Allaire v. Commissioner of Social Security
Filing
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ORDER Adopting in part and modifying in part 17 Report and Recommendation re 1 Complaint filed by Charlene Allaire: The final decision of the Commissioner is reversed and remanded for further proceedings consistent with this Order. Signed by Judge Linda R Reade on 9/5/2019. (pac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
CHARLENE ALLAIRE,
Plaintiff,
No. 18-CV-60-LRR
vs.
ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
I.
INTRODUCTION...............................................................................1
II.
RELEVANT PROCEDURAL HISTORY...................................................1
III.
STANDARD OF REVIEW....................................................................2
A.
B.
IV.
OBJECTIONS...................................................................................4
A.
B.
V.
Review of Final Decision..............................................................2
Review of Report and Recommendation............................................3
Dr. Lancaster’s Opinions.............................................................5
Reversal or Remand.................................................................9
CONCLUSION.................................................................................10
I. INTRODUCTION
The matter before the court is Defendant Commissioner of Social Security’s
(“Commissioner”) Objections (docket no. 18) to United States Chief Magistrate Judge
Kelly K.E. Mahoney’s Report and Recommendation (docket no. 17), which recommends
that the court reverse the Commissioner’s final decision to deny disability benefits to
Allaire, and remand for an award of benefits.
II. RELEVANT PROCEDURAL HISTORY
On May 25, 2018, Allaire filed a Complaint (docket no. 1), seeking judicial review
of the Commissioner’s final decision denying Allaire’s applications for Title II disability
insurance benefits and Title XVI supplemental security income (“SSI”) benefits. On
August 13, 2018, the Commissioner filed an Answer (docket no. 5). On November 26,
2018, Allaire filed the Plaintiff’s Brief (docket no. 12). On December 20, 2018, the
Commissioner filed the Defendant’s Brief (docket no. 14). On December 31, 2018,
Allaire filed the Reply Brief (docket no. 15). On January 2, 2019, the matter was referred
to Judge Mahoney for issuance of a report and recommendation. On July 18, 2019, Judge
Mahoney issued the Report and Recommendation. On July 23, 2019, the Commissioner
filed the Objections. On August 6, 2019, Allaire filed a Response to the Objections
(docket no. 19). 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 disability insurance benefits
is subject to judicial review. See 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.” Id. The Commissioner’s factual
findings shall be conclusive “if supported by substantial evidence.”
Id.
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). “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
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[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
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
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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
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.
IV. OBJECTIONS
In the Objections, the Commissioner argues that Judge Mahoney erred in finding
that the ALJ failed to properly weigh Dr. Lancaster’s opinions. See generally Objections
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at 2-7. After conducting a de novo review of the objected-to portions of the Report and
Recommendation and the Administrative Record (“AR”) (docket nos. 6-1 through 6-15,
7-1 through 7-11), the court shall overrule the Objections.
A. Dr. Lancaster’s Opinions
The Commissioner asserts that “[t]he ALJ properly assigned little weight to Dr.
Lancaster’s August 2015 and May 2017 [Physical Medical Source Statement] opinions.”
Objections at 2. In the August 2015 Physical Medical Source Statement, Dr. Lancaster
opined that Allaire: (1) is capable of sitting more than two hours before needing to stand;
(2) is capable of standing or walking fifteen minutes before needing to sit down; (3) could
sit at least six hours and stand less than two hours in an eight-hour workday; (4) would
need “frequent” unscheduled work breaks during an eight-hour workday, with the
unscheduled breaks lasting “minutes to hours”; (5) could occasionally lift ten pounds or
less; (6) would have difficulty with attention and concentration from her symptoms that
would be severe enough to disrupt her ability to perform even simple tasks twenty-five
percent of the workday; (7) could rarely twist, stoop, bend, crouch, squat, climb stairs and
climb ladders; and (8) would miss four or more days of work per month due to her
impairments or treatment for her impairments. See AR 1172-74.
In the May 2017 Physical Medical Source Statement, Dr. Lancaster opined that
Allaire: (1) is capable of sitting two hours before needing to stand; (2) is capable of
standing or walking fifteen minutes before needing to sit down; (3) could sit about four
hours and stand less than two hours total in an eight-hour workday; (4) would need one to
three unscheduled daily work breaks, lasting an “unpredictable” amount of time; (5) could
occasionally lift ten pounds or less; (6) could occasionally twist; could rarely stoop, bend,
crouch, squat, and climb stairs; and could never climb ladders; (7) would have interference
in attention and concentration from her symptoms that would be severe enough to disrupt
her ability to perform even simple tasks twenty-five percent of the workday; and (8) would
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miss four or more days of work per month due to her impairments or treatment for her
impairments. See AR 2103-06. Dr. Lancaster also opined that Allaire’s “[p]ain and
dizziness, as well as headaches, limit [her] ability to function consistently in a competitive
workplace.” Id. at 2105.
The Commissioner argues that, “[c]ontrary to [Judge Mahoney’s] assertion, the ALJ
did not discount Dr. Lancaster’s opinions because they were inconsistent with a single
treatment note dated November 2015.” Objections at 2. The Commissioner maintains that
the ALJ determined that “Dr. Lancaster’s opinions [were] inconsistent with the record as
a whole, including his own treatment notes.” Id. In the Objections, the Commissioner
points out several places in the record and in the ALJ’s recitation of Allaire’s medical
history, where Dr. Lancaster’s treatment notes had “largely unremarkable findings,”
implying inconsistencies with Dr. Lancaster’s Physical M edical Source Statements. See
generally Objections at 2-3. Further, in the Objections, the Commissioner also points out
various places in the record and in Dr. Lancaster’s treatment notes where Dr. Lancaster
indicated that Allaire’s symptoms were under control. See generally Objections at 3-6.
The Commissioner concludes that Judge Mahoney erred in determining that, “because the
ALJ did not provide good reasons for discounting Dr. Lancaster’s opinoins,” this matter
should be reversed and remanded for an award of benefits. Objections at 7.
“The opinion of a treating physician is generally afforded ‘controlling weight if that
opinion is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the record.’”
Chesser v. Berryhill, 858 F.3d 1161, 1164 (8th Cir. 2017) (quoting Wildman, 596 F.3d
at 964). “Although a treating physician’s opinion is entitled to great weight, it 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). The ALJ may discount or disregard a treating
physician’s opinion if other medical assessments are supported by superior medical
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evidence, or if the treating physician has offered inconsistent opinions. See Hamilton v.
Astrue, 518 F.3d 607, 610 (8th Cir. 2008). When an ALJ discounts a treating physician’s
opinion, he or she “must ‘give good reasons’ for doing so.” Chesser, 858 F.3d at 1164
(quoting Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012)). “Good reasons for
assigning lesser weight to the opinion of a treating source exist where ‘the treating
physician’s opinions are themselves inconsistent,’ Cruze [v. Chater], 85 F.3d [1320,] 1325
[(8th Cir. 1996)], or where ‘other medical assessments are supported by better or more
thorough medical evidence,’ Prosch [v. Apfel], 201 F.3d [1010,] 1012 [(8th Cir. 2000)].”
Id.
Further, 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).
In the decision, the ALJ addressed Dr. Lancaster’s August 2015 opinion as follows:
Dr. Lancaster’s assessment is given little weight as it is
inconsistent with the record as a whole including his own
treatment records. For instance, [Allaire] had minimal
treatment around the time of [Dr. Lancaster’s] assessment. He
did see her a few months after the assessment and his objective
exam at the time revealed mild tenderness over the lower
lumbar spine and a negative straight leg raise bilaterally (Ex.
32F/26). Those findings are not supportive of his assessed
limitations. As fully discussed above, Dr. Lancaster’s
assessment is not fully supported by the evidence of record.
AR 28. The ALJ also addressed Dr. Lancaster’s May 2017 opinion:
Again, I give [Dr. Lancaster’s] assessment little weight for the
reasons previously stated. Additionally, the most recent
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objective records revealed minimal to no objective findings of
pain. For instance, in December 2016, Dr. Lancaster opined
that her fibromyalgia seemed to be well-controlled.
AR 29.
In reviewing the ALJ’s decision, the court bears in mind that an ALJ has a duty to
develop the record fully and fairly. Byes, 687 F.3d at 915-16. Because an administrative
hearing is a non-adversarial proceeding, the ALJ must develop the record fully and fairly
in order that “‘deserving claimants who apply for benefits receive justice.’” Wilcutts v.
Apfel, 143 F.3d 1134, 1138 (8th Cir. 1998) (quoting Battles v. Shalala, 36 F.3d 43, 44
(8th Cir. 1994)). Furthermore, if an ALJ rejects the opinions of a treating or examining
physician, the regulations require that the ALJ give “good reasons” for rejecting those
opinions. See Chesser, 858 F.3d at 1164.
The court finds that the ALJ has not fully met these requirements. In the Report
and Recommendation, Judge Mahoney thoroughly reviewed Dr. Lancaster’s opinions and
treatment notes and points to a plethora of evidence in the record that is contrary to the
ALJ’s finding that Dr. Lancaster’s opinions are due “little weight.” See generally Report
and Recommendation at 14-23.
In particular, Judge Mahoney points out that Dr.
Lancaster’s opinions are greatly informed by Allaire’s difficulties with dizziness and
headaches. See id. at 15-22. The ALJ, however, does not address Dr. Lancaster’s
findings associated with Allaire’s dizziness or headaches. Further, Judge Mahoney also
points out that Dr. Lancaster referred Allaire to the Mayo clinic for treatment of her
symptoms, but the ALJ also failed address this information in assessing Dr. Lancaster’s
opinions. See id. at 16-18, 20-22. The court does not overlook the Commissioner’s
argument that there is evidence in the record that would support the ALJ’s assessment of
Dr. Lancaster’s opinions, but given the extensive record in this case, and the ALJ’s
meager explanation for granting Dr. Lancaster’s opinions “little weight,” the court finds
that the ALJ failed to give “good reasons” for rejecting the opinions of Dr. Lancaster. See
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Tilley v. Astrue, 580 F.3d 675, 680 (8th Cir. 2009) (“The regulations require the ALJ to
‘always give good reasons’ for the weight afforded to the treating source’s opinion.”).
Further, the court finds that the ALJ failed in her duty to fully and fairly develop the
record with regard to Dr. Lancaster’s opinions. Therefore, the court determines that this
matter should be remanded for further consideration of Dr. Lancaster’s opinions.
Accordingly, the court shall overrule the Commissioner’s objections.
B. Reversal or Remand
The scope of review of the Commissioner’s final decision is set forth in 42 U.S.C.
§ 405(g) which provides in pertinent part:
The court shall have the power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying,
or reversing the decision of the Secretary, with or without
remanding the cause for a rehearing.
42 U.S.C. § 405(g). The Eighth Circuit Court of Appeals has stated that:
Where the total record is overwhelmingly in support of a
finding of disability and the claimant has demonstrated his [or
her] disability by medical evidence on the record as a whole,
we find no need to remand.
Gavin v. Heckler, 811 F.2d 1195, 1201 (8th Cir. 1987); see also Beeler v. Brown,
833 F.2d 124, 127 (8th Cir. 1987) (finding reversal of denial of benefits was proper where
“the total record overwhelmingly supports a finding of disability”); Stephens v. Sec’y of
Health, Educ., & Welfare, 603 F.2d 36, 42 (8th Cir. 1979) (explaining that reversal of
denial of benefits is justified where no substantial evidence exists to support a finding that
the claimant is not disabled).
In the present case, contrary to Judge Mahoney’s
recommendation to reverse and remand for an award of benefits, see Report and
Recommendation at 23-24, the court finds that the medical records as a whole do not
“overwhelmingly support a finding of disability.” Beeler, 833 F.2d at 127. Instead, the
ALJ simply failed to properly address and fully and fairly develop the record with regard
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to the opinions of Dr. Lancaster. Accordingly, remand for further consideration of Dr.
Lancaster’s opinions is appropriate. On remand, the ALJ must provide clear reasons for
accepting or rejecting Dr. Lancaster’s opinions and support those reasons with evidence
from the record.
V. CONCLUSION
In light of the foregoing, it is hereby ORDERED:
(1)
The Objections (docket no. 18) are OVERRULED;
(2)
The Report and Recommendation (docket no. 17) is ADOPTED IN PART
and MODIFIED IN PART;
(3)
The final decision of the Commissioner is REVERSED and REMANDED
for further proceedings consistent with this Order.
IT IS SO ORDERED.
DATED this 5th day of September, 2019.
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