Richmond v. Commissioner of Social Security
ORDER re 3 Complaint filed by Tina M Richmond: The objections are overruled. The 19 Report and Recommendation is adopted and the final decision of the Commissioner is affirmed. The Complaint is dismissed with prejudice. Signed by Judge Linda R Reade on 09/14/2017. (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
TINA M. RICHMOND,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
The matter before the court is Plaintiff Tina M. Richmond’s Objections (docket no.
20) to Chief United States Magistrate Judge C.J. Williams’s Report and Recommendation
(docket no. 19), which recommends that the court affirm Defendant Commissioner of
Social Security’s (“Commissioner”) final decision to deny disability benefits to Richmond.
II. PROCEDURAL HISTORY
On July 5, 2016, Richmond filed the Complaint (docket no. 3), seeking judicial
review of the Commissioner’s final decision denying disability benefits. On September 16,
2016, the Commissioner filed an Answer (docket no. 7). On December 21, 2016,
Richmond filed the Plaintiff’s Brief (docket no. 14).
On January 23, 2017, the
Commissioner filed the Defendant’s Brief (docket no. 17). On February 3, 2017, this
matter was referred to Judge Williams for issuance of a report and recommendation. On
March 10, 2017, Judge Williams filed the Report and Recommendation. On March 24,
2017, Richmond filed the Objections.
The Commissioner filed no response to the
Objections and the time for doing so has passed. The matter is fully submitted and ready
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 choices.’” 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
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).
Richmond objects to Judge Williams’s determination that substantial evidence
supported the ALJ’s decision to deny Richmond’s application for disability benefits. See
generally Objections. Specifically, Richmond argues that the ALJ erred by: (1) failing to
consider Richmond’s use of a nebulizer when determining her residual functional capacity
(“RFC”); (2) failing to consider Richmond’s use of a cane when determining her RFC; (3)
reaching an RFC determination without the support of medical evidence from a treating
physician; and (4) failing to consider the potential effects of Richmond’s obesity when
determining her RFC. See id. at 3-10 Richmond argues that the ALJ’s errors are not
harmless and require reversal. Id. at 10-11. After conducting a de novo review of the
objected-to portions of the Report and Recommendation and the Administrative Record,
the court overrules Richmond’s objections.
First, the ALJ committed no reversible error by failing to consider Richmond’s use
of a nebulizer. Richmond was prescribed a nebulizer for use “4x per day PRN” or
“[e]very 4 hours PRN.”1 See AR at 1290, 1293, 1302, 1309, 1312, 1317, 1322, 1329,
1340, 1352, 1474, 1487, 1495, 1550. Richmond’s medical evaluations show that she
demonstrated significant lung and respiratory problems on an intermittent basis, with the
most recent evaluations included in the Administrative Record reflecting improvements in
her symptoms. See, e.g., AR at 998, 1002, 1068, 1069, 1080, 1196. Richmond testified
that she uses the nebulizer four times per day, including regular usage in the morning upon
waking up and at night before bed. AR at 127-28; see also AR at 1058 (observing that
Richmond’s cough is “worse in the early mornings and evenings”). Richmond can point
to no portion of the Administrative Record establishing an irregular or emergency use of
a nebulizer that might interfere with any potential employment. Rather, the record before
the ALJ showed that Richmond required use of her nebulizer on a predictable schedule (at
“PRN” stands for “pro re nata,” meaning “as needed.”
least in part) and that she had shown improvements during recent medical evaluations. See
AR at 127-28. Based on this record, the ALJ committed no reversible error by failing to
expressly consider Richmond’s use of a nebulizer. See MacPherson v. Astrue, No. C100163, 2011 WL 5875742, at *13 (N.D. Iowa Nov. 22, 2011) (finding no reversible error
where ALJ failed to consider the use of a nebulizer but “thoroughly considered the medical
evidence of record”).
Second, the ALJ committed no reversible error by failing to consider Richmond’s
use of a cane. An ALJ must consider limitations resulting from a claimant’s use of a cane
only if the cane “is medically required” as reflected in “medical documentation
establishing the need for [the cane] to aid in walking or standing, and describing the
circumstances for which it is needed.” S.S.R. 96-9p, 1996 WL 374185, at *7 (providing
guidance regarding the relevance of “[m]edically required hand-held assistive device[s]”
to RFC determinations). The Administrative Record includes evidence that Richmond uses
a cane on only some occasions. See, e.g., AR at 714 (November 3, 2010 - “Richmond
does use a cane on bad days”), 896 (April 2, 2012 - “She uses a cane to ambulate”).
However, there is no medical documentation establishing the need for Richmond’s use of
a cane or describing the circumstances of her usage. In other words, while Richmond’s
back pain and other issues are well-documented, there is no evidence in the Administrative
Record that her use of a cane is “medically required,” as opposed to independently adopted
by Richmond. See Tripp v. Astrue, 489 F. App’x 951, 955 (7th Cir. 2012) (observing that
circuits interpreting S.S.R. 96-9p “have required an unambiguous opinion from a physician
stating the circumstances in which an assistive device [like a cane] is medically
necessary”); cf. also Toland v. Colvin, 761 F.3d 931, 936 (8th Cir. 2014) (observing a
distinction between use of a “medically required hand-held assistive device” and the use
of a cane that “was not prescribed by any physician”). Based on this record and the
guidance provided at S.S.R. 96-9p, the ALJ committed no reversible error by failing to
expressly consider Richmond’s use of a cane.
Third, the ALJ committed no reversible error by failing to consider the effects of
Richmond’s obesity on her other impairments. The ALJ is required by the procedures in
S.S.R. 02-1p to consider obesity’s effect on other impairments. See generally, S.S.R. 021p, 2002 WL 34686281. An ALJ, however, “is not required to discuss every piece of
evidence submitted.” Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (quoting
Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)). Here, the ALJ did not need to include
a specific discussion of obesity because there is no evidence linking Richmond’s obesity
to her other limitations and Richmond did not testify at the administrative hearing that her
obesity imposed additional restrictions. See McNamara v. Astrue, 590 F.3d 607, 612 (8th
Cir. 2010) (finding an ALJ’s failure to include a specific discussion regarding obesity was
not erroneous when neither the medical records nor the claimant’s testimony demonstrated
that additional limitations resulted from it). Richmond has failed to direct the court to
anything in the medical record where her obesity was linked to other limitations by a
treating physician. See Plaintiff’s Brief at 25-27; Brief in Support of Objections at 9-10
(docket no. 20-1). While Richmond’s obesity is noted in the medical records, the medical
records lack evidence showing that a doctor linked Richmond’s obesity to any other
impairments. See Fisher v. Barnhart, No. C05-0198, 2006 WL 4023793, at *7-8 (N.D.
Iowa Nov. 6, 2006) (citing Forte v. Barnhart, 377 F.3d 892, 896 (8th Cir. 2004)) (finding
that merely noting a claimant is obese is not enough to establish the necessary link between
obesity and other limitations). Further, Richmond did not testify at the administrative
hearing that her obesity imposed additional restrictions. See AR at 107-40. As a result,
the ALJ concluded that “the signs, symptoms, and laboratory findings do not establish that
[Richmond’s] obesity has increased in severity coexisting or related impairments to the
extent that the combination of impairments meets the requirements of a listed impairment.”
Id. at 47. Based on this record, the ALJ committed no reversible error by failing to
consider the effects of Richmond’s obesity on her other impairments. See McNamara, 590
F.3d at 612 (“Given that neither the medical records nor [the claimant’s] testimony
demonstrates that her obesity results in additional work-related limitations, it was not
reversible error for the ALJ’s opinion to omit specific discussion of obesity.”)
Finally, the ALJ committed no reversible error by reaching an RFC determination
without evidence from a treating physician. Generally, an ALJ’s RFC finding is not
supported by substantial evidence where the ALJ relied solely on the reports of nonexamining, non-treating physicians. See Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.
2000) (“The opinions of doctors who have not examined the claimant ordinarily do not
constitute substantial evidence on the record as a whole.”). “But, [this general rule] does
not compel remand in every case that lacks a medical opinion from a treating physician.”
Figgins v. Colvin, No. C 13-3022-MWB, 2014 WL 1686821, *9 (N.D. Iowa April 29,
2014). Rather, an ALJ does not need additional clarifying statements from a treating
physician “as long as the records describe the claimant’s ‘functional limitations with
sufficient generalized clarity to allow for an understanding of how those limitations
function in a work environment.’” Id. (quoting Cox v. Astrue, 495 F.3d 614, 620 n.6 (8th
Cir. 2007)). The record must “answer the critical question of how those impairments
affect [the claimant’s] ability to function in the workplace.” Fitzgerald Morris v. Colvin,
No. C14-4068-LTS, 2016 WL 3360506, at *10 (N.D. Iowa June 16, 2016).
In this case, the objective medical evidence is sufficiently generalized to support the
ALJ’s RFC determination that the claimant can do light work. The evidence in the
administrative record establishes that Richmond has: (1) a normal gait;2 (2) normal
See, e.g., AR at 930 (April 6, 2012 - “usually steady gait”), 995 (July 24, 2012 “Normal gait”), 1157 (July 9, 2013 - “Gait is steady”), 1382 (June 5, 2013 - “Negative
for gait problem”), 1553 (September 15, 2014 - “negative for - gait disturbance”).
mobility;3 (3) full strength in major muscle groups;4 (4) a full range of motion;5 and (5) the
ability to do light work—as corroborated by medical professionals encouraging Richmond
to engage in exercise.6 All of these factors support a light work determination. Based on
this record, the ALJ committed no reversible error by reaching an RFC determination
without evidence from a treating physician.
Upon a de novo review, the court is satisfied that the ALJ committed no reversible
error. Accordingly, the court shall overrule the Objections in their entirety.
For the foregoing reasons, it is hereby ORDERED:
The Objections (docket no. 20) are OVERRULED;
The Report and Recommendation (docket no. 19) is ADOPTED and the
final decision of the Commissioner is AFFIRMED; and
The Complaint (docket no. 3) is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
See, e.g., AR at 924 (June 6, 2012 - “No difficulty walking”), 966, 970 (May 16,
2012 - “able to ambulate from ER in stable condition” following fall), 1157 (July 9, 2013 “able to walk much further than prior to surgery and reports significant relief of her pain
and disability”), 1264, 1268, 1269, 1271 (February, June and July of 2014 - “No [. . .]
See, e.g., AR at 977 (July 16, 2012 - “5/5 muscle strength when prompted”),
1157 (July 9, 2013 - “Appropriate motor strength is full in the upper and lower extremities
bilaterally”), 1553 (September 15, 2014 - “negative for [. . .] muscular weakness”).
See, e.g., AR at 1190 (April 11, 2014 - “normal range of motion”), 1197 (August
12, 2014 - “Normal range of motion”).
See, e.g., AR at 1017 (November 12, 2012 - “Discussed yoga and aquatherapy
[. . .] Counseled to try and exercise and lose weight”), 1601 (January 6, 2015 - “We will
refer to aqua therapy”).
DATED this 14th day of September, 2017.
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