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Denise W. v. Berryhill

United States District Court, D. Minnesota

December 7, 2018

Denise W., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          Karl E. Osterhaut, Osterhaut Disability Law, LLC, and Edward C. Olson, Disability Attorneys (for Plaintiff); and

          Elvi D. Jenkins, Assistant Regional Counsel, (for Defendant).


          Steven E. Rau United States Magistrate Judge


         Plaintiff Denise W. brings the present action, contesting Defendant Commissioner of Social Security's denial of her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381. The parties filed cross-motions for summary judgment and consented to a final judgment from the undersigned pursuant to 28 U.S.C. § 636(c) and D. Minn. LR 7.2. For the reasons set forth below, the Court denies Plaintiff's motion and grants Defendant's motion.


         A. Procedural History

         Plaintiff filed the instant action for DIB and SSI in March 2014 and November 2014, respectively, alleging a disability onset date of August 15, 2007. Plaintiff alleges impairments of major depressive disorder, acute anxiety, attention deficit hyperactivity disorder, degenerative arthritis, and hearing loss. Plaintiff was found not disabled and that finding was affirmed upon reconsideration. Plaintiff then requested a hearing before an Administrative Law Judge. A hearing was held and, on August 29, 2016, the ALJ issued a decision denying Plaintiff's claim for benefits. Plaintiff sought review of the ALJ's decision through the Appeals Council, which denied review. Plaintiff then sought review in this Court.

         B. The ALJ's Decision

         The ALJ found Plaintiff had the severe impairments of: obesity; osteoarthritis; trochanteric bursitis; major depressive disorder; and anxiety disorder. (Tr. 22). The ALJ next concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of a listing in 20 C.F.R. pt. 404, subpt. P, app. 1. (Tr. 22). The ALJ looked at Listings 12.04 (affective disorders) and 12.06 (anxiety related disorders). (Tr. 22-23). The ALJ determined Plaintiff has the residual functioning capacity (“RFC”) to perform less than a full range of medium work, specifically limiting her to: lifting and/or carrying 30 to 35 pounds occasionally and 15 pounds or less frequently; sitting 6 hours in an 8-hour day; standing and/or walking for 6 hours in an 8-hour day; and finding that she

has ‘moderate' limitations in social interaction, meaning social functioning is limited such that a person is performing at lower acceptable limits for most workplaces. As defined, she would be moderately limited in interacting consistently and appropriately with others, in getting along consistently with coworkers, and in accepting instruction or criticism from supervisors, thus limiting her to work involving only brief and superficial contact with others.

(Tr. 24). The ALJ determined Plaintiff is capable of performing her past work. (Tr. 28). Plaintiff was found not disabled from August 15, 2007 through the date of the ALJ's decision. (Tr. 29).

         III. ANALYSIS

         A. Legal Standard

         Disability benefits are available to individuals determined disabled. 42 U.S.C. §§ 423(a)(1), 1381a; accord 20 C.F.R. §§ 404.315, 416.901. An individual is disabled if 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), 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a). This standard is met when a severe physical or mental impairment, or impairments, renders the individual unable to do her previous work or “any other kind of substantial gainful work which exists in the national economy” when taking into account her age, education, and work experience. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also 20 C.F.R. § 404.1505(a). Disability is determined according to a five-step, sequential evaluation process. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

To determine disability, the ALJ follows the familiar five-step process, considering whether: (1) the claimant was employed; (2) she was severely impaired; (3) her impairment was, or was comparable to, a listed impairment; (4) she could perform past relevant work; and if not, (5) whether she could perform any other kind of work.

Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010) (citing 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)). In general, the burden of proving the existence of disability lies with the claimant. 20 C.F.R. § 404.1512(a); Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991).

         If “substantial evidence” supports the findings of the Commissioner, then these findings are conclusive. 42 U.S.C. § 405(g). The Court's review of the Commissioner's final decision is deferential because the decision is reviewed “only to ensure that it is supported by substantial evidence in the record as a whole.” Hensley v. Barnhart, 352 F.3d 353, 355 (8th Cir. 2003). The Court's task is “simply to review the record for legal error and to ensure that the factual findings are supported by substantial evidence.” Id. This Court must “consider evidence that detracts from the Commissioner's decision as well as evidence that supports it.” Burnside v. Apfel, 223 F.3d 840, 843 (8th Cir. 2000). A court cannot reweigh the evidence or “reverse the Commissioner's decision merely because substantial evidence would have supported an opposite conclusion or merely because [a court] would have decided the case differently.” Harwood v. Apfel, 186 F.3d 1039, 1042 (8th Cir. 1999).

         Under 20 C.F.R. §§ 404.1527(c), 416.927(c), medical opinions from treating sources are weighed using several factors: (1) the examining relationship; (2) the treatment relationship, such as the (i) length of the treatment relationship and frequency of examination and the (ii) nature and extent of the treatment relationship; (3) supportability; (4) consistency; (5) specialization; and (6) other factors. If a treating source's medical opinion on the nature and severity of a claimant's impairments is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, ” it is given controlling weight. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Treating sources are defined as licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. §§ 404.1513(a), 416.913(a). “A treating physician's opinion that a claimant is disabled or cannot be gainfully employed gets no deference because it invades the province of the Commissioner to make the ultimate disability determination.” House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007). An ALJ “may give a treating doctor's opinion limited weight if it provides conclusory statements only.” Samons v. Astrue, 497 F.3d 813, 818 (8th Cir. 2007) (citing Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995)). And “[a] treating physician's own inconsistency may . . . undermine his opinion and diminish or eliminate the weight given his opinions.” Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (citing Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)).

         B. The Opinions of Dr. Kefalas and Thomas

          Plaintiff asserts that the ALJ erred in weighing Dr. Thomas Kefalas's August 2014 and March 2015 opinions, and therapist Cindy Lee Thomas's March 2016 opinion.[1]

         On August 26, 2014, Dr. Thomas Kefalas completed a single-page medical opinion check-the-box form. (Tr. 372).[2] Dr. Kefalas indicated Plaintiff's diagnoses were: major depressive disorder, ADHD, generalized anxiety disorder, panic disorder, and personality disorder NOS. (Tr. 372). Plaintiff had temporary limitations of anxiety and sad mood and permanent limitations of difficulty staying on task and residual anxiety. (Tr. 372). Dr. Kefalas opined Plaintiff could not perform any employment in the foreseeable future. (Tr. 372).

         On March 5, 2015, Dr. Kefalas completed a mental medical source statement. (Tr. 387-90). Dr. Kefalas noted he saw Plaintiff every other month and her mental diagnoses are major depressive disorder and ADHD. (Tr. 387, 385). Dr. Kefalas opined Plaintiff's prognosis was poor. (Tr. 387). Dr. Kefalas indicated no physical or medical condition contributed to or caused Plaintiff's mental impairments. (Tr. 387). Dr. Kefalas suggested Plaintiff's medications were ineffective and did not believe Plaintiff was exaggerating her symptoms. (Tr. 387).

         In assessing Plaintiff's ability to sustain mental activities and a productive level of functioning at work or in a home environment, Dr. Kefalas opined Plaintiff had little or no restrictions in interacting appropriately with the general public, getting along with coworkers or peers, maintaining socially appropriate behavior, adhering to basic standards of neatness and cleanliness, and being aware of normal hazards and taking appropriate precautions. (Tr. 387-88). Dr. Kefalas opined Plaintiff had moderate restrictions in carrying out very short and simple instructions, sustaining an ordinary routine without special supervision, working with others, making simple work-related decisions, asking simple questions or requesting assistance, accepting instructions and responding appropriately to criticism from supervisors, responding appropriately to changes in the work setting, and the ability to set realistic goals or make plans independently of others. (Tr. 387-88).

         Dr. Kefalas opined Plaintiff had marked restrictions in remembering locations and work-like procedures, understanding and remembering simple instructions, understanding and remembering detailed instructions, carrying out detailed instructions, maintaining attention and concentration for more than two-hour segments, performing activities within a schedule or maintaining regular attendance, completing a normal work day and work week without interruptions from psychologically-based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods, traveling in unfamiliar places or using public transportation, and the ability to tolerate normal levels of stress. (Tr. 387-88). No. documented deficiencies where objective testing would further explain Plaintiff's limitations were identified. (Tr. 388). Dr. Kefalas believed Plaintiff, during the work day, would need one to two unscheduled breaks every two hours because of her difficulty staying on task and tendency to get easily distracted; she also demonstrates the absence of a desire to complete tasks. (Tr. 389). Dr. Kefalas opined that Plaintiff would be absent 3 to 4 days monthly due to her mental impairments. (Tr. 389).

         Dr. Kefalas included a letter alongside his mental medical source statement. (Tr. 385-86). Plaintiff had no history of inpatient hospitalizations. (Tr. 385). Dr. Kefalas provided an expanded list of diagnoses: major depressive disorder, recurrent and generalized anxiety disorder, ADHD, panic disorder without agoraphobia, and personality disorder NOS. (Tr. 385). Dr. Kefalas also noted borderline personality features, depressive and negativistic personality characteristics, and narcissistic features exacerbated Plaintiff's depressive symptoms. (Tr. 385). Dr. Kefalas suggested that Plaintiff's past medications were minimally effective in managing her depression and anxiety, ...

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