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Conrad v. Astrue: US District Court : SOCIAL SECURITY - remand where doubt over legal standard Administrative Law Judge used

Commissioner of Social Security,
Civil No. 07-151 (JRT/JSM)
Ethel J. Schaen, SCHAEN LAW OFFICE, 1821 University Avenue, Suite
344, St. Paul, MN 55104; Thomas A. Krause, THOMAS A. KRAUSE,
P.C., 701 34th Place, West Des Moines, IA 50265, for plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, 300 South Fourth Street, Suite 600,
Minneapolis, MN 55415, for defendant.
Plaintiff Lori Conrad is suing the Commissioner of Social Security (“defendant”),
seeking judicial review of defendant’s denial of her applications for disability insurance
benefits (“DIB”) and Supplemental Security Income (“SSI”). Both parties moved for
summary judgment. United States Magistrate Judge Janie S. Mayeron issued a Report
and Recommendation on February 19, 2008, recommending that this Court deny
defendant’s motion, grant in part and deny in part plaintiff’s motion, and remand the case
for further proceedings. Defendant filed objections to the Report and Recommendation
pursuant to 28 U.S.C. § 636(b)(1)(C) and Local Rule 72.2(b), and the Court reviews
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those objections de novo.1 For the reasons given below, the Court overrules defendant’s
objections and adopts the Report and Recommendation of the Magistrate Judge.
Plaintiff filed applications for DIB and SSI on September 21, 2004, alleging that
she had been disabled since November 22, 2000. Plaintiff’s alleged disability is based on
blood clots in her right thigh, as well as various additional problems with her right foot,
ankle, toe, both hands and tailbone. Plaintiff’s application was denied initially and upon
reconsideration. Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”), which was held on June 8, 2006, before ALJ Michael D. Quayle. The hearing
included testimony from plaintiff and an impartial Vocational Expert (“VE”). The ALJ
denied plaintiff’s applications in an order issued June 21, 2006, concluding that plaintiff
is not disabled because she can perform a significant number of sedentary jobs in the
economy. Plaintiff then requested review from the Commissioner’s Appeals Council.
The Appeals Council denied this request on December 5, 2006, making the ALJ’s
decision the final decision of the Commissioner in this case. See 20 C.F.R. §§ 404.981,
416.1481. This appeal followed.
At the time of the onset of plaintiff’s disability in 2000, plaintiff was 36 years old.
She has a high school education and past work experience as a school bus driver,
emergency room clerk, and teacher’s aide. In July 1998, plaintiff underwent carpal
1 Plaintiff does not object to the Magistrate Judge’s recommendation that this Court deny
her summary judgment motion to the extent that it sought an award of benefits (as opposed to a
remand). Accordingly, that recommendation is adopted without further discussion.
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tunnel surgery. In November 2000, she was diagnosed with various foot ailments,
including degenerative arthritis, and was placed in a walking cast. These procedures
marked the beginning of several years of health problems related to her hands and feet.
Those problems were later joined by deep venous thrombosis (DVT) in her right leg,
ankle problems including an avulsion fracture, tailbone pain, and depression. Plaintiff
underwent a variety of attempts to alleviate these problems under the care of numerous
physicians and specialists. The course of that treatment was described at length in the
thorough Report and Recommendation filed by the Magistrate Judge, and is reproduced
below only to the extent necessary to resolve defendant’s objections.
In determining whether plaintiff is disabled, and entitled to either DIB or SSI, the
ALJ followed the five-step analysis codified at 20 C.F.R. § 404.1520. First, the ALJ
determined that plaintiff has not engaged in substantial gainful activity at any time
relevant to this decision. In steps two and three, the ALJ found the plaintiff suffered from
a multitude of “severe” impairments – specifically, bilateral carpal tunnel releases,
sesamoid fracture, status post sesamoidectomy and ostectomy of the talonavicular joint of
the right foot with osteopenia, a history of thrombosis, varicosities, status post avulsion
fracture of the distal fibula, degenerative disc disease of the lumbar spine, status post
fracture of the right great toe, major depressive disorder, and anxiety disorder – but that
none of these impairments meet or equal impairments listed in the regulations. In the
fourth step, the ALJ determined that plaintiff does not have the residual functional
capacity (“RFC”) to perform any of her past relevant work. Finally, in the fifth step, the
ALJ determined that plaintiff had a sufficient RFC to perform other jobs that exist in
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significant numbers in the national economy, including work as a sorter, inspector, or
plastic polisher. Accordingly, the ALJ found that plaintiff was not disabled, and it is this
determination that is the focus of this appeal.
Plaintiff presented the Magistrate Judge with two arguments for reversing the
decision of the ALJ. First, plaintiff contended that the ALJ applied the wrong legal
standard in assessing the opinions of her treating physician, Dr. Sheri Lofton, and
consequently failed to give that opinion proper weight in determining her RFC. Second,
plaintiff argued that the ALJ neglected to consider limitations on her use of her hands and
her need to elevate her leg. Following a thorough review of the medical evidence and
testimony offered in this case, the Magistrate Judge agreed with plaintiff’s arguments in
part, and recommended that the case be remanded to the ALJ. Specifically, the
Magistrate Judge determined that the ALJ appeared to have indeed used an incorrect
legal standard in assessing the opinion of Dr. Lofton and did not adequately explain why
this opinion was not given controlling weight. In addition, the Magistrate Judge
determined that the ALJ had not adequately explained why no limitations involving
plaintiff’s hands were included in plaintiff’s RFC. Defendant objects, arguing that “we
can easily trace” the ALJ’s assessment of Dr. Lofton, even if that assessment was not
particularly explicit. In addition, defendant argues that a remand would not serve a useful
purpose, because the record clearly supports the ALJ’s conclusions. See England v.
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Astrue, 490 F.3d 1017, 1019 (8th Cir. 2007); 42 U.S.C. § 405(g) (noting that the Court
may reject the ALJ’s decision only if it is not supported by substantial evidence on the
record as a whole).
In determining plaintiff’s RFC, the ALJ relied on testimony and medical evidence
concerning approximately six years of complaints, assessments, and treatments. That
record included a variety of evidence related to treatment provided by Dr. Lofton.
Dr. Lofton saw plaintiff at least nine times during this time period, and during these
visits, she performed numerous examinations, ordered tests related to plaintiff’s DVT and
other symptoms, and also performed a general physical examination. During the course
of plaintiff’s treatment, Dr. Lofton also referred plaintiff to a podiatrist, a physical
therapist, a neurologist, and a rheumatologist.
On July 29, 2005, Dr. Lofton completed a medical assessment form concerning
plaintiff’s ability to work. This assessment outlined a set of relatively restrictive
limitations, suggesting that plaintiff could lift only light weight; could stand and/or walk
for less than one hour during an eight-hour workday; had a minimal ability to sit during
the workday; could never climb, balance, stoop, crouch, kneel, or crawl; and would be
affected in her ability to reach, handle, feel, push, or pull.
The ALJ also reviewed evidence related to treatment by a number of other
physicians, including several of the specialists mentioned above. These doctors varied in
their assessment of the severity of plaintiff’s numerous conditions, and in many cases
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their opinions could be read to support a less restrictive prognosis for plaintiff’s work
In light of this evidence, the ALJ concluded that plaintiff had the RFC to carry ten
pounds occasionally, stand and/or walk two hours of an eight-hour day, and sit six hours
of an eight-hour day. The ALJ added that plaintiff should be limited to “unskilled” work
with low stress and routine tasks. In support of this conclusion, the ALJ noted that he
“did not place controlling weight on the opinion of Dr. Lofton . . . as the record does not
clearly support a residual functional capacity less than sedentary level.” (Emphasis
added). The Court agrees with the Magistrate Judge that this explanation raises doubts
about whether the ALJ applied the proper legal standard, and requires that the case be
The Code of Federal Regulations (“CFR”) includes specific guidance for weighing
the opinions of medical doctors in social security cases. Those regulations note that the
greatest weight is to be given to “medical professionals most able to provide a detailed,
longitudinal picture of . . . medical impairment(s) . . . that cannot be obtained from the
objective medical findings alone or from the reports of individual examinations[.]” 20
C.F.R. § 404.1527(d)(2). Those regulations go on to enumerate several specific factors
the ALJ is to consider in assessing the opinions of particular doctors, including (1)
whether or not the doctor has examined the claimant; (2) the length of the treatment
relationship and the frequency of the examinations; (3) the nature and extent of the
treatment relationship; (4) the presence of medical evidence in the record supporting the
doctor’s opinion; (5) the consistency of the doctor’s opinion with the record as a whole;
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and (6) whether or not the doctor is a specialist. § 404.1527(d). The regulations add
“[w]e will always give good reasons in our notice of determination or decision for the
weight we give [to a] treating source’s opinion.” § 404.1527(d)(2).
In applying these regulations, the Eighth Circuit has upheld ALJ decisions
discounting a treating physician’s opinion “where the limitations listed on the [work
ability assessment] form stand alone, and were never mentioned in the physician’s
numerous records of treatment nor supported by any objective testing or reasoning.”
Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007) (quotations omitted). However, “a
treating physician’s opinion regarding an applicant’s impairment will be granted
controlling weight, provided the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the record.” Id.
Here, as the Magistrate Judge observed, it is not readily apparent what standard
the ALJ used to assess Dr. Lofton’s opinion. That opinion came in the context of the
extensive treatment relationship detailed above, which gave Dr. Lofton an opportunity to
develop “a detailed, longitudinal picture” of plaintiff’s overall condition. 20 C.F.R.
§ 404.1527(d)(2). Nonetheless, the ALJ found an RFC that substantially exceeded
Dr. Lofton’s recommendations.2 In explaining this departure, the ALJ merely indicated
2 As one example of this disparity, Dr. Lofton noted a number of limitations related to
plaintiff’s hands, as noted above. However, according to the Dictionary of Occupational Titles,
each of the three jobs the ALJ determined plaintiff was capable of require either frequent or
constant reaching, handling, or fingering, and a medium degree of finger dexterity. Dictionary of
Occupational Titles (4th Ed., Rev. 1991), 1991 WL 679966, 1991 WL 678284, 1991 WL
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that the record did not “clearly support” Dr. Lofton’s conclusions.3 On its face, this
phrase would seem to imply a far stricter standard than the one articulated in Leckenby.
487 F.3d at 632. There, the Eighth Circuit suggested that, in weighing the treating
physician’s opinion against other portions of the record, the ALJ merely needs to
determine whether that opinion is “not inconsistent” with the other substantial evidence
provided. Id. That standard stops well short of requiring that the rest of the record
“clearly support” the treating physician’s opinion.
The uncertainty over what standard the ALJ applied may have been resolved by a
more detailed explanation for why the ALJ credited some evidence and opinions over
others. However, the ALJ did not specifically name the doctors or reports he was
crediting, and did not address any specific inconsistencies between those opinions and
that of Dr. Lofton. He also did not explicitly apply any of the factors articulated in 20
C.F.R. § 404.1527(d). This makes the path to the ALJ’s decision particularly difficult to
divine in a case involving so many different ailments. In sum, while it possible that the
ALJ implicitly and properly applied the factors discussed in § 404.1527(d), as well as the
standard articulated in Leckenby, his written decision did not make it clear that he did so.
That, alongside the “clearly support” language and the disparity between the RFC
3 As the defendant points out, the ALJ went on to briefly note that there were no
“significant findings” by the other physicians that supported the severity of plaintiff’s
complaints. However, it is not clear whether the ALJ offered this as further explanation of his
discounting of Dr. Lofton, or whether he offered it as a reason to discount the plaintiff’s
subjective complaints. See Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984)
(articulating the factors that must be considered in assessing a claimant’s subjective complaints).
In any event, this passing statement does not sufficiently clarify the standard the ALJ applied to
Dr. Lofton’s opinion.
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determination and the opinion of Dr. Lofton, creates a reasonable basis for doubting that
the ALJ applied the correct principles of law.
Defendant notes that “a deficiency in opinion-writing is not a sufficient reason for
setting aside an administrative finding where the deficiency had no practical effect on the
outcome of the case.” Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999) (quotation
omitted). However, “[w]here there is a reasonable basis for doubt whether the ALJ
applied correct legal principles, application of the substantial evidence standard to uphold
a finding of no disability creates an unacceptable risk that a claimant will be deprived of
the right to have her disability determination made according to the correct legal
principles.” Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998) (quotations omitted); see
also O’Halloran v. Barnhart, 328 F. Supp. 2d 388, 391 (W.D.N.Y. 2004) (noting in a
social security case that “a remand is required because the Court cannot evaluate whether
substantial evidence exists to support the Commissioner’s decision where there is a risk
that incorrect legal standards were used as a basis for that decision”). In any event, after
a careful review of the record, the Court is not persuaded that the outcome is so clear as
to render a remand useless. In arguing that the Court should find any error of law
harmless, defendant relies on a string-cite of physician’s reports, and specifically
emphasizes the opinions of Dr. Peter Badroos and Dr. Richard Hansen. Both of these
doctors suggested that plaintiff could perform sedentary work. However, it appears as if
Dr. Badroos only saw the plaintiff once. Cf. 20 C.F.R. § 404.1527(d)(2) (noting the
weight carried by “medical professionals most able to provide a detailed, longitudinal
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picture of [a] medical impairment”) (emphasis added).4 As to Dr. Hansen, plaintiff points
out that he is a podiatrist, and did not consider the full range of plaintiff’s impairments,
including difficulties related to plaintiff’s hands. In short, it is not certain that even if the
ALJ had applied the appropriate standard to Dr. Lofton, he would have found her opinion
outweighed by those of Dr. Badroos and Dr. Hansen. Accordingly, this Court agrees that
it is appropriate to remand this case to the ALJ, to give him the opportunity to address the
evidence using the proper legal standards.
In conclusion, the Court agrees with the Magistrate Judge that this case must be
remanded to the ALJ. The ALJ should fully consider Dr. Lofton’s opinion in light of the
factors articulated in 20 C.F.R. § 404.1527(d)(2) and the standard articulated by the
Eighth Circuit in Leckenby, 487 F.3d at 632.5
Based on the foregoing, all the files, records, and proceedings herein, the Court
OVERRULES defendant’s objections [Docket No. 18] and ADOPTS the Report and
Recommendation dated February 19, 2008 [Docket No. 17]. Accordingly, IT IS
4 Moreover, as plaintiff points out, relying on Dr. Badroos may be problematic, because
the ALJ appears to have implicitly discounted his opinion as well. Despite Dr. Badroos’s
recommendation that the plaintiff not work more than 20-30 hours a day, the ALJ ultimately
indicated that plaintiff could handle a 40 hour work-week.
5 In the course of assessing Dr. Lofton’s opinion under the proper legal standard, the ALJ
should of course consider that opinion’s restrictions related to plaintiff’s hands.
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1. Plaintiff’s Motion for Summary Judgment [Docket No. 11] is GRANTED
to the extent that it seeks remand, but DENIED as to the extent that it seeks a judgment
awarding benefits.
2. Defendant’s Motion for Summary Judgment [Docket No. 14] is DENIED.
3. The case is REMANDED to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with this Order.
DATED: March 31, 2008 s/ John R. Tunheim _
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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