United States District Court, D. MinnesotaFeb 12, 2002
Civil No. 09-132 ADM/JMM (D. Minn. Feb. 12, 2002)

Civil No. 09-132 ADM/JMM

February 12, 2002


ANN D. MONTGOMERY, United States District Judge.


This matter is before the undersigned United States District Judge pursuant to Plaintiff Julie A. Thurber's ("Plaintiff") Objections [Doc. No. 21] to the November 8, 2001, Report and Recommendation ("RR") of Magistrate Judge John M. Mason [Doc. No. 20]. The RR recommended that Plaintiff's Motion for Summary Judgment [Doc. No. 16] be denied, and Defendant's Motion for Summary Judgment [Doc. No. 18] be granted. For the reasons set forth below, the RR is accepted.


The factual background for this matter is adequately set forth in the RR and is incorporated by reference for the purposes of Plaintiff's present objections.


A district court must make an independent, de novo evaluation of those portions of a RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2).

Plaintiff objects to two portions of the RR. First, she objects to the conclusion that the Administrative Law Judge ("ALJ") properly discredited the opinion of Plaintiff's treating physician. Second, she objects to the determination that the hypothetical question posed to the vocational expert ("VE") by the ALJ accurately reflected Plaintiff's physical and psychological limitations.

A. ALJ Determination

Plaintiff challenges the ALJ's findings that her impairments are not of such severity that they prevent her from engaging in some kind of substantial gainful work which exists in the national economy. See Morse v. Shalala, 16 F.3d 865, 871 (8th Cir. 1994); 42 U.S.C. § 1382c(a)(3)(B). The ALJ found that Plaintiff's condition precluded her continued work in computer assembly, but that Plaintiff maintains the residual functional capacity ("RFC") to perform a variety of other occupations existing in significant numbers in the regional economy, such as inspector, cashier, or surveillance system monitor. R. at 31-32. Consistent with this finding, the ALJ found Plaintiff was not disabled under 20 C.F.R. § 404.1520, 416.920. The review by this Court is limited to a determination of whether the decision of the ALJ is supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation omitted).

In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact. Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). That two inconsistent conclusions might be drawn from the same record does not preclude a particular finding from being supported by substantial evidence. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). The Court should not reverse the Commissioner's finding merely because evidence may exist to support the opposite conclusion. Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994). Instead, the Court applies a balancing test in considering the weight of contradictory evidence in the record. Gavin v. Heckler, 811 F.2d 1199 (8th Cir. 1987).

The ALJ chose not to accord controlling weight to the opinions of Plaintiff's physician because they were not supported by other substantial evidence in the record. Dr. Garry Banks, the treating physician, examined Plaintiff on June 26, 1998, after ongoing treatment for lower back problems, and recommended permanent work restrictions including a limitation of not lifting more than ten pounds and avoiding bending or twisting activities. R. at 224. In February and March, 1999, Dr. Banks treated Plaintiff again for lower back pain. On March 21, 1999, Dr. Banks recommended work restrictions of lifting a maximum of ten pounds, including a limited six hour work day with hourly changes in position and no bending, twisting or kneeling. Id. at 324. However, two months later, on May 21, 1999, at the request of the Social Security Administration, Dr. Banks completed a "Report of Workability" for Plaintiff in which Plaintiff's lifting capacity was further limited to five pounds. Id. Dr. Banks also advised a six hour work day, but recommended a change in position only once every four hours, stating that Plaintiff was capable of sitting three hours, standing three hours, and walking three hours during a normal work day. Id.

The ALJ declined to accord controlling weight to the May, 1999, recommendation restricting Plaintiff's lifting capacity to five pounds finding that the recommendation was unsupported by the evidence. The RR found that "there [was] no indication from Dr. Banks' treatment notes that Plaintiff's condition significantly deteriorated between June of 1998 and May of 1999 to warrant this reduction." RR at 12 (noting that the MRIs taken of the lumbar region of her back in January 1997 and February 1998 also fail to demonstrate a noticeable change in Plaintiff's condition). The RR found that the record failed to present an objective medical basis to support Dr. Banks' opinion reducing Plaintiff's lifting capacity to five pounds (a change from two months prior), or restricting Plaintiff to a six hour work day (a change from 11 months prior). Thus, without any evidence in the record to support Dr. Banks' changed opinion regarding Plaintiff's limitations, Dr. Banks' recommendations were not given controlling weight by the ALJ as adopted in the RR.

Plaintiff contends that she suffered an additional injury to her back in January, 1999, when she fell down at church, accounting for the change in Dr. Banks' recommendations. Pl. Obj. at 2. Plaintiff relies on a treatment note written by Dr. Banks on February 5, 1999, when Plaintiff was reevaluated for "increased" low back pain that had become "much worse since [Plaintiff] fell on her buttock region about a month [earlier]." Pl. Obj. at 3 (citing Tr. 326). Plaintiff also cites a further note by Dr. Banks on May 21, 1999, where after several weeks of physical therapy, Plaintiff related that her pain situation was "unchanged." Tr. 324.

Plaintiff asserts that this additional injury to her back from falling increased her back pain, and therefore "it seems likely Dr. Banks would recommend further restriction." Pl. Obj. at 3. The January, 1999, aggravation of her back pain, Plaintiff avers, "could feasibly account for" the additional five-pound restriction recommended by Dr. Banks in May, 1999. Id. at 4.

However, Dr. Banks made no medical determinations that Plaintiff's condition had worsened when he treated her in February through May, 1999. While there is indication that Plaintiff was experiencing increased pain due to the aggravation associated with the fall, Dr. Banks made no finding that any of Plaintiff's pre-existing medical conditions (degenerative disc disease, a herniated disc, obesity status post gastric bypass, and depression) had been impacted or increased as a result of Plaintiff's fall. No evidence suggests that her capacity to work was significantly altered as a result of her fall in January, 1999. Dr. Banks had previously recommended that Plaintiff was capable of working in a job that included lifting a limited amount of weight with frequent position changes and limited bending or twisting activities. R. at 224. Dr. Banks' final recommendation was consistent with his prior recommendations, with only a change in the amount of weight Plaintiff was limited to lifting and a restricted six hour work day. Dr. Banks offered no specific explanation why his recommendation changed. The record further offers no such explanation, beyond Plaintiff's speculations about the "likelihood" of such restrictions being imposed, and the "feasibility" of the January fall as a basis for such restrictions. These inferences are insufficient to constitute a treating physician's opinion that is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." Prosch v. Apfel, 201 F.3d 1010, 1012-1013 (8th Cir. 2000) (quoting 20 C.F.R. § 404.1527(d)(2)). Absent this level of support, a treating physician's opinion need not be granted "controlling weight." Id. The ALJ's decision to decline including these physical restrictions into Plaintiff's RFC determination was supported by substantial evidence on the record as a whole. Plaintiff's objection to this portion of the RR is denied.

Even if Dr. Banks' final recommendations were given controlling weight, those recommendations are sufficiently similar to his prior recommendations that the same determination that Plaintiff is not disabled would likely be reached.

B. VE Hypothetical

In determining whether or not Plaintiff's impairments prevent her from engaging in any substantial gainful activity other than past relevant work, the ALJ posed a hypothetical question to the Vocational Expert with Plaintiff's age, education and experience, as well as the following limitations:

[Plaintiff is] impaired by alcohol and drug abuse in long-term remission. She's had treatment for what has been described as moderate depression, lower back pain with lower extremity radiation, obesity that has been treated with a gastric bypass, and status post hernia repairs. . . . I would limit it to sedentary lifting level which would be up to 10 pounds occasionally, 5 pounds frequently. The limitations on sitting or time on feet, would be the ability to change positions on an hourly basis, or have occasional twisting, climbing, stooping, kneeling or crawling. Only very occasional bending. And the work duties should be low stress level, not requiring high production goals or high stress. And further limited to brief superficial contact with the public.

R. at 81-82. Based on this hypothetical, the VE testified that the hypothetical individual would be able to perform jobs such as sedentary unskilled inspection, cashiering jobs that do not require high traffic, and surveillance system monitor positions, of which approximately 5,400 jobs exist in Minnesota. R. at 82-83.

Plaintiff argues that the final opinion of Dr. Banks should have been incorporated into the hypothetical question, because "[t]estimony based on hypothetical questions that do not encompass all relevant impairments cannot constitute substantial evidence to support the ALJ's decision." Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994). Plaintiff contends that the hypothetical question failed to include the five pound maximum lifting restriction, and the restriction to a six hour work day, and therefore the VE's answer cannot be substantial evidence. The Court disagrees.

"The ALJ's hypothetical question to the vocational expert needs to include only those impairments that the ALJ finds are substantially supported by the record as a whole." Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993). As discussed in section III(A), the specific additional impairments cited by Plaintiff are not supported by substantial evidence in the record, and thus need not have been included in the hypothetical question. See Andres v. Bowen, 870 F.2d 453, 455 (8th Cir. 1989). The hypothetical question included the limitation of lifting only ten pounds occasionally and five pounds frequently, as well as a limitation on bending or twisting. The hypothetical question also incorporated a limitation on sitting, as well as frequent position changes. As such, the hypothetical question adequately incorporated all the relevant impairments supported by substantial evidence. Plaintiff's objection to this portion of the RR is denied.


Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:

1. The RR [Doc. No. 20] is ACCEPTED,

2. Plaintiff's Motion for Summary Judgment [Doc. No. 16] is DENIED, and

3. Defendant's Motion for Summary Judgment [Doc. No. 18] is GRANTED.