Opinion
Civil No. 00-2537 ADM/FLN
November 13, 2001
Carl E. Elofson, Esq., Fargo, ND, on behalf of Plaintiff.
Roylene Ann Champeaux, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf Defendant.
MEMORANDUM OPINION AND ORDER
INTRODUCTION
On November 16, 2000, Plaintiff James L. Otterson ("Plaintiff") filed an action seeking judicial review of a final decision of the Commissioner of Social Security (the "CSS"), denying him a period of disability [Doc. No. 1]. This matter now is before the undersigned United States District Judge pursuant to Plaintiff's Objections [Doc. No. 22] to the August 31, 2001, Report and Recommendation ("RR") of Chief Magistrate Judge Franklin L. Noel [Doc. No. 21]. In the RR, Judge Noel recommends that Plaintiff's Motion for Summary Judgment [Doc. No. 12] be denied and Defendant's Cross Motion for Summary Judgment [Doc. No. 18] be granted. For the reasons set forth below, the RR is adopted.
BACKGROUND
Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act, claiming that a right ankle injury, a schizoaffective disorder, depressive type and alcohol dependence, rendered him disabled and unable to work since May 16, 1996. The CSS disapproved his application. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"). The ALJ issued a decision unfavorable to Plaintiff. After the Appeals Council denied Plaintiff's request for review, the ALJ's decision stands as the final decision of the CSS. Further 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.
DISCUSSION
A district court must make an independent, de novo evaluation of those portions of an 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).
When reviewing a denial of benefits, the CSS's final decision must be upheld if it is supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g); Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999); Whitehouse v. Sullivan, 949 F.2d 1005, 1006 (8th Cir. 1991). Substantial evidence is that which a reasonable mind might accept as adequate to support the CSS's conclusion. Whitehouse, 949 F.2d at 1006 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). In assessing the substantiality of the evidence, a court must consider evidence that detracts from the CSS's decision as well as evidence that supports it. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984). This standard "allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [CSS] may decide to grant or deny benefits without being subject to reversal on appeal." Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991) (citing Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988)). A court may not reverse the CSS's decision "merely because substantial evidence would have supported an opposite decision." Baker, 730 F.2d at 1150.
Judge Noel's RR concluded that the CSS's decision was supported by substantial evidence on the record as a whole. Plaintiff objects to Judge Noel's finding that Dr. Sleckman's fibromyalgia diagnosis was "contradicted by a significant portion of the evidence of record [because] the record [was] replete with numerous medical opinions and examinations that [did] not draw [a] similar diagnosis . . . ." RR, at 17. Plaintiff argues that Dr. Sleckman, a rheumatologist, was the only qualified physician to examine Plaintiff and diagnose fibromyalgia. See Objection, at 2. Plaintiff avers that other doctors treating Plaintiff were either general practitioners or orthopedic specialists, neither of whom were specially certified to diagnose fibromyalgia. See id.
However, Dr. Sleckman's fibromyalgia diagnosis was not based on a trigger points exam or other clinical testing typical of such a diagnosis. See RR, at 16. Because Dr. Sleckman's opinion of disability was inconsistent with other substantial record evidence, the ALJ's decision to reject it was not erroneous. See Woolf, 3 F.3d at 1214. (holding that ALJ may properly discredit physician's opinion of disability where there is no objective medical evidence or clinical or diagnostic data supporting it). Although the ALJ found that Plaintiff suffered from a combination of severe impairments, the ALJ assessed Plaintiff's residual functional capacity and determined that he was able to perform a range of sedentary work. See Tr., at 23-28.
The ALJ relied on medical and vocational expert testimony and determined Plaintiff could perform a significant number of jobs in the national economy. Substantial evidence on the record as a whole supports the ALJ's decision. Dr. Nagle recommended that Plaintiff seek a "more sedentary line of work" and refused to place any restrictions on Plaintiff's activities. See Tr., at 267-69, 274. Dr. Eaton also recommended retraining Plaintiff for a more sedentary job. See id. at 261. Dr. Baird opined that Plaintiff could perform a job involving sitting only. See id. at 317. The ALJ's residual functional capacity finding was consistent with the conclusions of Drs. Nagle, Eaton and Baird, as well as reviewing physicians of the state agency.
Plaintiff also objects to Judge Noel's determination that "the ALJ did not err in refusing to grant Mr. Odden's opinion controlling authority because it was not consistent with the record evidence . . . ." RR, at 20. Plaintiff argues that Drs. Ludeke and Kuhlman are non-examining and non-treating psychologists employed by Disability Determination Services, whose opinions cannot be accorded controlling weight. See Objection, at 3-4.
Plaintiff's argument lacks merit. Mr. Odden's opinion was based on a one time interview and examination, not an extended series of treatments. See RR, at 20. The general rule that a treating physician's opinion is accorded a higher degree of deference is premised on the idea that the treating physician is usually more familiar with the patient's medical condition than are other physicians. See Thomas v. Sullivan, 928 F.2d 255, 259 n. 3 (8th Cir. 1991). Thus, Mr. Odden is not required to be imparted the "treating physician" status. See 20 C.F.R. § 416.927(d)(2). Furthermore, Drs. Kuhlman and Ludeke noted that Mr. Odden's opinion was not fully consistent with other record medical evidence. See Tr., at 358. Plaintiff did not report any mental difficulties with parenting his son, watching television, or reading the newspaper. See Tr., at 321. The ALJ did not err by declining to give Mr. Odden's opinions controlling weight. See Ward v. Heckler, 786 F.2d 844, 846 (8th Cir. 1986) (holding that when an opinion consists of nothing more than conclusory statements unsupported by medical evidence, that opinion is not entitled to greater weight than any other physician's opinion).
CONCLUSION
Based upon the RR of Judge Noel, all of the files, records proceedings herein, and for the foregoing reasons, IT IS HEREBY ORDERED that:
(1) The RR [Doc. No. 21] is ADOPTED;
(2) Plaintiff's Motion for Summary Judgment [Doc. No. 12] is DENIED; and
(3) Defendant's Cross Motion for Summary Judgment [Doc. No. 18] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.