Dean v. Commissioner of Social Security

Filing 21

ORDER: Accepting 20 Report and Recommendation: The Commissioner's determination that Plaintiff Dean was not disabled is affirmed: Judgment shall enter in favor of the Defendant and against the Plaintiff. Signed by Chief Judge Leonard T Strand on 06/19/18. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
LISA M. DEAN,
Plaintiff,

No. C17-68-LTS

vs.
NANCY A. BERRYHILL, Deputy
Commissioner of Operations,1

ORDER ON REPORT AND
RECOMMENDATION

Defendant.
____________________

I.

INTRODUCTION

This case is before me on a Report & Recommendation (R&R) by the Honorable
C.J. Williams, Chief United States Magistrate Judge. Doc. No. 20. Judge Williams
recommends that I affirm the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Lisa Dean’s application for disability insurance benefits
(DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. (Act). Neither
party has objected to the R&R. The deadline for such objections has expired.

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On March 6, 2018, the Government Accountability Office stated that as of November 17, 2017,
Nancy Berryhill’s status as Acting Commissioner violated the Federal Vacancies Reform Act (5
U.S.C. § 3346(a)(1)). U.S. Gov’t Accountability Off., GAO-B-329853, Violation of the Time
Limit Imposed by the Federal Vacancies Reform Act of 1998—Commissioner, Social Security
Administration (2018). As of that date, Berryhill was not authorized to serve using the title of
Acting Commissioner. Therefore, as of November 17, 2017, she has been leading the agency
from her position of record, Deputy Commissioner of Operations. For simplicity, I will continue
to refer to the defendant as “the Commissioner” throughout this order.

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).
To determine 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.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers
both evidence which 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)).
To evaluate 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
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(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court “find[s] 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 if the court “might have weighed the evidence differently.”
Culbertson, 30 F.3d at 939 (quoting Browning v. Sullivan, 958 F.2d 817, 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 also 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”).
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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 (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:
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

Dean sought disability benefits, alleging an onset date of December 29, 2011, due
to symptoms related to cervical disc degeneration, fibromyalgia and chronic vomiting
syndrome. AR 11, 15. After a hearing, an Administrative Law Judge (ALJ) concluded
on February 12, 2014, that Dean was not disabled. AR 11, 20. The Appeals Council
granted Dean’s request for review and remanded the case on May 30, 2015, instructing
the ALJ to determine Dean’s date last insured. Id.; AR 161–63. The ALJ held a second
hearing on November 19, 2015, and denied the claim on December 1, 2015. AR 12. In
that decision, the ALJ found that Dean suffered severe impairments due to degenerative
disc disease of the cervical spine, status post discectomy and fibromyalgia. AR 15.
However, the ALJ found that Dean was able to perform light work with some restrictions
and could perform her past relevant work, as well as other jobs that existed in significant
numbers in the national economy. Id. Therefore, Dean was not disabled. Id. The
Appeals Council denied additional review. AR 1. Dean filed a complaint in this court
on June 26, 2017, and Judge Williams filed his R&R on May 3, 2018.
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Dean argued that the ALJ failed to properly evaluate how often she would need to
be absent from work due to her impairments. Doc. No. 17 at 3. She noted that she had
sought treatment for either headaches, nausea, vomiting, neck pain or back pain for 21
to 26 days over a two-year period. Id. at 6. Judge Williams noted that although a
claimant has the burden of proving her limitations, Dean did not present evidence that
she missed work because of pain or cyclic vomiting, even though she went to the doctor
for treatment. Doc. No. 20 at 8–9. He explained,
In support of her allegation, claimant showed that she went to the doctor
for complaints of shoulder, arm, and neck pain in January and February
2012, was hospitalized overnight for neck surgery in July 2012, and went
to the emergency room once due to lumbar back pain in September 2013.
(Id., at 5). Claimant further showed that on multiple occasions she sought
medical treatment for symptoms of her cyclic vomiting syndrome. (Id., at
4-5). Claimant, however, offered no evidence that she missed work on any
of those occasions.
Doc. No. 20 at 8.
Dean did not dispute the ALJ’s dismissal of her subjective allegations or the ALJ’s
finding that her symptoms were “infrequent with a relatively quick recovery.” Id. at 9.
Judge Williams noted the inconsistencies in Dean’s testimony and stated that she did not
identify any evidence in the record of missed work days when filing her complaint. Id.
at 9–10. Therefore, Judge Williams concluded that the ALJ properly found Dean had
failed to prove additional limitations due to missing work. Id.
Judge Williams also added that even if Dean had proved she missed work 21 to 26
times over the relevant two-year period, as she alleged, the ALJ would still have found
her not disabled. Id. at 10. He explained,
If claimant had to miss work 21-26 times over a two-year period, that would
amount to, at most, 1.08 days per month. At the November 2015 hearing,
the vocational expert testified that a hypothetical person similarly situated
to claimant could still perform claimant’s past work as a cashier II and
convenience store manager even if the hypothetical person had to miss work
one day a month every month. (AR 55). Thus, even assuming the 21-26
absences over the two-year relevant period was accurate, the ALJ still could
5 

have found claimant could perform her past relevant work. See Byes v.
Astrue, 687 F.3d 913, 917 (8th Cir. 2012) (declining to reverse an ALJ’s
decision where “there [was] no indication that the ALJ would have decided
differently,” even absent an error made by the ALJ). Therefore, even if the
ALJ did err, such error would be harmless.
Id.
IV.

ANALYSIS

Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Williams applied the appropriate legal standards for evaluating whether the ALJ
properly analyzed Dean’s need to miss work because of her conditions. Based on my
review of the record, I find no error – clear or otherwise – in Judge Williams’
recommendation. As such, I adopt the R&R in its entirety.
V.

CONCLUSION

For the reasons set forth herein:
1.

I accept Judge Williams’ R&R (Doc. No. 20) without modification. See

28 U.S.C. § 636(b)(1).
2.

Pursuant to Judge Williams’ recommendation, the Commissioner’s

determination that Dean was not disabled is affirmed.
3.

Judgment shall enter in favor of the defendant and against the plaintiff.

IT IS SO ORDERED.
DATED this 19th day of June, 2018.

__________________________
Leonard T. Strand, Chief Judge

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