United States District Court, D. Minnesota
E. Osterhaut, Osterhaut Disability Law, LLC, and Edward C.
Olson, Disability Attorneys (for Plaintiff); and
D. Jenkins, Assistant Regional Counsel, (for Defendant).
E. Rau United States Magistrate Judge
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
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
The ALJ's Decision
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).
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).
“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).
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)).
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
August 26, 2014, Dr. Thomas Kefalas completed a single-page
medical opinion check-the-box form. (Tr. 372). 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).
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).
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).
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).
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,