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Audrey M.H. v. Berryhill

United States District Court, D. Minnesota

February 14, 2019

Audrey M.H., Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.



         This 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.

         I. BACKGROUND

         Plaintiff filed a Title II application for disability insurance benefits on March 9, 2013, alleging disability beginning on September 21, 2007. (R. 30.)[1] 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.)

         Following the five-step sequential evaluation process under 20 C.F.R. § 404.1520(a), [2] the ALJ first determined at step one that Plaintiff had not engaged in substantial gainful activity since March 31, 2014. (R. 32.)

         At step 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.)

         At the 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.)

         At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had the following residual functional capacity (“RFC”):

[T]o perform sedentary work as defined in 20 CFR 404.1567(a)[3] 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.

(R. 34.)

         At the 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.)

         Plaintiff 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.


         Judicial 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).


         Plaintiff 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.

         A. The Weight Assigned to the Treating Physician's Opinion

         According to Plaintiff, the ALJ failed to properly consider the opinion of Plaintiff's treating geneticist, Dr. Salman Kirmani, M.B.B.S.[4] 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.)

         As it relates to the opinions of Dr. Kirmani, the ALJ found as follows:

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.

(R. 40.)

         With 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.)

         “A 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)).

         “A 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).

         1. Dr. Kirmani's Opinions Relating to Plaintiff's RFC

         In a 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.)

         On 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.)

         On the 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, 2010. (Id.)

         Based 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).

         Dr. 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. ...

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