Owens v. Commissioner of Social Security

Filing 20

ORDER: Accepting 19 Report and Recommendation: The Commissioner's determination that Plaintiff Owens was not disabled is reversed and this matter is remanded to the Commissioner for further proceedings as described by Judge Williams: Judgment shall enter in favor of Owens and against the Commissioner: See text of Order for further information. Signed by Chief Judge Leonard T Strand on 06/20/18. (kfs)

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

No. C17-86-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. 19. Judge Williams
recommends that I reverse and remand the decision of the Commissioner of Social
Security (the Commissioner) denying plaintiff Tracy Owens’ application for disability
insurance benefits 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.

1

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

Owens alleged a disability onset date of June 20, 2013, due to symptoms related
to narcolepsy, reduced immune system, diabetes mellitus, depression, migraine
headaches and diarrhea. AR 16. After a hearing, an Administrative Law Judge (ALJ)
concluded on March 24, 2016, that Owens had severe impairments due to diabetes
mellitus, narcolepsy with cataplexy, chronic kidney disease stage 3-4 and major
depressive disorder, moderate. AR 14. However, the ALJ found that Owens was not
disabled and could perform light work with some restrictions. AR 15. The ALJ also
found there were jobs Owens could perform that existed in significant numbers in the
national economy. AR 25–26.
Owens’ request for review was denied on June 6, 2017. AR 1. The ALJ’s decision
thus became the final decision of the Commissioner. Owens filed her complaint in this
court on July 28, 2017, and Judge Williams filed his R&R on May 7, 2018.
Owens argued that the ALJ erred by: (1) not finding chronic diarrhea to be a
severe impairment; (2) relying on Owens’ noncompliance and not determining whether
her failure to find an effective stimulant to treat her narcolepsy symptoms was justified;
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(3) not providing good reasons for assigning little weight to the opinions of treating source
Scott Geisler, M.D.; (4) failing to determine that Owens’ impairments medically equaled
Listing 11.02; and (5) failing to include any absences or unscheduled breaks in the
Residual Functional Capacity (RFC) Assessment.

Judge Williams addressed each

argument separately.
With respect to the first argument, Judge Williams noted that the ALJ’s discussion
of how he determined which impairments were severe was “brief and non-specific.” AR
8. However, he found that the ALJ duly considered chronic diarrhea in the discussion
of Owens’ RFC and found that the symptoms were not as severe as Owens had claimed.
Id. Judge Williams stated,
Although the ALJ did not directly discuss claimant’s diarrhea in his
credibility assessment, it is clear from reading the ALJ’s credibility
assessment in context that the ALJ found claimant to be lacking credibility
in all of her allegations. Otherwise stated, the ALJ found that the medical
evidence lacked support for claimant’s allegations as to severity to the point
that the ALJ looked upon all of claimant’s allegations with skepticism. This
is not improper, nor has claimant alleged that it is. Rather, claimant has
merely alleged that the ALJ failed to account for claimant’s diarrhea, which
is inaccurate. As such, I find that the ALJ did not err with respect to his
consideration of claimant’s alleged diarrhea.
Id. at 9.
Regarding the second issue, Judge Williams found that Owens’ noncompliance
argument was misplaced. Id. at 11. Owens claimed the ALJ found her not disabled
because she was noncompliant. Id. at 10–11. However, “[b]ecause there is no indication
that the ALJ considered whether claimant would be capable of engaging in substantial
gainful activity had she followed her prescribed treatment plan,” Judge Williams
determined the ALJ merely used noncompliance as part of his credibility determination,
rather than making a noncompliance determination under SSR 82-59. Id. Therefore,
Judge Williams found the ALJ’s reliance on Owens’ noncompliance in assessing her
credibility was not erroneous. Id. at 11.
5 

On the issue of Dr. Geisler’s opinions, Judge Williams ultimately found that the
ALJ’s decision should be reversed and remanded because the ALJ did not clearly explain
the amount of weight he gave to those opinions and appeared to ignore a portion of the
record that was contradictory to his ruling. Id. at 13, 15. Judge Williams stated:
Although claimant argues that the ALJ improperly afforded Dr. Geisler’s
opinion “little weight,” the ALJ did not afford Dr. Geisler’s opinion little
weight. The ALJ merely stated that he found Dr. Geisler’s opinion to be
“less persuasive.” (AR 20). Although “less persuasive” could amount to
“little weight,” the ALJ does not explicitly use that term, and I cannot make
that assumption. Likewise, the ALJ just as easily could have afforded Dr.
Geisler’s opinion controlling weight, even though he found the opinion
“less persuasive.” It is simply unclear how much weight the ALJ afforded
to Dr. Geisler’s opinion. However, because the requirements of an ALJ are
greater when affording a treating source’s opinions less than controlling
weight, I will assume, in arguendo, that the ALJ afforded Dr. Geisler’s
opinion less than controlling weight.
Id. at 13.
Based on that assumption, Judge Williams summarized that the ALJ found Dr.
Geisler’s opinions to be “less persuasive” because they were unsupported, vague and
inconsistent with the evidence of record. Id. at 14. Judge Williams agreed that most of
Dr. Geisler’s opinions were vague, as they were in the form of checked boxes or very
limited written statements. He also found that the ALJ provided adequate support for the
finding that Dr. Geisler’s opinions were contrary to other evidence of record. Id. at 14–
15, 16. However, Judge Williams found that Dr. Geisler’s opinions were supported by
scientific testing:
The ALJ stated “[Dr. Geisler’s] own reports fail to reveal the type of
significant clinical and laboratory abnormalities one would expect if the
claimant were in fact disabled,” but the ALJ did not elaborate upon this
statement. (AR 21). To the contrary, Dr. Geisler’s notes from April 16,
2014, detail the testing that claimant had undergone in assessing her
narcolepsy and cataplexy. (AR 561-64). Although the ALJ addressed the
April 16, 2014 report, the ALJ did not address the “PREVIOUS TESTS”
section, which does show abnormal test results. (AR 564). It is unclear why
6 

the ALJ discussed almost the entirety of the April 16, 2014 report, but
failed to even note the existence of the “PREVIOUS TESTS” section.
Id. at 15.
Based on the ALJ’s statement that Dr. Geisler’s notes did not contain any test
results that corroborated his opinions, the absence of any discussion relating to the
“PREVIOUS TESTS” section, and the confusion as to what weight the ALJ actually gave
to Dr. Geisler’s opinions, Judge Williams recommended the ALJ’s decision be reversed
and remanded with instructions to articulate the weight afforded to Dr. Geisler’s opinions
and his reasoning for that weight. Id. at 16.
With respect to the fourth issue, Judge Williams found that the ALJ did not err in
determining that Owens’ impairments did not meet Listing 11.02. Id. at 18. He noted
(1) that the claimant has the burden of establishing that his or her impairments meet or
equal the presumptively disabling impairments listed in the regulations, and (2) that the
impairments must be established with medical findings, not just symptoms. Id. at 17.
Judge Williams found that Owens’ symptom log is insufficient because it does not amount
to “medical findings.” Id. at 17–18. Additionally, Owens misrepresented the state
agency medical consultant’s opinion, which stated that the severity of Owens’ symptoms
did not, in fact, equal Listing 11.02. Id. at 18.
Finally, with respect to the unscheduled breaks issue, Judge Williams stated:
Claimant argues that she suffers from [narcolepsy, chronic kidney disease,
diabetes and major depressive disorder] but offers only generalized
statements about the side effects or symptoms one may experience as a
result of each of these ailments. Claimant does not allege that she actually
experiences fatigue to the point of needing unscheduled breaks or absences
from work, nor does claimant point to any evidence in the record to support
such a contention. As such, I find that the ALJ properly declined to include
the need for unscheduled breaks and absences from work because of these
ailments.

7 

Id. at 20 (emphasis in original). As for Owens’ individualized argument that her chronic
diarrhea required breaks, Judge Williams referred to his finding as to Owens’ severe
impairments argument. Id. at 21. He concluded:
Based on his credibility assessment, the ALJ did not include unscheduled
breaks in his RFC assessment. Although the record evidence could also
support a finding that claimant does suffer from chronic diarrhea and,
therefore, does require unscheduled breaks, I find that the ALJ’s decision
was within his “zone of choice.”
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 (1) evaluating the ALJ’s
determination of severe impairments, (2) the ALJ’s consideration of a claimant’s
noncompliance, (3) the weight assigned to Dr. Geisler’s opinions, (4) evaluating whether
Owens’ impairments met or equaled a medical listing and (5) the ALJ’s exclusion of
unscheduled breaks in his RFC assessment. 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. 19) without modification. See
28 U.S.C. § 636(b)(1).

2.

Pursuant to Judge Williams’ recommendation:
a.

The Commissioner’s determination that Owens was not disabled is
reversed and this matter is remanded to the Commissioner for
further proceedings as described by Judge Williams.
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b.

Judgment shall enter in favor of Owens and against the
Commissioner.

c.

If Owens wishes to request an award of attorney's fees and costs
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, an
application may be filed up until 30 days after the judgment becomes
“not appealable,” i.e., 30 days after the 60-day time for appeal has
ended.

See Shalala v. Schaefer, 509 U.S. 292, 296 (1993); 28

U.S.C. §§ 2412(d)(1)(B), (d)(2)(G).
IT IS SO ORDERED.
DATED this 20th day of June, 2018.

________________________________
Leonard T. Strand, Chief Judge

9