United States District Court, D. Minnesota
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff Audrey M.H.'s
(“Plaintiff”) Motion for Summary Judgment (Dkt.
No. 11) and Defendant Acting Commissioner of Social Security
Nancy A. Berryhill's (“Defendant”) Motion for
Summary Judgment (Dkt. No. 14). Plaintiff filed this case
seeking judicial review of a final decision by Defendant
denying her application for disability insurance benefits.
For the reasons stated below, Plaintiff's Motion is
denied, and Defendant's Cross-Motion is granted.
filed a Title II application for disability insurance
benefits on March 9, 2013, alleging disability beginning on
September 21, 2007. (R. 30.) Plaintiff later amended her
alleged disability onset date from September 21, 2007 to
March 16, 2010. (Id.) Plaintiff applied for benefits
on November 14, 2013, alleging disability since March 16,
2010, due to Marfan syndrome, low back pain, anxiety attacks
and arthritis (R. 218, 239). Her application was denied
initially and on reconsideration. (R. 30.) Plaintiff
requested a hearing before an administrative law judge
(“ALJ”), which was held on September 24, 2015
before ALJ Virginia Kuhn. (R. 30-45.) The ALJ issued an
unfavorable decision on October 28, 2015, finding that
Plaintiff was not disabled through March 31, 2014, the last
date of insured. (R. 45.)
the five-step sequential evaluation process under 20 C.F.R.
§ 404.1520(a),  the ALJ first determined at step one that
Plaintiff had not engaged in substantial gainful activity
since March 31, 2014. (R. 32.)
two, the ALJ determined that Plaintiff had the following
severe impairments: degenerative disc disease of the spine;
and Marfan syndrome with aortic dilation, mitral valve
prolapse, and joint involvement. (R. 32.) The ALJ determined
that Plaintiff's other impairments were not severe,
including her retinal detachment and aphakia. (R. 33.) The
ALJ also concluded that the Plaintiff's alleged mental
impairments of generalized anxiety and major depression were
not medically determinable impairments prior to the date last
insured because they did not develop until late in the
relevant period and the severity quickly diminished once she
began treatment. (Id.)
third step, the ALJ determined that Plaintiff did not have an
impairment that meets or medically equals the severity of one
of the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1. (R. 33-34.)
four, after reviewing the entire record, the ALJ concluded
that Plaintiff had the following residual functional capacity
[T]o perform sedentary work as defined in 20 CFR
404.1567(a) and the Dictionary of Occupational Titles
except no climbing of ladders, ropes or scaffolds; occasional
climbing of ramps and stairs; occasional balancing, stooping,
kneeling, and crouching; no crawling; and frequent gross and
fine manipulation with the hands bilaterally.
fifth step of the sequential analysis, and based on the
testimony of the vocational expert (“VE”), the
ALJ found that through the date last insured, considering the
Plaintiff's age, education, work experience, and residual
functional capacity, Plaintiff was capable of making a
successful adjustment to other work that existed in
significant numbers in the national economy including, bench
work (DOT code 726.68S-066, sedentary, unskilled), optical
accessory polisher (DOT Code 713.684-038, sedentary,
unskilled), and printed circuit board assembler (DOT code
726.684-110, sedentary, unskilled). (R. 44.) Accordingly, the
ALJ deemed Plaintiff not disabled. (R. 45.)
requested review of the decision. (R. 4.) The Appeals Council
denied Plaintiff's request for review, which made the
ALJ's decision the final decision of the Commissioner.
(R. 1-2.) Plaintiff then commenced this action for judicial
review. The 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 parties' motions.
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), or if the ALJ's decision resulted from an error
of law. Nash v. Comm'r, Soc. Sec.
Administration, 907 F.3d 1086, 1089 (8th Cir. 2018)
(citing 42 U.S.C. § 405(g); Chismarich v.
Berryhill, 888 F.3d 978, 979 (8th Cir. 2018)).
“‘Substantial evidence is less than a
preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner's
conclusions.'” Id. (quoting Travis v.
Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007)). The Court
“considers evidence that detracts from the
Commissioner's decision as well as evidence that supports
it.” Id. “If substantial evidence
supports the Commissioner's conclusions, this court does
not reverse even if it would reach a different conclusion, or
merely because substantial evidence also supports the
contrary outcome.” Id. (citation omitted). In
reviewing the record for substantial evidence, the Court may
not substitute its own judgment or findings of fact for that
of the ALJ. See Hilkemeyer v. Barnhart, 380 F.3d
441, 445 (8th Cir. 2004).
initially challenged three aspects of the Commissioner's
decision: (1) the weight given to her treating
physicians' opinions; (2) the alleged failure by the ALJ
to cite or credit any specific medical evidence in support of
Plaintiff's physical RFC; (3) the evaluation of her
credibility by the ALJ. Plaintiff now also argues that the
ALJ lacked the requisite authority to render a decision
regarding her benefits pursuant to the Appointments Clause
under the United States Constitution. (Dkt No. 19.) The Court
will address each aspect in turn.
The Weight Assigned to the Treating Physician's
to Plaintiff, the ALJ failed to properly consider the opinion
of Plaintiff's treating geneticist, Dr. Salman Kirmani,
M.B.B.S. and her general practitioner Dr. Kari
Bunkers, M.D., and therefore formulated an RFC that failed to
incorporate all of her limitations. (Dkt. No. 12 at 11-12.)
In particular, Plaintiff argues the ALJ erred by not giving
proper weight to the opinions of Drs. Kirmani and Bunkers
based on the ALJ's conclusion that the opinions were not
supported by clinical examinations or cardiac testing
performed prior to the date last insured and that those
opinions may not all relate to the period at issue.
(Id. at 12-13.) Plaintiff maintains Dr. Kirmani
specifically stated that his opinions were based on the
clinical criteria set for Marfan syndrome and diagnostic
testing revealing premature arthritis, and degenerative disc
disease and lumbar dural ectasia, as well as an eye exam
documenting bilateral lens dislocation; while Dr. Bunkers
stated that her opinions were based on evidence of bilateral
ectopia lentis, an MRI of the lumbar spine showing cysts,
dural ectasia at multiple levels, and nerve root impingement,
painful forward flexion and extension, chest tenderness, low
back tenderness, and painful range of motion in the shoulders
and hips. (Id.) Plaintiff argues that regardless of
the date of the reports, Drs. Kirmani and Bunkers'
opinions specifically indicated that the limitations were
present prior to the last date of insured, March 31, 2014.
(Id. at 13.)
relates to the opinions of Dr. Kirmani, the ALJ found as
The undersigned places little weight on these opinions
because Dr. Kirmani's physical examinations and annual
cardiac testing do not support the symptoms and alleged
limits opined nor does the claimant's activities of daily
living reported and set forth above including gardening and
walking her 3.5-acre property that has a hill once or twice
per day. The opinion is also inconsistent with Dr.
Kirmani's and other medical providers repeated
instructions that she increase her activity, more regularly
perform exercises learned at physical therapy and participate
in physical therapy. Additionally, the opinions are
inconsistent with the prescribed course of conservative
treatment that did not even include pain medication.
respect to Dr. Bunkers' February 2014, August 2014, and
April 2015 opinions regarding Plaintiff's limitations,
the ALJ placed “little weight” on these opinions
because: Dr. Bunkers acknowledged she treats the Plaintiff
for non-severe impairments so she had no basis to make an
opinion regarding the impairments she does not treat; she
appeared to have based her opinion on a desire to help the
Plaintiff obtain Social Security disability benefits; Dr.
Bunkers' own examinations and observations in 2011, 2013
and 2014 did not support the limitations opined, including
because, as noted above, she observed the claimant routinely
as in no acute distress until February 2014 with normal
motor, strength, sensory, and neurological examinations; the
opinions were not consistent with the overall medical
evidence; and Dr. Bunkers might have been commenting on
Plaintiff's condition after the date last insured. (R.
41-42.) The ALJ gave no weight to Dr. Bunkers' August 25,
2015 Disability Impairment Questionnaire assessment for
Plaintiff because it was filled out well after the last date
insured and not supported by the objective medical evidence
on or prior to the last date insured. (R. 42.)
disability claimant has the burden to establish her
RFC.” Eichelberger v. Barnhart, 390 F.3d 584,
591 (8th Cir. 2004). The Eighth Circuit has held that
“a ‘claimant's residual functional capacity
is a medical question.'” Id. (quoting
Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)).
“‘[S]ome medical evidence' must support the
determination of the claimant's RFC, and the ALJ should
obtain medical evidence that addresses the claimant's
‘ability to function in the workplace.'”
Id. (quoting Dykes v. Apfel, 223 F.3d 865,
867 (8th Cir. 2000) (per curiam)).
treating physician's opinion is generally given
controlling weight, but is not inherently entitled to it. An
ALJ may elect under certain circumstances not to give a
treating physician's opinion controlling weight. For a
treating physician's opinion to have controlling weight,
it must be supported by medically acceptable laboratory and
diagnostic techniques and it must not be ‘inconsistent
with the other substantial evidence in [the] case
record.'” Hacker v. Barnhart, 459 F.3d
934, 937 (8th Cir. 2006) (quoting 20 C.F.R. §
404.1527(d)(2)) (citing Goff, 421 F.3d at 790;
Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.
2005)). “A treating physician's own inconsistency
may also undermine his opinion and diminish or eliminate the
weight given his opinions.” Id. (citing
Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir.
2000)); see also Anderson v. Astrue, 696 F.3d 790,
793 (8th Cir. 2012) (“However, ‘[a]n ALJ may
discount or even disregard the opinion of a treating
physician where other medical assessments are supported by
better or more thorough medical evidence, or where a treating
physician renders inconsistent opinions that undermine the
credibility of such opinions.'”) (quoting
Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir.
2010)) (alteration in original) (internal quotation omitted).
Moreover, “a treating physician's opinion that a
claimant is ‘disabled' or ‘unable to
work,' does not carry ‘any special
significance,' because it invades the province of the
Commissioner to make the ultimate determination of
disability.” Davidson v. Astrue, 578 F.3d 838,
842 (8th Cir. 2009) (quoting 20 C.F.R. §§
416.927(e)(1), (3)) (citation omitted).
Dr. Kirmani's Opinions Relating to Plaintiff's
March 29, 2013 “To Whom it May Concern” letter,
Dr. Kirmani represented that he had taken over
Plaintiff's treatment for Marfan syndrome from Dr.
Virginia Michaels who had retired. (R. 429.) Dr. Kirmani
noted that Plaintiff had last seen Dr. Michaels in August
2012. (Id.) Dr. Kirmani referred to
“significant issues” with lower back pain, with
evidence of facet degeneration, dural ectasia and
degenerative arthritis. (Id.) Dr. Kirmani based this
finding on an examination by the Mayo Clinic's Spine
Center. (Id.) According to Dr. Kirmani, Plaintiff
“has filed for disability through her employer but is
having trouble justifying this.” (Id.) Based
on her medical history and the record, he “fully
endorsed the need for disability because she was in chronic
back pain” secondary to Marfan syndrome and was unable
to return to work. (Id.) While she had tried a
number of unspecified therapies, Dr. Kirmani opined that
nothing provided her with long-term relief, thereby
qualifying her for disability benefits. (Id.) There
is no evidence that Dr. Kirmani examined Plaintiff in
relation to the March 29, 2013 letter. Indeed, it appears she
was last seen in August 2012 for her Marfan syndrome prior to
this letter. (R. 352, 429.)
December 9, 2013, Plaintiff was seen by Dr. Kirmani for a
follow-up regarding her Marfan syndrome. (R. 635.) Dr.
Kirmani noted that Plaintiff claimed that she continued to
struggle with “significant musculoskeletal pain and
disability secondary to the diagnosis of Marfan
syndrome.” (Id.) She had been unable to work
due to chronic lower back and leg pain and had unsuccessfully
attempted to obtain workplace accommodations because of her
diagnosis. (Id.) She also reported suffering from
muscle cramps in her upper extremities. (Id.) She
had not been performing any physical therapy because she
could not afford the treatment. (Id.) As part of the
visit, Plaintiff noted that she was again applying for
disability and brought forms to him in this regard.
(Id.) According to Dr. Kirmani, Plaintiff's
medication consisted of an antibiotic, acetaminophen,
ibuprofen, blood pressure medications, and eye moisturizing
drops. (Id.) Dr. Kirmani conducted no physical
examination of Plaintiff during the follow-up. (R.
636.) Plaintiff rated her back and leg pain at 8 out of 10.
(Id.) As to her past medical history, Dr. Kirmani
noted a previous spine MRI showing degenerative disk disease
and lumbar dural ectasia and arthritis. (Id.) Dr.
Kirmani strongly recommended that Plaintiff participate in
physical therapy, which she could not afford. (Id.)
Dr. Kirmani believed that disability benefits would provide
her with the money needed to pay for physical therapy.
(Id.) Dr. Kirmani recommended continuing follow-up
visits on an annual basis. (Id.)
same date, Dr. Kirmani filled out a “Summary Impairment
Questionnaire” on a form provided by Plaintiff's
present legal counsel. (R. 463.) Plaintiff's primary
symptoms were musculoskeletal pain due to arthritis and
degenerative disc disease, evidenced by an unspecified MRI
and x-ray. (Id.) Dr. Kirmani also noted that
Plaintiff had been diagnosed with mitral valve prolapse
related to her heart (based on an echocardiograph) and
bilateral eyes lens dislocation. (Id.) Plaintiff was
seen for her Marfan syndrome on an annual basis and had
treated with Tylenol, ibuprofen, and physical therapy for her
pain. (Id.) According to Dr. Kirmani, Plaintiff was
unable to sit, stand or walk for less than an hour in an
eight-hour work day. (R. 464.) Plaintiff could frequently
lift 5 pounds and occasionally lift up to 10 pounds.
(Id.) Dr. Kirmani also opined that Plaintiff could
not grasp, use her hands or fingers, and could not use her
arms for reaching. (Id.) According to by Dr.
Kirmani, these limitations applied as far back as March 16,
on a careful review of the record, the Court concludes that
the ALJ gave appropriate weight to the opinion of
Plaintiff's treating physician Dr. Kirmani, as his
opinions regarding Plaintiff's significant limitations
are not supported by the objective medical record. This
includes a stable echocardiograph throughout the relevant
period (R. 334, 335, 339, 340, 344, 348, 394, 473); a stable
ophthalmology examination and good vision with corrective
lenses (R. 439, 382-83, 637, 639); no significant measurable
limitations to the extremities with full range of motion
despite Plaintiff's arthritis related to joint
hypermobility and mild finger joint enlargement (R. 331-32,
341, 344, 387, 396, 490, 493, 543, 652); conservative
treatment ordered by her providers related to her pain (R.
337, 439, 454, 463, 493, 543, 633, 635); Plaintiff's
report in August 2012 that she had no recurrence of
“significant pain” since June 2012 (arising from
using a garden hoe while working in her garden) (R. 382); and
that pain or pressure while sitting and standing was
alleviated when she shifted her position and only lasts 30-60
minutes once every three months (R. 398, 650).
Kirmani's severe limitations are also not consistent with
other contemporaneous examinations of Plaintiff by other
medical providers. Of particular interest is the September
11, 2013 opinion of Dr. Dhamija Radhika, M.B.B.S. This
opinion was given “great weight” by the ALJ. (R.
40.) Dr. Radhika, under the supervision Dr. Kirmani, assessed
Plaintiff as part of her annual follow-up related to her
Marfan syndrome. (R. 351.) This was the follow-up just prior
to Dr. Kirmani's December 2013 consult with Plaintiff and
makes no mention by Plaintiff about seeking disability
benefits. Dr. Radhika noted that Plaintiff reported similar
musculoskeletal and arthritis complaints as she had the
previous year. (R. 352.) As part of the physical examination
of Plaintiff, Dr. Radhika noted that Plaintiff was not in
acute distress. (R. 354.) Dr. ...