Mahnke v. Commissioner of Social Security

Filing 19

ORDER Adopting 16 Report and Recommendations. The 17 Objections are overruled. The matter is reversed and remanded to the Commissioner for further proceedings. Signed by Judge Linda R Reade on 8/7/2017. (skm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
ANNMARIE L. MAHNKE,
Plaintiff,

No. 16-CV-60-LRR

vs.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
____________________
I. INTRODUCTION
The matter before the court is Defendant Commissioner of Social Security’s
(“Commissioner”) Objections (docket no. 17) to United States Magistrate Judge Kelly
K.E. Mahoney’s Report and Recommendation (docket no. 16), which recommends that the
court reverse the Commissioner’s final decision denying disability benefits to Plaintiff
Annmarie L. Mahnke and remand the case for further proceedings.
II. PROCEDURAL HISTORY
On April 27, 2016, Mahnke filed the Complaint (docket no. 3), seeking judicial
review of the Commissioner’s final decision denying disability benefits. On July 11, 2016,
the Commissioner filed an Answer (docket no. 8). On October 10, 2016, Mahnke filed
the Plaintiff’s Brief (docket no. 12). On October 21, 2016, the Commissioner filed the
Defendant’s Brief (docket no. 13). On January 3, 2017, this matter was assigned to Judge
Mahoney for issuance of a report and recommendation. On June 6, 2017, Judge Mahoney
filed the Report and Recommendation. On June 13, 2017, the Commissioner filed the
Objections.

On June 27, 2017, Mahnke filed a Response (docket no. 18) to the

Objections. The matter is fully submitted and ready for decision.

III. STANDARD OF REVIEW
A. Review of Final Decision
When the Commissioner adopts an Administrative Law Judge’s (“ALJ”) findings
and conclusions as its final decision, the final decision is subject to judicial review. See
42 U.S.C. § 405(g). The court will “affirm the Commissioner’s decision if supported by
substantial evidence on the record as a whole.” Anderson v. Astrue, 696 F.3d 790, 793
(8th Cir. 2012). “Substantial evidence is ‘less than a preponderance but enough that a
reasonable mind would find it adequate to support the conclusion.’” Id. (alteration
omitted) (quoting Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010)). In determining
whether substantial evidence supports the Commissioner’s decision, the court “consider[s]
the evidence that supports the Commissioner’s decision as well as the evidence that detracts
from it.” Jones, 619 F.3d at 968 (8th Cir. 2010) (quoting Kluesner v. Astrue, 607 F.3d
533, 536 (8th Cir. 2010)). A court “will not disturb the denial of benefits so long as the
ALJ’s decision falls within the available ‘zone of choice.’” Casey v. Astrue, 503 F.3d 687,
691 (8th Cir. 2007) (quoting Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). “If,
after reviewing the entire record, it is possible to draw two inconsistent positions, and the
Commissioner has adopted one of those positions,” the court must affirm the
Commissioner’s decision. Anderson, 696 F.3d at 793.
When reviewing the Commissioner’s decision, the court “must judge the propriety
of such action solely by the grounds invoked by the agency” and may not affirm the
decision based on a post hoc rationale that “it considers to be a more adequate or proper
basis.” Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947); see also,
e.g., Hanson v. Colvin, 760 F.3d 759, 762 (7th Cir. 2014) (applying Chenery analysis in
context of social security benefits); Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir.
2007) (same); Strom v. Astrue, Civil No. 07-150, 2008 WL 583690, at *27 (D. Minn.
Mar. 3, 2008) (same). In other words, “‘a reviewing court may not uphold an agency

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decision based on reasons not articulated by the agency,’ when ‘the agency has failed to
make a necessary determination of fact or policy’ upon which the court’s alternative basis
is premised.” Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001) (alterations omitted)
(quoting Healtheast Bethesda Lutheran Hosp. & Rehab. Ctr. v. Shalala, 164 F.3d 415,
418 (8th Cir. 1998)).
B. Review of Report and Recommendation
The standard of review to be applied by the court to a report and recommendation
of a magistrate judge is established by statute:
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.
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (providing that, when a party
properly objects to a report and recommendation on a dispositive motion, a district court
must determine de novo the magistrate judge’s recommendation). The Eighth Circuit has
repeatedly held that it is reversible error for a district court to fail to conduct a de novo
review of a magistrate judge’s report and recommendation when such review is required.
See, e.g., United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003); Hosna v.
Groose, 80 F.3d 298, 306 (8th Cir. 1996); Hudson v. Gammon, 46 F.3d 785, 786 (8th
Cir. 1995); Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). The statute governing
review provides only for de novo review of “those portions of the report or specified
proposed findings or recommendations to which objection is made.”

28 U.S.C. §

636(b)(1). The court reviews the unobjected-to portions of the proposed findings or
recommendations for “plain error.” See United States v. Rodriguez, 484 F.3d 1006, 101011 (8th Cir. 2007) (noting that, where a party does not file objections to a magistrate’s
report and recommendation, the party waives the right to de novo review and the court will
review the decision for plain error).
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IV. ANALYSIS
The Commissioner objects to Judge Mahoney’s determination that the ALJ’s failure
to address whether Mahnke demonstrated a medical equivalency to Listing § 12.05C1 was
reversible error. See generally Objections. The Commissioner does not contend that the
ALJ in fact considered the issue, but instead argues that substantial evidence in the record
nevertheless establishes that Mahnke cannot make the requisite showing—citing to various
evidence in the Administrative Record (“AR”) as support. Id. at 3-9.
After conducting a de novo review of the objected-to portions of the Report and
Recommendation and the Administrative Record below, the court overrules the
Commissioner’s objections.

The record includes evidence of Mahnke’s severe

impairments (including organic mental disorder, schizoaffective disorder, affective
disorder and anxiety disorder), “moderate” difficulties in a long list of task-based
situations and an IQ score of 72 (a near miss of the range in Listing § 12.05C), yet the
ALJ failed to discuss Mahnke’s medical equivalence to Listing § 12.05C—and, in fact,
failed to discuss Listing § 12.05 in any capacity. See AR (docket no. 9-2) at 12-13, AR
(docket no. 9-7) at 308; see also Hesseltine v. Colvin, 800 F.3d 461, 465 (8th Cir. 2015)
(recognizing that IQ scores “within the 70-75 range . . . render [the claimant] eligible for
an equivalency finding under the POMS [“Program Operations Manual System”]
guidelines for Listing 12.05C,” and remanding for further proceedings where ALJ
summarily found no medical equivalence to Listing § 12.05C without engaging in
substantive discussion on the topic). In the absence of a medical equivalence determination

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Listing § 12.05 defines the criteria for establishing an intellectual disability for
purposes of entitlement to social security benefits. See 20 C.F.R. Pt. 404, Subpt. P, App.
1, § 12.05. During the time period relevant to the instant case, Listing § 12.05C required
evidence of “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant work-related
limitation of function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05C (2016).
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from the ALJ, the court declines to substitute the Commissioner’s post hoc rationale as a
guess for what the ALJ would conclude.

See Strom, 2008 WL 583690, at *27

(recognizing that remand is “required” when there is “no showing” that the ALJ applied
“the framework mandated by the Social Security Regulations”); see also 20 C.F.R.
§ 404.1526(b) (guiding medical equivalence determinations). Accordingly, the court
reverses the Commissioner’s final decision and remands the case to the Social Security
Administration for further proceedings consistent with this order and the Report and
Recommendation. See Shelton v. Colvin, 14-CV-122-LRR, 2016 WL 916431, at *7-*8
(N.D. Iowa Mar. 10, 2016) (remanding for further proceedings where the ALJ failed to
address the relevant guidelines or determine whether a near-miss IQ and other impairments
rendered the claimant medically equivalent to Listing § 12.05C); Wise v. Colvin, 2013 WL
2243875, at *12 (N.D. Iowa May 21, 2013) (same).
V. CONCLUSION
For the foregoing reasons, it is hereby ORDERED:
(1)

The Objections (docket no. 17) are OVERRULED;

(2)

The Report and Recommendation (docket no. 16) is ADOPTED; and

(3)

The matter is REVERSED and REMANDED to the Commissioner pursuant
to 42 U.S.C. § 405(g) for further proceedings.

IT IS SO ORDERED.
DATED this 7th day of August, 2017.

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