Porter v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION re 4 Complaint recommending that the District Court affirm the ALJ's decision. Objections to R&R due by 5/25/2018. Signed by Chief Magistrate Judge CJ Williams on 5/11/2018. (skm)

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

No. 17-CV-00110-LTS

vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

REPORT AND
RECOMMENDATION

Defendant.
___________________________
Plaintiff, Dawn M. Porter (“claimant”), seeks judicial review of a final decision
of the Commissioner of Social Security (“the Commissioner”) denying her application
for disability insurance benefits under Title II of the Social Security Act, as well as her
application for supplemental security income under Title XVI of the Social Security Act.
Claimant contends that the Administrative Law Judge (“ALJ”) who heard her claim erred
in determining that claimant was not disabled.
For the reasons that follow, I recommend that the District Court affirm the ALJ’s
decision.
I.

BACKGROUND

I adopt the facts set forth in the parties’ Joint Statement of Facts (Doc. 14) and
therefore only summarize the pertinent facts here. Claimant alleged she became disabled
on May 11, 2016.1 (AR 13, 42-43).2 Claimant was forty-seven years old when she

1

Although the ALJ’s decision reflects an alleged disability onset date of May 1, 2011, hearing
testimony evidenced the revised date reflected above.
2

“AR” refers to the administrative record below.

allegedly became disabled, and forty-eight years old at the time of the hearing. (AR 25,
42-43). Claimant completed the tenth grade, later earned a GED, attended cosmetology
school, and also earned an Associate’s Degree in Applied Science in information
processing. (AR 44). Claimant previously worked as a cook in a nursing home and as
a bank teller. (AR 46-48).
On June 15, 2016, claimant filed an application for disability insurance and
benefits and supplemental security income.

(AR 221, 225).

The Social Security

Administration denied the claim initially and on reconsideration. (AR 130-38, 143-46,
152-56). On June 7, 2017, ALJ Robert A. Kelly held a hearing on the matter. (AR 11,
41). On June 15, 2017, the ALJ issued a decision finding claimant was not disabled.
(AR 11-26). On August 25, 2017, the Appeals Council denied review. (AR 1-4). The
ALJ’s decision therefore became the final decision of the Commissioner. See 20 C.F.R.
§ 416.1481.
On October 16, 2017, claimant timely filed the instant complaint in this Court.
(Doc. 4). By April 12, 2018, the parties had filed their briefs. (Docs. 15-17). On April
13, 2018, the Court deemed the case fully submitted and ready for decision. (Doc. 18).
On that same date, the Honorable Leonard T. Strand, Chief United States District Court
Judge, referred this case to me for a Report and Recommendation.
II.

DISABILITY DETERMINATIONS AND BURDEN OF PROOF

A disability is defined as the “inability to engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An
individual has a disability when, due to her physical or mental impairments, “[she] is not
only unable to do [her] previous work but cannot, considering [her] age, education, and
work experience, engage in any other kind of substantial gainful work which exists . . .

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in significant numbers either in the region where such individual lives or in several
regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). If the claimant is
able to do work which exists in the national economy but is unemployed because of
inability to get work, lack of opportunities in the local area, economic conditions,
employer hiring practices, or other factors, the ALJ will still find the claimant not
disabled.
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows the five-step sequential evaluation process
outlined in the regulations. Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled.

20 C.F.R.

§ 416.920(a)(4)(i). “Substantial” work activity involves physical or mental activities.
(Id. § 404.1572). “Gainful” activity is work done for pay or profit, even if the claimant
did not ultimately receive pay or profit. (Id.).
Second, if the claimant is not engaged in substantial gainful activity, then the
Commissioner looks to the severity of the claimant’s physical and mental impairments.
Id. § 416.920(a)(4)(ii). If the impairments are not severe, then the claimant is not
disabled. An impairment is not severe if it does “not significantly limit [a] claimant’s
physical or mental ability to do basic work activities.” Kirby, 500 F.3d at 707.
The ability to do basic work activities means the ability and aptitude necessary to
perform most jobs. These include: (1) physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for
seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work

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setting. Bowen v. Yuckert, 482 U.S. 137, 141 (1987); see also 20 C.F.R. 404.1521
(2015).
Third, if the claimant has a severe impairment, then the Commissioner will
determine the medical severity of the impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the
impairment meets or equals one of the presumptively disabling impairments listed in the
regulations, then the claimant is considered disabled regardless of age, education, and
work experience. Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) and the demands of her past relevant work.
20 C.F.R. § 416.920(a)(4)(iv). If the claimant can still do her past relevant work, then
she is considered not disabled. (Id.). Past relevant work is any work the claimant
performed within the fifteen years prior to her application that was substantial gainful
activity and lasted long enough for the claimant to learn how to do it. (Id. § 416.960(b)).
“RFC is a medical question defined wholly in terms of the claimant’s physical ability to
perform exertional tasks or, in other words, what the claimant can still do despite . . .
her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir.
2003) (internal quotation marks omitted). The RFC is based on all relevant evidence.
The claimant is responsible for providing the evidence the Commissioner will use to
determine the RFC. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). If a
claimant retains enough RFC to perform past relevant work, then the claimant is not
disabled.
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to show there
is other work the claimant can do, given the claimant’s RFC, age, education, and work
experience. 20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c)(2). The Commissioner must

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show not only that the claimant’s RFC will allow her to make the adjustment to other
work, but also that other work exists in significant numbers in the national economy.
Eichelberger, 390 F.3d at 591. If the claimant can make the adjustment, then the
Commissioner will find the claimant not disabled. At Step Five, the Commissioner has
the responsibility of fairly and fully developing the record before making a determination
about the existence of a disability. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004).
The burden of persuasion to prove disability remains on the claimant.

Stormo v.

Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
III.

THE ALJ’S FINDINGS

The ALJ made the following findings at each step with regard to claimant’s
disability status:
At Step One, the ALJ found that claimant had not engaged in substantial gainful
activity since claimant’s alleged onset date. (AR 13).
At Step Two, the ALJ found that claimant suffered from the following severe
impairments: “depression, anxiety, personality disorders, and substance abuse/addiction
disorders.”

(AR 14).

The ALJ further discussed claimant’s other documented

impairments and found those impairments did not meet the definition of “severe”
impairments under Social Security Administration regulations. (AR 14-15).
At Step Three, the ALJ found that none of claimant’s impairments met or equaled
a presumptively disabling impairment listed in the regulations. (AR 15-16).
At Step Four, the ALJ found that claimant had the RFC to perform a full range of
work at all exertional levels, but with the following nonexertional limitations:
The claimant is limited to unskilled work in that she is able to understand,
remember, and carry out only routine, repetitive tasks. The claimant should
have no more than occasional interaction with coworkers and the general
public. The claimant is able to maintain focus, attention, and concentration
for only up to two hours at a time. There should be no more than occasional
changes in the general nature of the work setting or work tasks.

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(AR 16). Also at Step Four, the ALJ found claimant was unable to perform any past
relevant work. (AR 24).
At Step Five, the ALJ found that, despite claimant’s RFC, there were jobs that
existed in significant numbers in the national economy claimant could still perform,
including Hand Packager, Cleanup Worker, and Car Detailer. (AR 25-26). Therefore,
the ALJ concluded that claimant was not disabled. (AR 26).
IV.

THE SUBSTANTIAL EVIDENCE STANDARD

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, 353 F.3d at 645 (internal quotation marks
omitted). The Eighth Circuit Court of Appeals explains the standard as “something less
than the weight of the evidence . . . [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) (citations and
internal quotation marks omitted).
In determining whether the Commissioner’s decision meets this standard, a court
“consider[s] all of the evidence that was before the ALJ, but . . . do[es] not re-weigh the
evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). A court considers
both evidence that 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

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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)).
In evaluating 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, “do[es] 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) (quoting Naber v. Shalala, 22 F.3d 186,
188 (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 in cases where 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 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.”).
V.

DISCUSSION

Claimant alleges the ALJ committed reversible error in failing to afford proper
weight to the opinions of claimant’s treating psychologist, Laura Lundell, Psy.D (Doc.
15, at 10-17) and, as a result, the ALJ’s decision was not supported by substantial medical
evidence on the record as a whole. (Id., at 21-24). Claimant also alleges that the Appeals

7

Counsel erred in failing to properly evaluate new and material evidence from Dr. Lundell.
(Id., at 18-20). I will address each of these issues in turn.
A.

Dr. Lundell’s Opinions

Claimant argues that the ALJ should have afforded Dr. Lundell’s opinions
controlling weight, instead of the little weight the ALJ did afford Dr. Lundell’s opinions.
Dr. Lundell was a postdoctoral clinical psychologist who treated claimant from
September 2016 through May 2017. In November 2016, Dr. Lundell wrote a “To Whom
it May Concern” letter stating that claimant’s moderate amphetamine use disorder was in
early-sustained remission. (AR 589-90). Dr. Lundell further stated that, as a result of
Posttraumatic Stress Disorder (PTSD), claimant had dissociative episodes in which
claimant felt disconnected from reality and experienced paranoia, flashbacks,
concentration and memory difficulties, and associated avoidance of a multitude of trauma
indicators. (Id.). As a result, Dr. Lundell opined, claimant had a marked restriction in
social functioning, repeated episodes of prolonged decompensations, and marked
difficulties in maintaining concentration. (Id.). Dr. Lundell concluded, therefore, that
claimant met the criteria for Listing 12.06 pertaining to anxiety disorders. (AR 590).
On May 30, 2017, Dr. Lundell completed a Mental Residual Functional Capacity
Questionnaire. (Doc. 606-608). In the check-box portion of this form, Dr. Lundell
opined that claimant was “unable to meet competitive standards” of unskilled work with
respect to the following mental abilities:
Maintain regular attendance and be punctual within customary, usually
strict tolerances
Make simple work-related decisions
Complete a normal workday and workweek without interruptions from
psychologically based symptoms

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Perform at a consistent pace without an unreasonable number and length of
rest periods
Accept instructions and respond appropriately to criticism from
supervisors.
(AR 607).

Dr. Lundell opined that claimant would be “seriously limited, but not

precluded” in another eight categories of mental abilities to perform unskilled work.
(Id.). In the section of the form that required an explanation for such limitations, Dr.
Lundell wrote:
[Claimant]’s avoidance symptoms that come with PTSD cause her to
often feel or be detached from everyday life. During these period of
detachment or distraction, [claimant] may not communicate well, may avoid
situations/people that remind her of the trauma. Additionally, [claimant] is
likely to experience memory loss and lack empathy due to her overall
detachment from her own emotional state. [Claimant’s] heightened state of
vigilance of awareness that comes with her PTSD results in trouble
concentrating and focusing. Given this heightened state of arousal,
[claimant] is experiencing sleep difficulties and may overreact to everyday
experiences and may get scared easily or have frequent, emotional
outbursts.
(AR 607). Dr. Lundell also opined that claimant would be “seriously limited, but not
precluded” from performing mental abilities and aptitudes needed to do particular types
of jobs that involved interaction with the general public, maintaining socially appropriate
behavior, and using public transportation, and would be unable to meet competitive
standards in traveling in an unfamiliar place. (AR 608). Dr. Lundell left blank, however,
the space in which she was supposed to explain these limitations. (Id.). Dr. Lundell also
checked a box indicating that claimant’s impairments would, on average, cause claimant
to be absent from work more than four days per month. (Id.). Dr. Lundell did not
provide any explanation for these absences.

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The ALJ gave little weight to Dr. Lundell’s opinions. (AR 21). The ALJ found
that Dr. Lundell’s “initial opinion lacked analysis and citation to supporting signs or
laboratory findings, and was not well reasoned.” (Id.). The ALJ further found that Dr.
Lundell’s opinion that claimant met a listed impairment invaded the province of the
Commissioner. (Id.). The ALJ also found Dr. Lundell’s opinions were entitled to little
weight because they were inconsistent with and not supported by the objective medical
evidence. (Id.). The ALJ found the opinions to be inconsistent with the psychiatric
records and evaluations performed by Shelby Allen-Benitz, ARNP, who treated claimant
from December 2013 through 2016.

The ALJ also found Dr. Lundell’s opinions

inconsistent, in some cases “dramatically inconsistent,” with her own records. (Id.).
“A treating physician’s opinion is given controlling weight if it ‘is well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [a claimant’s] case record.’” Halverson
v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010) (alteration in original) (internal quotation
marks omitted) (quoting Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009)); 20 C.F.R.
§ 404.1527(d)(2). “Even if the [treating physician’s] opinion is not entitled to controlling
weight, it should not ordinarily be disregarded and is entitled to substantial weight.”
Samons v. Astrue, 497 F.3d 813, 818 (8th Cir. 2007). A treating physician’s opinion,
however, “does not automatically control or obviate the need to evaluate the record as a
whole.” Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001). “It may have ‘limited
weight if it provides conclusory statements only, or is inconsistent with the record.’”
Papesh v. Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015) (quoting Samons, 497 F.3d at
813). “The ALJ ‘may discount or even disregard the opinion . . . where other evidence,
or where a treating physician renders inconsistent opinions that undermine the credibility
of such opinions.’” Id. (quoting Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015)).
Ultimately, an ALJ must “give good reasons” for the weight given to a treating

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physician’s opinion. 20 C.F.R. § 404.1527(d)(2); See also Prosch v. Apfel, 201 F.3d
1010, 1013 (8th Cir. 2000) (“Whether the ALJ grants a treating physician’s opinion
substantial or little weight, the regulations provide that the ALJ must ‘always give good
reasons’ for the particular weight given to a treating physician’s evaluation.”).
I find the ALJ properly discounted the weight he afforded to Dr. Lundell’s
opinions. First, the ALJ correctly concluded that Dr. Lundell’s opinions were not well
reasoned, lacked analysis, and were unsupported by citation to signs and laboratory
reports. In her November 2016 opinion, Dr. Lundell opined that claimant met the criteria
for Listing 12.06, Anxiety-related disorders, but did not explain how she reached this
conclusion. (AR 589-90). Although Dr. Lundell briefly discussed claimant’s diagnoses
of PTSD and amphetamine use disorder, Dr. Lundell did not explain how the existence
of the two diagnoses led her to conclude that claimant met Listing 12.06, and the
relationship is not readily apparent.
Second, the ALJ correctly noted that Dr. Lundell’s opinion that claimant’s
impairments met the requirements for a listed impairment invaded the Commissioner’s
province.

See House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (“A treating

physician’s opinion that a claimant is disabled or cannot be gainfully employed gets no
deference because it invades the province of the Commissioner to make the ultimate
disability determination.”).
Third, the ALJ correctly found that Dr. Lundell’s opinions were inconsistent with
psychiatric records and evaluations performed by Ms. Allen-Benitz. In contrast to Dr.
Lundell’s significant limitations regarding work-like procedures, Ms. Allen-Benitz noted
during the same timeframe that claimant was “Alert and oriented to all spheres. Recent
and remote memory appears intact. No evidence of current hallucinations, delusions,
paranoia, and obsessions. Thought process is linear, logical, and goal-directed. Denies
current suicidal or homicidal thoughts, plan, or intent. Judgment, reasoning, and insight

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are considered fair. Impulse control is considered fair.” (AR 592). In October 2016,
Ms. Allen-Benitz noted very similar findings and added that claimant appeared to be of
at least average intelligence.

(AR 569).

Further, Dr. Lundell’s own records are

inconsistent with her opinions. Claimant reported assisting her stepdaughter in the
stepdaughter’s salon (AR 594), had started an Etsy business with her stepdaughter (id.),
had travelled to Minnesota (AR 595), reported improvement following a change in her
living situation (id.), and was dating. (AR 596). The ability to engage in activities of
this sort are inconsistent with the disabling anxiety to which Dr. Lundell opined.
Importantly, there is substantial evidence in the record as a whole to support the
ALJ’s RFC assessment. Where an ALJ does not rely on opinions from treating or
examining sources, there must be some other medical evidence in the record for the ALJ’s
opinion to be supported by substantial medical evidence on the record.

Harvey v.

Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004). “However, there is no requirement that
an RFC finding be supported by a specific medical opinion.” Hensley v. Colvin, 829
F.3d 926, 932 (8th Cir. 2016).
The ALJ did rely on other such medical evidence in assessing claimant’s RFC.
The ALJ afforded great weight to the state agency medical and psychological consultants.
(AR 24). The psychological consultants found that claimant had affective disorders,
anxiety disorders, personality disorders, and substance addiction disorders, all of which
the consultants considered to be severe impairments. (Id.). Further,
[t]he psychologists found the claimant would have mild restrictions in daily
activities, moderate difficulties maintaining social functioning, moderate
difficulties maintaining concentration, persistence or pace, and no episodes
of decompensation. Functionally, the consulting psychologists opined the
claimant would have some difficulty concentrating for extended periods,
remembering, understanding, and carrying out detailed instructions, and
would experience some difficulty interacting appropriately with others at
times. However, the psychologists opined the claimant retained the

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capacity to perform simple, repetitive tasks consisting of 1-2 step
commands in a work setting with reduced social interaction.
(Id.). In addition to the consultants, the ALJ considered medical records from David
Fox, LISW, who “noted impressions of posttraumatic stress disorder, adjustment
disorder with anxiety, amphetamine dependence, and a GAF score of 48.” (AR 18). As
noted above, the ALJ also considered the opinions of Ms. Allen-Benitz and afforded Dr.
Lundell’s opinions little weight, which is greater than no weight.
The ALJ also considered the records obtained from Courtney Hoelscher, ARNP
(AR 19), Rogerio Ramos, M.D. (id.), and Daniel Courtney, Ph.D. (AR 19-20), though
the ALJ did not engage in an in-depth discussion of the findings of any of the
aforementioned.

Even if the ALJ did not rely on the records of the three final

practitioners in assessing claimant’s RFC, and instead merely noted the existence of the
records, I would still find that the ALJ’s decision is supported by substantial evidence on
the record as a whole. The assessments from the state agency consultants are highly
probative on claimant’s disability status, as are Ms. Allen-Benitz’s notes, and Dr.
Lundell’s notes, even though the ALJ discounted the weight afforded to the latter. As
such, I recommend that the Court find that the ALJ did not err in assessing claimant’s
RFC. Further, I recommend that the Court find that the ALJ’s decision is supported by
substantial evidence on the record as a whole.
B.

Appeals Council Decision

Claimant next contends that the Appeals Council erred in failing to consider new
and material evidence from Dr. Lundell when it declined to review the ALJ’s decision.
(Doc. 15, at 18-20). Specifically, claimant argues that “Dr. Lundell’s July 14, 2017
letter attempting to correct the ALJ’s misinterpretation of her individual therapy notes
clearly constitutes new and material evidence that should have been addressed by the
Commissioner on appeal.” (Id., at 18 (citation omitted)). The letter to which claimant

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refers attempts to explain the inconsistencies the ALJ perceived between Dr. Lundell’s
treatment notes and her formal opinion, which the ALJ found assessed greater limitations
than her treatment notes supported. (AR 38). The letter provides, in relevant part:
Please note that psychotherapy notes are not intended by psychologists or
other mental health providers providing psychotherapy, [sic] to document
disability. Indeed, actual psychotherapy notes and certification of disability
are two different things and are never intended by the author to document
disability. It is for this reason that psychotherapy notes may differ from
other, more formal, diagnostic assessments.
(Id.).
As an initial matter, the Court does not have jurisdiction to review the Appeals
Council’s decision denying review. The Eighth Circuit Court of Appeals has held that
“review is limited by statute to the final decision of the Commissioner, which is the
judge’s final decision. [The Court] ha[s] no jurisdiction to review the Appeals Council’s
non-final decision to deny review.” Piepgras v. Chater, 76 F.3d 233, 238 (8th Cir.
1996) (citing Browning v. Sullivan, 958 F.2d 817, 822-23 (8th Cir. 1992)). As a result,
I find that claimant’s request that the Court review the Appeals Council’s consideration
of Dr. Lundell’s letter to have been improperly brought and, therefore, I recommend that
the Court reject this argument for lack of jurisdiction. Although the Court should
consider Dr. Lundell’s letter in rendering its decision, and I have considered the letter,
claimant’s argument does not pertain to this Court’s review.

Claimant’s argument

pertains only to the Appeals Council’s consideration of the letter, which is an issue over
which this Court lacks jurisdiction.
Even if this Court did have jurisdiction to review the Appeals Council’s action, I
would still recommend that the Court uphold the final decision of the Commissioner.
Although the letter explains the differences between psychotherapy notes and disability
certifications, the letter does not address the marked differences and inconsistencies with

14

other medical evidence of record and with claimant’s own subjective allegations.
Further, Dr. Lundell’s letter, much like her treatment notes, lacks analysis and is vague.
For instance, Dr. Lundell does not identify the psychotherapy notes that she is addressing
when explaining why differences may exist. Perhaps Dr. Lundell means all of the
psychotherapy notes, but it is simply unclear. As a result, while Dr. Lundell’s letter is
beneficial from a general knowledge standpoint, it is of little probative value with respect
to claimant’s case specifically.
VI.

CONCLUSION

For the foregoing reasons, I respectfully recommend that the District Court affirm
the ALJ’s decision.
The parties must file objections to this Report and Recommendation within
fourteen (14) days of the service of a copy of this Report and Recommendation, in
accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b). Objections must
specify the parts of the Report and Recommendation to which objections are made, as
well as the parts of the record forming the basis for the objections. See FED. R. CIV. P.
72. Failure to object to the Report and Recommendation waives the right to de novo
review by the District Court of any portion of the Report and Recommendation as well
as the right to appeal from the findings of fact contained therein. United States v. Wise,
588 F.3d 531, 537 n.5 (8th Cir. 2009).
IT IS SO ORDERED this 11th day of May, 2018.

__________________________________
C.J. Williams
Chief United States Magistrate Judge
Northern District of Iowa

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