United States District Court, D. Minnesota
ORDER ACCEPTING REPORT AND RECOMMENDATION
E. BRASEL UNITED STATES DISTRICT JUDGE
brought this action after the Commissioner of Social Security
denied Plaintiff's application for disability insurance
benefits, asking the Court to remand the matter to the
Commissioner for another hearing and an award of benefits.
The parties filed cross-motions for summary judgment. In a
June 4, 2019 Report and Recommendation, United States
Magistrate Judge Steven E. Rau recommends granting
Defendant's motion for summary judgment and denying
Plaintiff's. [ECF No. 21 (“R&R”).]
objected to the recommendation, and so the Court has
conducted a de novo review. [ECF No. 23 (“Pl.
Obj.”)]; 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); D. Minn. L.R. 72.2(b). Having closely examined the
record and the R&R, the Court agrees with Judge Rau that
the Administrative Law Judge's (“ALJ's”)
decision does not contain legal error and is supported by
substantial evidence. Thus, the Court overrules
Plaintiff's objection and accepts the R&R.
issues raised in Plaintiff's objection warrant
explanation. First, Plaintiff argues the ALJ committed legal
error because it did not give sufficient weight to the
opinion of occupational therapist Dale Wirth. According to
the Plaintiff, his treating physician Dr. Alexia Norelle
adopted Mr. Wirth's opinion, and thus the ALJ should have
treated it as a medical opinion. (Pl. Obj. at 2.) Judge Rau
considered this argument and determined that Mr. Wirth's
assessment was “not an opinion based on Dr.
Norelle's own evaluations or judgment.” (R&R at
10.) And even if Mr. Wirth's assessment became a medical
opinion due to Dr. Norelle's agreement, the ALJ also
discounted it because it was inconsistent with the record as
a whole. A treating doctor's opinion “is afforded
less deference when the medical evidence in the record as a
whole contradicts the opinion itself.” Haggard v.
Apfel, 175 F.3d 591, 595 (8th Cir. 1999). Judge Rau
properly found that the ALJ appropriately considered Mr.
Wirth's finding, and that the ALJ's decision to
discount the opinion was supported by substantial evidence.
Plaintiff argues that the Commissioner failed to meet his
burden at step five because he did not demonstrate that
Plaintiff possessed transferable skills during the period
when Plaintiff had the RFC to perform sedentary work. (Pl.
Obj. at 4-5.) Plaintiff's theory is that the Commissioner
and Judge Rau ignored the “heightened skill
transferability threshold” for applicants over age 55.
(Pl. Obj. at 5.) This is so, Plaintiff argues, because of the
Vocational Expert's interrogatory response number 16, in
which the VE checked “no” to the question of
whether there were any “sedentary jobs that are so
similar to [Plaintiff's] past (relevant) work that
[Plaintiff] would need to make very little, if any,
vocational adjustments in terms of tools, work processes,
work settings, or the industry.” [ECF No. 10-6 at 94
(Admin. R. at 299).] Under the regulations, “In order
to find transferability of skills to skilled sedentary work
for individuals who are of advanced age (55 and over), there
must be very little, if any, vocation adjustment required in
terms of tools, work processes, work settings, or the
industry.” 20 C.F.R. § 404, Subpt. P, App. 2,
§ 201.00(f). Thus, at first blush, the VE's answer
to interrogatory 16 would seem to indicate a finding of
Rau addressed this argument, rejecting it under the
substantial evidence standard. The remainder of the VE's
answers, and the remainder of the record, support the
ALJ's conclusion that Plaintiff acquired skills from his
past work that transferred to jobs existing in significant
numbers in the national economy. The record does not support
any inference that the ALJ ignored Plaintiff's age or the
applicable standard. To the contrary, the ALJ discussed the
age category issue at the hearing and in his findings,
specifically noting that Plaintiff was 52 and
“approaching advanced age” at the alleged
disability onset date. [ECF No. 10-2 at 40 (Admin. R. at
39).] The VE's interrogatory response does not change the
result. Substantial evidence in the record supports the
ALJ's step five finding, and the Court “may not
reverse it because substantial evidence exists in the record
that would have supported a contrary outcome.”
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000). In all, the Court concludes that the ALJ's
decision is supported by substantial evidence and
“falls within the available zone of choice.”
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011)
(quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8th
Plaintiff voices concern over the R&R's purported
reliance on daily activities in determining his RFC. (Pl.
Obj. at 4 n.1.) Plaintiff's criticism stems from case law
denouncing the “naiveté of the Social Security
Administration's administrative law judges in equating
household chores to employment.” Hughes v.
Astrue, 705 F.3d 276, 278 (7th Cir. 2013). In advancing
this argument, Plaintiff attempts to stretch the
Hughes criticism too far. The ALJ did not equate
household chores with employment, and did not rely solely on
Plaintiff's daily activities; instead, both the ALJ and
Judge Rau properly contrasted Plaintiff's daily
activities with his reported limitations when weighing
Plaintiff's testimony and certain medical opinions.
See Fentress v. Berryhill, 854 F.3d 1016, 1021 (8th
Cir. 2017), as corrected (Apr. 25, 2017) (affirming that the
Commissioner appropriately weighed conflicting evidence of
daily activities with physician's opinion and
plaintiff's statements). The ALJ therefore appropriately
considered the evidence, including the extensive medical
record and report of daily activities, in determining
on the foregoing, and on all the files, records and
proceedings herein, the Court OVERRULES Plaintiff's
objection [ECF No. 23], and ACCEPTS the R&R [ECF No. 21.]
IT IS HEREBY ORDERED THAT:
1. Plaintiff's Motion for Summary Judgment [ECF No. 12]
2. Defendant's Motion for Summary Judgment [ECF No. 18]
JUDGMENT BE ENTERED ACCORDINGLY.
 Andrew Saul is now the Commissioner of
Social Security and is automatically substituted as a party
pursuant to ...