United States District Court, D. Minnesota
E. Osterhout, Esq., Osterhout Disability Law, LLC, and Edward
C. Olson, Esq., Disability Attorneys of Minnesota, counsel
Michael A. Moss, Esq., Special Assistant U.S. Attorney,
counsel for Defendant.
MEMORANDUM OPINION AND ORDER
R. THORSON, United States Magistrate Judge.
to 42 U.S.C. § 405(g), Plaintiff seeks judicial review
of the final decision of the Commissioner of Social Security
(“Commissioner”) denying his application for
disability insurance benefits. This matter is before the
Court on the parties' cross-motions for summary judgment,
in accordance with D. Minn. LR 7.2(c)(1). (Doc. Nos. 13, 16.)
For the reasons stated below, the Court concludes that the
Administrative Law Judge's (“ALJ”) decision
inadequately considered the treating physician's opinion.
Therefore, Plaintiff's motion is granted, Defendant's
motion is denied, and the matter is remanded for further
consideration of the opinion of Plaintiff's treating
neurologist, Dr. Rossing.
alleged a disability onset date of October 22, 2014. (Tr.
Early in the morning that day, Plaintiff was driving to work
and noticed a headache and unusual clumsiness in his limbs.
(Tr. 326.) He was evaluated at an emergency room, then
transferred to an intensive care unit, where he underwent
neurological tests that discovered a worsening of
stroke-related symptoms. (Tr. 328.) During the following
days, Dr. Rossing treated Plaintiff for an acute ischemic
stroke, discussed findings with other physicians, ordered
tests, and attended directly to Plaintiff. (See,
e.g., Tr. 336-343; 364-69.) Between Plaintiff's
discharge from the hospital on December 4, 2014 and July 7,
2015, Plaintiff had about sixty-four physical therapy and
sixty-eight occupational therapy sessions. (Tr. 446, 451.)
After Plaintiff's discharge, Plaintiff had check-ups with
Dr. Rossing in April 2016 and April 2017. (See Tr.
495, 488.) During the April 2017 appointment, Dr. Rossing
noted that Plaintiff was making “good and regular
progress toward [a] normal baseline” and that he was
“more or less stable in regards to his general
function.” (Tr. 487-88.) Dr. Rossing, however, also
stated that Plaintiff suffered “residual chronic
disabilities of gait, balance, mobility, focal dysfunction
and vestibular dysfunction that prevent[ed] him from . . .
gainful employment.” (Tr. 487.)
decision dated August 7, 2017, the ALJ conducted the
five-step sequential analysis and found that Plaintiff was not
disabled. (Tr. 19-36.) At steps one and two, respectively,
the ALJ found that Plaintiff was not gainfully employed and
that he had severe impairments. (Tr. 25.) At step three, the
ALJ determined that Plaintiff's impairments did not meet
or medically equal the Listing of Impairments. (Id.)
The ALJ then found that Plaintiff had the residual functional
capacity (“RFC”) to perform light work activity
with the following limitations: Plaintiff could lift up to
twenty pounds occasionally and ten pounds frequently; could
sit, stand, and walk for six hours in an eight-hour day;
could push and pull the same as lift and carry; must avoid
walking on uneven terrain; must never climb ladders, ropes,
or scaffolds; could occasionally climb ramps and stairs;
could occasionally balance, stoop, kneel, crouch, and crawl;
was limited to bilateral frequent handling, fingering, and
feeling; was limited to frequent speaking; and was to avoid
all exposure to hazards such as unprotected heights and
dangerous moving machinery. (Id.) At step four, the
ALJ found that Plaintiff was unable to perform his past
relevant work. (Tr. 29.) At step five, the ALJ consulted a
vocational expert who testified that there were jobs in the
national economy that could be done by an individual with
Plaintiff's conditions. (Tr. 30.) The ALJ therefore found
Plaintiff “not disabled.” (Tr. 31.)
Standard of Review
Commissioner's decision will be upheld if it is supported
by substantial evidence in the record as a whole. 42 U.S.C.
§ 405(g); Kluesner v. Astrue, 607 F.3d 533, 536
(8th Cir. 2010). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Biestek v. Berryhill,
139 S.Ct. 1148, 1154 (2019) (citations omitted); accord
Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003).
This standard “allows for the possibility of drawing
two inconsistent conclusions.” Culbertson v.
Shalala, 30 F.3d 934, 939 (8th Cir. 1994) (citations
omitted). If it is possible to draw inconsistent conclusions
from the record, and one of those conclusions represents the
ALJ's findings, the ALJ's decision must be affirmed.
McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir.
2010); Pearsall v. Massanarri, 274 F.3d 1211, 1217
(8th Cir. 2001) (stating that the court must affirm even if
it would have weighed the evidence differently); Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000) (concluding
substantial evidence in the record supporting a contrary
outcome was not enough to warrant reversal).
asserts that the ALJ improperly rejected the opinion of
neurologist Dr. Rossing, a treating physician, contrary to
Social Security Administration (“SSA”) policy and
Eighth Circuit precedent, and seeks remand for further
administrative proceedings. (Doc. No. 14 at 4-15.) Defendant
disagrees, asserting that the ALJ's decision was based on
proper consideration of all the evidence. (Doc. No. 17 at
regulations generally give treating physicians' opinions
greater weight than non-treating sources. 20 C.F.R. §
404.1527(c)(2); see Walker v. Comm'r, Soc. Sec.
Admin., 911 F.3d 550, 553 (8th Cir. 2018). Furthermore,
treating physicians' opinions “receive controlling
weight if they are well-supported by the medical evidence and
are ‘not inconsistent with the other substantial
evidence in [the] case record.'” Walker,
911 F.3d at 553 (quoting 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2)). Regardless of the weight an
ALJ assigns an opinion, they “must give good reasons
for doing so.” Id.; see also, SSR.
96-2p, 1996 WL 374188 (July 2, 1996) (stating that notice of
denial “must contain specific reasons for the weight
given to the treating source's medical opinion”).
“Good reasons” for lesser weight include internal
inconsistency and other physicians' opinions offering
better evidentiary support. Reece v. Colvin, 834
F.3d 904, 909 (8th Cir. 2016). Here, the ALJ “afforded
[Dr. Rossing's opinion] little weight, ” stating
that it was given over two years after the date of last
insured, was conclusory, and did not contain specific
vocationally relevant limitations. (Tr. 29.)
Plaintiff points out, while Dr. Rossing's opinion was
given more than two years after the time period at issue, it
addressed Plaintiff's medical history longitudinally,
going beyond what was strictly contemporaneous with the 2017
appointment. (Doc. No. 14 at 9-10; Tr. 493.) Indeed, the
record shows Dr. Rossing was involved with Plaintiff's
neurology treatment on the day of Plaintiff's stroke and
periodically thereafter. (See, e.g., Tr. 329, 351,
364-69, 374, 487-496.) That a physician opines after the date
last insured does not necessarily preclude the opinion from
being a valid medical opinion in need of consideration.
List v. Apfel, 169 F.3d 1148, 1149 (8th Cir. 1999)
(“Retrospective medical diagnoses constitute relevant
evidence concerning the degree of disability prior to
expiration of the insured period.”); see also
20 C.F.R. § 404.1527(c)(2)(ii) (“When the treating
source has seen you a number of times and long enough to have
obtained a longitudinal picture of your impairment, we will
give the medical source's medical opinion more
also characterized Dr. Rossing's opinion as
“conclusory in nature” but failed to elaborate.
An ALJ may assign little weight to a treating physician's
opinion if the opinion is conclusory. Thomas v.
Berryhill, 881 F.3d 672, 675 (8th Cir. 2018). A
conclusory opinion is one that is “not supported by
medical diagnoses based on objective evidence.”
Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir.
2003) (citing Bates v. Chater, 54 F.3d 529, 532 (8th
Cir. 1995)). However, when a physician's opinion is
conclusory, the ALJ should examine the underlying medical
record to determine whether it supports the conclusory
opinion. Despain v. Berryhill, No. 18-1927, 2019 WL
2478046, at *2 (8th Cir. June 14, 2019). If it does, the
conclusory opinion “may still be entitled to
controlling weight.” Id. In this case, the ALJ
provided no explanation for why he considered Dr.
Rossing's opinion to be conclusory or why the underlying
medical record does not support Dr. Rossing's opinion. In
fact, the underlying medical record seems to support Dr.