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Vossen v. Astrue: US District Court : SOCIAL SECURITY - no error regarding 'treating physician' opinion; bens denied; substantial evidence regarding credibility

Timothy C. Vossen, Civil No. 07-1567 (PAM/RLE)
Michael J. Astrue,
Commissioner of Social Security,
This matter is before the Court on Plaintiffs 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 Judges 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 Plaintiffs objections, the Court
adopts the Magistrate Judges R&R.
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 Plaintiffs claim for benefits.
The ALJ followed the sequential, five-step analytical process required by federal
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 Plaintiffs 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 Plaintiffs RFC, the ALJ found that Plaintiffs
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 Plaintiffs 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 Plaintiffs
treating chiropractor, Dr. Copp, and the Commissioners consultative physician, Dr. Johnson.
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. Johnsons 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.) Plaintiffs 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 Commissioners 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 Plaintiffs application for DIB benefits. Plaintiff timely objected to this
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 physicians medical
opinion less weight or no weight if the opinion is unsupported by appropriate data or where
the ALJs decision is otherwise supported by substantial evidence. See Rogers v. Chater,
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 Plaintiffs treatment, Plaintiffs 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 experts assessment alone cannot constitute substantial evidence
supporting the ALJs decision, as noted above, the ALJ also relied on Plaintiffs 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 ALJs denial of
Plaintiff also objects to the R&Rs conclusion that Plaintiffs 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 listings 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.
The Court finds that there is substantial evidence in the record to support the ALJs
determination that Plaintiffs impairments did not meet Listing 1.04A. Although the record
indicates some nerve compression as a result of disc herniations, Plaintiffs medical records
and the testimony of the medical expert did not support Plaintiffs claim of nerve root
impingement. Similarly, Plaintiffs medical records, examinations, and daily activities did
not support Plaintiffs 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 ALJs decision is not subject to reversal merely because substantial evidence
would have supported an opposite conclusion. Khalil v. Barnhar, 58 F. Appx 238, 240 (8th
Cir. 2003) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
Plaintiffs final objection to the R&R is that the Magistrate Judge improperly upheld
the ALJs decision not to credit Plaintiffs 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 claimants 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 claimants 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,
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 Plaintiffs subjective complaints. Specifically, the ALJ found that
Plaintiffs testimony as to the severity of his impairments was undermined by his medical
reocrds, course of treatment, and the medical experts testimony. The ALJ also found that
Plaintiffs daily activities and his failure to seek employment further undermined his
credibility. It is not for this Court to decide anew the credibility of Plaintiffs subjective
complaints. Rather, when it finds the ALJs decision is supported by record, the Court must
defer to the ALJs findings. See Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).
The inconsistencies noted by the ALJ between the record and Plaintiffs complaints provide
sufficient support for the ALJs 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 ALJs 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 ALJs 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 agencys 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
statute, the Court agrees with the Magistrate Judges finding that the ALJs determination
was supported by substantial evidence.
As the statute requires, the Court has reviewed the record regarding Magistrate Judge
Ericksons R&R. Based on that review and Plaintiffs objections, the Court ADOPTS the
R&R (Docket No. 26).
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants Motion for Summary Judgment (Docket No. 21) is GRANTED;
2. Plaintiffs Motion for Summary Judgment (Docket No. 17) is DENIED.
Dated: Thursday, March 26, 2009
s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge


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