Davis v. Commissioner of Social Security
Filing
30
ORDER Adopting 20 Report and Recommendation: The 22 Objections are overruled. The final decision of the Commissioner is affirmed and the 3 Complaint is dismissed with prejudice. Signed by Judge Linda R Reade on 9/10/2018. (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
JOHN J. DAVIS,
Plaintiff,
No. 17-CV-80-LRR
vs.
ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
____________________
I.
INTRODUCTION...............................................................................1
II.
RELEVANT PROCEDURAL HISTORY...................................................2
III.
STANDARD OF REVIEW....................................................................2
A.
B.
IV.
Review of Final Decision..............................................................2
Review of Report and Recommendation............................................4
OBJECTIONS...................................................................................6
A.
B.
C.
Credibility Determination.............................................................6
New Evidence Provided to the Appeals Council.................................10
1.
Factual background..........................................................10
2.
Applicable law.................................................................10
3.
Davis’s objection.............................................................12
RFC Assessment.......................................................................13
V.
SUPPLEMENTAL BRIEF...................................................................16
VI.
CONCLUSION.................................................................................17
I. INTRODUCTION
The matter before the court is Plaintiff John J. Davis’s Objections (docket no. 22)
to United States Chief Magistrate Judge C.J. Williams’s Report and Recommendation
(docket no. 20), which recommends that the court affirm Defendant Commissioner of
Social Security’s (“Commissioner”) final decision to deny disability benefits to Davis.
II. RELEVANT PROCEDURAL HISTORY
On July 24, 2017, Davis filed a Complaint (docket no. 3), seeking judicial review
of the Commissioner’s final decision denying Davis’s applications for Title II disability
insurance benefits and Title XVI supplemental security income (“SSI”) benefits. On
October 11, 2017, the Commissioner filed an Answer (docket no. 8). On January 10,
2018, Davis filed the Plaintiff’s Brief (docket no. 14).
On January 31, 2018, the
Commissioner filed the Defendant’s Brief (docket no. 15). On February 21, 2018, the
matter was referred to Judge Williams for issuance of a report and recommendation. On
July 27, 2018, Judge Williams issued the Report and Recommendation. On August 10,
2018, Davis filed the Objections. On August 14, 2018, Davis filed a Supplemental Brief
(docket no. 25).
On August 17, 2018, the Commissioner filed a Response to the
Objections (docket no. 26). On August 29, 2018, the Commissioner filed a Response to
the Supplemental Brief (docket no. 27).1 On September 4, 2018, Davis filed a Reply Brief
(docket no. 28). The matter is fully submitted and ready for decision.
III. STANDARD OF REVIEW
A. Review of Final Decision
The Commissioner’s final determination not to award SSI benefits is subject to
judicial review to the same extent as provided in 42 U.S.C. § 405(g). See 42 U.S.C.
§ 1383(c)(3). Pursuant to 42 U.S.C. § 405(g), the court has the power to “enter . . . a
judgment affirming, modifying, or reversing the decision of the Commissioner . . . with
or without remanding the cause for a rehearing.”
42 U.S.C. § 405(g).
The
Commissioner’s factual findings shall be conclusive “if supported by substantial evidence.”
1
The Commissioner’s brief is untimely. See August 14, 2018 Order (docket no.
24) (“The Commissioner shall file any responsive brief to Davis’s Supplemental Brief by
no later than Monday, August 27, 2018.”) (alterations omitted). Nevertheless, the court
shall consider the Commissioner’s Response. The Commissioner is cautioned to strictly
comply with the court’s orders in the future.
2
Id. “The court ‘must affirm the Commissioner’s decision if it is supported by substantial
evidence on the record as a whole.’” Bernard v. Colvin, 774 F.3d 482, 486 (8th Cir.
2014) (quoting Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006)). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept it
as adequate to support a decision.” Fentress v. Berryhill, 854 F.3d 1016, 1019-20 (8th
Cir. 2017) (quoting Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).
In determining whether the Commissioner’s decision meets this standard, the court
considers “all of the evidence that was before the [administrative law judge (“ALJ”)], but
[it] do[es] not re-weigh the evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir.
2005).
The court considers “both evidence that detracts from the Commissioner’s
decision, as well as evidence that supports it.” Fentress, 854 F.3d at 1020; see also Cox
v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007) (providing that review of the Commissioner’s
decision “extends beyond examining the record to find substantial evidence in support of
the [Commissioner’s] decision” and noting that the court must also “consider evidence in
the record that fairly detracts from that decision”). The Eighth Circuit Court of Appeals
explained this standard as follows:
This standard is “something less than the weight of the
evidence and it 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) (quoting Turley v. Sullivan, 939
F.2d 524, 528 (8th Cir. 1991)). The court “will not disturb the denial of benefits so long
as the ALJ’s decision falls within the available zone of choice.” Buckner v. Astrue, 646
F.3d 549, 556 (8th Cir. 2011) (quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir.
2008)). “An ALJ’s decision is not outside the zone of choice simply because [the court]
might have reached a different conclusion had [the court] been the initial finder of fact.”
Id. (quoting Bradley, 528 F.3d at 1115). Therefore, “even if inconsistent conclusions may
3
be drawn from the evidence, the [Commissioner’s] decision will be upheld if it is
supported by substantial evidence on the record as a whole.” Guilliams v. Barnhart,
393 F.3d 798, 801 (8th Cir. 2005); see also Igo v. Colvin, 839 F.3d 724, 728 (8th Cir.
2016) (providing that a court “may not reverse simply because [it] would have reached a
different conclusion than the [Commissioner] or because substantial evidence supports a
contrary conclusion”).
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). When a party fails to object to any portion of a magistrate judge’s report and
recommendation, he or she waives the right to de novo review. See Griffini v. Mitchell,
31 F.3d 690, 692 (8th Cir. 1994). The United States Supreme Court has stated that
“[t]here is no indication that Congress, in enacting § 636(b)(1)[ ], intended to require a
4
district judge to review a magistrate’s report to which no objections are filed.” Thomas
v. Arn, 474 U.S. 140, 152 (1985). However, “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 de novo or any other
standard.” Id. at 154.
The Eighth Circuit has suggested that in order to trigger de novo review, objections
to a magistrate judge’s conclusions must be specific. See Branch v. Martin, 886 F.2d
1043, 1046 (8th Cir. 1989); see also Belk, 15 F.3d at 815 (noting that some circuits do not
apply de novo review when a party makes only general and conclusory objections to a
magistrate judge’s report and recommendation and finding that Branch indicates the Eighth
Circuit’s “approval of such an exception”); Thompson v. Nix, 897 F.2d 356, 357-58 (8th
Cir. 1990) (reminding the parties that “objections must be . . . specific to trigger de novo
review by the [d]istrict [c]ourt of any portion of the magistrate’s report and
recommendation”). The Sixth Circuit Court of Appeals has explained the approach as
follows:
A general objection to the entirety of the magistrate’s report
has the same effects as would a failure to object. The district
court’s attention is not focused on any specific issues for
review, thereby making the initial reference to the magistrate
useless. The functions of the district court are effectively
duplicated as both the magistrate and the district court perform
identical tasks. This duplication of time and effort wastes
judicial resources rather than saving them, and runs contrary
to the purposes of the Magistrates Act. We would hardly
countenance an appellant’s brief simply objecting to the district
court’s determination without explaining the source of the
error. We should not permit appellants to do the same to the
district court reviewing the magistrate’s report.
Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); see also
Goney v. Clark, 749 F.2d 5, 6 n.1 (3d Cir. 1984) (finding that “plaintiff’s objections
5
lacked the specificity necessary to trigger de novo review”); Whited v. Colvin, No. C 134039-MWB, 2014 WL 1571321, at *2-3 (N.D. Iowa Apr. 18, 2014) (concluding that,
because the plaintiff “offer[ed] nothing more than a conclusory objection to . . . [the report
and recommendation,] . . . [the plaintiff’s] objection [should be treated] as if he had not
objected at all”); Banta Corp. v. Hunter Publ’g Ltd. P’ship, 915 F. Supp. 80, 81 (E.D.
Wis. 1995) (“De novo review of a magistrate judge’s recommendation is required only for
those portions of the recommendation for which particularized objections, accompanied
by legal authority and argument in support of the objections, are made.”).
IV. OBJECTIONS
In the Objections, Davis argues that: (1) Judge Williams generally erred in
concluding that the ALJ’s credibility determination is supported by substantial evidence;
(2) Judge Williams generally erred “in [his] treatment of the issue” of “evidence provided
to the Appeals Council”; and (3) Judge Williams erred in concluding that the ALJ’s
residual functional capacity (“RFC”) determination is supported by substantial evidence.
See Objections 2-4. After conducting a de novo review of the objected-to portions of the
Report and Recommendation and the Administrative Record (“AR”) (docket nos. 9-1
through 9-9), the court shall overrule the Objections.
A. Credibility Determination
Here, Davis offers a purely conclusory argument, merely stating that he “continues
to rely on his principal brief, and objects to the [Report and Recommendation] generally
in its treatment of this issue.” Objections at 2. The court presumes that Davis objects to
Judge Williams’s conclusions that “the ALJ did consider the record as a whole in deciding
to discount [Davis’s] subjective allegations” and that “the ALJ’s decision was supported
by substantial evidence on the record as a whole.” Report and Recommendation at 11.
Initially, the court notes that Davis’s argument fails to comply with the Local Rules, which
require “[a] party who objects to . . . a magistrate judge’s report and recommendation”
6
to “file specific, written objections to the . . . report and recommendation.” LR 72A
(emphasis added). Moreover, Davis’s failure to object to Judge Williams’s findings
regarding the ALJ’s credibility determination with any specificity means that Davis has
waived his right to de novo review of this issue. See Thompson, 897 F.2d at 357-58
(providing that “objections must be . . . specific to trigger de novo review by the [d]istrict
[c]ourt of any portion of the magistrate’s report and recommendation”). Nevertheless, out
of an abundance of caution, and in this instance, the court shall review the ALJ’s
credibility determination de novo. See Thomas, 474 U.S. at 154 (providing that, while de
novo review is not required when a party fails to object to a magistrate judge’s report and
recommendation, the court may apply “de novo or any other standard [of review]”).
When assessing a claimant’s credibility, “the ALJ must consider all of the evidence,
including objective medical evidence, the claimant’s work history, and evidence relating
to the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).”
Vance v. Berryhill, 860 F.3d 1114, 1120 (8th Cir. 2017). In Polaski, the Eighth Circuit
stated that:
[t]he [ALJ] must give full consideration to all the evidence
presented relating to subjective complaints, including the
claimant’s prior work record, and observations by third parties
and treating and examining physicians relating to such matters
as: (1) the claimant’s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects
of medication; [and] (5) functional restrictions.
739 F.2d at 1322. The ALJ, however, may not disregard “a claimant’s subjective
complaints solely because the objective medical evidence does not fully support them.”
Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012) (quoting Wiese v. Astrue, 552
F.3d 728, 733 (8th Cir. 2009)).
Instead, an ALJ may discount a claimant’s subjective complaints “if there are
inconsistencies in the record as a whole.” Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir.
7
2010). If an ALJ discounts a claimant’s subjective complaints, he or she is required to
“make an express credibility determination, detailing the reasons for discounting the
testimony, setting forth the inconsistencies, and discussing the Polaski factors.” Renstrom,
680 F.3d at 1066 (quoting Dipple v. Astrue, 601 F.3d 833, 837 (8th Cir. 2010)); see also
Ford v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008) (stating that an ALJ is “required to
‘detail the reasons for discrediting the testimony and set forth the inconsistencies found’”
(quoting Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003))). Where an ALJ seriously
considers, but for good reason explicitly discredits a claimant’s subjective complaints, the
court will not disturb the ALJ’s credibility determination. See Johnson v. Apfel, 240 F.3d
1145, 1148 (8th Cir. 2001); see also Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007)
(providing that deference is given to an ALJ when the ALJ explicitly discredits a
claimant’s testimony and gives good reason for doing so); Gregg v. Barnhart, 354 F.3d
710, 714 (8th Cir. 2003) (“If an ALJ explicitly discredits the claimant’s testimony and
gives good reason for doing so, we will normally defer to the ALJ’s credibility
determination.”). “The credibility of a claimant’s subjective testimony is primarily for the
ALJ to decide, not the courts.” Igo, 839 F.3d at 731 (quoting Pearsall v. Massanari, 274
F.3d 1211, 1218 (8th Cir. 2001)).
In the decision, the ALJ determined that “[Davis’s] medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms;
however, [Davis’s] statements concerning the intensity, persistence and limiting effects of
[the] symptoms [were] not consistent with the evidence to the extent they [were]
inconsistent with the . . . [RFC] assessment.” AR at 113. Specifically, the ALJ found
that:
[Davis’s] allegations of disability are eroded by his activities
of daily living. This includes independent living throughout
the adjudicative period, performing his own personal care and
grooming tasks, preparing simple meals, household cleaning,
using public transportation, going shopping, and paying
8
bills. . . .
In addition to the above activities, the medical evidence is
replete with references to [Davis] working and/or searching
for employment throughout the period in which he has alleged
disability. [Davis] frequently cited financial necessity as to
why he needed to work. As recently as November 2015, he
was working two jobs (per his testimony this was the coffee
shop job and the janitorial job), 20 to 25 hours a week.
Records in late 2014 show he had applied to be a “peer
support person” through the Department of Human Services.
He indicated he had completed a one-week training period and
passed a written test for the position. He was ultimately
turned down, however, because of a criminal background
check. . . .
[Davis’s] specific allegations of functional deficits related to
fibromyalgia pain, back pain, and knee pain do not appear
consistent with the objective medical evidence. Despite his
subjective pain complaints, physical examination findings have
remained grossly intact throughout, as far as motor strength,
sensation, reflexes, and a normal gait. [Davis] testified he was
prescribed a cane for assistance with ambulation but the
medical evidence of record does not appear to support this.
[Davis] had a lumbar laminectomy procedure in early March
of 2016. However, the evidence contains no record of followup visits.
Similarly, [Davis’s] reports of functional deficits related to
mental health impairments do not appear consistent with the
medical evidence. Aside from a low or agitated mood, mental
status findings have been generally unremarkable throughout,
with full alertness and orientation, appropriate dress and
grooming, good eye contact, normal speech and thought
process, intact cognition and memory function, and fair
judgment/insight.
Treatment notes indicate [Davis’s]
depression was largely situational, stemming from
psychosocial and economic stressors.
Id. at 113-14.
9
It is clear from the ALJ’s decision that she thoroughly considered and discussed
Davis’s treatment history, medical history, functional restrictions and activities of daily
living in making her credibility determination. Thus, having reviewed the entire record,
the court finds that the ALJ adequately considered and addressed the Polaski factors in
determining that Davis’s subjective allegations of disability were not credible. See Goff
v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005) (noting that an ALJ is not required to
explicitly discuss each Polaski factor, it is sufficient if the ALJ acknowledges and
considers those factors before discounting a claimant’s subjective complaints). Therefore,
because the ALJ seriously considered, but for good reasons explicitly discredited, Davis’s
subjective complaints, the court will not disturb the ALJ’s credibility determination. See
Johnson, 240 F.3d at 1148. Even if inconsistent conclusions could be drawn on this issue,
the court upholds the conclusions of the ALJ because they are supported by substantial
evidence on the record as a whole. See Guilliams, 393 F.3d at 801. Accordingly, the
court shall overrule this objection.
B. New Evidence Provided to the Appeals Council
1.
Factual background
On June 23, 2016, the ALJ filed the decision denying Davis disability benefits. AR
at 116. On August 19, 2016, Davis filed a request for review of the ALJ’s decision with
the Appeals Council. Id. at 189. On November 30, 2016, Davis filed new evidence with
the Appeals Council consisting of a medical source statement from Brenda Miller, a
licensed social worker who treated Davis. Id. at 318-21. On June 23, 2017, the Appeals
Council denied Davis’ request for review. Id. at 8. In its decision, the Appeals Council
stated that it found that the new evidence submitted by Davis did “not show a reasonable
probability that it would change the outcome of the [ALJ’s] decision.” Id. at 9.
2.
Applicable law
The Eighth Circuit has explained the effect of new evidence submitted to the
10
Appeals Council for a reviewing court:
The regulations provide that the Appeals Council must
evaluate the entire record, including any new and material
evidence that relates to the period before the date of the ALJ’s
decision. The newly submitted evidence thus becomes part of
the “administrative record,” even though the evidence was not
originally included in the ALJ’s record. If the Appeals
Council finds that the ALJ’s actions, findings, or conclusions
are contrary to the weight of the evidence, including the new
evidence, it will review the case.
Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000) (citations omitted). Applying
these principles in Cunningham, the Eighth Circuit determined that:
Here, the Appeals Council denied review, finding that the new
evidence was either not material or did not detract from the
ALJ’s conclusion. In these circumstances, we do not evaluate
the Appeals Council’s decision to deny review, but rather we
determine whether the record as a whole, including the new
evidence, supports the ALJ’s determination.
222 F.3d at 500 (citation omitted); see also Van Vickle v. Astrue, 539 F.3d 825, 828 (8th
Cir. 2008) (stating that the final decision of the Commissioner should be affirmed if the
decision “is supported by substantial evidence on the record as a whole, including the new
evidence that was considered by the Appeals Council”); Nelson v. Sullivan, 966 F.2d 363,
366 (8th Cir. 1992) (“The newly submitted evidence is to become part of what we will
loosely describe as the ‘administrative record,’ even though the evidence was not originally
included in the ALJ’s record. . . . If, as here, the Appeals Council considers the new
evidence but declines to review the case, we review the ALJ’s decision and determine
whether there is substantial evidence in the administrative record, which now includes the
new evidence, to support the ALJ’s decision.”). The Eighth Circuit has noted that a
reviewing court “must speculate to some extent on how the [ALJ] would have weighed the
newly submitted reports if they had been available for the original hearing.” Riley v.
Shalala, 18 F.3d 619, 622 (8th Cir. 1994).
11
3.
Davis’s objection
Davis again offers a purely conclusory argument and states only that he “continues
to rely on his principal brief, and objects to the [Report and Recommendation] generally
in its treatment of this issue.” Objections at 2. The court presumes that Davis objects to
Judge Williams’s conclusion that, based on “the entirety of the record . . . substantial
evidence on the record as a whole would have supported the ALJ’s decision, even if the
ALJ had the benefit of Ms. Miller’s opinion when deciding [Davis’s] claim.” Report and
Recommendation at 15. Davis’s argument fails to comply with the Local Rules, which
require “[a] party who objects to . . . a magistrate judge’s report and recommendation”
to “file specific, written objections to the . . . report and recommendation.” LR 72A
(emphasis added).
Further, because Davis has failed to offer any specific objection to the Report and
Recommendation with regard to the issue of new evidence provided to the Appeals
Council, and only generally objects to Judge Williams’s findings on this issue, the court
finds that de novo review has not been triggered. See Thompson, 897 F.2d at 357-58
(providing that “objections must be . . . specific to trigger de novo review by the [d]istrict
[c]ourt of any portion of the magistrate’s report and recommendation”). Upon plain error
review, see Thomas, 474 U.S. at 154, the court finds that there is no ground to reject or
modify Judge Williams’s thorough analysis and conclusion that the new evidence presented
to the Appeals Council would not have changed the ALJ’s decision had she been given the
opportunity to review the new evidence.
Moreover, even if de novo review had been triggered, the court, having reviewed
the entire record, including the new and additional evidence submitted to the Appeals
Council, agrees with both the Appeals Council’s decision and Judge Williams’s Report and
Recommendation that the new evidence does not provide a basis for changing the ALJ’s
decision. See Van Vickle, 539 F.3d at 828 (providing that the final decision of the
12
Commissioner should be affirmed if the decision “is supported by substantial evidence on
the record as a whole, including the new evidence that was considered by the Appeals
Council”). Accordingly, the court shall overrule the objection.
C. RFC Assessment
Davis objects to Judge Williams’s conclusions that “the ALJ considered the medical
records and notes of several treating physicians and other medical sources, and [Davis’s]
own testimony regarding his daily activities in determining that [Davis] had the RFC to do
limited light work” and that “the ALJ’s decision is supported by substantial evidence on
the record as a whole.” Report and Recommendation at 19. In general, Davis argues that
the ALJ’s RFC assessment is not supported by substantial evidence. See Objections at 2-4.
In particular, Davis argues that Judge Williams erred in citing Eichelberger v. Barnhart,
390 F.3d 584 (8th Cir. 2004) for the proposition that “no further medical opinions were
needed” in determining Davis’s RFC. Objections at 3. Davis maintains that Eichelberger
is inapplicable in this case because it was a step four case and this is a step five case.2 See
id.
When an ALJ determines that a claimant is not disabled, he or she concludes that
the claimant retains the RFC to perform a significant number of other jobs in the national
economy that are consistent with the claimant’s impairments and vocational factors such
as age, education and work experience. See Beckley v. Apfel, 152 F.3d 1056, 1059 (8th
2
Pursuant to the federal regulations, an ALJ must complete the five-step sequential
evaluation process to determine whether a claimant is disabled. See 20 C.F.R.
§§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); Moore v. Colvin,
769 F.3d 987, 988-89 (8th Cir. 2014). The five steps an ALJ must consider are: “(1)
whether the claimant is currently employed; (2) whether the claimant is severely impaired;
(3) whether the impairment is or approximates an impairment listed in Appendix 1;
(4) whether the claimant can perform past relevant work; and, if not, (5) whether the
claimant can perform any other kind of work.” Hill v. Colvin, 753 F.3d 798, 800 (8th
Cir. 2014); see also Report and Recommendation at 3-5 (providing a thorough explanation
of the five-step sequential evaluation process).
13
Cir. 1998). The ALJ is responsible for assessing a claimant’s RFC, and his or her
assessment must be based on all of the relevant evidence. See Combs v. Berryhill, 878
F.3d 642, 646 (8th Cir. 2017). Relevant evidence for determining a claimant’s RFC
includes “medical records, observations of treating physicians and others, and an
individual’s own description of his limitations.” Id. (quoting Strongson v. Barnhart, 361
F.3d 1066, 1070 (8th Cir. 2004)). “Because a claimant’s RFC is a medical question, an
ALJ’s assessment of it must be supported by some medical evidence of the claimant’s
ability to function in the workplace.” Id. (quoting Steed v. Astrue, 524 F.3d 872, 875 (8th
Cir. 2008)).
Additionally, an ALJ “has a duty to fully and fairly develop the evidentiary record.”
Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir. 2012); see also Smith v. Barnhart, 435
F.3d 926, 930 (8th Cir. 2006) (“A social security hearing is a non-adversarial proceeding,
and the ALJ has a duty to fully develop the record.”). “There is no bright line rule
indicating when the Commissioner has or has not adequately developed the record; rather,
such an assessment is made on a case-by-case basis.” Mouser v. Astrue, 545 F.3d 634,
639 (8th Cir. 2008).
The ALJ thoroughly addressed and considered Davis’s medical and treatment
history. See AR at 111-12, 114 (providing a thorough discussion of Davis’s overall
medical history and treatment).
The ALJ also properly considered and thoroughly
addressed Davis’s subjective allegations of disability in making her overall disability
determination, including determining Davis’s RFC. See id. at 113-14 (providing a
thorough review of Davis’s subjective allegations of disability).
Therefore, having
reviewed the entire record, the court finds that the ALJ properly considered Davis’s
medical records, observations of treating physicians and Davis’s own description of his
limitations in making the RFC assessment for Davis. See id. at 111-14 (providing a
thorough discussion of the relevant evidence for making a proper RFC determination); see
14
also Combs, 878 F.3d at 646 (explaining what constitutes relevant evidence for assessing
a claimant’s RFC). Furthermore, the court finds that the ALJ’s decision is based on a
fully and fairly developed record. See Byes, 687 F.3d at 915-16. Because the ALJ
considered the medical evidence as a whole, the court concludes that the ALJ made a
proper RFC determination supported by the medical evidence. See Combs, 878 F.3d at
646; Guilliams, 393 F.3d at 803.
Davis’s argument that Judge Williams erred in citing Eichelberger is wholly without
merit. Nowhere in the Report and Recommendation does Judge Williams cite Eichelberger
for the proposition that “no further medical opinions were needed” in determining Davis’s
RFC. Instead, Judge Williams cites Eichelberger for the proposition that “[a] claimant’s
RFC is a medical question, and, thus, some medical evidence must support the
determination of the claimant’s RFC.” Report and Recommendation at 16. Similarly,
Judge Williams cited Eichelberger stating that “the RFC is based on all relevant medical
and other evidence.” Report and Recommendation at 18. These are proper citations to
Eichelberger because all RFC assessments must be based on all the relevant evidence in
the record, including some medical evidence. See Combs, 878 F.3d at 646. Further,
Judge Williams cites Eichelberger for the proposition that a claimant “has the burden to
establish [his] RFC.” Report and Recommendation at 18 (alteration in original). Again,
this was a proper citation to Eichelberger, as the burden of establishing the RFC is always
on the claimant. See Hensley v. Colvin, 829 F. 3d 926, 932 (8th Cir. 2016) (stating that
“the burden of persuasion to prove disability and to demonstrate RFC remains on the
claimant, even when the burden of production shifts to the Commissioner at step five.”
(quoting Goff, 421 F.3d at 790)).
Because the ALJ made a proper RFC determination and Judge Williams did not err
in citing Eichelberger in the Report and Recommendation, the court shall overrule the
objection.
15
V. SUPPLEMENTAL BRIEF
In the Supplemental Brief, Davis contends that the ALJ that decided Davis’s claim
“was an inferior officer not appointed in a constitutional manner” and, therefore, the
ALJ’s decision must be vacated and the case must be remanded to be decided by a properly
appointed ALJ. Supplemental Brief at 1-2. Davis relies on Lucia v. S.E.C., ___ U.S.
___, 138 S. Ct. 2044 (2018), which held that ALJs for the Securities and Exchange
Commission are “Officers of the United States,” and therefore, are subject to the
Appointments Clause. 138 S. Ct. at 2055.
In Lucia, the Supreme Court stated that “‘one who makes a timely challenge to the
constitutional validity of the appointment of an officer who adjudicates his case’ is entitled
to relief.” Id. at 2055 (quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995)).
The Supreme Court further stated that the plaintiff had “made just such a timely challenge:
He contested the validity of [presiding ALJ’s] appointment before the Commission, and
continued pressing that claim in the Court of Appeals and this Court.” Id. Unlike the
plaintiff in Lucia, Davis did not contest the validity of the Social Security Administration
ALJ who decided his case at the agency level. The record clearly demonstrates that Davis
did not raise his Appointments Clause argument before either the ALJ or the Appeals
Council. Rather, Davis raised this issue for the first time to this court on judicial review,
after Judge Williams had issued the Report and Recommendation. Because Davis did not
raise his Appointments Clause challenge before the ALJ or Appeals Council, the court
finds that he has waived this issue. See N.L.R.B. v. RELCO Locomotives, Inc., 734 F.3d
764, 798 (8th Cir. 2013) (concluding that a plaintiff who raised an Appointments Clause
challenge “waived its challenge to the Board’s composition because it did not raise the
issue before the Board”); Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003)
(finding that a claimant’s failure to raise a disability claim during the administrative
process “waived [the claim] from being raised on appeal”); Shaibi v. Berryhill, 883 F.3d
16
1102, 1109 (9th Cir. 2017) (“[W]hen claimants are represented by counsel, they must raise
all issues and evidence at their administrative hearings in order to preserve them on
appeal.” (quoting Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999))); Trejo v.
Berryhill, No. EDCV 17-0879-JPR, 2018 WL 3602380, at *3 n.3 (C.D. Cal. July 25,
2018) (“To the extent Lucia applies to Social Security ALJs, [the] [p]laintiff has forfeited
the issue by failing to raise it during her administrative proceedings.”).
Davis cites Sims for the proposition that “[t]o preserve federal court review for all
potential ALJ hearing decision errors, all a claimant must do is file a request for review.”
Supplemental Brief at 6. Davis’s argument is without merit. The Ninth Circuit Court of
Appeals addressed a similar argument and explained that “Sims concerned only whether
a claimant must present all relevant issues to the Appeals Council to preserve them for
judicial review; the [Supreme] Court specifically noted that ‘[w]hether a claimant must
exhaust issues before the ALJ is not before us.’” Shaibi, 883 F.3d at 1109 (second
alteration in original) (quoting Sims, 530 U.S. at 107). Here, Davis did not present his
Appointments Clause challenge to the ALJ or the Appeals Council. Thus, the Eighth
Circuit’s finding in Anderson, that a claimant’s failure to raise an issue during the
administrative process waives the claim from being raised on appeal, is not affected by the
holding in Sims. See 344 F.3d at 814. The court concludes that Davis’s Appointments
Clause argument is waived.
VI. CONCLUSION
In light of the foregoing, it is hereby ORDERED:
(1)
The Objections (docket no. 22) are OVERRULED;
(2)
The Report and Recommendation (docket no. 20) 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.
17
DATED this 10th day of September, 2018.
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