Godden v. O'Malley
U.S. District Court, District of Minnesota
Godden v. O'Malley
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Donna M.G., Case No. 22-cv-2932 (ECW)
Plaintiff,
v. ORDER
Martin J. O’Malley, Commissioner
of Social Security Administration,
Defendant.
This matter is before the Court on Plaintiff Donna M.G.’s (“Plaintiff”) Complaint
seeking judicial review of a final decision by the Commissioner denying her application
for disability insurance benefits, widow’s benefits, and supplemental security income.
(See generally, Dkt. 1.) The parties have filed briefs “present[ing] for decision”
Plaintiff’s request for judicial review of the final decision of the Commissioner of Social
Security (“the Commissioner”).1 (See Dkts. 21, 24.) For the reasons stated below,
Plaintiff’s request for reversal or remand of the Commissioner’s decision (Dkt. 21) is
denied and the Commissioner’s request that the Court affirm the decision (Dkt. 24) is
granted.
1 As of December 1, 2022, Social Security Actions under 42 U.S.C. § 405(g) are “presented for decision by the parties’ briefs,” rather than summary judgment motions. Supplemental Rules for Social Security Actions under42 U.S.C. § 405
(g), Rule 5.
I. BACKGROUND
Plaintiff filed a claim for disability insurance benefits, widow’s benefits, and
supplemental security income on June 26, 2020. (R. 15, R. 393-412.)2 She alleged
disability based on her lower back, hearing, arthritis in spine, depression, and arthritis in
her hands. (R. 438.) Her claims were denied initially and on reconsideration. (R. 73-
144, R. 150-97.) Plaintiff alleged disability beginning December 31, 2016, but amended
her disability onset date to April 1, 2019 through her representative during the hearing
before the Administrative Law Judge (“ALJ”) on November 19, 2021. (R. 15, 48, 393.)
On December 9, 2021, the ALJ issued a decision denying Plaintiff’s applications (R. 36),
and on September 15, 2022, the Appeals Council denied her request for review (R. 1-7),
making the ALJ’s decision the final decision of the Commissioner. Plaintiff now seeks
judicial review pursuant to 42 U.S.C. § 405(g). (Dkt. 1.)
The Eighth Circuit has described the five-step process established by the
Commissioner for determining if an individual is disabled as follows:
(1) whether the claimant is currently engaged in a substantial gainful activity;
(2) whether the claimant’s impairments are so severe that they significantly
limit the claimant’s physical or mental ability to perform basic work
activities; (3) whether the claimant has impairments that meet or equal a
presumptively disabling impairment specified in the regulations; (4) whether
the claimant’s [residual functional capacity (“RFC”)] is sufficient for her to
perform her past work; and finally, if the claimant cannot perform the past
work, the burden shifts to the Commissioner to prove that (5) there are other
jobs in the national economy that the claimant can perform given the
claimant’s RFC, age, education and work experience.
Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
2 The Administrative Record (“R.”) can be found at Docket 14.
Here, the ALJ determined after a hearing that Plaintiff had severe impairments of
bilateral hearing loss; bilateral hip degenerative joint disease; lumbar osteoarthritis; and
persistent depressive disorder. (R. 18.) The ALJ then assessed Plaintiff with the residual
functional capacity (“RFC”) to:
perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c)
except lifting and carrying 50 pounds occasionally, 25 pounds frequently,
sitting for 6 hours, standing for 6 hours, and walking for 6 hours out of an 8-
hour workday. Frequent handling and fingering bilaterally; able to climb
ramps and stairs frequently, climb ladders, ropes, or scaffolds frequently,
stoop and kneel frequently; limited to a moderate noise environment; a work
environment requiring no more than occasional oral communication and
would allow captioning when speaking over the telephone; and limited to
simple, routine and repetitive tasks that are not performed at a fast production
rate pace, such as that found in assembly-line work.
(R. 23.) Relevant to Plaintiff’s appeal: “Medium work involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If
someone can do medium work, [the Social Security Administration has] determine[d]
that he or she can also do sedentary and light work.” 20 C.F.R. §§ 404.1567(c),
416.967(c).
In formulating this RFC, the ALJ found the state agency medical and
psychological consultants’ opinions “persuasive in terms of a less than full range of
medium work and mild to moderate mental limitations,” including because they were
“consistent with the radiological imaging, physical examination findings, and mental
status examinations.” (R. 34.) However, the ALJ did further limit Plaintiff “to simple
routine and repetitive tasks that were not performed at a fast production rate pace, such as
that found in assembly-line work due to her low energy and motivation as identified by
her moderate limitation in concentration, persistence, or maintaining pace” and “mild”
instead of “no limitation in the understand, remember, or apply information.” (R. 34.)
As discussed in more detail in Section III, the ALJ found a Medical Source Statement
(“MSS”) completed in July 2021 by Plaintiff’s treating psychotherapist, Lydia Walker-
Thoennes, MA, LPCC, not persuasive (R. 33-34) and also found the intensity,
persistence, and limiting effects of Plaintiff’s symptoms “inconsistent with the objective
medical evidence of record that established the claimant was capable of performing a
modified range of simple, medium exertional work” (R. 24).
The ALJ then found that Plaintiff could not perform her past relevant work as a
nurse assistant with this RFC. (R. 34-35.) The ALJ found at step five that considering
Plaintiff’s age, education, work experience, and RFC, there were jobs that exist in
significant numbers in the national economy that she could perform, such as an industrial
cleaner (Dictionary of Occupational Titles (“DOT”) code 381.687-018, medium,
unskilled, SVP 2); day worker (DOT code 301.687-014, medium, unskilled, SVP 2); and
stores laborer (DOT code 922.687-058, medium, unskilled, SVP 2). (R. 35-36.) The
ALJ therefore found Plaintiff not disabled and denied disability insurance benefits,
disabled widow’s benefits, and supplemental security income. (R. 36.)
II. LEGAL STANDARD
Judicial review of an ALJ’s denial of benefits is limited to determining whether
substantial evidence in the record as a whole supports the decision, 42 U.S.C. § 405(g); Chismarich v. Berryhill,888 F.3d 978, 979
(8th Cir. 2018), or whether the ALJ’s decision results from an error of law, Nash v. Comm’r, Soc. Sec. Admin.907 F.3d 1086, 1089
(8th Cir. 2018). As defined by the Supreme Court:
The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency factfinding.
Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains sufficient evidence to
support the agency’s factual determinations. And whatever the meaning of
“substantial” in other contexts, the threshold for such evidentiary sufficiency
is not high. Substantial evidence . . . is more than a mere scintilla. It means—
and means only—such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (marks and citations omitted).
“[T]his court considers evidence that detracts from the Commissioner’s decision
as well as evidence that supports it.” Nash, 907 F.3d at 1089(marks and citation omitted). “If substantial evidence supports the Commissioner’s conclusions, this court does not reverse even if it would reach a different conclusion, or merely because substantial evidence also supports the contrary outcome.”Id.
“In other words, if it is possible to reach two inconsistent positions from the evidence, and one of those positions is that of the [ALJ], the Court must affirm the decision.” Jacob R. v. Saul, No. 19-CV- 2298 (HB),2020 WL 5642489
, at *3 (D. Minn. Sept. 22, 2020) (citing Robinson v. Sullivan,956 F.2d 836, 838
(8th Cir. 1992)).
The Court has reviewed the entire record and will incorporate discussion of the
record as necessary to explain this Order.
III. DISCUSSION
Plaintiff contends that the ALJ erred (1) “by failing to properly evaluate the
opinions of Plaintiff’s treating therapist consistent with [Social Security Administration]
authority and Eighth Circuit precedent” and (2) “fail[ing] to account in the RFC for the
‘total limiting effects’ of Plaintiff’s physical impairments [sic] Plaintiff’s degenerative
joint disease of the bilateral hip and lumbar osteoarthritis.” (Dkt. 21 at 1.) She asks the
Court to reverse the ALJ’s decision and remand the case for further proceedings. (Id. at
25.) The Court addresses both issues below.
A. Weight Assigned to Plaintiff’s Treating Therapist
Plaintiff’s therapist, Ms. Walker-Thoennes, completed an MSS regarding
Plaintiff’s psychological condition. (R. 956-59.) The MSS has a signature date of July 2,
2021 (R. 959), but also indicates Ms. Walker-Thoennes’ last contact with Plaintiff was on
July 16, 2021 (R. 956). She opined that Plaintiff was markedly limited in the following
areas of mental work-related functioning:
• Understand and remember short and simple, and detailed,
instructions;
• Carry out detailed instructions;
• Maintain attention and concentration for more than two-hour
segments;
• Perform activities within a schedule, maintain regular attendance, and
be punctual within customary tolerances;
• Make simple work-related decisions;
• Interact appropriately with the general public;
• Accept instructions and respond appropriately to criticism from
supervisors;
• Travel in unfamiliar places or use public transportation; and
• Tolerate normal levels of stress.
(R. 957.) The MSS defines “[m]arked” limitations within the context of a productive
level of functioning at work or in a home environment, assuming a normally competitive
work environment and full-time work schedule, as “serious limitation in this area,” where
“[t]here is substantial loss in the ability to function independently, appropriately, and
effectively on a sustained basis.” (R. 956-57.)
Ms. Walker-Thoennes opined that Plaintiff struggled to hear and understand
verbal instructions, and struggled with high anxiety over whether she was doing
something correctly, which increased when faced with decisions. (R. 957.) She further
opined that when Plaintiff was in pain from walking, standing, and carrying basic light
items, she became irritable and obstinate. (R. 957.) Ms. Walker-Thoennes opined that
Plaintiff had “struggled to get along with supervisors & some co-workers every [sic]
job.” (R. 957.) She also opined that Plaintiff would require unscheduled breaks during
an 8-hour workday in addition to the standard 15-minute morning and afternoon breaks
due to hip and back pain and inability to stand; Plaintiff’s impairments, in combination,
were likely to produce “good” and “bad” days, and she would likely be absent from work
more than 3 days per month; Plaintiff had a minimal capacity to adapt to changes in the
environment or demands that were not already part of her daily life; and Plaintiff’s
depression levels could vary. (R. 958.) According to Ms. Walker-Thoennes, when
Plaintiff’s “depression is more severe [Plaintiff] doesn’t leave bed most of the day” and
“[t]his happens at least once per week with psychiatric medication.” (R. 958.) She
further opined that Plaintiff consumes alcohol “frequently but not in large quantities” and
that Plaintiff “reports an increase in alcohol consumption post-onset of depression &
anxiety,” but “has gone periods of time without drinking & symptoms remain.” (R. 959.)
The ALJ was required to explain how he considered the supportability and
consistency factors when evaluating the persuasiveness of Ms. Walker-Thoennes’
medical opinion. See Shannan G. v. Kijakazi, No. 22-CV-1895 (NEB/ECW), 2023 WL
4707843, at *14 (D. Minn. June 27, 2023) (“[A]n ALJ must explain how [supportability and consistency] were considered in determining the persuasiveness of a medical opinion.”) (cleaned up), R. & R. adopted,2023 WL 4704588
(D. Minn. July 24, 2023).
The Social Security Administration describes supportability and consistency as follows:
(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or
her medical opinion(s) or prior administrative medical finding(s), the more
persuasive the medical opinions or prior administrative medical finding(s)
will be.
(2) Consistency. The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be.
20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
“Supportability” means “[t]he extent to which a medical source’s opinion is
supported by relevant objective medical evidence and the source’s supporting
explanation.” Revisions to Rules, 82 Fed. Reg. at 5853, 2017 WL 168819(Jan. 18, 2017); see also20 C.F.R. §§ 404
.1520c(c)(1), 416.920c(c)(1). “Consistency” denotes “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” Revisions to Rules, 82 Fed. Reg. at 5853,2017 WL 168819
; see also20 C.F.R. § 404
.1520c(c)(2), 416.920c(c)(2). An “ALJ is not required to explain the remaining factors [set forth in20 C.F.R. § 404
.1520c and § 416.920c] unless the ALJ ‘find[s] that two or more medical opinions . . . about the same issue are both equally well supported . . . and consistent with the record . . . but are not exactly the same.’” Jane D. v. Kijakazi, No. 20-CV-1278 (MJD/KMM),2021 WL 5360450
, at *5 (D. Minn. Oct. 26, 2021) (quoting20 C.F.R. § 404
.1520c(b)(2)-(3)), R. & R. adopted,2021 WL 5358569
(D. Minn. Nov. 17, 2021).
Turning to the ALJ’s opinion, the ALJ began by noting that Plaintiff “did not seek
out mental health treatment until mid-January 2020, which was 8½ months” after the
amended onset date. (R. 28.) The ALJ then summarized Plaintiff’s mental health
treatment from January 2020 to October 2021. (R. 28-32.)
The ALJ summarized Plaintiff’s treatment in relevant part as follows: “The totality
of the claimant’s mental health medical evidence showed her symptomology lower[ed]
once she began psychotherapy and taking prescribed psychotropic medication.” (R. 32.)
The ALJ acknowledged Plaintiff “had a few bouts of increased symptomology with
situational stressors” but found “[a]s a whole, no more than moderate symptomology and
functional limitations resulted as demonstrated by her self-reported PHQ-9 scores, mental
status exam findings, activities of daily living, and psychotherapy notes.” (R. 32.) The
ALJ stated, “[g]iven her complaints of difficulty with energy and motivation, the
undersigned found the claimant had moderate limitation in the Part ‘B’ criteria of
concentrate, persist, or maintain pace,” and found she “was capable of performing simple,
routine and repetitive tasks that were not performed at a fast production rate pace, such as
that found in assembly-line work.” (R. 32.) The ALJ also found Plaintiff’s “active daily
routine was inconsistent with her subjective complaints, but consistent with the [RFC]”
because “[s]he was independent in self-care and grooming, and lived with a roommate
and intermittently with her oldest adult-aged daughter so shared responsibility for
performing routine household chores such as bill paying, laundry, light cleaning, pet care,
quick meal preparation, and shopping.” (R. 32.) The ALJ noted Plaintiff’s testimony
that “her roommate carried the laundry basket, as it was too heavy for her carry to the
laundry room,” and that Plaintiff “crocheted, cross-stitched, drove, read, visited with
family and friends, and watched television.” (R. 32.)
As to Ms. Walker-Thoennes’ July 2021 MSS, the ALJ found her opinions not
persuasive because:
While the record demonstrated persistent depressive symptoms, the claimant
testified that her primary concern was physical in terms of returning to work.
She reported getting a response to her treatment with Ms. Walker Thoennes.
Psychological evaluations and mental status exams did not document
ongoing marked difficulties in terms of her overall mental functioning. The
opinion appeared largely based on the claimant’s subjective complaints, as
Ms. Walker Thoennes documented in the treatment note dated July 16, 2021,
the claimant “shared about her daily function and why she feels she cannot
work.” (Exhibit 14F30) Furthermore, when seen on June 24, 2021, the
claimant re-iterated a prior complaint from late May 2021 of discord with her
roommate because she had not made herself available to run his errands and
engaging in lots of negative self-talk for not being productive due to having
no motivation. (Exhibits 14F25 and 28)
(R. 33-34.)
Plaintiff challenges the ALJ’s statement that she testified that her primary concern
was physical in returning to work. (Dkt. 21 at 9-10.) Plaintiff suggests that the ALJ
framed this line of questioning to cause her to only reference her physical ailments. (Id.
at 10.) The Commissioner responds that the ALJ reasonably interpreted Plaintiff’s
testimony, which focused on her physical limitations and included her statements that
depression and anxiety would “sometimes” keep her from going to work and that her
depression and anxiety were “better than . . . in the past” because she had found a good
treatment provider (Ms. Walker-Thoennes). (Dkt. 24 at 15-16.)
The Court has carefully reviewed Plaintiff’s testimony. The ALJ initially
questioned Plaintiff about her issues when working as a Certified Nursing Assistant
(“CNA”), which were migraines and back pain, and then asked her, “[a]t this time, what
would keep you from going back to work?” (R. 55.) Plaintiff responded with “those
things” and then also described problems arising from her hearing and communication
abilities when working as a CNA. (R. 55-57.) The ALJ then asked her, if she “were
offered a different type of job that didn’t require you to communicate as you would do as
a CNA, what types of problems do you think you might have?” (R. 57.) Plaintiff
identified standing for long periods of time. (R. 57.) The ALJ then asked about her back
and Plaintiff testified about back symptoms that arose when doing chores. (R. 58; see
also R. 58-62 (describing back exercises and treatment, hip issues, and ability to stand,
along with history of back pain when working as a CNA).) Finally, the ALJ asked if
there were “any other medical problems that you’re having, issues that haven’t been
discussed that would make working difficult.” (R. 62.) Plaintiff responded:
Oh no, No, I have the depression and anxiety, and sometimes that would keep
me from going to work, where I just couldn’t make myself get up in the
morning to go to work. That -- of course, that’s a problem.
(R. 62.)
Plaintiff emphasizes this statement in her brief. (Dkt. 21 at 10.) But Plaintiff
ignores the fact that when the ALJ asked if Plaintiff’s depression and anxiety were better,
worse, or about the same as in the past, Plaintiff testified: “It’s better than it was in the
past because I finally got somebody who . . . helps me.” (R. 63.) She then clarified that
the “somebody” was Ms. Walker-Thoennes, described her as “fabulous” and “so
helpful,” and explained how Ms. Walker-Thoennes helped her. (R. 63-64.) Given
Plaintiff’s testimony about her improvement since she began therapy with Ms. Walker-
Thoennes and her focus on physical concerns during the hearing, substantial evidence
supports the ALJ’s conclusion that Plaintiff’s “primary concern was physical in terms of
returning to work.” (R. 34.)
Plaintiff next challenges the ALJ’s statement that she was getting a response to
Ms. Walker-Thoennes’ treatment, claims the ALJ ignored the connection between her
physical and mental health, and argues that the ALJ’s reliance on her testimony is
“misplaced and inapt.” (Dkt. 21 at 10.) However, more than Plaintiff’s testimony
supports the ALJ’s conclusion that Plaintiff was responding to treatment. As the ALJ
stated, during a November 6, 2020 follow-up visit, a nurse practitioner noted that
“[Plaintiff] has been feeling well on vraylar[3], much improved decision-making, ‘I don’t
just sit there and get stuck in thinking about doing something, I just get up and do it,’”
and recommended continuing the medication and therapy as scheduled. (R. 933, 936; see
also R. 31 (ALJ’s discussion of statement).) The ALJ also relied on Plaintiff’s February
18, 2021 diagnostic assessment “to update her diagnosis, make treatment
recommendations, and determine if individual psychotherapy remains an appropriate
3 Plaintiff was prescribed Vraylar on October 20, 2020. (R. 943.) Vraylar, or
cariprazine, is a drug used to treat major depressive disorder among other things.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7318333/ (last visited Feb. 20, 2024).
service.” (R. 1021-22.) While Plaintiff continued to endorse symptoms of depression
and anxiety at the assessment, she reported that “working with a therapist and her doctor
for medication has helped reduce her depressive symptoms and helped her identify she
struggles with daily uncontrollable anxiety,” “for a few years she barely left her bed and
her apartment, but now she leaves as needed” (but not often due to the Covid-19
pandemic), and “she no longer feels trapped in her home and enjoys getting up to do
things on her good days.” (R. 1021-22; see R. 31 (ALJ’s discussion).) This constitutes
substantial evidence supporting the ALJ’s conclusion that Plaintiff responded well to
treatment. Indeed, Ms. Walker-Thoennes noted in the MSS that Plaintiff “reported some
relief from psychiatric symptoms with treatment but not complete relief.” (R. 956.)
Plaintiff criticizes the ALJ’s reliance on mental status exams that did not
document marked difficulties in overall functioning, arguing the ALJ “selectively cited to
benign examination findings” and ignored the fact that “mental impairments by their very
nature wax and wane.” (Dkt. 21 at 10.) Plaintiff further argues that Ms. Walker-
Thoennes both acknowledged Plaintiff’s improvements and nonetheless found she was
markedly limited in multiple functional areas. (Dkt. 21 at 10-11.) The Commissioner
responds: “The fact that the bulk of mental status examinations resulted in normal
findings is well documented throughout the ALJ’s decision and record” and argues that
Plaintiff is “encourag[ing] an alternative interpretation of the record and ignor[ing] the
standard of review, which mandates that, so long as substantial evidence supports the
ALJ’s findings, the presence of contrary evidence—even if it is also substantial—does
not imply error by the ALJ.” (Dkt. 24 at 16 (citations omitted).)
The Court has reviewed the record and finds substantial evidence supports the
ALJ’s conclusion that “[p]sychological evaluations and mental status exams did not
document ongoing marked difficulties in terms of [Plaintiff’s] overall mental
functioning.” (R. 34.) Plaintiff identified treatment records describing her symptoms of
anxiety and depression, beginning with an office visit with a nurse practitioner on
January 21, 2020, as consistent with and supporting Ms. Walker-Thoennes’ opinions.
(Dkt. 21 at 13-15 (citing R. 725, 727, 730, 732-33, 757, 761, 770-71, 785, 789, 942-43,
1021-22).) As to Plaintiff’s exam findings during the January 21, 2020 visit with the
nurse practitioner, she had normal findings as to eye contact, dress (clean and casual),
grooming, manner, attentiveness, motor skills, and speech. (R. 761.) Her affect was
stable with a constricted range and blunted intensity, with an “I don’t care” mood. (R.
761.) Her thought content included “death wishes, depressive cognitions,” but she denied
an active plan for harming herself or others; her thought process was logical and goal
directed; she reported olfactory hallucinations; and she had average intellect with limited
insight/judgment. (R. 761.) She was prescribed Bupropion4 with directions to return in
1-2 months. (R. 762.)
While Plaintiff identifies several subsequent visits where she endorsed symptoms
of depression and anxiety, her mental status exams and evaluations during those same
visits resulted in normal or minimal findings. (See, e.g., R. 789-91 (April 30, 2020
therapist visit noting “[Plaintiff] was open and cooperative” and “no concerns with
4 Buproprion is a medication used to treat depression.
https://www.ncbi.nlm.nih.gov/books/NBK470212/ (last visited Feb. 20, 2024).
cognition, orientation, perception, judgement [sic], or insight,” although suicidal ideation
was 4 out of 10); R. 785-86 (June 26, 2020 therapist visit noting Plaintiff was
cooperative, informed clinician when she needed to speak up, and “no concerns with
cognition, orientation, perception, judgment, or insight,” where suicidal ideation was 1
out of 10); R. 730-35 (July 30, 2020 telehealth visit with primary care provider noting:
“[A]lert and cooperative; anxious mood; normal attention span and concentration. speech
[within normal limits]; thoughts negative for [suicidal ideation/homicidal ideation],
delusions” and “[t]houghts coherent, logical and goal-directed. Insight/ judgement [sic]
aware of illness.”); R. 769-71 (August 24, 2020 therapist visit noting: “Client was
cooperative and informed clinician when they needed to speak louder to be heard
properly. There were no concerns with cognition, orientation, perception, judgement
[sic], or insight. [Suicidal ideation] 1 out of 10.”)); R. 725-29 (September 15, 2020
primary care visit noting: “[A]lert and cooperative; anxious, frustrated mood; normal
attention span and concentration. speech [within normal limits]; thoughts negative for
[suicidal ideation/homicidal ideation], delusions. Thoughts coherent, logical and goal-
directed. Insight/judgement [sic] aware of illness.”); R. 938-43 (October 20, 2020 annual
exam with primary care provider noting “[A]lert and cooperative; depressed mood;
normal attention span and concentration. speech [within normal limits]; thoughts negative
for [suicidal ideation/homicidal ideation], delusions. Thoughts coherent, logical and
goal-directed. Insight/judgement [sic] aware of illness.”); R. 1021-28 (February 18, 2021
assessment noting “unremarkable” mental status exam with a narrative of: “[Plaintiff’s]
MSE unremarkable. She recognized most thinking errors; however, reporting lacking
motivation to address them. Her affect was appropriate during the interview.”).)
Additional objective findings relied on by the Commissioner similarly showed
normal or mostly normal mental status exam results. (See, e.g., R. 28-32 (citing R. 802
(January 28, 2020 visit noting: “[Plaintiff] appeared her stated age. She was
appropriately dress[ed], well groomed, appropriate speech and behavior. Instead of her
usual flat affect she showed more emotional range than she has in the past with more
energy. She smiled, laughed, and talked animatedly with her hands. There were no
concerns with cognition, orientation, perception, judgement [sic], or insight. [Suicidal
ideation] 0 out of 10.”)), R. 754 (February 25, 2020 visit to primary care provider noting
generally normal mental status exam including “coherent, logical, goal directed” thought
processes, although limited insight/judgment, constricted range, neutral affect, depressive
cognitions, and a “don’t care” mood), R. 982 (March 9, 2021 primary care visit noting
“[A]lert and cooperative; normal mood; normal attention span and concentration. speech
[within normal limits]; thoughts negative for [suicidal ideation/homicidal ideation],
delusions. Thoughts coherent, logical and goal-directed. Insight/judgement [sic] aware
of illness.”), R. 989 (June 1, 2021 noting :”[A]lert and cooperative; normal mood; normal
attention span and concentration. speech [within normal limits]; thoughts negative for
[suicidal ideation/homicidal ideation], delusions. Thoughts coherent, logical and goal-
directed. Insight/judgement [sic] aware of illness.”), R. 1001 (August 30, 2021 primary
care visit noting: “[A]lert and cooperative; depressed mood, flat affect and calm motor
activity; normal attention span and concentration. speech [within normal limits]; thoughts
negative for [suicidal ideation/homicidal ideation], delusions. Thoughts coherent, logical
and goal-directed. Insight/judgement [sic] aware of illness.”).) In view of these
examination findings throughout the alleged disability period, the Court finds substantial
evidence supports the ALJ’s decision to discount Ms. Walker-Thoennes’ opinions as
inconsistent with her own exam findings as well as other providers’ mental status exam
and evaluation findings.
Finally, Plaintiff challenges the ALJ’s statement that Ms. Walker-Thoennes’
opinions were largely based on Plaintiff’s subjective complaints. (Dkt. 21 at 11.) To the
extent Plaintiff challenges the ALJ’s reliance on a July 16, 2021 treatment note because
the MSS had a signature block dated July 2, 2021 (Dkt. 21 at 11-12 (citing R. 959)), as
the Commissioner points out, Ms. Walker-Thoennes stated in the MSS that her last
contact with Plaintiff was on July 16, 2021 (Dkt. 24 at 16-17 (R. 956)). Although the
reason for the July 2, 2021 date is unknown, the Court finds no error in the ALJ’s
reliance on the July 16, 2021 treatment note given Ms. Walker-Thoennes’ identification
of July 16, 2021 as the date she last had contact with Plaintiff.
Moreover, Plaintiff does not explain how Ms. Walker-Thoennes could have
formed opinions as to the interaction between Plaintiff’s physical and mental health other
than by relying on Plaintiff’s reports. Instead, Plaintiff argues that she had to “discuss
her daily functioning, and how it relates to her ability to work” because her treatment
“included her processing the decision to quit working and pursue disability.” (Dkt. 21 at
11.) Plaintiff argues “the ALJ did not identify any indicia of improper or inappropriate
reliance on Plaintiff’s subjective complaints by [Ms.] Walker-Thoennes.” (Id. at 12.)
But in Ryan v. Commissioner of Social Security, relied on by Plaintiff, the treating
physician relied on his own “clinical observations” when forming his opinions, which
were documented in the record. 528 F.3d 1194, 1199-200(9th Cir. 2008). Here, Plaintiff has not identified any mental status exam or evaluation results that Ms. Walker-Thoennes relied on to support her opinions. The absence of objective medical evidence supporting a medical source’s opinions is properly considered under the supportability factor. See20 C.F.R. §§ 404
.1520c(c)(1), 416.920c(c)(1); see also Austin v. Kijakazi,52 F.4th 723, 729
(8th Cir. 2022) (“On the supportability prong, see20 C.F.R. § 404
.1520c(c)(1), the
ALJ found that Dr. Addison-Brown relied heavily on the claimant’s subjective
description of her symptoms and limitations. While Dr. Addison-Brown conducted some
diagnostic procedures during her evaluation, Dr. Addison-Brown’s report states that at
least some of her diagnoses were based on self-reports, which supports the ALJ’s
finding.”) (cleaned up).
The Court also finds unpersuasive Plaintiff’s argument that Ms. Walker-Thoennes
recognized Plaintiff’s improvement but still imposed marked limitations. (Dkt. 21 at 11
(citing R. 958).) Ms. Walker-Thoennes recognized Plaintiff was experiencing some but
not complete relief (R. 956) but then stated: “[Plaintiff] struggles with depression which
levels can vary. When depression is more severe [Plaintiff] doesn’t leave bed most of the
day. This happens at least once per week with psychiatric medication” (R. 958). Ms.
Walker-Thoennes did not cite to any of her own records (or any other medical records)
supporting this assertion, and Plaintiff has not identified anything in the record that would
support Ms. Walker-Thoennes’ statement that once a week, even when taking
medication, Plaintiff did not leave her bed most of the day. The Court is not persuaded
that the ALJ should have found Ms. Walker-Thoennes’ opinions more persuasive because
she recognized Plaintiff’s improvement, nor is the Court persuaded that the record is
consistent with and supports her opinions.
Finally, Plaintiff argues that “error is shown, and remand required, simply by
showing that [the ALJ’s] finding that Ms. Walker-Thoennes’ opinion is unpersuasive is
not based on a reasonable or logical interpretation of the record.” (Dkt. 21 at 15.) To the
extent Plaintiff relies on treatment records, as discussed above, numerous mental status
exam findings and evaluations do not support and are inconsistent with Ms. Walker-
Thoennes’ opinions. And to the extent Plaintiff relies on her November 19, 2020
Function Report (see Dkt. 21 at 12-13 (citing Function Report at R. 463-70)), the ALJ
acknowledged her reports but ultimately concluded that her statements concerning the
intensity, persistence, and limiting effects of these symptoms were not entirely consistent
with the medical evidence and other evidence in the record (R. 24). The ALJ’s decision
to discount Plaintiff’s reported symptoms as to her depression and anxiety as inconsistent
with the record, including the objective findings and Plaintiff’s own reports of
improvement, is supported by substantial evidence.
In sum, the Court finds that substantial evidence in the record as a whole supports
the ALJ’s decision to discount Ms. Walker-Thoennes’ opinions in view of the objective
medical evidence, as well as evidence of Plaintiff’s improvement due to therapy and
medication. “An ALJ’s reasoning need only be clear enough to allow for appropriate
judicial review.” Grindley v. Kijakazi, 9 F.4th 622, 631 (8th Cir. 2021) (cleaned up).
Here, the ALJ’s opinion thoroughly summarized Plaintiff’s mental health symptoms and
treatment and explained why Ms. Walker-Thoennes’ opinions were inconsistent with and
not supported by the evidence of record in a manner that this reviewing court can
understand. Because the ALJ’s assessment of the persuasiveness of those opinions is
supported by substantial evidence, remand is not required with respect to the mental
limitations in the RFC.
B. Effect of Plaintiff’s Degenerative Joint Disease of the Bilateral Hip and
Lumbar Osteoarthritis.
Plaintiff also argues that the ALJ’s decision to discount the symptoms arising from
her hip and back impairments is not supported by substantial evidence and that the RFC
requires additional and significant functional limitations. (Dkt. 21 at 16-24.) Plaintiff
describes her limitations as her back seizing up with “even a little bend at the waist”
(including when washing dishes), needing to lean against a fence or sit on a rock if she
walks more than 1.5 blocks due to back and hip pain, struggling to climb bleachers, and
an inability to stand for more than 10-15 minutes. (Id. at 20.) According to Plaintiff,
these “self-described limitations do not nearly approximate the ability to perform the
arduous demands of medium work, yet that is apparently what the ALJ is claiming.” (Id.
at 21.) The Commissioner responds that the ALJ concluded that Plaintiff’s statements
were inconsistent with the objective medical evidence and other evidence of record and
that the evidence considered by the ALJ was proper. (Dkt. 24 at 7-10.)
“Using the Polaski factors, subjective complaints may be discounted if there are
inconsistencies in the evidence as a whole.” Bryant v. Colvin, 861 F.3d 779, 782(8th Cir. 2017) (cleaned up) (citing Polaski v. Heckler,739 F.2d 1320, 1322
(8th Cir. 1984), and Lowe v. Apfel,226 F.3d 969, 972
(8th Cir. 2000) (noting an ALJ must consider Polaski factors before discounting any subjective complaints)). “In addition to the claimant’s prior work record, the Polaski factors include (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of medication; and (5) functional restrictions.”Id.
(citing Polaski, 739 F2d at 1322, and20 C.F.R. § 404.1529
).
The regulations direct the ALJ to consider all of the available evidence from
medical sources and nonmedical sources about how a claimant’s symptoms affect them;
medical opinions; objective medical evidence; and other evidence, including prior work
record, the claimant’s statements about their symptoms, evidence submitted by medical
sources, and observations by Social Security Administration employees and other
persons. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3). Relevant factors set forth in the regulations include: a claimant’s daily activities; the location, duration, frequency, and intensity of the pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; treatment, other than medication, received for relief of pain or other symptoms; any measures used to relieve pain or other symptoms; and other factors concerning functional limitations and restrictions due to pain or other symptoms. See20 C.F.R. §§ 404.1529
(c)(1)-(3), 416.929(c)(1)-(3).
Here, the ALJ summarized Plaintiff’s medical treatment for her back and hips and
then found:
Evidence of record established the claimant treated her back and hip pain
with over-the-counter analgesics and wearing supportive footwear, and never
followed up on referrals for more intensive alternative conservative
treatments like cortisone injection, diclofenac gel, or physical therapy. At the
hearing, she also testified she did some back exercises. Her failure to follow-
up with the alternative conservative treatments suggested she was satisfied
with the level of pain relief she received from over-the-counter analgesics,
exercises, and wearing supportive footwear and/or the level of limitation
resulting was not as debilitating as claimed.
Considering the minimal findings found on radiological imaging given her
age and recent physical examination findings that revealed only limited
active range of motion in the hips due to tenderness and intermittent flares of
back pain, the undersigned concluded the claimant was capable of
performing medium exertional work (i.e., lifting, carrying, pulling, and/or
pushing up to 25 pounds frequently and 50 pounds occasionally, and sitting,
standing, and walking for up to 6 hours each per 8-hour workday with normal
breaks).
(R. 27.)
Plaintiff did not challenge the ALJ’s findings as to treatment, examination results,
or imaging. Instead, Plaintiff challenges the ALJ’s reliance on her activities of daily
living and the fact that she did not seek other work after she could no longer work as a
CNA when discounting her symptoms. (Dkt. 21 at 21-23 (citing R. 32).)
The Commissioner argues:
Although activities such as light housework and visiting with family are not
alone sufficient to prove a claimant can work, the extent of Plaintiff’s
activities when considered in conjunction with the medical record in this
case, suggested a greater degree of functioning than alleged in pursuit of
benefits and supports the ALJ’s decision.
(Dkt. 24 at 10.) As to Plaintiff’s work history, the Commissioner argues that the ALJ
was entitled to consider Plaintiff’s work as a CNA and failure to attempt alternative jobs
prior to applying for disability benefits as “part of a larger picture that showed Plaintiff
was more capable than she alleged.” (Id. at 11.) According to the Commissioner,
“[w]hile an ALJ can consider work history, there is no requirement that he must simply
accept a claimant’s subjective reports because of a good work history and ignore the
other factors set forth in 20 C.F.R. §§ 404.1529, 416.929 and SSR 16-3p.” (Id.)
As a starting point, the Court rejects any suggestion that the ALJ’s conclusion as
to Plaintiff’s symptoms was based exclusively on her activities of daily living and work
history. Rather, the ALJ clearly identified the reasons why he did not believe her
limitations were “as debilitating as claimed.” (R. 27.) The ALJ identified Plaintiff’s
conservative treatment with over-the-counter pain medication, supportive footwear, and
at-home exercises, as well as the fact that she declined cortisone injections,5 diclofenac
gel,6 and physical therapy. (R. 27; see also R. 26 (citing 3F18 (R. 738), 8F26 (R. 927),
8F30 (R. 931 (referring Plaintiff to “physical medicine” and rehab for evaluation of
cortisone or physical therapy; Plaintiff declined diclofenac gel in favor of
5 Cortisone shots are injections that can help relieve pain, swelling and irritation in a
specific area of your body. https://www.mayoclinic.org/tests-procedures/cortisone-
shots/about/pac-20384794#:~:text=Cortisone%20shots%20are%20injections
%20that,might%20benefit%20from%20cortisone%20shots (last visited Feb. 20, 2024).
“Diclofenac is used to treat pain and other symptoms of arthritis of the joints (eg,
osteoarthritis), such as inflammation, swelling, stiffness, and joint pain.”
https://www.mayoclinic.org/drugs-supplements/diclofenac-topical-application-route/side-
effects/drg-20063434?p=1 (last visited Feb. 20, 2024).
acetaminophen)).) The ALJ also relied on “minimal findings found on radiological
imaging” (R. 27)—a conclusion not challenged by Plaintiff. The ALJ also noted that
Plaintiff did not seek medical attention for low back pain until June 8, 2020,
“approximately fourteen months” after the amended onset date. (R. 26.) The ALJ also
noted fairly normal objective tests, including results from a January 11, 2021 consultative
exam that:
[S]he was able to walk normally across the room without the use of an
assistive device but had mild difficulty tandem walking and moderate
difficulty squatting. There was mild-to-moderate tenderness at the left lower
back but normal range of motion. (Exhibit 7F3) Straight leg raising and
Romberg were negative and she was neurologically intact. (Exhibits 7F3-4)
(R. 27.)
Testing on June 15, 2021 “revealed her passive range of motion of the bilaterally
[sic] hips was intact but active range of motion was limited by tenderness” and
“[s]trength was equal bilaterally with no focal deficits and normal gait.” (R. 27 (citing
13F15 (R. 989)).) The ALJ further noted a normal physical exam on July 27, 2021 and
the same a month later, on August 30, 2021, with a normal gait. (R. 27 (citing 13F21 (R.
995) and 13F27 (R. 1001)).)
The Court recognizes that “‘the ability to do activities such as light housework and
visiting with friends’ alone [is] insufficient reason to discredit [a claimant’s] subjective
complaints.” Milam v. Colvin, 794 F.3d 978, 985(8th Cir. 2015) (quoting Baumgarten v. Chater,75 F.3d 366, 369
(8th Cir. 1996)). But those activities, in addition to the evidence discussed above, may further support the ALJ’s decision. Seeid.
As to Plaintiff’s work history, neither party provided any case law specific to the
issue of how an ALJ should treat a lengthy work history in one position when a claimant
did not seek alternative work after she could no longer work in that role. Regardless,
even if the ALJ had, and the Court does, consider Plaintiff’s lengthy work history as
supporting her credibility, this does not undermine the ALJ’s reliance on Plaintiff’s
conservative treatment and failure to seek alternative treatment, minimal findings on
exam, and minimal findings on radiological imaging when concluding that “the level of
limitation resulting was not as debilitating as claimed.” (R. 27.) These constitute “a
good reason” for discounting Plaintiff’s symptoms, and the Court will defer to the ALJ’s
judgment. See Milam, 794 F.3d at 985 (“If the ALJ discredits a claimant’s credibility and
gives a good reason for doing so, we will defer to [their] judgment even if every factor is
not discussed in depth.”).
Finally, the fact that Plaintiff did not seek medical attention for her pain until
several months after her alleged onset date undermines her claims of disability beginning
April 1, 2019. See Wright v. Colvin, 789 F.3d 847, 854(8th Cir. 2015) (“Further, Wright’s complaints of disabling pain are also undercut by the eight-month period during which he sought no medical care.”); Milam,794 F.3d at 985
(finding failure to seek any
medical treatment for back pain “for long periods of time,” including “the nearly four
years between September 2007 and June 2011 . . . notwithstanding her assertion that she
actually became disabled in August 2009” undermined subjective complaints).
The Court may not reverse an ALJ’s decision supported by substantial evidence
even if the Court would reach a different conclusion as to Plaintiff’s ability to engage in
medium work and even if substantial evidence supports a contrary outcome. Travis v.
Astrue, 477 F.3d 1037, 1040(8th Cir. 2007). Again, the ALJ’s reasoning is clear enough that the Court can understand it. See Grindley,9 F.4th at 631
. Having found the ALJ’s
decision to discount Plaintiff’s subjective complaints supported by substantial evidence,
the Court rejects Plaintiff’s challenge to the RFC on that ground.
* * *
For all these reasons, the Court denies Plaintiff’s request for remand of the
Commissioner’s decision and grants the Commissioner’s request that the decision be
affirmed.
IV. ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED THAT:
1. Plaintiff’s request for remand of the Commissioner’s decision (Dkt. 21) is
DENIED;
2. The Commissioner’s request that the Court affirm the Commissioner’s
decision (Dkt. 24) is GRANTED; and
3. The Announcement of Decision scheduled for February 23, 2024 at 10:00
a.m. is CANCELLED.
LET JUDGMENT BE ENTERED ACCORDINGLY
DATED: February 20, 2024 s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Donna M.G., Case No. 22-cv-2932 (ECW)
Plaintiff,
v. ORDER
Martin J. O’Malley, Commissioner
of Social Security Administration,
Defendant.
This matter is before the Court on Plaintiff Donna M.G.’s (“Plaintiff”) Complaint
seeking judicial review of a final decision by the Commissioner denying her application
for disability insurance benefits, widow’s benefits, and supplemental security income.
(See generally, Dkt. 1.) The parties have filed briefs “present[ing] for decision”
Plaintiff’s request for judicial review of the final decision of the Commissioner of Social
Security (“the Commissioner”).1 (See Dkts. 21, 24.) For the reasons stated below,
Plaintiff’s request for reversal or remand of the Commissioner’s decision (Dkt. 21) is
denied and the Commissioner’s request that the Court affirm the decision (Dkt. 24) is
granted.
1 As of December 1, 2022, Social Security Actions under 42 U.S.C. § 405(g) are “presented for decision by the parties’ briefs,” rather than summary judgment motions. Supplemental Rules for Social Security Actions under42 U.S.C. § 405
(g), Rule 5.
I. BACKGROUND
Plaintiff filed a claim for disability insurance benefits, widow’s benefits, and
supplemental security income on June 26, 2020. (R. 15, R. 393-412.)2 She alleged
disability based on her lower back, hearing, arthritis in spine, depression, and arthritis in
her hands. (R. 438.) Her claims were denied initially and on reconsideration. (R. 73-
144, R. 150-97.) Plaintiff alleged disability beginning December 31, 2016, but amended
her disability onset date to April 1, 2019 through her representative during the hearing
before the Administrative Law Judge (“ALJ”) on November 19, 2021. (R. 15, 48, 393.)
On December 9, 2021, the ALJ issued a decision denying Plaintiff’s applications (R. 36),
and on September 15, 2022, the Appeals Council denied her request for review (R. 1-7),
making the ALJ’s decision the final decision of the Commissioner. Plaintiff now seeks
judicial review pursuant to 42 U.S.C. § 405(g). (Dkt. 1.)
The Eighth Circuit has described the five-step process established by the
Commissioner for determining if an individual is disabled as follows:
(1) whether the claimant is currently engaged in a substantial gainful activity;
(2) whether the claimant’s impairments are so severe that they significantly
limit the claimant’s physical or mental ability to perform basic work
activities; (3) whether the claimant has impairments that meet or equal a
presumptively disabling impairment specified in the regulations; (4) whether
the claimant’s [residual functional capacity (“RFC”)] is sufficient for her to
perform her past work; and finally, if the claimant cannot perform the past
work, the burden shifts to the Commissioner to prove that (5) there are other
jobs in the national economy that the claimant can perform given the
claimant’s RFC, age, education and work experience.
Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
2 The Administrative Record (“R.”) can be found at Docket 14.
Here, the ALJ determined after a hearing that Plaintiff had severe impairments of
bilateral hearing loss; bilateral hip degenerative joint disease; lumbar osteoarthritis; and
persistent depressive disorder. (R. 18.) The ALJ then assessed Plaintiff with the residual
functional capacity (“RFC”) to:
perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c)
except lifting and carrying 50 pounds occasionally, 25 pounds frequently,
sitting for 6 hours, standing for 6 hours, and walking for 6 hours out of an 8-
hour workday. Frequent handling and fingering bilaterally; able to climb
ramps and stairs frequently, climb ladders, ropes, or scaffolds frequently,
stoop and kneel frequently; limited to a moderate noise environment; a work
environment requiring no more than occasional oral communication and
would allow captioning when speaking over the telephone; and limited to
simple, routine and repetitive tasks that are not performed at a fast production
rate pace, such as that found in assembly-line work.
(R. 23.) Relevant to Plaintiff’s appeal: “Medium work involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If
someone can do medium work, [the Social Security Administration has] determine[d]
that he or she can also do sedentary and light work.” 20 C.F.R. §§ 404.1567(c),
416.967(c).
In formulating this RFC, the ALJ found the state agency medical and
psychological consultants’ opinions “persuasive in terms of a less than full range of
medium work and mild to moderate mental limitations,” including because they were
“consistent with the radiological imaging, physical examination findings, and mental
status examinations.” (R. 34.) However, the ALJ did further limit Plaintiff “to simple
routine and repetitive tasks that were not performed at a fast production rate pace, such as
that found in assembly-line work due to her low energy and motivation as identified by
her moderate limitation in concentration, persistence, or maintaining pace” and “mild”
instead of “no limitation in the understand, remember, or apply information.” (R. 34.)
As discussed in more detail in Section III, the ALJ found a Medical Source Statement
(“MSS”) completed in July 2021 by Plaintiff’s treating psychotherapist, Lydia Walker-
Thoennes, MA, LPCC, not persuasive (R. 33-34) and also found the intensity,
persistence, and limiting effects of Plaintiff’s symptoms “inconsistent with the objective
medical evidence of record that established the claimant was capable of performing a
modified range of simple, medium exertional work” (R. 24).
The ALJ then found that Plaintiff could not perform her past relevant work as a
nurse assistant with this RFC. (R. 34-35.) The ALJ found at step five that considering
Plaintiff’s age, education, work experience, and RFC, there were jobs that exist in
significant numbers in the national economy that she could perform, such as an industrial
cleaner (Dictionary of Occupational Titles (“DOT”) code 381.687-018, medium,
unskilled, SVP 2); day worker (DOT code 301.687-014, medium, unskilled, SVP 2); and
stores laborer (DOT code 922.687-058, medium, unskilled, SVP 2). (R. 35-36.) The
ALJ therefore found Plaintiff not disabled and denied disability insurance benefits,
disabled widow’s benefits, and supplemental security income. (R. 36.)
II. LEGAL STANDARD
Judicial review of an ALJ’s denial of benefits is limited to determining whether
substantial evidence in the record as a whole supports the decision, 42 U.S.C. § 405(g); Chismarich v. Berryhill,888 F.3d 978, 979
(8th Cir. 2018), or whether the ALJ’s decision results from an error of law, Nash v. Comm’r, Soc. Sec. Admin.907 F.3d 1086, 1089
(8th Cir. 2018). As defined by the Supreme Court:
The phrase “substantial evidence” is a “term of art” used throughout
administrative law to describe how courts are to review agency factfinding.
Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains sufficient evidence to
support the agency’s factual determinations. And whatever the meaning of
“substantial” in other contexts, the threshold for such evidentiary sufficiency
is not high. Substantial evidence . . . is more than a mere scintilla. It means—
and means only—such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (marks and citations omitted).
“[T]his court considers evidence that detracts from the Commissioner’s decision
as well as evidence that supports it.” Nash, 907 F.3d at 1089(marks and citation omitted). “If substantial evidence supports the Commissioner’s conclusions, this court does not reverse even if it would reach a different conclusion, or merely because substantial evidence also supports the contrary outcome.”Id.
“In other words, if it is possible to reach two inconsistent positions from the evidence, and one of those positions is that of the [ALJ], the Court must affirm the decision.” Jacob R. v. Saul, No. 19-CV- 2298 (HB),2020 WL 5642489
, at *3 (D. Minn. Sept. 22, 2020) (citing Robinson v. Sullivan,956 F.2d 836, 838
(8th Cir. 1992)).
The Court has reviewed the entire record and will incorporate discussion of the
record as necessary to explain this Order.
III. DISCUSSION
Plaintiff contends that the ALJ erred (1) “by failing to properly evaluate the
opinions of Plaintiff’s treating therapist consistent with [Social Security Administration]
authority and Eighth Circuit precedent” and (2) “fail[ing] to account in the RFC for the
‘total limiting effects’ of Plaintiff’s physical impairments [sic] Plaintiff’s degenerative
joint disease of the bilateral hip and lumbar osteoarthritis.” (Dkt. 21 at 1.) She asks the
Court to reverse the ALJ’s decision and remand the case for further proceedings. (Id. at
25.) The Court addresses both issues below.
A. Weight Assigned to Plaintiff’s Treating Therapist
Plaintiff’s therapist, Ms. Walker-Thoennes, completed an MSS regarding
Plaintiff’s psychological condition. (R. 956-59.) The MSS has a signature date of July 2,
2021 (R. 959), but also indicates Ms. Walker-Thoennes’ last contact with Plaintiff was on
July 16, 2021 (R. 956). She opined that Plaintiff was markedly limited in the following
areas of mental work-related functioning:
• Understand and remember short and simple, and detailed,
instructions;
• Carry out detailed instructions;
• Maintain attention and concentration for more than two-hour
segments;
• Perform activities within a schedule, maintain regular attendance, and
be punctual within customary tolerances;
• Make simple work-related decisions;
• Interact appropriately with the general public;
• Accept instructions and respond appropriately to criticism from
supervisors;
• Travel in unfamiliar places or use public transportation; and
• Tolerate normal levels of stress.
(R. 957.) The MSS defines “[m]arked” limitations within the context of a productive
level of functioning at work or in a home environment, assuming a normally competitive
work environment and full-time work schedule, as “serious limitation in this area,” where
“[t]here is substantial loss in the ability to function independently, appropriately, and
effectively on a sustained basis.” (R. 956-57.)
Ms. Walker-Thoennes opined that Plaintiff struggled to hear and understand
verbal instructions, and struggled with high anxiety over whether she was doing
something correctly, which increased when faced with decisions. (R. 957.) She further
opined that when Plaintiff was in pain from walking, standing, and carrying basic light
items, she became irritable and obstinate. (R. 957.) Ms. Walker-Thoennes opined that
Plaintiff had “struggled to get along with supervisors & some co-workers every [sic]
job.” (R. 957.) She also opined that Plaintiff would require unscheduled breaks during
an 8-hour workday in addition to the standard 15-minute morning and afternoon breaks
due to hip and back pain and inability to stand; Plaintiff’s impairments, in combination,
were likely to produce “good” and “bad” days, and she would likely be absent from work
more than 3 days per month; Plaintiff had a minimal capacity to adapt to changes in the
environment or demands that were not already part of her daily life; and Plaintiff’s
depression levels could vary. (R. 958.) According to Ms. Walker-Thoennes, when
Plaintiff’s “depression is more severe [Plaintiff] doesn’t leave bed most of the day” and
“[t]his happens at least once per week with psychiatric medication.” (R. 958.) She
further opined that Plaintiff consumes alcohol “frequently but not in large quantities” and
that Plaintiff “reports an increase in alcohol consumption post-onset of depression &
anxiety,” but “has gone periods of time without drinking & symptoms remain.” (R. 959.)
The ALJ was required to explain how he considered the supportability and
consistency factors when evaluating the persuasiveness of Ms. Walker-Thoennes’
medical opinion. See Shannan G. v. Kijakazi, No. 22-CV-1895 (NEB/ECW), 2023 WL
4707843, at *14 (D. Minn. June 27, 2023) (“[A]n ALJ must explain how [supportability and consistency] were considered in determining the persuasiveness of a medical opinion.”) (cleaned up), R. & R. adopted,2023 WL 4704588
(D. Minn. July 24, 2023).
The Social Security Administration describes supportability and consistency as follows:
(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his or
her medical opinion(s) or prior administrative medical finding(s), the more
persuasive the medical opinions or prior administrative medical finding(s)
will be.
(2) Consistency. The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be.
20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
“Supportability” means “[t]he extent to which a medical source’s opinion is
supported by relevant objective medical evidence and the source’s supporting
explanation.” Revisions to Rules, 82 Fed. Reg. at 5853, 2017 WL 168819(Jan. 18, 2017); see also20 C.F.R. §§ 404
.1520c(c)(1), 416.920c(c)(1). “Consistency” denotes “the extent to which the opinion is consistent with the evidence from other medical sources and nonmedical sources in the claim.” Revisions to Rules, 82 Fed. Reg. at 5853,2017 WL 168819
; see also20 C.F.R. § 404
.1520c(c)(2), 416.920c(c)(2). An “ALJ is not required to explain the remaining factors [set forth in20 C.F.R. § 404
.1520c and § 416.920c] unless the ALJ ‘find[s] that two or more medical opinions . . . about the same issue are both equally well supported . . . and consistent with the record . . . but are not exactly the same.’” Jane D. v. Kijakazi, No. 20-CV-1278 (MJD/KMM),2021 WL 5360450
, at *5 (D. Minn. Oct. 26, 2021) (quoting20 C.F.R. § 404
.1520c(b)(2)-(3)), R. & R. adopted,2021 WL 5358569
(D. Minn. Nov. 17, 2021).
Turning to the ALJ’s opinion, the ALJ began by noting that Plaintiff “did not seek
out mental health treatment until mid-January 2020, which was 8½ months” after the
amended onset date. (R. 28.) The ALJ then summarized Plaintiff’s mental health
treatment from January 2020 to October 2021. (R. 28-32.)
The ALJ summarized Plaintiff’s treatment in relevant part as follows: “The totality
of the claimant’s mental health medical evidence showed her symptomology lower[ed]
once she began psychotherapy and taking prescribed psychotropic medication.” (R. 32.)
The ALJ acknowledged Plaintiff “had a few bouts of increased symptomology with
situational stressors” but found “[a]s a whole, no more than moderate symptomology and
functional limitations resulted as demonstrated by her self-reported PHQ-9 scores, mental
status exam findings, activities of daily living, and psychotherapy notes.” (R. 32.) The
ALJ stated, “[g]iven her complaints of difficulty with energy and motivation, the
undersigned found the claimant had moderate limitation in the Part ‘B’ criteria of
concentrate, persist, or maintain pace,” and found she “was capable of performing simple,
routine and repetitive tasks that were not performed at a fast production rate pace, such as
that found in assembly-line work.” (R. 32.) The ALJ also found Plaintiff’s “active daily
routine was inconsistent with her subjective complaints, but consistent with the [RFC]”
because “[s]he was independent in self-care and grooming, and lived with a roommate
and intermittently with her oldest adult-aged daughter so shared responsibility for
performing routine household chores such as bill paying, laundry, light cleaning, pet care,
quick meal preparation, and shopping.” (R. 32.) The ALJ noted Plaintiff’s testimony
that “her roommate carried the laundry basket, as it was too heavy for her carry to the
laundry room,” and that Plaintiff “crocheted, cross-stitched, drove, read, visited with
family and friends, and watched television.” (R. 32.)
As to Ms. Walker-Thoennes’ July 2021 MSS, the ALJ found her opinions not
persuasive because:
While the record demonstrated persistent depressive symptoms, the claimant
testified that her primary concern was physical in terms of returning to work.
She reported getting a response to her treatment with Ms. Walker Thoennes.
Psychological evaluations and mental status exams did not document
ongoing marked difficulties in terms of her overall mental functioning. The
opinion appeared largely based on the claimant’s subjective complaints, as
Ms. Walker Thoennes documented in the treatment note dated July 16, 2021,
the claimant “shared about her daily function and why she feels she cannot
work.” (Exhibit 14F30) Furthermore, when seen on June 24, 2021, the
claimant re-iterated a prior complaint from late May 2021 of discord with her
roommate because she had not made herself available to run his errands and
engaging in lots of negative self-talk for not being productive due to having
no motivation. (Exhibits 14F25 and 28)
(R. 33-34.)
Plaintiff challenges the ALJ’s statement that she testified that her primary concern
was physical in returning to work. (Dkt. 21 at 9-10.) Plaintiff suggests that the ALJ
framed this line of questioning to cause her to only reference her physical ailments. (Id.
at 10.) The Commissioner responds that the ALJ reasonably interpreted Plaintiff’s
testimony, which focused on her physical limitations and included her statements that
depression and anxiety would “sometimes” keep her from going to work and that her
depression and anxiety were “better than . . . in the past” because she had found a good
treatment provider (Ms. Walker-Thoennes). (Dkt. 24 at 15-16.)
The Court has carefully reviewed Plaintiff’s testimony. The ALJ initially
questioned Plaintiff about her issues when working as a Certified Nursing Assistant
(“CNA”), which were migraines and back pain, and then asked her, “[a]t this time, what
would keep you from going back to work?” (R. 55.) Plaintiff responded with “those
things” and then also described problems arising from her hearing and communication
abilities when working as a CNA. (R. 55-57.) The ALJ then asked her, if she “were
offered a different type of job that didn’t require you to communicate as you would do as
a CNA, what types of problems do you think you might have?” (R. 57.) Plaintiff
identified standing for long periods of time. (R. 57.) The ALJ then asked about her back
and Plaintiff testified about back symptoms that arose when doing chores. (R. 58; see
also R. 58-62 (describing back exercises and treatment, hip issues, and ability to stand,
along with history of back pain when working as a CNA).) Finally, the ALJ asked if
there were “any other medical problems that you’re having, issues that haven’t been
discussed that would make working difficult.” (R. 62.) Plaintiff responded:
Oh no, No, I have the depression and anxiety, and sometimes that would keep
me from going to work, where I just couldn’t make myself get up in the
morning to go to work. That -- of course, that’s a problem.
(R. 62.)
Plaintiff emphasizes this statement in her brief. (Dkt. 21 at 10.) But Plaintiff
ignores the fact that when the ALJ asked if Plaintiff’s depression and anxiety were better,
worse, or about the same as in the past, Plaintiff testified: “It’s better than it was in the
past because I finally got somebody who . . . helps me.” (R. 63.) She then clarified that
the “somebody” was Ms. Walker-Thoennes, described her as “fabulous” and “so
helpful,” and explained how Ms. Walker-Thoennes helped her. (R. 63-64.) Given
Plaintiff’s testimony about her improvement since she began therapy with Ms. Walker-
Thoennes and her focus on physical concerns during the hearing, substantial evidence
supports the ALJ’s conclusion that Plaintiff’s “primary concern was physical in terms of
returning to work.” (R. 34.)
Plaintiff next challenges the ALJ’s statement that she was getting a response to
Ms. Walker-Thoennes’ treatment, claims the ALJ ignored the connection between her
physical and mental health, and argues that the ALJ’s reliance on her testimony is
“misplaced and inapt.” (Dkt. 21 at 10.) However, more than Plaintiff’s testimony
supports the ALJ’s conclusion that Plaintiff was responding to treatment. As the ALJ
stated, during a November 6, 2020 follow-up visit, a nurse practitioner noted that
“[Plaintiff] has been feeling well on vraylar[3], much improved decision-making, ‘I don’t
just sit there and get stuck in thinking about doing something, I just get up and do it,’”
and recommended continuing the medication and therapy as scheduled. (R. 933, 936; see
also R. 31 (ALJ’s discussion of statement).) The ALJ also relied on Plaintiff’s February
18, 2021 diagnostic assessment “to update her diagnosis, make treatment
recommendations, and determine if individual psychotherapy remains an appropriate
3 Plaintiff was prescribed Vraylar on October 20, 2020. (R. 943.) Vraylar, or
cariprazine, is a drug used to treat major depressive disorder among other things.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7318333/ (last visited Feb. 20, 2024).
service.” (R. 1021-22.) While Plaintiff continued to endorse symptoms of depression
and anxiety at the assessment, she reported that “working with a therapist and her doctor
for medication has helped reduce her depressive symptoms and helped her identify she
struggles with daily uncontrollable anxiety,” “for a few years she barely left her bed and
her apartment, but now she leaves as needed” (but not often due to the Covid-19
pandemic), and “she no longer feels trapped in her home and enjoys getting up to do
things on her good days.” (R. 1021-22; see R. 31 (ALJ’s discussion).) This constitutes
substantial evidence supporting the ALJ’s conclusion that Plaintiff responded well to
treatment. Indeed, Ms. Walker-Thoennes noted in the MSS that Plaintiff “reported some
relief from psychiatric symptoms with treatment but not complete relief.” (R. 956.)
Plaintiff criticizes the ALJ’s reliance on mental status exams that did not
document marked difficulties in overall functioning, arguing the ALJ “selectively cited to
benign examination findings” and ignored the fact that “mental impairments by their very
nature wax and wane.” (Dkt. 21 at 10.) Plaintiff further argues that Ms. Walker-
Thoennes both acknowledged Plaintiff’s improvements and nonetheless found she was
markedly limited in multiple functional areas. (Dkt. 21 at 10-11.) The Commissioner
responds: “The fact that the bulk of mental status examinations resulted in normal
findings is well documented throughout the ALJ’s decision and record” and argues that
Plaintiff is “encourag[ing] an alternative interpretation of the record and ignor[ing] the
standard of review, which mandates that, so long as substantial evidence supports the
ALJ’s findings, the presence of contrary evidence—even if it is also substantial—does
not imply error by the ALJ.” (Dkt. 24 at 16 (citations omitted).)
The Court has reviewed the record and finds substantial evidence supports the
ALJ’s conclusion that “[p]sychological evaluations and mental status exams did not
document ongoing marked difficulties in terms of [Plaintiff’s] overall mental
functioning.” (R. 34.) Plaintiff identified treatment records describing her symptoms of
anxiety and depression, beginning with an office visit with a nurse practitioner on
January 21, 2020, as consistent with and supporting Ms. Walker-Thoennes’ opinions.
(Dkt. 21 at 13-15 (citing R. 725, 727, 730, 732-33, 757, 761, 770-71, 785, 789, 942-43,
1021-22).) As to Plaintiff’s exam findings during the January 21, 2020 visit with the
nurse practitioner, she had normal findings as to eye contact, dress (clean and casual),
grooming, manner, attentiveness, motor skills, and speech. (R. 761.) Her affect was
stable with a constricted range and blunted intensity, with an “I don’t care” mood. (R.
761.) Her thought content included “death wishes, depressive cognitions,” but she denied
an active plan for harming herself or others; her thought process was logical and goal
directed; she reported olfactory hallucinations; and she had average intellect with limited
insight/judgment. (R. 761.) She was prescribed Bupropion4 with directions to return in
1-2 months. (R. 762.)
While Plaintiff identifies several subsequent visits where she endorsed symptoms
of depression and anxiety, her mental status exams and evaluations during those same
visits resulted in normal or minimal findings. (See, e.g., R. 789-91 (April 30, 2020
therapist visit noting “[Plaintiff] was open and cooperative” and “no concerns with
4 Buproprion is a medication used to treat depression.
https://www.ncbi.nlm.nih.gov/books/NBK470212/ (last visited Feb. 20, 2024).
cognition, orientation, perception, judgement [sic], or insight,” although suicidal ideation
was 4 out of 10); R. 785-86 (June 26, 2020 therapist visit noting Plaintiff was
cooperative, informed clinician when she needed to speak up, and “no concerns with
cognition, orientation, perception, judgment, or insight,” where suicidal ideation was 1
out of 10); R. 730-35 (July 30, 2020 telehealth visit with primary care provider noting:
“[A]lert and cooperative; anxious mood; normal attention span and concentration. speech
[within normal limits]; thoughts negative for [suicidal ideation/homicidal ideation],
delusions” and “[t]houghts coherent, logical and goal-directed. Insight/ judgement [sic]
aware of illness.”); R. 769-71 (August 24, 2020 therapist visit noting: “Client was
cooperative and informed clinician when they needed to speak louder to be heard
properly. There were no concerns with cognition, orientation, perception, judgement
[sic], or insight. [Suicidal ideation] 1 out of 10.”)); R. 725-29 (September 15, 2020
primary care visit noting: “[A]lert and cooperative; anxious, frustrated mood; normal
attention span and concentration. speech [within normal limits]; thoughts negative for
[suicidal ideation/homicidal ideation], delusions. Thoughts coherent, logical and goal-
directed. Insight/judgement [sic] aware of illness.”); R. 938-43 (October 20, 2020 annual
exam with primary care provider noting “[A]lert and cooperative; depressed mood;
normal attention span and concentration. speech [within normal limits]; thoughts negative
for [suicidal ideation/homicidal ideation], delusions. Thoughts coherent, logical and
goal-directed. Insight/judgement [sic] aware of illness.”); R. 1021-28 (February 18, 2021
assessment noting “unremarkable” mental status exam with a narrative of: “[Plaintiff’s]
MSE unremarkable. She recognized most thinking errors; however, reporting lacking
motivation to address them. Her affect was appropriate during the interview.”).)
Additional objective findings relied on by the Commissioner similarly showed
normal or mostly normal mental status exam results. (See, e.g., R. 28-32 (citing R. 802
(January 28, 2020 visit noting: “[Plaintiff] appeared her stated age. She was
appropriately dress[ed], well groomed, appropriate speech and behavior. Instead of her
usual flat affect she showed more emotional range than she has in the past with more
energy. She smiled, laughed, and talked animatedly with her hands. There were no
concerns with cognition, orientation, perception, judgement [sic], or insight. [Suicidal
ideation] 0 out of 10.”)), R. 754 (February 25, 2020 visit to primary care provider noting
generally normal mental status exam including “coherent, logical, goal directed” thought
processes, although limited insight/judgment, constricted range, neutral affect, depressive
cognitions, and a “don’t care” mood), R. 982 (March 9, 2021 primary care visit noting
“[A]lert and cooperative; normal mood; normal attention span and concentration. speech
[within normal limits]; thoughts negative for [suicidal ideation/homicidal ideation],
delusions. Thoughts coherent, logical and goal-directed. Insight/judgement [sic] aware
of illness.”), R. 989 (June 1, 2021 noting :”[A]lert and cooperative; normal mood; normal
attention span and concentration. speech [within normal limits]; thoughts negative for
[suicidal ideation/homicidal ideation], delusions. Thoughts coherent, logical and goal-
directed. Insight/judgement [sic] aware of illness.”), R. 1001 (August 30, 2021 primary
care visit noting: “[A]lert and cooperative; depressed mood, flat affect and calm motor
activity; normal attention span and concentration. speech [within normal limits]; thoughts
negative for [suicidal ideation/homicidal ideation], delusions. Thoughts coherent, logical
and goal-directed. Insight/judgement [sic] aware of illness.”).) In view of these
examination findings throughout the alleged disability period, the Court finds substantial
evidence supports the ALJ’s decision to discount Ms. Walker-Thoennes’ opinions as
inconsistent with her own exam findings as well as other providers’ mental status exam
and evaluation findings.
Finally, Plaintiff challenges the ALJ’s statement that Ms. Walker-Thoennes’
opinions were largely based on Plaintiff’s subjective complaints. (Dkt. 21 at 11.) To the
extent Plaintiff challenges the ALJ’s reliance on a July 16, 2021 treatment note because
the MSS had a signature block dated July 2, 2021 (Dkt. 21 at 11-12 (citing R. 959)), as
the Commissioner points out, Ms. Walker-Thoennes stated in the MSS that her last
contact with Plaintiff was on July 16, 2021 (Dkt. 24 at 16-17 (R. 956)). Although the
reason for the July 2, 2021 date is unknown, the Court finds no error in the ALJ’s
reliance on the July 16, 2021 treatment note given Ms. Walker-Thoennes’ identification
of July 16, 2021 as the date she last had contact with Plaintiff.
Moreover, Plaintiff does not explain how Ms. Walker-Thoennes could have
formed opinions as to the interaction between Plaintiff’s physical and mental health other
than by relying on Plaintiff’s reports. Instead, Plaintiff argues that she had to “discuss
her daily functioning, and how it relates to her ability to work” because her treatment
“included her processing the decision to quit working and pursue disability.” (Dkt. 21 at
11.) Plaintiff argues “the ALJ did not identify any indicia of improper or inappropriate
reliance on Plaintiff’s subjective complaints by [Ms.] Walker-Thoennes.” (Id. at 12.)
But in Ryan v. Commissioner of Social Security, relied on by Plaintiff, the treating
physician relied on his own “clinical observations” when forming his opinions, which
were documented in the record. 528 F.3d 1194, 1199-200(9th Cir. 2008). Here, Plaintiff has not identified any mental status exam or evaluation results that Ms. Walker-Thoennes relied on to support her opinions. The absence of objective medical evidence supporting a medical source’s opinions is properly considered under the supportability factor. See20 C.F.R. §§ 404
.1520c(c)(1), 416.920c(c)(1); see also Austin v. Kijakazi,52 F.4th 723, 729
(8th Cir. 2022) (“On the supportability prong, see20 C.F.R. § 404
.1520c(c)(1), the
ALJ found that Dr. Addison-Brown relied heavily on the claimant’s subjective
description of her symptoms and limitations. While Dr. Addison-Brown conducted some
diagnostic procedures during her evaluation, Dr. Addison-Brown’s report states that at
least some of her diagnoses were based on self-reports, which supports the ALJ’s
finding.”) (cleaned up).
The Court also finds unpersuasive Plaintiff’s argument that Ms. Walker-Thoennes
recognized Plaintiff’s improvement but still imposed marked limitations. (Dkt. 21 at 11
(citing R. 958).) Ms. Walker-Thoennes recognized Plaintiff was experiencing some but
not complete relief (R. 956) but then stated: “[Plaintiff] struggles with depression which
levels can vary. When depression is more severe [Plaintiff] doesn’t leave bed most of the
day. This happens at least once per week with psychiatric medication” (R. 958). Ms.
Walker-Thoennes did not cite to any of her own records (or any other medical records)
supporting this assertion, and Plaintiff has not identified anything in the record that would
support Ms. Walker-Thoennes’ statement that once a week, even when taking
medication, Plaintiff did not leave her bed most of the day. The Court is not persuaded
that the ALJ should have found Ms. Walker-Thoennes’ opinions more persuasive because
she recognized Plaintiff’s improvement, nor is the Court persuaded that the record is
consistent with and supports her opinions.
Finally, Plaintiff argues that “error is shown, and remand required, simply by
showing that [the ALJ’s] finding that Ms. Walker-Thoennes’ opinion is unpersuasive is
not based on a reasonable or logical interpretation of the record.” (Dkt. 21 at 15.) To the
extent Plaintiff relies on treatment records, as discussed above, numerous mental status
exam findings and evaluations do not support and are inconsistent with Ms. Walker-
Thoennes’ opinions. And to the extent Plaintiff relies on her November 19, 2020
Function Report (see Dkt. 21 at 12-13 (citing Function Report at R. 463-70)), the ALJ
acknowledged her reports but ultimately concluded that her statements concerning the
intensity, persistence, and limiting effects of these symptoms were not entirely consistent
with the medical evidence and other evidence in the record (R. 24). The ALJ’s decision
to discount Plaintiff’s reported symptoms as to her depression and anxiety as inconsistent
with the record, including the objective findings and Plaintiff’s own reports of
improvement, is supported by substantial evidence.
In sum, the Court finds that substantial evidence in the record as a whole supports
the ALJ’s decision to discount Ms. Walker-Thoennes’ opinions in view of the objective
medical evidence, as well as evidence of Plaintiff’s improvement due to therapy and
medication. “An ALJ’s reasoning need only be clear enough to allow for appropriate
judicial review.” Grindley v. Kijakazi, 9 F.4th 622, 631 (8th Cir. 2021) (cleaned up).
Here, the ALJ’s opinion thoroughly summarized Plaintiff’s mental health symptoms and
treatment and explained why Ms. Walker-Thoennes’ opinions were inconsistent with and
not supported by the evidence of record in a manner that this reviewing court can
understand. Because the ALJ’s assessment of the persuasiveness of those opinions is
supported by substantial evidence, remand is not required with respect to the mental
limitations in the RFC.
B. Effect of Plaintiff’s Degenerative Joint Disease of the Bilateral Hip and
Lumbar Osteoarthritis.
Plaintiff also argues that the ALJ’s decision to discount the symptoms arising from
her hip and back impairments is not supported by substantial evidence and that the RFC
requires additional and significant functional limitations. (Dkt. 21 at 16-24.) Plaintiff
describes her limitations as her back seizing up with “even a little bend at the waist”
(including when washing dishes), needing to lean against a fence or sit on a rock if she
walks more than 1.5 blocks due to back and hip pain, struggling to climb bleachers, and
an inability to stand for more than 10-15 minutes. (Id. at 20.) According to Plaintiff,
these “self-described limitations do not nearly approximate the ability to perform the
arduous demands of medium work, yet that is apparently what the ALJ is claiming.” (Id.
at 21.) The Commissioner responds that the ALJ concluded that Plaintiff’s statements
were inconsistent with the objective medical evidence and other evidence of record and
that the evidence considered by the ALJ was proper. (Dkt. 24 at 7-10.)
“Using the Polaski factors, subjective complaints may be discounted if there are
inconsistencies in the evidence as a whole.” Bryant v. Colvin, 861 F.3d 779, 782(8th Cir. 2017) (cleaned up) (citing Polaski v. Heckler,739 F.2d 1320, 1322
(8th Cir. 1984), and Lowe v. Apfel,226 F.3d 969, 972
(8th Cir. 2000) (noting an ALJ must consider Polaski factors before discounting any subjective complaints)). “In addition to the claimant’s prior work record, the Polaski factors include (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness, and side effects of medication; and (5) functional restrictions.”Id.
(citing Polaski, 739 F2d at 1322, and20 C.F.R. § 404.1529
).
The regulations direct the ALJ to consider all of the available evidence from
medical sources and nonmedical sources about how a claimant’s symptoms affect them;
medical opinions; objective medical evidence; and other evidence, including prior work
record, the claimant’s statements about their symptoms, evidence submitted by medical
sources, and observations by Social Security Administration employees and other
persons. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3). Relevant factors set forth in the regulations include: a claimant’s daily activities; the location, duration, frequency, and intensity of the pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; treatment, other than medication, received for relief of pain or other symptoms; any measures used to relieve pain or other symptoms; and other factors concerning functional limitations and restrictions due to pain or other symptoms. See20 C.F.R. §§ 404.1529
(c)(1)-(3), 416.929(c)(1)-(3).
Here, the ALJ summarized Plaintiff’s medical treatment for her back and hips and
then found:
Evidence of record established the claimant treated her back and hip pain
with over-the-counter analgesics and wearing supportive footwear, and never
followed up on referrals for more intensive alternative conservative
treatments like cortisone injection, diclofenac gel, or physical therapy. At the
hearing, she also testified she did some back exercises. Her failure to follow-
up with the alternative conservative treatments suggested she was satisfied
with the level of pain relief she received from over-the-counter analgesics,
exercises, and wearing supportive footwear and/or the level of limitation
resulting was not as debilitating as claimed.
Considering the minimal findings found on radiological imaging given her
age and recent physical examination findings that revealed only limited
active range of motion in the hips due to tenderness and intermittent flares of
back pain, the undersigned concluded the claimant was capable of
performing medium exertional work (i.e., lifting, carrying, pulling, and/or
pushing up to 25 pounds frequently and 50 pounds occasionally, and sitting,
standing, and walking for up to 6 hours each per 8-hour workday with normal
breaks).
(R. 27.)
Plaintiff did not challenge the ALJ’s findings as to treatment, examination results,
or imaging. Instead, Plaintiff challenges the ALJ’s reliance on her activities of daily
living and the fact that she did not seek other work after she could no longer work as a
CNA when discounting her symptoms. (Dkt. 21 at 21-23 (citing R. 32).)
The Commissioner argues:
Although activities such as light housework and visiting with family are not
alone sufficient to prove a claimant can work, the extent of Plaintiff’s
activities when considered in conjunction with the medical record in this
case, suggested a greater degree of functioning than alleged in pursuit of
benefits and supports the ALJ’s decision.
(Dkt. 24 at 10.) As to Plaintiff’s work history, the Commissioner argues that the ALJ
was entitled to consider Plaintiff’s work as a CNA and failure to attempt alternative jobs
prior to applying for disability benefits as “part of a larger picture that showed Plaintiff
was more capable than she alleged.” (Id. at 11.) According to the Commissioner,
“[w]hile an ALJ can consider work history, there is no requirement that he must simply
accept a claimant’s subjective reports because of a good work history and ignore the
other factors set forth in 20 C.F.R. §§ 404.1529, 416.929 and SSR 16-3p.” (Id.)
As a starting point, the Court rejects any suggestion that the ALJ’s conclusion as
to Plaintiff’s symptoms was based exclusively on her activities of daily living and work
history. Rather, the ALJ clearly identified the reasons why he did not believe her
limitations were “as debilitating as claimed.” (R. 27.) The ALJ identified Plaintiff’s
conservative treatment with over-the-counter pain medication, supportive footwear, and
at-home exercises, as well as the fact that she declined cortisone injections,5 diclofenac
gel,6 and physical therapy. (R. 27; see also R. 26 (citing 3F18 (R. 738), 8F26 (R. 927),
8F30 (R. 931 (referring Plaintiff to “physical medicine” and rehab for evaluation of
cortisone or physical therapy; Plaintiff declined diclofenac gel in favor of
5 Cortisone shots are injections that can help relieve pain, swelling and irritation in a
specific area of your body. https://www.mayoclinic.org/tests-procedures/cortisone-
shots/about/pac-20384794#:~:text=Cortisone%20shots%20are%20injections
%20that,might%20benefit%20from%20cortisone%20shots (last visited Feb. 20, 2024).
“Diclofenac is used to treat pain and other symptoms of arthritis of the joints (eg,
osteoarthritis), such as inflammation, swelling, stiffness, and joint pain.”
https://www.mayoclinic.org/drugs-supplements/diclofenac-topical-application-route/side-
effects/drg-20063434?p=1 (last visited Feb. 20, 2024).
acetaminophen)).) The ALJ also relied on “minimal findings found on radiological
imaging” (R. 27)—a conclusion not challenged by Plaintiff. The ALJ also noted that
Plaintiff did not seek medical attention for low back pain until June 8, 2020,
“approximately fourteen months” after the amended onset date. (R. 26.) The ALJ also
noted fairly normal objective tests, including results from a January 11, 2021 consultative
exam that:
[S]he was able to walk normally across the room without the use of an
assistive device but had mild difficulty tandem walking and moderate
difficulty squatting. There was mild-to-moderate tenderness at the left lower
back but normal range of motion. (Exhibit 7F3) Straight leg raising and
Romberg were negative and she was neurologically intact. (Exhibits 7F3-4)
(R. 27.)
Testing on June 15, 2021 “revealed her passive range of motion of the bilaterally
[sic] hips was intact but active range of motion was limited by tenderness” and
“[s]trength was equal bilaterally with no focal deficits and normal gait.” (R. 27 (citing
13F15 (R. 989)).) The ALJ further noted a normal physical exam on July 27, 2021 and
the same a month later, on August 30, 2021, with a normal gait. (R. 27 (citing 13F21 (R.
995) and 13F27 (R. 1001)).)
The Court recognizes that “‘the ability to do activities such as light housework and
visiting with friends’ alone [is] insufficient reason to discredit [a claimant’s] subjective
complaints.” Milam v. Colvin, 794 F.3d 978, 985(8th Cir. 2015) (quoting Baumgarten v. Chater,75 F.3d 366, 369
(8th Cir. 1996)). But those activities, in addition to the evidence discussed above, may further support the ALJ’s decision. Seeid.
As to Plaintiff’s work history, neither party provided any case law specific to the
issue of how an ALJ should treat a lengthy work history in one position when a claimant
did not seek alternative work after she could no longer work in that role. Regardless,
even if the ALJ had, and the Court does, consider Plaintiff’s lengthy work history as
supporting her credibility, this does not undermine the ALJ’s reliance on Plaintiff’s
conservative treatment and failure to seek alternative treatment, minimal findings on
exam, and minimal findings on radiological imaging when concluding that “the level of
limitation resulting was not as debilitating as claimed.” (R. 27.) These constitute “a
good reason” for discounting Plaintiff’s symptoms, and the Court will defer to the ALJ’s
judgment. See Milam, 794 F.3d at 985 (“If the ALJ discredits a claimant’s credibility and
gives a good reason for doing so, we will defer to [their] judgment even if every factor is
not discussed in depth.”).
Finally, the fact that Plaintiff did not seek medical attention for her pain until
several months after her alleged onset date undermines her claims of disability beginning
April 1, 2019. See Wright v. Colvin, 789 F.3d 847, 854(8th Cir. 2015) (“Further, Wright’s complaints of disabling pain are also undercut by the eight-month period during which he sought no medical care.”); Milam,794 F.3d at 985
(finding failure to seek any
medical treatment for back pain “for long periods of time,” including “the nearly four
years between September 2007 and June 2011 . . . notwithstanding her assertion that she
actually became disabled in August 2009” undermined subjective complaints).
The Court may not reverse an ALJ’s decision supported by substantial evidence
even if the Court would reach a different conclusion as to Plaintiff’s ability to engage in
medium work and even if substantial evidence supports a contrary outcome. Travis v.
Astrue, 477 F.3d 1037, 1040(8th Cir. 2007). Again, the ALJ’s reasoning is clear enough that the Court can understand it. See Grindley,9 F.4th at 631
. Having found the ALJ’s
decision to discount Plaintiff’s subjective complaints supported by substantial evidence,
the Court rejects Plaintiff’s challenge to the RFC on that ground.
* * *
For all these reasons, the Court denies Plaintiff’s request for remand of the
Commissioner’s decision and grants the Commissioner’s request that the decision be
affirmed.
IV. ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED THAT:
1. Plaintiff’s request for remand of the Commissioner’s decision (Dkt. 21) is
DENIED;
2. The Commissioner’s request that the Court affirm the Commissioner’s
decision (Dkt. 24) is GRANTED; and
3. The Announcement of Decision scheduled for February 23, 2024 at 10:00
a.m. is CANCELLED.
LET JUDGMENT BE ENTERED ACCORDINGLY
DATED: February 20, 2024 s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge Reference
- Status
- Unknown