United States District Court, D. Minnesota
A. Wicklund, Esq., Olinsky Law Group, Syracuse, New York; and
Edward C. Olson, Esq., Disability Attorneys of Minnesota,
Minneapolis, MN, on behalf of Plaintiff.
Silverman, Special Assistant United States Attorney,
Assistant Regional Counsel, Social Security Administration,
Dallas, TX, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE.
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.
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.
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.
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
He is applying for disability and wants a functional capacity
evaluation done, will sent [sic] to physical therapy for
that. Will ...