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Mike S. v. Saul

United States District Court, D. Minnesota

August 5, 2019

Mike S., Plaintiff,
Andrew Saul, Commissioner of Social Security, Defendant.

          Karl E. Osterhout, Esq., Osterhout Disability Law, LLC, and Edward C. Olson, Esq., Disability Attorneys of Minnesota, counsel for Plaintiff.

          Michael A. Moss, Esq., Special Assistant U.S. Attorney, counsel for Defendant.


          BECKY R. THORSON, United States Magistrate Judge.

         Pursuant 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.

         I. Background

         Plaintiff alleged a disability onset date of October 22, 2014. (Tr. 22.)[1] 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.)

         In a decision dated August 7, 2017, the ALJ conducted the five-step sequential analysis[2] 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.)

         II. Standard of Review

         The 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).

         III. Analysis

         Plaintiff 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 6-14.)

         The SSA 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.)

         As 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 weight.”).

         The ALJ 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. ...

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