Vossen v. Astrue: US District Court : SOCIAL SECURITY - no error regarding 'treating physician' opinion; bens denied; substantial evidence regarding credibility St. Paul Lawyer Michael E. Douglas Minnesota Injury Lawyers - Personal Injury Attorneys in Minneapolis, Bloomington and Brooklyn Park
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Vossen v. Astrue: US District Court : SOCIAL SECURITY - no error regarding 'treating physician' opinion; bens denied; substantial evidence regarding credibility

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Timothy C. Vossen, Civil No. 07-1567 (PAM/RLE)
Plaintiff,
v. MEMORANDUM AND ORDER
Michael J. Astrue,
Commissioner of Social Security,
Defendant.
This matter is before the Court on Plaintiff’s objections to the Report and
Recommendation (“R&R”) of United States Magistrate Judge Raymond L. Erickson dated
February 19, 2009. The Court must conduct a de novo review of any portion of the
Magistrate Judge’s opinion to which specific objections are made. 28 U.S.C. § 636(b)(1)(B);
D. Minn. L.R. 72.2(b). Based on a review of the record and Plaintiff’s objections, the Court
adopts the Magistrate Judge’s R&R.
BACKGROUND
Plaintiff applied for disability insurance benefits (“DIB”) on September 2, 2002, as
a result of injuries he sustained in an automobile accident approximately two months earlier.
His application was denied on November 18, 2002, and Plaintiff timely requested a hearing
before an Administrative Law Judge (“ALJ”). Following that hearing, the ALJ issued a
decision denying Plaintiff’s claim for benefits.
The ALJ followed the sequential, five-step analytical process required by federal
2
regulations. See 20 C.F.R. § 404.1520. At step one, the ALJ determined that Plaintiff had
not engaged in substantial gainful activity since his alleged disability onset date. ( R&R at
42.) At step two, the ALJ concluded that Plaintiff “was severely impaired by chronic pain
syndrome and cervical strain/sprain, degenerative disc disease of the lumbar spine, thoracic
outlet syndrome, degenerative disc disease of the right knee, chronic medial collateral
ligament injury of the right knee, status post-arthroscopy, and muscular contracture
headache.” (Id.) However, the ALJ determined that these impairments did not meet or equal
the criteria of any listed impairment. (Id. at 43.)
The ALJ then determined Plaintiff’s residual functioning capacity (“RFC”):
[The Plaintiff] had the residual functioning capacity to lift a maximum of ten
pounds occasionally and five pounds frequently, with minimal bending,
stooping, twisting, crouching, crawling, kneeling, and climbing, occasional
right foot pedal manipulations, occasional overhead reach, pushing, and
pulling, and no repetitive rotation, fixation, flexion, or extension of the neck.
(Id. at 44 (alteration in original).) In assessing Plaintiff’s RFC, the ALJ found that Plaintiff’s
claims of pain and his functional limitations were credible, but that his assertion regarding
his complete inability to work was inconsistent with the record as a whole, including his own
testimony and course of treatment. (Id. at 45.) The ALJ also considered the extensive and
conflicting medical evidence on record. First, based largely upon the testimony of the
medical expert, the ALJ also found that the opinions of Plaintiff’s treating physician, Dr.
Anderson, were not entitled to controlling weight since they were inconsistent with the
record as a whole. In addition, the ALJ gave slight weight to the opinions of Plaintiff’s
treating chiropractor, Dr. Copp, and the Commissioner’s consultative physician, Dr. Johnson.
3
Because Dr. Copp was a chiropractor and not a medical doctor, his opinion was deemed not
entitled to the weight generally assigned to medical opinions. As for Dr. Johnson’s opinion,
the ALJ noted that it was not supported by objective medial evidence or clinical findings.
Proceeding to steps four and five, the ALJ concluded Plaintiff would be unable to
perform his past relevant work, but that a significant number of jobs existed both in the
national and regional economies that Plaintiff could perform. The ALJ therefore concluded
that Plaintiff was not disabled. (Id. at 53.) Plaintiff’s request for review was denied by the
Appeals Council, who affirmed that denial after considering additional evidence that had not
been included in the Administrative Record. (Id. at 3.)
Plaintiff filed for judicial review of the Commissioner’s final decision denying his
application for DIB benefits. Both parties moved for summary judgment, and the Magistrate
Judge recommended granting summary judgment for the Commissioner and affirming his
decision to reject Plaintiff’s application for DIB benefits. Plaintiff timely objected to this
recommendation.
DISCUSSION
Plaintiff makes three objections to the R&R. First, Plaintiff argues that both the ALJ
and the Magistrate Judge incorrectly applied the treating physician rule. Generally, when a
case involves medical opinion, the opinion of a treating physician must be afforded
substantial weight. 20 C.F.R. § 404.1527. The ALJ may give a treating physician’s medical
opinion less weight or no weight if the opinion is unsupported by appropriate data or where
the ALJ’s decision is otherwise supported by substantial evidence. See Rogers v. Chater,
4
118 F.3d 600, 602 (8th Cir. 1997).
The ALJ did not entirely discount the treating physicians’ opinions. Rather, the ALJ
rejected only those portions that were inconsistent with the record as a whole. As the
Magistrate Judge observed, the gap in Plaintiff’s treatment, Plaintiff’s own testimony, and
the lack of medical evidence supporting certain conclusions were inconsistent with some of
the treating physicians’ opinions and justified giving those opinions less weight than they
would otherwise be given. The ALJ relied in part on the opinion of the medical expert in
deciding to reject certain portions of the treating physicians’ opinions. Although Plaintiff is
correct that the medical expert’s assessment alone cannot constitute substantial evidence
supporting the ALJ’s decision, as noted above, the ALJ also relied on Plaintiff’s own
testimony and the course of treatment. The Magistrate Judge correctly found that all of this
evidence, taken together, provided substantial evidence to support the ALJ’s denial of
benefits.
Plaintiff also objects to the R&R’s conclusion that Plaintiff’s spinal impairments did
not meet or equal Listing 1.04A. Medical Listing 1.04A provides that spinal disorders,
including degenerative disc disease, are presumptively disabling where they result in
“compromise of a nerve root . . . or the spinal cord.” To meet the requirements of this listing
“an impairment must meet all of the listing’s specified criteria.” Johnson v. Barnhart, 390
F.3d 1067, 1070 (8th Cir. 2004) (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990)). The
required criteria include evidence of nerve root compression or impingement as well as motor
loss accompanied by sensory or reflex loss and positive straight leg raising test.
5
The Court finds that there is substantial evidence in the record to support the ALJ’s
determination that Plaintiff’s impairments did not meet Listing 1.04A. Although the record
indicates some nerve compression as a result of disc herniations, Plaintiff’s medical records
and the testimony of the medical expert did not support Plaintiff’s claim of nerve root
impingement. Similarly, Plaintiff’s medical records, examinations, and daily activities did
not support Plaintiff’s claims of motor loss accompanied by sensory or reflex loss, and
positive straight leg raising test. In his objections, Plaintiff cites to several instances in the
record which indicate that he met the Listing requirements, but, as the Magistrate Judge
noted, an ALJ’s decision is not subject to reversal “merely because substantial evidence
would have supported an opposite conclusion.” Khalil v. Barnhar, 58 F. App’x 238, 240 (8th
Cir. 2003) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
Plaintiff’s final objection to the R&R is that the Magistrate Judge improperly upheld
the ALJ’s decision not to credit Plaintiff’s testimony. Credibility determinations are initially
within the province of the ALJ. “The ALJ must make express credibility determinations and
set forth the inconsistencies in the record which cause him to reject the plaintiff's
complaints.” Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004). “Although an
ALJ may not disregard a claimant’s subjective pain allegations solely because they are not
fully supported by objective medical evidence, an ALJ is entitled to make a factual
determination that a claimant’s subjective pain complaints are not credible in light of
objective medical evidence to the contrary.” Gonzales v. Barnhart, 465 F.3d 890, 895 8th
Cir. 2006) (internal quotation marks and alterations omitted) (quoting Ramirez v. Barnhart,
6
292 F.3d 576, 581 (8th Cir. 2002)).
As noted by the Magistrate Judge, the ALJ found several inconsistencies between
evidence on the record and Plaintiff’s subjective complaints. Specifically, the ALJ found that
Plaintiff’s testimony as to the severity of his impairments was undermined by his medical
reocrds, course of treatment, and the medical expert’s testimony. The ALJ also found that
Plaintiff’s daily activities and his failure to seek employment further undermined his
credibility. It is not for this Court to decide anew the credibility of Plaintiff’s subjective
complaints. Rather, when it finds the ALJ’s decision is supported by record, the Court must
defer to the ALJ’s findings. See Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).
The inconsistencies noted by the ALJ between the record and Plaintiff’s complaints provide
sufficient support for the ALJ’s credibility determination.
There is certainly evidence to support a finding of disability in this case, but the
standard is not whether evidence exists to reverse the ALJ’s determination. See Onstead v.
Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (court may not reverse a decision “merely
because substantial evidence would have supported the opposite decision” (quotations
omitted)). Rather, the issue is whether substantial evidence in the record as a whole supports
the ALJ’s determination. 42 U.S.C. § 405(g). The Court is not free to substitute its own
judgment for that of the ALJ. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). “If it is
possible to draw two inconsistent positions from the evidence and one of those positions
represents the agency’s findings,” the decision must be affirmed. Robinson v. Sullivan, 956
F.2d 836, 838 (8th Cir. 1992). Here, after conducting a de novo review as required by
7
statute, the Court agrees with the Magistrate Judge’s finding that the ALJ’s determination
was supported by substantial evidence.
CONCLUSION
As the statute requires, the Court has reviewed the record regarding Magistrate Judge
Erickson’s R&R. Based on that review and Plaintiff’s objections, the Court ADOPTS the
R&R (Docket No. 26).
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant’s Motion for Summary Judgment (Docket No. 21) is GRANTED;
and
2. Plaintiff’s Motion for Summary Judgment (Docket No. 17) is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: Thursday, March 26, 2009
s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge
 

 
 
 

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