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Britton v. Astrue: US District Court: SOCIAL SECURITY - Administrative Law Judge didn't 'ignore' evidence by finding it not credible

Dontea Britton,
Civil No. 07-4746 ADM/SRN
Michael J. Astrue,
Commissioner of Social Security,
Mark G. Stephenson, Stephenson & Sutcliffe, PA, Rochester, MN, on behalf of Plaintiff.
Lonnie F. Bryan, Assistant United States Attorney, Minneapolis, MN, on behalf of Defendant.
Defendant Social Security Commissioner Michael J. Astrue (Defendant) denied
Plaintiff Dontea Brittons (Britton) application for social security income (SSI) based on
disability. The matter is now before the undersigned United States District Judge for
consideration of Brittons Objections [Docket No. 19] to Magistrate Judge Susan R. Nelsons
Report and Recommendation (R&R) [Docket No. 17] that Brittons Motion for Summary
Judgment [Docket No. 13] be denied and that Defendants Motion for Summary Judgment
[Docket No. 15] be granted. For the reasons stated below, the Court adopts the R&R. The
procedural and factual background, described in the R&R, is incorporated by reference.
The district court must make an independent, de novo review of those portions of the
R&R to which a party objects, and may accept, reject, or modify, in whole or part, the findings
or recommendations made by the magistrate judge. 28 U.S.C. 636(b)(1)(C); see also D.
Minn. LR 72.2(b).
A reviewing court must affirm the Commissioners decision if it is supported by
substantial evidence contained in the record as a whole. 42 U.S.C. 405(g); Holley v.
Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001). Substantial evidence is less than a
preponderance, but is enough that a reasonable mind would find it adequate to support the
Commissioners conclusion. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000). If the
record contains substantial evidence supporting the Commissioners determination, the
reviewing court may not reverse the Commissioners ruling even if it would have reached a
different conclusion. Holley, 253 F.3d at 1091.
Britton objects to Judge Nelsons conclusion that the Administrative Law Judge (ALJ)
did not err by according credibility to the opinions of non-treating sources over the opinions of
Brittons treating sources. A treating physicians opinion is generally given controlling weight if
it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in the record. 20 C.F.R. 416.927(d)(2);
see also Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006). But a treating sources
opinion may be disregarded if the opinion is inconsistent with other, substantial evidence in the
record or if other assessments are supported by better or more thorough medical evidence.
Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001); Rogers v. Chater, 118 F.3d 600,
602 (8th Cir. 1997). Ultimately, the question of whether a claimant is disabled is reserved for
the Commissioner, and, therefore, a conclusion of disability by a medical sourceeven a
treating sourceis of no special significance. 20 C.F.R. 416.927(e)(1), (3); see also Forehand
1 Bensons opinion was also signed by Dr. Stevens.
v. Barnhart, 364 F.3d 984, 986 (8th Cir. 2004) (noting that a treating sources opinion is not
conclusive in determining disability status).
Here, the ALJ declined to afford controlling weight to the opinions of Brittons treating
sources because the ALJ found that their opinions were not well supported by objective medical
evidence, were inconsistent with other evidence in the record as a whole, and were undermined
by Brittons failure to follow through with treatment. R&R at 18. Britton argued to Judge
Nelson that the ALJ erred because he completely ignored the opinions of Dr. Blum, Dr.
Rahman, and therapist Benson.1 Pl.s Mem. in Supp. of Mot. for Summ. J. [Docket No. 11] at 9.
Judge Nelson concluded that there was substantial evidence in the record as a whole to support
the ALJs decision. Id. at 18-20. Specifically, Judge Nelson found Dr. Blum never quantified
Brittons impairments and in fact refused to do so on more than one occasion because Britton
failed to complete a vocational evaluation. R&R at 16. The record shows that Britton never did
follow through and obtain such an evaluation, and, accordingly, Judge Nelson concluded that
[t]he ALJ did not err in disregarding Dr. Blums opinion because there was no opinion to
regard. Id. at 16. Judge Nelson explained that the ALJ was also entitled to reject Dr. Rahmans
opinion because it was inconsistent with other medical evidence, including Dr. Rahmans own
treatment records, and because Dr. Rahman did not provide clinical findings or medical support
for his opinion. Id. at 16. And as to Bensons opinion, Judge Nelson concluded that the ALJ
properly accorded the opinion no weight because it was inconsistent with Bensons own records;
was not accompanied by any contemporaneous treatment records; and was vague, conclusory,
and failed to refer to any medical records, clinical findings, or diagnostic testing. Id. at 17.
2 Social Security Ruling 96-5p provides, in pertinent part, that opinions from any
medical source . . . must never be ignored. The adjudicator is required to evaluate all evidence in
the case record that may have a bearing on the determination or decision of disability . . . .
Additionally, Judge Nelson explained that under Miller v. Shalala, 8 F.3d 611, 613 (8th
Cir. 1993), the ALJ was not required to explicitly discuss every piece of evidence presented.
R&R at 18-20. Britton now argues in his Objections that Miller is an outdated case that was
reversed three years [after it was decided] by the promulgation of Social Security Ruling 96-
5p,2 which, Britton asserts, requires that each and every part of each medical opinion must be
addressed. Objections at 2. Brittons argument is without merit; several decisions by the
Eighth Circuit since the promulgation of Social Security Ruling 96-5p, have cited Miller with
approval for the proposition that when denying disability benefits, an ALJ does not have to
discuss every piece of evidence presented, but must develop the record fully and fairly. E.g.,
Weber v. Apfel, 164 F.3d 431, 432 (8th Cir. 1999); Morrison v. Apfel, 146 F.3d 625, 628 (8th
Cir. 1998); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998). To the extent that Britton appears
to be challenging the validity of Miller, the Eighth Circuit has spoken to its continued viability
and it is not within the power of this Court to overrule established Eighth Circuit precedent.
Moreover, there is a difference between, on the one hand, declining to provide a
discussion on a particular medical sources opinion and, on the other hand, ignoring such an
opinion. See Black, 143 F.3d at 386 (stating that an ALJs failure to specifically cite the
opinions of certain treating sources does not indicate that those opinions were not considered
by the ALJ) (citing Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995)). Here, the ALJ
carefully considered the entire record, including all symptoms consistent with the objective
medical evidence and other evidence, as well as the opinion evidence of treating, examining, and
3 Social Security Ruling 96-5p provides that [f]or treating sources, the rules . . . require
that we make every reasonable effort to recontact such sources for clarification when they
provide opinions on issues reserved to the commissioner and the bases for such opinions are not
clear to us.
consultative doctors. Admin. R. (A.R.) [Docket No. 8] at 29-30. Ultimately, the ALJ chose to
give more weight to the opinions of four consultative sources (Dr. Wiger, Dr. Rafferty, Dr.
Larson, and Dr. Salmi) who opined that the medical records failed to demonstrate that Britton
was physically or mentally unable to work. R&R at 18-20. The ALJ explained that those
opinions were persuasive because they were consistent with the objective medical evidence on
the record, consistent with each other, and well-supported by clinical and laboratory diagnostic
techniques. Id. The Court agrees with Judge Nelsons decision, explaining in detail how
substantial evidence supported the ALJs finding regarding the weight afforded to the various
Brittons next objection is that the ALJ erred by failing to recontact treating sources to
establish factual bases for their opinions. Objections at 5-6. Britton argues that under Social
Security Ruling 96-5p, an ALJ is required to recontact treating sources when the bases for
their opinions are unclear.3 Id. at 2, 6. He claims that when the ALJ determined that the
opinions of Brittons treating sources lacked the support of medical records, clinical findings, or
diagnostic testing, the ALJ was under a duty to recontact those treating sources to request such
supportive information rather than deciding to afford the treating sources opinions little or no
weight. Id. at 5. As an initial matter, a review of the briefs submitted in this case shows that
Britton did not raise this argument before Judge Nelson. [T]he purpose of referring cases to a
magistrate for recommended disposition would be contravened if parties were allowed to present
only selected issues to the magistrate, reserving their full panoply of contentions for the trial
court. Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000) (quotation omitted). Thus, the
general rule is that a claimant must present all his claims squarely to the magistrate judge, that
is, the first adversarial forum, to preserve them for review. Id.; see also Hammann v. 1-800
Ideas.com, Inc., 455 F. Supp. 2d 942, 947-48 (D. Minn. 2006) (holding that a party cannot raise
arguments in his objections to an R&R that were not clearly presented to the magistrate judge).
Because it was not presented to Judge Nelson, Brittons argument regarding the alleged duty to
recontact sources of medical opinions is not properly before the Court.
Even if the argument were properly before the Court, it is without merit. Although an
ALJ should recontact a treating source when the information the [source] provides is inadequate
for the ALJ to determine whether the applicant is actually disabled, the regulations do not
require an ALJ to recontact a treating [source] whose opinion is inherently contradictory or
unreliable. Hacker v. Barnhart, 459 F.3d 934, (8th Cir. 2006) (citing 20 C.F.R. 404.1512(e)).
In Hacker, the Eighth Circuit explained: [T]he issue was not whether the treating [sources]
opinions were somehow incomplete. The ALJ found them refuted by the record and the treating
[sources] own earlier opinions and advice. Id. The same is true in this case. The ALJs
criticism of the treating sources opinions was not that they were unclear or ambiguous but that
they were not believable in light of the inconsistencies and other objective medical evidence in
the record. As in Hacker, the ALJ was under no duty to recontact the treating sources under such
circumstances. See id.
Finally, Britton claims that the ALJ erred in his assessment of Brittons residual
functional capacity (RFC). The RFC assessment measures a claimants capacity to perform
basic work activities despite his physical and mental limitations. 20 C.F.R. 404.1545(a). The
assessment is based on all relevant evidence in the case record, including the observations of
4 The factors considered are (1) the claimants 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. Polaski, 739 F.2d at
treating doctors and others, as well as the claimants own description of his limitations and
subjective complaints of pain. Id.; Willcockson v. Astrue, 540 F.3d 878, 880-81 (8th Cir. 2008).
Britton argues that the ALJ failed to consider Dontea Brittons own statements as to his own
abilities and literally ignored the Social Worker, Marcy Stewarts, observations in
corroboration. Objections at 5.
Contrary to Brittons argument, the ALJ did not fail to consider Brittons own statements.
Rather, the ALJ found those statements were not credible. In doing so, the ALJ properly
considered the factors articulated in Polaski v. Heckler for conducting such credibility
determinations. See 739 F.2d 1320, 1322 (8th Cir. 1984) (vacated on other grounds by Bowen v.
Polaski, 476 U.S. 1167 (1986)).4 The ALJ discounted the credibility of Brittons statements
based on (1) the objective medical record, including numerous instances in which Britton denied
experiencing any pain at all and evidence from medical sources opining that Brittons
concentration was limited to only a moderate degree; (2) the amount and frequency of Brittons
everyday activities was inconsistent with his claims of debilitating pain, depression, and an
inability to concentrate; (3) Brittons failure to follow recommended courses of treatment was
inconsistent with his subjective complaints; and (4) Brittons work history (or lack thereof)
indicated a lack of motivation to work rather than a lack of ability. R&R at 21-22. And the
record shows that the ALJ also considered Stewarts statements. Indeed, the ALJs
determination regarding Brittons RFC was consistent with Stewarts testimony at the
administrative hearing suggesting that Brittons inability to work was caused in part by his own
lifestyle choices, his sleep patterns, a lack of professionalism, and an inability to create and
respect personal boundaries. See A.R. at 403-09; R&R at 10.
The ALJ considered all evidence in the record and made a reasonable conclusion based
on all the evidence. There is substantial evidence to support the ALJs determination, including
his credibility determination regarding Brittons subjective complaints, and, therefore, Judge
Nelson correctly concluded that the ALJ did not err.
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS
1. Brittons Objections [Docket No. 19] are OVERRULED,
2. The R&R [Docket No. 17] is ADOPTED,
3. Brittons Motion for Summary Judgment [Docket No. 13] is DENIED, and
4. Defendants Motion for Summary Judgment [Docket No. 15] is GRANTED.
s/Ann D. Montgomery
Dated: November 20, 2008.


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Work-Related Injury
Wrongful Death
Dog Bite
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Bystanders Witnessed This.
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        a Police Report

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