United States District Court, D. Minnesota
DARREL K. ZIMMER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Stephanie M. Balmer, FALSANI, BALMER, PETERSON & QUINN,
Bildtsen, UNITED STATES ATTORNEY'S OFFICE, for defendant.
Patrick J. Schiltz United States District Judge
the Commissioner of Social Security (the
“Commissioner”) denied plaintiff Darrel
Zimmer's application for disability benefits, Zimmer
brought this action asking the Court to either (1) reverse
the Commissioner's decision and award him the disability
benefits that he seeks or (2) remand his case to the
Commissioner for another hearing.
matter is before the Court on Zimmer's objection to
Magistrate Becky R. Thorson's January 3, 2018 Report and
Recommendation (“R&R”). Judge Thorson
recommends denying Zimmer's motion for summary judgment
and granting the Commissioner's motion for summary
judgment. The Court has conducted a de novo review.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(3). Based on that review, the Court agrees with Judge
Thorson that the Commissioner's decision was supported by
substantial evidence, overrules Zimmer's objection, and
adopts Judge Thorson's R&R. Only a couple of matters
First, Zimmer argues that Judge Thorson applied the
wrong standard of review when Judge Thorson wrote that
“the discrepancy between Plaintiff's stated
limitations and the results of objective testing can be
explained by Plaintiff's desire to obtain disability
benefits.” ECF No. 16 at 17. Zimmer points out that
“can be explained” is not the same thing as
“substantial evidence.” ECF No. 18 ¶ 1. It
is abundantly clear, however, that Judge Thorson applied the
substantial-evidence standard, to which she consistently and
repeatedly referred in the R&R. See ECF No. 16
at 12-15, 17, 19. Judge Thorson used the phrase “can be
explained” in the course of explaining why the
administrative law judge (ALJ)'s decision met
the substantial-evidence standard, not as a
substitute for the substantial-evidence standard.
See Id. at 17.
Second, Zimmer argues that hearsay statements in
medical records cannot constitute substantial evidence. ECF
No. 18 ¶¶ 1-2. This is not true. In some cases, an
anonymous report by an unidentified author may not constitute
substantial evidence. See McClees v. Sullivan, 879
F.2d 451, 452-53 (8th Cir. 1989). In most cases, however,
“a written report by a licensed physician who has
examined the claimant . . . may be received as evidence in a
disability hearing . . . despite its hearsay character . . .
and . . .may constitute substantial evidence, ” as long
as “the claimant has not exercised his right to
subpoena” and cross-examine the physician.
Richardson v. Perales, 402 U.S. 389, 402 (1971);
see also Bell Helicopter Int'l, Inc. v. Jacobs,
746 F.2d 1342, 1343-44 (8th Cir. 1984).
Finally, Zimmer argues that the R&R erred in
unduly relying on “state agency examiner opinions which
do not constitute substantial evidence.” ECF No. 18
¶ 4. This argument is also unpersuasive. A consulting
physician's opinion generally will not constitute
substantial evidence if it is not supported by any other
evidence. See Krogmeier v. Barnhart, 294 F.3d 1019,
1023-24 (8th Cir. 2002). But when an opinion of a consulting
physician or a state agency examiner is supported by other
medical evidence, a court may rely on that opinion to
conclude that an ALJ's decision is supported by
substantial evidence. See Ponder v. Colvin, 770 F.3d
1190, 1194-96 (8th Cir. 2014) (concluding that substantial
evidence supported the ALJ's decision when “[t]hree
physicians who reviewed Ponder's medical record . . .
concluded that Ponder could . . . perform sedentary
work”); Cash v. Colvin, No. 4:14CV3159, 2015
WL 1346163, at *5 (D. Neb. Mar. 25, 2015) (“Plaintiff
further claims that the ALJʹs RFC assessment was
improper because the opinion of the state agency examiner . .
. does not constitute substantial evidence . . . . This
argument is not persuasive ..... The ALJ did not err by
relying on [the state agency examiner's]
Judge Thorson made clear, the question for this Court is not
whether it would have made the same decision as the ALJ, but
whether the ALJ's decision is supported by substantial
evidence. Having reviewed the record, the Court concludes
that the decision of the ALJ is indeed supported by
on the foregoing, and on all of the files, records, and
proceedings herein, the Court OVERRULES plaintiff's
objection [ECF No. 18] and ADOPTS Judge Thorson's R&R
[ECF No. 16]. IT IS HEREBY ORDERED THAT:
1. Plaintiff's motion for summary judgment [ECF No. 11]
2. Defendant's motion for summary judgment [ECF No. 14]