United States District Court, D. Minnesota
E. Osterhout, Osterhout Disability Law, LLC, and Edward C.
Olson, Disability Attorneys of Minnesota, (for Plaintiff);
Kizuwanda Curtis, Assistant Regional Counsel, Social Security
Administration, (for Defendant).
N. LEUNG, UNITED STATES MAGISTRATE JUDGE
Daniel C. brings the present action, contesting Defendant
Commissioner of Social Security's denial of his
application for disability insurance benefits
(“DIB”) under Title II of the Social Security
Act, 42 U.S.C. §§ 401-34. The parties filed
cross-motions for summary judgment and consented to a final
judgment from a magistrate judge pursuant to 28 U.S.C. §
636(c) and D. Minn. LR 7.2. For the reasons set forth below,
the Court grants Plaintiff's motion, denies
Defendant's motion, and remands this matter for further
initiated his claim on August 27, 2015, alleging a disability
onset date of March 3, 2015. Plaintiff alleges impairments of
major depressive disorder, anxiety with panic attacks,
short-term memory loss, high cholesterol, and shortness of
breath. Plaintiff was found not disabled and that finding was
affirmed upon reconsideration. Plaintiff requested a hearing
before an Administrative Law Judge. A hearing was held and,
on February 7, 2018, the ALJ issued a decision denying
Plaintiff's claim for benefits. Plaintiff sought review
of the ALJ's decision through the Appeals Council, which
denied review. Plaintiff now seeks review in this Court.
The ALJ's Decision
found Plaintiff meets the insured status requirements through
December 31, 2019. (Tr. 14). Through the date last insured,
the ALJ found Plaintiff had the severe impairments of memory
disorder, generalized anxiety disorder, depressive disorder,
and obstructive sleep apnea. (Tr. 14). The ALJ next concluded
that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of a
listing in 20 C.F.R. pt. 404, subpt. P, app. 1. (Tr. 15). The
ALJ looked at Listings 12.02 (neurocognitive disorders),
12.04 (anxiety and obsessive-compulsive disorders), and 12.06
(anxiety and obsessive-compulsive disorders). (Tr. 15-16).
The ALJ determined Plaintiff has the residual functioning
capacity (“RFC”) to perform a full range of work
at all exertional levels with the following nonexertional
limitations: “limited to simple, routine, and
repetitive tasks involving only simple work-related decisions
with few, if any, workplace changes. The claimant's work
should consist of quota-based tasks (as opposed to strict
production requirements). The claimant should have no more
than occasional contact with coworkers, supervisors, and the
public.” (Tr. 16). While Plaintiff could not perform
his past work, the ALJ concluded that there are jobs that
exist in significant numbers in the national economy that
Plaintiff could perform when considering his age, education,
work experience, and RFC. (Tr. 23). Accordingly, Plaintiff
was found not disabled from March 3, 2015 through the date of
decision. (Tr. 24).
benefits are available to individuals determined disabled. 42
U.S.C. § 423(a)(1); accord 20 C.F.R. §
404.315. An individual is disabled if he is unable “to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A); see
also 20 C.F.R. § 404.1505(a). This standard is met
when a severe physical or mental impairment, or impairments,
renders the individual unable to do his previous work or
“any other kind of substantial gainful work which
exists in the national economy” when taking into
account his age, education, and work experience. 42
U.S.C.§§ 423(d)(2)(A); see also 20 C.F.R.
§ 404.1505(a). Disability is determined according to a
five-step, sequential evaluation process. 20 C.F.R. §
To determine disability, the ALJ follows the familiar
five-step process, considering whether: (1) the claimant was
employed; (2) she was severely impaired; (3) her impairment
was, or was comparable to, a listed impairment; (4) she could
perform past relevant work; and if not, (5) whether she could
perform any other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir.
2010) (citing 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4)). In general, the burden of proving the
existence of disability lies with the claimant. 20 C.F.R.
§ 404.1512(a); Thomas v. Sullivan, 928 F.2d
255, 260 (8th Cir. 1991).
“substantial evidence” supports the findings of
the Commissioner, then these findings are conclusive. 42
U.S.C. § 405(g). The Court's review of the
Commissioner's final decision is deferential because the
decision is reviewed “only to ensure that it is
supported by substantial evidence in the record as a
whole.” Hensley v. Barnhart, 352 F.3d 353, 355
(8th Cir. 2003). The Court's task is “simply to
review the record for legal error and to ensure that the
factual findings are supported by substantial
evidence.” Id. This Court must “consider
evidence that detracts from the Commissioner's decision
as well as evidence that supports it.” Burnside v.
Apfel, 223 F.3d 840, 843 (8th Cir. 2000). A court cannot
reweigh the evidence or “reverse the Commissioner's
decision merely because substantial evidence would have
supported an opposite conclusion or merely because [a court]
would have decided the case differently.” Harwood
v. Apfel, 186 F.3d 1039, 1042 (8th Cir. 1999).
asserts the ALJ erred in weighing the June 2016 and October
2016 opinions of neurologist Dr. Kenneth B. Hoj and the June
2016 opinion of therapist Eric Trudell. Under 20 C.F.R.
§ 404.1527(c), medical opinions from treating sources
are weighed using several factors: (1) the examining
relationship; (2) the treatment relationship, such as the (i)
length of the treatment relationship and frequency of
examination and the (ii) nature and extent of the treatment
relationship; (3) supportability; (4) consistency; (5)
specialization; and (6) other factors.
treating source's medical opinion on the nature and
severity of a claimant's impairments is
“well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record, ”
it is given controlling weight. 20 C.F.R. §
404.1527(c)(2). Treating sources are defined as licensed
physicians, licensed or certified psychologists, licensed
optometrists, licensed podiatrists, and qualified
speech-language pathologists. 20 C.F.R. § 404.1513(a). A
“treating physician's own inconsistency may . . .
undermine his opinion and diminish or eliminate the weight
given his opinions.” Hacker v. Barnhart, 459
F.3d 934, 937 (8th Cir. 2006) (citing Prosch v.
Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)).
The Opinions of Dr. Hoj and Trudell
completed a medical source statement on June 10, 2016. (Tr.
833-40). Dr. Hoj noted Plaintiff's medical diagnosis was
memory loss and depression and he had been treating Plaintiff
since April 10, 2015. (Tr. 833, 837). Dr. Hoj did not
identify any clinical findings or objective signs of the
condition diagnosed. (Tr. 833). Dr. Hoj provided no opinion
as to whether Plaintiff's ailments or medication
interfered with his attention and concentration. (Tr. 833).
Dr. Hoj rated Plaintiff as incapable of tolerating low stress
work. (Tr. 834). In his opinion, Plaintiff's symptoms
would interfere to the extent Plaintiff would be unable to
maintain persistence and pace for competitive employment.
(Tr. 834). Dr. Hoj also opined Plaintiff was incapable of
part-time competitive work. (Tr. 834). Dr. Hoj indicated
Plaintiff may need to lie down in the workday if stressed
out. (Tr. 836). Dr. Hoj found it “difficult to
answer” the amount of days Plaintiff might miss from
work per month due to symptoms because he felt Plaintiff
“would have difficulty” with making quick
decisions and multitasking. (Tr. 836). Plaintiff would
experience fatigue that would moderately impair his ability
to work. (Tr. 836). Dr. Hoj opined Plaintiff would not need
any extra breaks or rest periods in the workday. (Tr. 836).
Plaintiff's depression moderately impacted his ability to
perform activities of daily living, ability to maintain
social functioning, and ability to maintain concentration,
persistence, or pace. (Tr. 837). Dr. Hoj did not state
whether Plaintiff experienced episodes of decompensation but
nonetheless indicated they occurred on a “seldom”
basis, meaning once or twice per year lasting for two weeks.
(Tr. 838). Dr. Hoj did not rate Plaintiff's ability to
understand, remember, and carry out simple job instructions,
but rated it as poor or no ability as to detailed or complex
job instructions. (Tr. 838). Dr. Hoj opined Plaintiff had
fair ability to deal with coworkers, supervisors, and the
public in an employment setting, fair ability to tolerate
normal routine supervision associated with competitive work,
including accepting instructions and criticism, and poor or
no ability to deal with changes in a routine work setting.
(Tr. 838). Dr. Hoj indicated Plaintiff had a fair ability to
make basic decisions and exercise proper judgment in a work
setting; sustain an ordinary routine without special
supervision; work with or near others without being
distracted; and perform activities within a schedule, be
punctual, and adhere to basic work-place standards. (Tr.
839). Dr. Hoj rated Plaintiff as having poor or no ability to
maintain attention and concentration for a two-hour segment
and complete a normal workday or work week without
interruptions from psychological symptoms. (Tr. 839).
Finally, Dr. Hoj rated Plaintiff as having a good ability to
maintain socially appropriate behavior. (Tr. 839).
completed a statement of disability form on October 7, 2016.
(Tr. 439- 40). Dr. Hoj noted Plaintiff was diagnosed with
memory loss that had been shown via neuropsychometric
testing. (Tr. 439). Dr. Hoj noted he sees Plaintiff every six
months. (Tr. 439). Dr. Hoj indicated he does not treat
Plaintiff's depression, anxiety, or chemical dependency.
(Tr. 440). Dr. Hoj noted Plaintiff has “not
changed” under his care. (Tr. 440). Dr. Hoj opined
Plaintiff was not released to return to work and would never
return to work. (Tr. 440). Dr. Hoj noted no physical barriers
to return to work and further noted that any rating of the
degree of Plaintiff's mental impairments would have
“to be through [a] psychiatrist.” (Tr. 440). Dr.
Hoj believed Plaintiff was competent to endorse checks and
use the proceeds. (Tr. 440).
Hoj's October 2016 opinion, the ALJ found it to be of
“little probative value given its limited scope and
purpose.” (Tr. 21). But the ALJ noted that Dr.
Hoj's opinion that Plaintiff was not released to work was
supported by his prior treatment notes wherein he opined that
Plaintiff would not be able to perform the demands of his
past job due to limited capacity for significant
multitasking. (Tr. 21). The ALJ also noted that Dr. Hoj's
opinion that Plaintiff does not require physical work
restrictions is consistent with the longitudinal medical
record. (Tr. 21).
respect to Dr. Hoj's June 2016 opinion, the ALJ gave it
limited weight because the “degree of functional
limitations he proposes are unsupported by the evidentiary
record.” (Tr. 21). The ALJ noted that Dr. Hoj's
June 2016 opinion was inconsistent with his October 2016
opinion, with the former reporting physical restrictions and
the latter reporting none. (Tr. 21). The ALJ also contrasted
Dr. Hoj's opined limitations with Plaintiff's
activities, other medical records, and Dr. Hoj's
treatment notes. (Tr. 21). The ALJ concluded that these
considerations “coupled with the relative stability of
symptomology” do not support Dr. Hoj's conclusions
regarding Plaintiff's ability to perform low stress jobs,
deal with changes in work setting, or maintain persistence
and pace necessary to engage in competitive employment. (Tr.