Donaldson v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER ACCEPTING 18 REPORT AND RECOMMENDATION: Recommending that the District Court reverse the decision of the Commissioner, enter judgment in favor of Plaintiff Donaldson, and remand to the Social Security Administration for further proceedings consistent with the Report and Recommendation. Signed by Chief Judge Leonard T Strand on 9/19/2017. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
TRACY DONALDSON,
Plaintiff,

No. C16-0051-LTS

vs.

MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

___________________________
I.

INTRODUCTION

This case is before me on a Report and Recommendation (R&R) filed by the
Honorable Kelly K.E. Mahoney, United States Magistrate Judge. See Doc. No. 18.
Judge Mahoney recommends that I reverse the decision by the Commissioner of Social
Security (the Commissioner) and remand this case for the ALJ to reassess plaintiff Tracy
Donaldson’s credibility regarding her physical limitations and reevaluate the medical
opinions in light of that credibility finding. Neither party has objected to the R&R. The
deadline for such objections has expired.
II.
A.

APPLICABLE STANDARDS

Judicial Review of the Commissioner’s Decision
The Commissioner’s decision must be affirmed “if it is supported by substantial

evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept

as adequate to support a conclusion.” Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir.
2003). The Eighth Circuit explains the standard as “something less than the weight of
the evidence and [that] allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the [Commissioner] may decide to grant
or deny benefits without being subject to reversal on appeal.” Culbertson v. Shalala, 30
F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the ALJ, but it [does] not re-weigh the
evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence that supports the Commissioner’s decision and evidence that detracts from
it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search the
record for evidence contradicting the [Commissioner’s] decision and give that evidence
appropriate weight when determining whether the overall evidence in support is
substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v.
Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must apply
a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health &
Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.” Roe
v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186, 188
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds it “possible to
draw two inconsistent positions from the evidence and one of those positions represents
the Commissioner’s findings, [the court] must affirm the [Commissioner’s] denial of
benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). This is true even in cases where the court “might have weighed the evidence
differently.” Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817,
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822 (8th Cir. 1992)). The court may not reverse the Commissioner’s decision “merely
because substantial evidence would have supported an opposite decision.” Baker v.
Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984); see Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005) (“[A]n administrative decision is not subject to reversal simply because
some evidence may support the opposite conclusion.”).
B.

Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following

standards: 
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
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Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
III.

THE R&R

Donaldson applied for disability insurance benefits (DIB) under Title II of the
Social Security Act, 42 U.S.C. §§ 401-434 (Act), on November 20, 2013, alleging
disability beginning February 9, 2013, due to degenerative disc disease, obesity, major
depressive disorder and attention deficit hyperactivity disorder (ADHD). See AR 25.
After a hearing, an Administrative Law Judge (ALJ) applied the familiar five-step
evaluation and found that Donaldson was not disabled as defined in the Act.
Donaldson argues the ALJ erred in determining that she was not disabled because:
1.

The ALJ failed to properly weigh the medical opinion evidence

2.

The ALJ failed to properly evaluate Donaldson’s credibility

3.

The ALJ relied on flawed vocational expert (VE) testimony

See Doc. No. 15. Judge Mahoney addressed each argument separately, beginning with
Donaldson’s credibility. She then addressed the ALJ’s evaluation of the medical opinions
and the VE testimony.
With regard to Donaldson’s credibility, the ALJ generally found that two factors
weighed against crediting Donaldson’s allegations. AR 30. First, the ALJ found her
limited daily activities could not be objectively verified with any reasonable degree of
certainty. Id. Second, he found that even if her activities were truly as limited as alleged,
it was difficult to attribute the degree of limitation to Donaldson’s medical condition, as
opposed to other reasons. Id. He noted she “has not generally received the amount and
type of medical treatment one would expect for a totally disabled individual, considering
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the relatively infrequent trips to the doctor for the allegedly disabling symptoms and
significant gaps in the claimant’s history of treatment.” AR 31.
Judge Mahoney first discussed the ALJ’s reasons for discrediting Donaldson’s
mental impairment allegations. See Doc. No. 18 at 5-8. The ALJ found the treatment
notes were inconsistent with the severity of limitations Donaldson alleged. Id. at 7 (citing
AR 29-32). These notes showed that medication improved Donaldson’s symptoms and
that some of her mental-health issues were associated with personal relationships and
impulsivity, rather than depression, anxiety or ADHD. Id. (citing AR 758, 760-61, 766
785). Moreover, Donaldson had previously worked despite these long-standing mentalhealth issues and the limitations in her daily activities were primarily related to her
physical limitations. Id. Judge Mahoney found that substantial evidence in the record as
a whole supported the ALJ’s credibility determination with regard to Donaldson’s mental
impairment allegations. Id. at 8.
Judge Mahoney then discussed the ALJ’s reasons for discrediting Donaldson’s
physical impairment allegations.

She found these reasons were not supported by

substantial evidence. The ALJ discredited the allegations based, in part, on Donaldson’s
daily activities. The ALJ reasoned that Donaldson was able to care for her two children
(ages 5 and 13), perform basic household chores, cook, drive and attend church and her
children’s school events. Id. at 9 (citing AR 30-31, 51). Donaldson stated that she could
perform basic household chores, but often needed help from a friend or had to perform
tasks in thirty to forty-minute increments due to pain or fatigue. Id. at 9-10. Judge
Mahoney found that Donaldson’s activities were not inconsistent with her allegations that
she was only able to perform activities for an hour before needing to take a break, lie
down or shift positions. Id. at 11. In other words, the nature of her activities did not
suggest they required more than an hour-long commitment without the opportunity to
take a break, lie down or shift positions. She recommends that the case be remanded for
the ALJ to reassess Donaldson’s credibility. Id.
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The ALJ also discredited Donaldson because he found her treatment was
inconsistent with the physical limitations she alleged. Judge Mahoney meticulously
detailed the treatment Donaldson received after her back surgery.

Id. at 13-16.

Treatment included regular physical therapy appointments with only one absence over
the span of approximately 10 months, use of a TENS unit, back brace and ROHO seat
cushion. Id. Donaldson also received treatment at a pain clinic from June 2013 through
January 2014. Id. at 14. Her doctor made numerous recommendations and she tried
various treatments during this time. Id. By January 2014, she was told there was
“nothing much [he] could offer her,” except referral to other pain clinics out of state.
Id. at 15. Judge Mahoney also discussed Donaldson’s follow-up appointments with
neurosurgeons at the Veterans Affairs Medical Center and the various prescription
medications she took to help treat her pain. Id.
Based on her review of the record, Judge Mahoney noted it was unclear what
“gaps in treatment” the ALJ relied on to discredit Donaldson because he did not cite any
evidence. She acknowledged that the gaps may have referred to Donaldson’s mental
health treatment, but the ALJ did not explicitly say so and those gaps would not be a
good reason to discredit Donaldson’s allegations related to her physical limitations. Judge
Mahoney concluded that substantial evidence did not support the ALJ’s conclusion that
Donaldson’s treatment for her physical impairments was inconsistent with her allegations
related to pain. Id. at 16. While Donaldson last treated with the pain clinic in January
2014, and with her neurosurgeons in August 2014, she was told that nothing further could
be done.

Id. at 17.

The only other proposed treatments included acupuncture,

aquatherapy and treatment at an out-of-state pain clinic, but there is no evidence in the
record confirming whether or not Donaldson sought out or obtained any of these
treatments. Id. Judge Mahoney reasoned that the ALJ could not discredit Donaldson’s
complaints of pain on this basis without considering her reasons for failing to seek or
obtain further treatment. Id. at 18.
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Judge Mahoney recommends remanding the case for the ALJ to reevaluate
Donaldson’s credibility.

In the event the ALJ continues to find that Donaldson’s

subjective complaints are not credible, she recommends the ALJ support his reasoning
with citations to the record.
Judge Mahoney next addressed the ALJ’s evaluation of the medical opinions. Id.
at 19-20. Two physicians provided physical RFC opinions – Dr. Jonnalagadda and Dr.
Nagahama.1 The ALJ did not give either opinion controlling weight because he found
they were based on Donaldson’s subjective complaints of symptoms and limitations,
which he found incredible. Id. at 20-21. Because Judge Mahoney found that substantial
evidence did not support the ALJ’s credibility determination, she also found that this was
not a “good reason” for giving these opinions little weight. Id. at 21.
The record also included mental RFC opinions from Donaldson’s therapist, Dr.
Stange.

The ALJ discounted the opinions because, again, they were based on

Donaldson’s subjective complaints, which the ALJ found incredible.

Id. at 22-23.

Because Judge Mahoney found that the ALJ’s credibility determination with regard to
Donaldson’s mental impairments was supported by substantial evidence, she found the
ALJ did not err in assigning little weight to Dr. Stange’s opinions on this basis. She
noted that the record as a whole supported the ALJ’s decision to assign Dr. Stange’s
opinions little weight. Id. at 24.
Judge Mahoney then addressed the ALJ’s evaluation of the state agency
psychological consultant opinions. The ALJ assigned these mental RFC assessments
“some weight.” Id. Because Judge Mahoney found that substantial evidence supported
the ALJ’s decision to give Dr. Stange’s opinion less weight, she found it was appropriate

1

Judge Mahoney noted that Dr. Jonnalagadda was a treating source, but Dr. Nagahama
examined Donaldson on only one occasion and, therefore, is not considered a treating source.
See Doc. No. 18 at n. 14.

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for the ALJ to assign greater weight to the opinions of the state agency psychological
consultants. Id. at 25-26.
Finally, Judge Mahoney considered Donaldson’s argument that the ALJ erred by
relying on the VE’s testimony because the ALJ’s hypothetical did not include all of
Donaldson’s mental limitations. Id. at 26. The only mental limitations included in the
hypothetical were simple, routine and repetitive tasks, which mirror the ones the ALJ
included in Donaldson’s RFC. Id. Donaldson argues that the hypothetical should have
also included moderate limitations in concentration, persistence and pace, which the ALJ
found when considering whether Donaldson satisfied the “paragraph B” criteria during
step three of the disability analysis. Id. at 27.
Judge Mahoney concluded these additional limitations were not required as the
ALJ’s hypothetical “accurately reflected the mental limitations supported by the record
and included in his RFC determination.” Id. at 28. Even if the ALJ was required to
include step three limitations in the RFC and hypothetical, Judge Mahoney noted that the
Eighth Circuit has held that deficiencies in concentration, persistence or pace are
adequately captured by limitations of “simple, routine, and repetitive tasks.” Id. (citing
Howard v. Massanari, 255 F.3d 577, 581-82 (8th Cir. 2001)).
IV.

DISCUSSION

Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Mahoney applied the appropriate legal standards in concluding (1) that the ALJ’s
credibility determination regarding Donaldson’s physical limitation allegations was not
supported by substantial evidence in the record and, therefore, (2) that medical opinions
concerning her physical limitations could not be discounted due to their reliance on
Donaldson’s subjective complaints. I find no error – clear or otherwise – in Judge
Mahoney’s recommendation. As such, I adopt the R&R in its entirety.

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V.

CONCLUSION

For the reasons set forth herein:
1.

I accept Judge Mahoney’s R&R (Doc. No. 18) without modification. See
28 U.S.C. § 636(b)(1).

2.

Pursuant to Judge Mahoney’s recommendation:
a.

The Commissioner’s determination that Donaldson was not disabled
is reversed and this matter is remanded to the Commissioner for
further proceedings as described by Judge Mahoney.

b.

Judgment shall enter in favor of Donaldson and against the
Commissioner.

c.

If Donaldson wishes to request an award of attorney's fees and costs
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, an
application may be filed up until 30 days after the judgment becomes
“not appealable,” i.e., 30 days after the 60-day time for appeal has
ended.

See Shalala v. Schaefer, 509 U.S. 292, 296 (1993); 28

U.S.C. §§ 2412(d)(1)(B), (d)(2)(G).
IT IS SO ORDERED.
DATED this 19th day of September, 2017.

________________________________
Leonard T. Strand, Chief Judge

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