Hines v. Commissioner of Social Security
MEMORANDUM Opinion and Order Accepting without modification 14 Report and Recommendations. The Commissioners determination is reversed and this matter is remanded to the Commissioner for further proceedings. Judgment shall enter in favor of Plaintiff Brenda A Hines and against Defendant Commissioner of Social Security. Signed by Judge Leonard T Strand on 2/7/2017. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
BRENDA A. HINES,
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER ON REPORT AND
This case is before me on a Report and Recommendation (R&R) filed by the
Honorable Jon Stuart Scoles, then Chief United States Magistrate Judge. See Doc. No.
14. Judge Scoles recommends that I reverse the decision by the Commissioner of Social
Security (the Commissioner) and remand this case pursuant to sentence four of 42 U.S.C.
§ 405(g). Neither party has objected to the R&R and the deadline for objections has
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, 353 F.3d at 645. 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.
In determining 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.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The 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
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, 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
(8th Cir. 1994)). Instead, if, after reviewing the evidence, the court finds 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.”).
Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following
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
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”).
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, 573-74 (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).
Hines applied for disabled widow’s benefits and supplemental security income
(SSI) benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq.
(Act) on October 5, 2012. She alleged she became disabled on September 22, 2011, due
to hernia, bilateral hearing loss and rheumatoid arthritis.
After a hearing, an
Administrative Law Judge (ALJ) applied the familiar five-step evaluation and found that
Hines was not disabled as defined in the Act. Hines argues the ALJ erred in determining
that she was not disabled because:
The ALJ failed to fully and fairly develop the record by failing to
order a consultative examination regarding Hines’ intellectual
The ALJ’s residual function capacity (RFC) assessment is flawed as
it is not supported by substantial medical evidence from a treating or
The ALJ erred in failing to find Hines “disabled” under medicalvocational guidelines where Hines was limited to less than full range
of light work, was a few days shy of her 50th birthday on her alleged
onset date, has no transferable skills, and is essentially illiterate.
The ALJ failed to acknowledge and resolve conflicts between the
vocational expert’s testimony and the dictionary of occupational titles
(DOT) where the ALJ found Hines could not perform overhead
reaching and could not read, yet the jobs identified by the vocational
expert require “frequent” reaching and some reading.
See Doc. No. 10. Judge Scoles addressed each argument in his R&R.
With regard to the sufficiency of the consultative examination, Hines argues that
the ALJ ignored the consultative examiner’s opinion as to Hines’ borderline intellectual
functioning. Hines contends that the ALJ should have ordered an additional consultative
examination with IQ testing to fully assess her intellectual capabilities. Judge Scoles
summarized the law regarding the factors the ALJ must consider in evaluating a medical
opinion from a non-treating medical source. Doc. No. 14 at 10-11. Notably, an ALJ is
not required to order additional medical examinations and tests unless the record contains
insufficient medical evidence to determine whether a claimant is disabled. Id. (citing
Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994)). After reviewing the ALJ’s
evaluation of the consultative examiner’s opinion and the entire record, Judge Scoles
concluded the ALJ properly considered and weighed this evidence. Id. at 12. He
reasoned that the ALJ assigned the opinion “little” weight due to inconsistencies within
the opinion and with the record as a whole. For instance, the examiner found Hines had
potential “borderline” intellectual functioning, but this was based on tests Hines had at
age 7, and the examiner found she had “no speech problems and language expression
was generally good.” Id. (quoting Administrative Record (AR) at 405). While the
examiner estimated Hines’ intellectual ability to be in the lower to “possibly” borderline
range, he did not suggest further testing. Id. For these reasons, Judge Scoles concluded
that the ALJ properly evaluated the consultative examiner’s opinion and found that an
additional consultative examination was unnecessary based on the sufficiency of the other
evidence in the record. Id. at 13.
Next, Judge Scoles considered Hines’ argument that she should have been found
disabled based on the medical-vocational guidelines and the ALJ’s finding that she was
essentially illiterate. The medical-vocational guidelines provide that an individual closely
approaching advanced age (50-54 years old), who is illiterate or unable to communicate
in English, has no previous work experience or can no longer perform vocationally
relevant past work and has no transferable skills should be found disabled. Id. (citing 20
C.F.R. Pt. 404, Subpt. P, App.2, Table 2, Rule 202.09). Hines argues that because the
ALJ found her essentially illiterate, she should be considered disabled under Rule 202.09.
If not disabled under this rule, Hines maintains she should be considered disabled at Step
Five because the jobs identified by the vocational expert (VE) require various levels of
reading ability to perform the job. Id. Judge Scoles noted that although the ALJ did not
make a finding that Hines is “illiterate,” the ALJ concluded that “she would not be able
to read content or write information to share with others in the workplace.” Id. at 14
(citing AR at 24). Judge Scoles also noted that Hines completed only the ninth grade in
school and that she was enrolled in special education courses for math and reading. Id.
Because the record is not clear as to whether Hines is illiterate, and because this finding
could be dispositive under the medical-vocational guidelines, Judge Scoles recommended
remand for the ALJ “to fully and fairly develop the record as it pertains to Hines’ RFC.”
Id. He further recommends that the ALJ order a consultative examination on remand
that addresses Hines’ functional abilities and limitations in the area of literacy. Id.
In addition, Judge Scoles noted there are “clear conflicts” between the VE’s
testimony, the DOT job descriptions and the ALJ’s hypothetical questions and RFC
determination. The ALJ provided a hypothetical of an individual who was not “able to
read for content on the job or to write information that’s shared with others in the
workplace.” Id. at 15. The VE opined that an individual with these limitations could
perform jobs of companion, cleaner and sorter. Id. Neither the ALJ nor the VE
addressed the reading level requirements for these jobs and considered whether they
would be consistent with the hypothetical. Id. The DOT indicates all of these jobs
require some level of reading ability. Id. at 15-16. Judge Scoles noted that it is the
ALJ’s duty to resolve any conflicts between the DOT and VE testimony. Id. at 16. Based
on the ALJ’s failure to address or resolve the conflict here, Judge Scoles concluded the
ALJ failed to fully and fairly develop the record as to the VE’s testimony. Id.
Based on these findings, Judge Scoles concluded that the ALJ’s ultimate
determination that Hines was not disabled is not supported by substantial evidence. Id.
He concluded as follows:
I recommend this matter be remanded to the Commissioner for further
proceedings. On remand, the ALJ should fully and fairly develop the
record with regard to Hines’ RFC, particularly with regard to her ability to
read and write. The ALJ should order a consultative examination that
addresses Hines' functional abilities and limitations in the area of literacy.
The ALJ should also fully and fairly develop the record with regard to the
vocational expert's testimony, and resolve all conflicts between the
vocational expert's testimony, the DOT job descriptions, and Hines’ RFC
in making his disability determination. Accordingly, I believe that this
matter should be remanded for further proceedings as discussed herein.
Id. at 17.
Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Scoles applied the appropriate legal standards in concluding the ALJ failed to: (1)
fully and fairly develop the record with regard to Hines’ ability to read and write and (2)
resolve the conflicts between the VE’s testimony, the DOT job descriptions and Hines’
RFC. Therefore, I find no error – clear or otherwise – in Judge Scoles’ recommendation
and adopt the R&R in its entirety.
For the reasons set forth herein:
I accept Judge Scoles’ R&R (Doc. No. 14) without modification. See 28
U.S.C. § 636(b)(1).
Pursuant to Judge Scoles’ recommendation:
The Commissioner’s determination that Hines was not disabled is
reversed and this matter is remanded to the Commissioner for
further proceedings as described by Judge Scoles.
Judgment shall enter in favor of Hines and against the Commissioner.
If Hines 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
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 7th day of February, 2017.
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE
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