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Carter v. Saul

United States District Court, D. Minnesota

September 9, 2019

James Steven Carter, Plaintiff,
v.
Andrew Saul, Commissioner of Social Security, Defendant.

          Edward A. Wicklund, Esq., Olinsky Law Group, Syracuse, New York; and Edward C. Olson, Esq., Disability Attorneys of Minnesota, Minneapolis, MN, on behalf of Plaintiff.

          Marisa Silverman, Special Assistant United States Attorney, Assistant Regional Counsel, Social Security Administration, Dallas, TX, on behalf of Defendant.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE.

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for a ruling on Plaintiff James Steven Carter's (“Carter”) Objection [Docket No. 23] to Magistrate Judge Steven E. Rau's June 5, 2019 Report and Recommendation [Docket No. 21] (the “R&R”). Judge Rau recommends granting Defendant Commissioner of Social Security's (the “Commissioner”) Motion for Summary Judgment [Docket No. 18] and denying Carter's Motion for Summary Judgment [Docket No. 16]. For the reasons set forth below, Carter's Objection is overruled and Judge Rau's R&R is adopted.

         II. BACKGROUND

         Carter filed for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381. The facts and procedural history of this matter are set forth in Judge Rau's R&R, and are incorporated by reference. Accordingly, only a brief and abridged version of the relevant facts is presented below.

         A. Factual Background

         Carter's relevant medical history of record begins with Dr. Joel S. Giffin's (“Dr. Giffin”) examination of Carter on December 9, 2014, Carter's claimed disability onset date. Admin. R. [Docket No. 14] at 37, 352. Dr. Giffin ordered x-rays to investigate Carter's reported chronic back and knee pain, which Carter reported had been present for over a year. Id. Dr. Giffin read the x-rays, finding the knee and back “normal, ” but found on a hip x-ray, “severe right hip DJD [degenerative joint disease, or osteoarthritis] with osteophytes, spurring, loss of joint space.” Id. at 353. As part of the “Assessment/Plan, ” Dr. Giffin recorded:

Back and knee pain likely all or mostly from severe right hip DJD. Discussed low likelihood of pain medications or physical therapy benefitting patient with arthritis this severe - he was scared of prospect of surgery but will consider it. He wants a medical opinion form filled out but I won't do that today on first visit. He states he'll come back soon. No. pain medications today on first visit either though would consider at future visits.

Id. Carter returned to Dr. Giffin one week later on December 15, 2014 for a follow-up. Id. at 355. This time, Dr. Giffin filled out a Request for Medical Opinion (“RMO”), which diagnosed the “severe right hip arthritis” and listed as “employment restriction(s): no lifting more than 10 pounds; no standing or walking without a break.” Id. at 346-47. The prescribed treatment plan was “consult with Orthopedics.” Id. Dr. Giffin checked “Yes” for the RMO question, “has your patient followed the treatment plan, ” even though Carter had not yet seen an orthopedic specialist. Id. Based on his assessment, Dr. Giffin stated Carter could work 1-10 hours per week with “frequent breaks to stand/move around.” Id. at 347.

         Carter next visited Dr. Giffin on February 16, 2015. Dr. Giffin reported that Carter “was sent to Orthopedics for severe DJD of right hip,

hasn't gone yet, is scared to do so. Also didn't go to physical therapy. Would like something stronger for pain. Is applying for disability, has a functional capacity form he needs filled out.”

Id. at 357. The Assessment/Plan noted Carter “is reluctant to pursue more advanced treatment at this time, mostly due to anxiety/fear of surgery.” Also noted,

He is applying for disability and wants a functional capacity evaluation done, will sent [sic] to physical therapy for that. Will ...

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