Bantz v. Commissioner of Social Security

Filing 20

ORDER adopting 17 Report and Recommendation re 3 Complaint filed by Laura L Bantz: The final decision of the Commissioner is affirmed. The Complaint is dismissed with prejudice. Signed by Judge Linda R Reade on 03/28/2018. (jjh)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

LAURA L. BANTZ,
Plaintiff,

No. 17-CV-2-LRR

vs.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
____________________
I. INTRODUCTION
The matter before the court is Plaintiff Laura L. Bantz’s Objections (docket no. 18)
to United States Magistrate Judge Kelly K.E. Mahoney’s Report and Recommendation
(docket no. 17), which recommends that the court affirm Defendant Commissioner of
Social Security’s (“Commissioner”) final decision to deny disability benefits to Bantz.
II. PROCEDURAL HISTORY
On January 10, 2017, Bantz filed a Complaint (docket no. 3) seeking judicial review
of the Commissioner’s final decision denying Bantz’s application for Title II disability
insurance benefits. On March 24, 2017, the Commissioner filed an Answer (docket no.
9). On June 27, 2017, Bantz filed the Plaintiff’s Brief (docket no. 13). On July 26, 2017,
the Commissioner filed the Defendant’s Brief (docket no. 14). On August 7, 2017, Bantz
filed a Reply (docket no. 15). On August 8, 2017, the matter was referred to Judge
Mahoney for issuance of a report and recommendation. On February 22, 2018, Judge
Mahoney issued the Report and Recommendation. On March 8, 2018, Bantz filed the
Objections. On March 15, 2018, the Commissioner filed a Response (docket no. 19).

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 (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
the 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 review 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
In the Objections, Bantz argues that: (1) the ALJ erred in calculating Bantz’s
residual functioning capacity (“RFC”)1 because he improperly discounted Bantz’s
subjective complaints; (2) the ALJ erred in calculating Bantz’s RFC because he did not
include all of Dr. Russell Lark’s proposed limitations in the RFC despite assigning great
weight to the opinion of Dr. Lark; and (3) the ALJ’s RFC determination was not supported
by substantial evidence on the record as a whole.2 See Objections at 3-11. After
conducting a de novo review of the objected-to portions of the Report and
Recommendation and the Administrative Record (“AR”) (docket nos. 10-1 through 10-8),
the court shall overrule the Objections.
Bantz’s first objection amounts to a request that the court reweigh the evidence
relied on by the ALJ. See Objections at 3-8. The ALJ appropriately discussed the factors
from Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), in concluding that Bantz’s
subjective allegations were inconsistent with the record as a whole. See AR at 21-25. The
ALJ found that “the mild left, upper extremity abnormalities found in diagnostic testing,
[Bantz’s] good mental status examination results, the longevity of the work she maintained
in her former employment, and her demonstrated abilities during physical examinations”
supported the RFC determination. Id. at 22. In reviewing the medical records, the ALJ
noted that treatment records did not even reference “carpal tunnel syndrome in [Bantz’s]
left hand until September 2013—five-and-a-half years after the alleged onset date.” Id.
At that time, the interpreting physician diagnosed Bantz with carpal tunnel syndrome and

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RFC is “what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (quotations omitted).
2

Bantz does not enumerate a distinct third objection. However, the Objections
include argument that is only relevant to whether the ALJ’s RFC determination was
supported by substantial evidence. Out of an abundance of caution, the court shall
interpret this argument as a distinct objection and perform a de novo review.
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left ulnar neuropathy, but classified the conditions as “[m]ild.” Id. at 23. Bantz was
instructed to try Ibuprofen and a wrist brace. Id. Subsequent testing performed around
the time of Bantz’s hearing in September 2015 showed normal results that were “slightly
better” than her 2013 testing. Id. at 602-03.
The ALJ also relied on Bantz’s “activities of daily living—including those indicative
of her social functioning and capacity for concentration, persistence, or pace.” Id. at 23.
The ALJ considered Bantz’s report that she “remained capable of making meals daily,
engaging in light cleaning, doing small loads of laundry, driving, shopping in stores,
paying bills, counting change, and chatting with in-laws,” and the report of Bantz’s mother
that Bantz “was capable of household chores, fishing, and playing with her young child.”
Id. Ultimately, the ALJ found that, while Bantz “asserts the majority of symptoms based
on her subjective complaints[,] [t]here is little objective evidence to corroborate conditions
that would correlate to such extreme debilitation to her left, upper extremity, as well as far
fewer instances of treatment than that expected of an individual experiencing such severe
pain and dysfunction.” Id. at 25.
Bantz objects to the specifics underlying several of these findings, but her argument
is essentially that the ALJ improperly weighed and evaluated the Polaski factors, and
inappropriately discounted her subjective allegations. See Objections at 3-8. The court
is not at liberty to reverse the ALJ’s decision merely because there is conflicting evidence
in the record below, even if the court would independently reach a different conclusion.
See Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (“A decision is not outside that
‘zone of choice’ simply because [the court] may have reached a different conclusion had
[the court] been the fact finder in the first instance.”); Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005) (“[E]ven if inconsistent conclusions may be drawn from the
evidence, the agency’s decision will be upheld if it is supported by substantial evidence on
the record as a whole.”). Upon de novo review, including a careful consideration of the

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evidence detracting from the ALJ’s determination, the court finds that substantial evidence
in the record as a whole supports the ALJ’s consideration of the Polaski factors in
assessing Bantz’s subjective complaints.

Accordingly, the court overrules the first

objection.
Bantz’s second objection is that the ALJ erred in calculating her RFC because he
did not include all of Dr. Lark’s proposed limitations in the RFC despite assigning great
weight to the opinion of Dr. Lark. Objections at 9-11. Specifically, Bantz contends that
“[t]he ALJ failed to include any limitation to simple, repetitive tasks on a sustained basis
in a low stress environment or any similar limitations.” Id. at 10. When determining a
claimant’s RFC, the ALJ considers “the medical opinions in [the] case record together with
the rest of the relevant evidence.” 20 C.F.R. § 404.1527(b). The ALJ alone “is
responsible for determining a claimant’s RFC.” Stormo v. Barnhart, 377 F.3d 801, 807
(8th Cir. 2004). “Moreover, ‘[t]he ALJ may reject the conclusions of any medical expert,
whether hired by the claimant or the government, if they are inconsistent with the record
as a whole.’” Finch v. Astrue, 547 F.3d 933, 936 (8th Cir. 2008) (alteration in original)
(quoting Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007)). “The ALJ is charged with
the responsibility of resolving conflicts among medical opinions.” Id.; see also Objections
at 9 (acknowledging that “ALJs are not bound by any findings made by [s]tate agency
medical consultants”).
Upon review, the court finds that the ALJ properly considered the weight to give
each medical opinion, alongside and in light of all other evidence in the record. See 20
C.F.R. § 416.927(c) (describing how the Commissioner evaluates medical opinions). The
record is clear that the ALJ properly discussed each medical opinion and provided
reasoned bases for the weight he gave each opinion, along with citations to the record. See
AR at 23-25. The ALJ was not required to adopt every one of Dr. Lark’s opined
limitations. See Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (“[T]he ALJ is not

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required to rely entirely on a particular physician’s opinion or choose between the opinions
of any of the claimant’s physicians.” (quotation and alteration omitted)). The ALJ
explained the rationale for his RFC determination and provided appropriate citations to the
record. See AR at 21-25. The court finds that the ALJ’s RFC determination was
supported by the medical evidence and by substantial evidence in the record as a whole.3
See Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (“To properly determine a
claimant’s [RFC], an ALJ is . . . ‘required to consider at least some supporting evidence
from a [medical] professional.’” (third alteration in original) (quoting Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir. 2001))). The court overrules the second objection.
Finally, the court overrules Bantz’s third objection, to the extent it is posited, that
the ALJ’s RFC determination was not supported by substantial evidence. Throughout the
Objections, Bantz argues that, when determining her RFC, the ALJ failed to identify
inconsistencies in the record, failed to consider limitations on the “pace” at which she
could perform work with one hand, failed to identify jobs that she could actually perform
with her limitations and failed to properly rely on the medical evidence. See Objections
at 3-11. As discussed above, the ALJ determined Bantz’s RFC after properly considering
the record as a whole, including, but not limited to, Bantz’s subjective complaints, Bantz’s
daily activities, the medical evidence and relevant medical opinions.

The ALJ

acknowledged that Bantz could only perform work that could be completed with one hand
and accounted for that limitation and her limitations from the mild carpal tunnel syndrome

3

The court also notes that the ALJ’s mental RFC does not conflict with or reject
Dr. Lark’s opinion. Judge Mahoney properly analyzed this issue in the Report and
Recommendation. See Report and Recommendation at 10-12. In short, the RFC limited
Bantz to unskilled work, which “encompasses a limitation to simple, repetitive tasks” like
those limitations opined by Dr. Lark. See id. at 10 (quotations omitted). While the ALJ
did not adopt every single limitation given by Dr. Lark, the RFC was consistent with Dr.
Lark’s opinion. Further, as discussed, any differences between Dr. Lark’s opinion and
the RFC were supported by substantial evidence in the record.
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and mild ulnar neuropathy in her hand. See AR at 21-23, 72, 76. The court is not at
liberty to reverse the ALJ’s decision merely because there is conflicting evidence in the
record below, even if the court would independently reach a different conclusion. See
Hacker, 459 F.3d at 936; Guilliams, 393 F.3d at 801. Upon de novo review, the court
finds that substantial evidence in the record supported the ALJ’s RFC determination. The
ALJ’s assessment of Bantz’s RFC was correct and the ALJ’s conclusion that benefits
should be denied was supported by substantial evidence.
V. CONCLUSION
In light of the foregoing, it is hereby ORDERED:
(1)

The Objections (docket no. 18) are OVERRULED;

(2)

The Report and Recommendation (docket no. 17) is ADOPTED and the
final decision of the Commissioner is AFFIRMED; and

(3)

The Complaint (docket no. 3) is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.
DATED this 28th day of March, 2018.

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