson’s diagnoses, Dr. Wisco’s treatment note (not an opinion) did not support the limitations identified in Dr. Kahl’s opinion as it did not identify any medication side effects and how they might contribute to Olson’s ability to work eight hours a day, whether she could lift certain weights, use her hands, sit or stand for certain lengths of time, or walk certain distances. Id.

         Olson further argues that Dr. Kahl’s opinion was consistent with the treatment she received under Dr. Michael Espiritu for fibromyalgia and back pain. Id. at 22. Judge Roberts noted the ALJ acknowledged she had fibromyalgia and back pain. He then considered the treatment notes from Olson’s seven visits with Dr. Espiritu. Id. During the first three visits in August 2011, he was trying to diagnose the source of Olson’s back pain. Id. The next time Olson saw Dr. Espiritu was in July 2012 for treatment of her carpal tunnel syndrome, which was diagnosed by Dr. Wisco. Id. Dr. Espiritu acknowledged Olson had fibromyalgia and his physical examination was focused on her wrists, hands and knee. Id. (citing AR 319). All further records from Dr. Espiritu relate to Olson’s carpal tunnel and carpal tunnel release surgeries performed by Dr. Espiritu. Id. (citing AR 325, 327-31). Judge Roberts noted there were no treatment notes from Dr. Espiritu providing fibromyalgia management or treatment. Id. at 23.[3] Judge Roberts concluded that aside from Dr. Espiritu’s acknowledgment of Olson’s carpal tunnel syndrome, fibromyalgia and the carpal tunnel surgery he performed, his treatment notes do not support the limitations identified in Dr. Kahl’s opinion. Id.

         Next, Judge Roberts addressed Olson’s argument that the ALJ rejected Dr. Todd C. Johnson’s findings in favor of the state agency physicians. Id. He noted that the record contains six treatment notes from Dr. Johnson. Two were for injections and contained no information regarding his impressions of Olson’s impairments. The others documented medication checks. Id. At these appointments, Dr. Johnson noted Olson’s complaints of pain, although she indicated that her medications were generally helping control her pain. Id. at 23-24. After observing the treatment notes, Judge Roberts concluded they were not at odds with the ALJ’s conclusions. They indicated Olson had mostly normal examination results and experienced symptom relief with her medications. He never mentioned confusion as a side effect as Dr. Kahl had. Id. at 24. Judge Roberts concluded Dr. Johnson’s treatment notes were not consistent with Dr. Kahl’s opinion.

         Olson also argues the ALJ rejected Dr. Kovar’s diagnosis without giving good reasons. Judge Roberts disagreed, noting the ALJ stated the following with respect to Dr. Kovar:

The claimant was seen by Allison Kovar, M.D. January 9, 2015 complaining of worry, fatigue, irritability, and panic attacks. On exam, she was cooperative, alert, and in no acute distress. Her gait was normal, and she was able to articulate well with normal speech and coherence. She was assessed with anxiety, generalized osteoarthritis, obesity, depressive disorder, and fibromyalgia. She was started on Vibryd.

Id. at 24-25 (citing AR 19). Judge Roberts found this did not represent a “rejection” of Dr. Kovar’s diagnosis, but was a fair recitation of what occurred during Olson’s one visit with Dr. Kovar. Id. at 25. Indeed, the ALJ agreed in part with Dr. Kovar’s assessment by finding Olson’s obesity and fibromyalgia were severe impairments and considered their effects in crafting the RFC. Id. Moreover, Judge Roberts reasoned that the ALJ is required only to weigh physicians’ ...


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