United States District Court, D. Minnesota
Stephanie Ann Christel, Livgard and Lloyd PLLP, for Plaintiff
Samie, United States Attorney for Defendant Nancy A.
BOWBEER, UNITED STATES MAGISTRATE JUDGE
to 42 U.S.C. § 405(g), Plaintiff Su Yang seeks judicial
review of a final decision by the Acting Commissioner of
Social Security denying her applications for supplemental
security income (SSI) and disability insurance benefits
(DIB). The matter is now before the Court on the parties'
cross-motions for summary judgment [Doc. Nos. 16, 18]. For
the reasons set forth below, the Court grants Yang's
summary judgment motion, denies the Commissioner's
motion, reverses the Commissioner's decision, and remands
the matter pursuant to sentence four of 42 U.S.C. §
405(g) for further proceedings consistent with this Order.
filed applications for SSI and DIB on November 7, 2013,
alleging a disability onset date of March 31, 2013. (R.
193-206). Yang claimed she was disabled by
depression, back and spinal impairments with pain, and
neuropathy/radiculopathy. (R. 223.) Her applications were
denied initially and on reconsideration, and she requested a
hearing before an administrative law judge (ALJ).
convened a hearing on November 20, 2015, at which Yang,
psychologist Dr. Karen Butler, and vocational expert Norman
Nussbaum testified. (R. 40-41.) Yang, whose primary language
is Hmong, testified through an interpreter. (R. 43.) She
testified that she moved to the United States many years ago
and has a fifth grade education. (R. 47.) She worked as a
seamstress in the approximately fifteen years before her
disability onset date. (R. 47-48.) Before that, she assembled
medical ear devices at Starkey Labs. (R. 48.) Yang stopped
working as a seamstress because of back, hip, and leg pain.
(R. 49.) She also suffered from dizziness and depression. (R.
52.) Yang testified that she was depressed because of her
limitations and did not want to live anymore. (R. 52.) At the
time of the hearing, she no longer cooked or cleaned and had
trouble staying focused and concentrating. (R. 53.)
testified that back surgery had not alleviated her back pain.
(R. 49.) She declined a second surgery suggested by her
doctor because she had not benefited from the first. (R. 51.)
Physical therapy increased the pain. (R. 51-52.) Yang used a
four-pronged cane when walking to alleviate her low back
pain. (R. 50.) Yang had stopped driving to her medical
appointments about two years before the hearing because her
doctor told her she should no longer drive and her children
forbade her from it. (R. 46-47.) Since January 2014, a
personal care attendant (PCA) assisted her each morning and
night with various daily activities, going to the bathroom,
bathing, dressing, medication, and nutrition. (R. 53-54.)
as an independent medical expert, Dr. Butler testified that
Yang had mental impairments of depression and pain disorder.
(R. 55.) According to Dr. Butler, Yang's depression waxed
and waned and did not meet the twelve-month durational
threshold for a listing-level impairment. (R. 59.) Dr.
Butler noted only isolated instances of anxiety, panic
disorder, and auditory hallucinations. (R. 55, 61.) Dr.
Butler opined Yang was moderately impaired in activities of
daily living, social functioning, and concentration,
persistence, and pace. (R. 56.) Dr. Butler recommended
work-related limitations of simple, unskilled work that could
be visually demonstrated, and brief and superficial contact
with others. (R. 59.) On questioning from Yang's
attorney, Dr. Butler conceded that accounting for Yang's
pain and physical symptoms would be outside her area of
expertise, but “clearly, that would impose additional
limitations.” (R. 60.)
asked Nussbaum, the vocational expert, to consider a
hypothetical individual of the same age, education,
vocational, and academic background as Yang, with the
following limitations: able to lift and carry ten pounds
occasionally and less than ten pounds frequently; able to sit
for six hours in an eight-hour day; able to stand or walk for
two hours in an eight-hour day; able to push and pull the
same as lift and carry; able to climb ramps and stairs
occasionally; not able to climb ladders or scaffolds; not
able to balance; able to stoop, kneel, crouch, and crawl
occasionally; not able to work at unprotected heights or
exposed moving mechanical parts; limited to simple routine
tasks with instructions that are visibly demonstrated; and
able to respond appropriately to supervisors, coworkers, and
the public on an occasional basis. (R. 62-63.) Nussbaum
testified that an individual with those characteristics and
restrictions could perform the medical device assembly work
Yang had performed previously. (R. 63.) If the individual
required the use of a cane to ambulate to or from the
workstation, however, work would be precluded due to the need
to simultaneously carry a tray. (R. 64-65.) The ALJ then
modified the hypothetical question to add the following
limitations: sitting no more than two hours in an eight-hour
day, requiring a cane to ambulate to and from the
workstation, and absent from work four days per month. (R.
63-64). Nussbaum testified that work would be precluded under
that hypothetical situation. (R. 64.)
December 11, 2015, the ALJ issued a written decision denying
Yang's SSI and DIB applications. (R. 19-33.) Pursuant to
the five-step sequential process outlined in 20 C.F.R.
§§ 404.1520(a)(4) and 416.920(a)(4), the ALJ first
determined that Yang had not engaged in substantial gainful
activity since March 31, 2013. (R. 24.) At step two, the ALJ
determined that Yang had severe impairments of degenerative
disc disease of the lumbar spine with radiculopathy,
status-post right lumbar microdiscectomy in 2006, sacroilitis
and hip pain, vertigo and dizziness, and major depressive
disorder with psychotic features. (R. 24.) The ALJ found at
the third step that none of Yang's impairments,
considered singly or in combination, met or equaled the
severity of an impairment listed in 20 C.F.R. part 404,
subpart P, appendix 1. (R. 24-25.) With respect to Yang's
mental impairments, the ALJ determined that Yang did not meet
or equal the criteria of Listing 12.04 (affective disorders).
(R. 25.) The ALJ found Yang mildly restricted in activities
of daily living, moderately limited in social functioning,
and moderately limited in concentration, persistence, or
pace. (R. 25-26.) Yang had no episodes of decompensation of
at least two weeks in duration. (R. 26.)
four, the ALJ concluded that Yang retained the residual
functional capacity (RFC) to perform sedentary work, as defined
in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with
the following restrictions: lifting, carrying, pushing, and
pulling limited to ten pounds frequently and less than ten
pounds occasionally; sitting for six hours; standing for two
hours and/or walking for two hours in an eight-hour day;
occasional climbing of ramps or stairs; no climbing ladders
or scaffolds; no balancing; occasional stopping, kneeling,
crouching, and crawling; no exposure to unprotected heights;
no exposure to moving mechanical parts; limited to simple,
routine tasks with instructions that are visually
demonstrated; and occasional ability to respond appropriately
to supervisors, coworkers, and the public. (R. 27.) In
arriving at this RFC, the ALJ found that Yang's
statements concerning the intensity, persistence, and
limiting effects of her symptoms were not entirely credible.
(R. 28-30.) In addition, the ALJ gave little weight to the
opinions of Yang's treating psychiatrist Dr. Joseph M.
Bebchuk, primary care physician Dr. Deborah Mielke, and
treating therapists Willie B. Garrett and Kathie Bailey. (R.
31-32.) The ALJ gave substantial or significant weight,
however, to the opinions of state agency consulting
physicians Dr. Shanti Tanna and Dr. Cliff Phibbs, state
agency consulting psychologist Dr. Maura Clark, and Dr.
Butler. (R. 30-31.)
found significant that some treatment modalities, namely
epidural steroid injections and surgery, had been at least
somewhat effective in managing or alleviating Yang's back
pain, but Yang had declined additional injections and
surgery, both of which were recommended by her doctors. (R.
28-29.) In addition, clinical findings and observations were
frequently unremarkable, Yang's symptoms waxed and waned,
and her providers' treatment regimens were conservative
and routine. (R. 29-30.)
concluded that Yang had retained the RFC to perform her past
relevant work as an assembler at the sedentary, unskilled
level, both as the work was actually performed and generally
performed. (R. 33.) The ALJ categorized her past work as an
assembler under the Dictionary of Occupational
Titles (DOT) 712.687-034 Consequently, the ALJ
determined that Yang was not under a disability, as defined
by the relevant regulations between March 31, 2013, and the
date of the decision. (R. 33.)
Appeals Council denied Yang's request for review, which
made the ALJ's decision the final decision of the
Commissioner. Yang then filed this action for judicial
review. She identifies four issues in her motion for summary
judgment: (1) whether the ALJ did not give proper weight to
the opinions of her treating physicians and therapists, (2)
whether the ALJ erred in failing to consider the combined
effect of her physical and mental impairments in assessing
whether Yang medically equaled Listing 12.04, (3) whether the
ALJ erred in assessing Yang's RFC, and (4) whether the
ALJ erred in finding that Yang could perform her past
Court has reviewed the entire administrative record, giving
particular attention to the facts and records cited by the
parties. The Court will recount the facts of record only to
the extent they are helpful for context or necessary for
resolution of the specific issues presented in the
Standard of Review
review of the Commissioner's denial of benefits is
limited to determining whether substantial evidence on the
record as a whole supports the decision. 42 U.S.C. §
405(g). “Substantial evidence is less than a
preponderance but is enough that a reasonable mind would find
it adequate to support the Commissioner's
conclusion.” Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002) (citing Prosch v. Apfel,
201 F.3d 1010, 1012 (8th Cir. 2000)). The Court must examine
“evidence that detracts from the Commissioner's
decision as well as evidence that supports it.”
Id. (citing Craig v. Apfel, 212 F.3d 433,
436 (8th Cir. 2000)). The Court may not reverse the ALJ's
decision simply because substantial evidence would support a
different outcome or the Court would have decided the case
differently. Id. (citing Woolf v. Shalala,
3 F.3d 1210, 1213 (8th Cir. 1993)). In other words, if it is
possible to reach two inconsistent positions from the
evidence, and one of those positions is that of the
Commissioner, the Court must affirm the decision.
Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir.
claimant has the burden to prove disability. See Roth v.
Shalala, 45 F.3d 279, 282 (8th Cir. 1995). To meet the
definition of disability for DIB, the claimant must establish
that she is unable “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). The same standard applies to SSI.
See 42 U.S.C. § 1382c(a)(3)(A). The disability,
not just the impairment, must have lasted or be expected to
last for at least twelve months. Titus v. Sullivan,
4 F.3d 590, 594 (8th Cir. 1993).
Opinions of Treating Providers
argues that the ALJ erred by failing to give proper weight to
the opinions of treating psychiatrist Dr. Joseph M. Bebchuk,
primary care physician Dr. Deborah Mielke, and treating
therapists Willie B. Garrett and Kathie Bailey. (Pl.'s
Mem. Supp. Mot. Summ. J. at 28 [Doc. No. 17].)
treating source's opinion on the nature and severity of a
claimed impairment is entitled to controlling weight if the
opinion “is well-supported by medically acceptable
clinical and laboratory techniques and is not inconsistent
with the other substantial evidence in [the] case
record.” 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). The ALJ need not give controlling weight
to an opinion that is not well-supported by clinical findings
or laboratory techniques or is inconsistent with other
substantial evidence. Davidson v. Astrue, 578 F.3d
838, 842 (8th Cir. 2009). If the opinion of a treating source
is not afforded controlling weight, the ALJ must consider the
following factors in deciding what weight is due: (1) the
existence of an examining relationship; (2) the nature of the
treatment relationship, such as length of treatment and
frequency of examination; (3) the degree to which the opinion
is supported by medical evidence such as medical signs and
laboratory findings; (4) consistency with the record; (5) the
source's specialty; and (6) any other relevant factors.
20 C.F.R. §§ 404.1527(c), 416.927(c).
is not required to explicitly discuss each and every
§§ 404.1527(c) and 416.927(c) factor. See Combs
v. Colvin, No. 8:12-cv-429, 2014 WL 584741, at *11 (D.
Neb. Feb. 12, 2014); Derda v. Astrue, No.
4:09-cv-1847 AGF, 2011 WL 1304909, at *10 (E.D. Mo. Mar. 31,
2011). It is sufficient that an ALJ considered the listed
factors, see §§ 404.1527(c) and
416.927(c), and that the ALJ indicated in his written
decision that he has done so.
Bebchuk completed a mental impairment questionnaire on June
9, 2015. (R. 602-06.) He recorded a diagnosis of major
depressive disorder, recurrent with psychotic features; and
described Yang's symptoms as a depressed mood, auditory
hallucinations, anhedonia, fatigue, poor concentration, and
hopelessness. (R. 602.) He indicated that Yang had responded
minimally to treatment and medications, and that her
depression exacerbated her back pain. (R. 602.) Dr. Bebchuk
declined to assess Yang's work-related activities,
explaining that he did not assess his patients' abilities
as part of his clinical practice. (R. 604.) He did indicate,
however, that Yang would be extremely limited in activities
of daily living, extremely limited in maintaining social
functioning, and markedly limited in maintaining
concentration, persistence, or pace. (R. 605.) Dr. Bebchuk
also indicated that Yang had suffered four or more episodes
of decompensation in the past twelve months and met the
paragraph C.2 criteria of Listing 12.04,  and he predicted
that she would miss more than four days of work a month. (R.
noted that Dr. Bebchuk was Yang's treating psychiatrist
but gave the opinion little weight for several reasons. (R.
32.) The ALJ wrote that Dr. Bebchuk's opinion was
“not at all supported by the overall mental status
examinations” and was inconsistent with Yang's
conservative course of treatment and Yang's activities.
(R. 32.) The ALJ also found the opinion inconsistent with
evidence that Yang's mental symptoms waxed and waned and
did not meet the twelve-month durational requirement. (R.
32.) Finally, the ALJ found that “not a shred of
evidence” supported Dr. Bebchuk's assertion that
Yang had four or more extended episodes of decompensation.
Court finds that substantial evidence supports the ALJ's
decision to give little weight to Dr. Bebchuk's opinion,
and that the ALJ gave good reasons for discounting the
opinion. The ALJ declined to give controlling weight to Dr.
Bebchuk's opinion because it was inconsistent with other
substantial evidence. The ALJ did not err in this respect.
(See, e.g., R. 500-01 (noting no impairment with
attention, concentration, or memory); R. 514-16 (documenting
a generally normal mental status examination,
“unremarkable” concentration and attention,
normal memory, and “open and engaging” behavior);
R. 520 (finding normal concentration, attention, and memory;
average intelligence); R. 544 (recording no hallucinations,
normal affect); R. 718 (reporting less anxiety, no previous
psychiatric hospitalizations); R. 722 (noting increased
stress and hopelessness due to temporary financial
situation); R. 726 (recording improvement with depressive
symptoms but feeling overwhelmed by caring for son with
special needs); R. 819-20 (reporting normal mental state and
normal dizziness test results); R. 828 (documenting moderate
indicated at the beginning of the RFC discussion in his
written decision that he had considered all opinion evidence
in accordance with §§ 404.1527 and 416.927. (R.
27.) In deciding the weight due to Dr. Bebchuk's opinion,
the ALJ noted that Dr. Bebchuk was a psychiatrist and
Yang's treating source, but found that the opinion was
not supported by mental status examinations and was not
consistent with the conservative course of treatment Dr.
Bebchuk administered. These findings are well-documented in
the record. Yang's mental status examinations frequently
revealed normal attention and concentration, no memory
impairment, average intelligence, good judgment and insight,
and a history of (but no current) auditory hallucinations.
(E.g., R. 728-29, 732-33, 736-37, 740-71, 744-45.)
The mental status examinations were certainly not consistent
with being markedly restricted in activities of daily living,
maintaining social functioning, or maintaining concentration,
persistence, or pace, for a twelve-month period. In addition,
Yang's depression and other mental impairments were
conservatively managed with medication, monthly medication
evaluations with Dr. Bebchuk, and biweekly therapy sessions.
also reduced the weight of Dr. Bebchuk's opinion because
the limitations suggested by Dr. Bebchuk were inconsistent
with some of Yang's activities. Treatment records from
Yang's providers contain very little detail about her
activities, but Yang completed a function report in December
2013, indicating that she could cook simple meals, wash small
loads of laundry, occasionally go to the doctor by herself,
occasionally shop for groceries, and garden. (R. 233-36.) She
socialized primarily with her children, conversing and having
dinner with them after they came home from work. (R. 236,
239.) A function report completed in August 2014 reveals that
Yang's daily activities were more restricted, but she
could still prepare simple lunches, and drive and shop
occasionally. (R. 261-68.) Yang said that her daughter
PaChia, with whom she lived, was her PCA at that time. (R.
262.) Importantly, because the ALJ found Yang only partially
credible-a finding Yang does not challenge-that finding may
be applied to other evidence of record based on subjective
complaints or self-described symptoms and
limitations. See Vance v. Berryhill, 860 F.3d
1114, 1120 (8th Cir. 2017); McCoy v. Astrue, 648
F.3d 605, 617 (8th Cir. 2011). Thus, while some of the
symptoms and limitations described on Yang's function
reports are consistent with Dr. Bebchuk's opinion, the
ALJ did not err in disregarding those self-reported symptoms
the ALJ correctly observed that “not a shred of
evidence” supports Dr. Bebchuk's finding that Yang
has had four or more extended episodes of decompensation.
Indeed, the record does not contain evidence of even one such
episode. Such a significant error-whether due to a
misunderstanding of the definition of the term “episode
of decompensation” or to a mischaracterization of the
record-reasonably called into doubt the validity of Dr.
Bebchuk's entire opinion.
completed mental impairment questionnaires in May and
September 2015, both of which the ALJ discussed in his
written decision. (R. 32, 588-98.) In the earlier
questionnaire, Garrett indicated that Yang could not perform
at a consistent pace without an unreasonable number and
length of rest periods, remember work procedures, maintain
attention for two hours at a time, maintain attendance and
punctuality, follow an ordinary routine without supervision,
make simple work-related decisions, or deal with normal work
stresses, among other restrictions. (R. 596.) Garrett opined
that Yang was markedly limited in activities of daily living
and in maintaining concentration, persistence, or pace. (R.
597.) Garrett also opined that Yang met the paragraph C.2
criteria of Listing 12.04 and predicted she would miss more
than four days of work a month. (R. 597.) He attributed her
limitations to major depression, which he classified as
“Recurrent Moderate, ” positional vertigo, and
chronic pain. (R. 594, 596.) He further indicated that her
symptoms of depression had been reduced with treatment. (R.
594.) Garrett indicated even greater restrictions on the
September 2015 questionnaire. (R. 590-91.)
discounted Garrett's opinions as inconsistent with
treatment records that reflected only temporary exacerbations
of symptoms and a conservative course of treatment, and for
the other reasons he gave for discounting Dr. Bebchuk's
opinion. (R. 32.) This Court's finding that substantial
evidence supports the ALJ's decision to give little
weight to Dr. Bebchuk's opinion applies with equal force
to Garrett's opinion. Moreover, unlike Dr. Bebchuk,
Garrett rarely noted on his treatment records specific
findings concerning Yang's abilities to concentrate, pay
attention, function socially, or maintain persistence or
pace. Garrett's progress notes consisted of two or three
sentences describing Yang's subjective complaints, noting
that she appeared sad and anxious, assessing her with major
depression, and directing her to return in two to three
weeks. (E.g., R. 581, 582, 859, 876, 883.) There are
no detailed clinical findings or mental status examination
results comparable to the information contained in Dr.
Bebchuk's treatment records.
the ALJ did not err in assigning little weight to the
opinions expressed by Garrett on the mental impairment