Klein v. Commissioner of Social Security

Filing 18

MEMORANDUM Opinion and Order Accepting 17 Report and Recommendations. The Commissioners determination that claimant was not disabled is affirmed. Judgment shall enter in favor of the Commissioner and against the plaintiff. Signed by Chief Judge Leonard T Strand on 6/2/2017. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
RHONDA KLEIN,
Plaintiff,

No. C16-1016-LTS

vs.
NANCY BERRYHILL, Acting
Commissioner of Social Security,1

MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

Defendant.
___________________________
I.

INTRODUCTION

This case is before me on a Report and Recommendation (R&R) filed by the
Honorable C.J. Williams, Chief United States Magistrate Judge. Doc. No. 17. Judge
Williams recommends that I affirm the decision by the Commissioner of Social Security
(the Commissioner) that plaintiff Rhonda Klein is not disabled.

Neither party has

objected to the R&R. The deadline for such objections has expired.
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
1

Berryhill replaced previous acting Commissioner Carolyn Colvin and has been substituted as
the defendant in this case pursuant to 42 U.S.C. § 405(g).

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.
1994).
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,
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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.”).
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”).
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:
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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

Klein applied for disability insurance benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. (Act) on March 17, 2013, alleging an onset date
of September 17, 2012. After a hearing, the Administrative Law Judge (ALJ) applied
the familiar five-step evaluation and found that Klein was not disabled as defined in the
Act. Klein argues the ALJ erred in determining that she was not disabled because:
1.

The ALJ failed to properly evaluate the opinions of Klein’s treating
orthopedic surgeon, Dr. Michael Chapman.

2.

The ALJ failed to properly assess Klein’s subjective complaints and
incorporate the functional limitations she claimed into the RFC.

See Doc. No. 13.
Judge Williams addressed each argument separately. With regard to the ALJ’s
evaluation of Dr. Chapman’s opinions, Judge Williams addressed each of Klein’s five
arguments. First, Klein argued that the ALJ’s evaluation was in error because it omitted
an explicit statement of the weight given to Dr. Chapman’s opinions. Id. at 4. Judge
Williams acknowledged that the ALJ failed to explicitly articulate the weight she assigned
to Dr. Chapman’s opinion, but determined:
Remand is not always required, however, where the extent to which the
ALJ considered the opinion is otherwise apparent in the ALJ’s decision and
RFC restrictions. See Alcott v. Colvin, No. 4:13-CV-01074-NKL, 2014
WL 4660364, at *5 (W.D. Mo. Sept. 17, 2014) (finding remand
unnecessary where ALJ discussed the medical opinion, ALJ’s RFC
determination was largely consistent with limitations in the medical source’s
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opinion, and the reason for not adopting one limitation was adequately
explained).
Doc. No. 17 at 10. Judge Williams then noted the similarities between the ALJ’s residual
functional capacity (RFC) assessment and Dr. Chapman’s opinion, stating:
The ALJ restricted claimant to lifting and carrying ten pounds occasionally
and five pounds frequently. AR 20. The ALJ restricted claimant to
standing or walking up to two hours out of an eight-hour day. Id. The ALJ
found claimant could sit for up to six hours a day, instead of Dr. Chapman’s
opinion she could only sit for two hours a day. Id. The ALJ’s assessment
that claimant would need to change postural positions frequently and be able
to stand or walk around for two or three minutes before returning to work
is very similar to Dr. Chapman’s assessment. Id. The ALJ’s assessment
of claimant’s ability to climb, balance, stoop, kneel, crouch or crawl was
substantially the same as Dr. Chapman’s assessment. Id. The ALJ included
additional limitations in her assessment that Dr. Chapman did not, including
the important limitation regarding claimant’s ability to fully use her left
arm.
Id. at 11-12 (footnote omitted). Regarding other limitations assigned by Dr. Chapman
that the ALJ did not incorporate into the RFC, Judge Williams found no error, stating:
Dr. Chapman did not rely on any medical findings, records, or work history
in arriving at this conclusion, or explain how he determined the number of
days claimant would have to be absent. An ALJ is not required to give any
weight to medical opinions when the source does not support them with
clinical evidence or analysis based on the medical records or examinations.
Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003).
Id. at 12.
Second, Klein alleged that the ALJ erred by giving no weight to Dr. Chapman’s
opinion that she “would not even be able to perform a sedentary job.” Doc. No. 13 at
4. In determining that the ALJ did not err in rejecting Dr. Chapman’s opinion that Klein
was limited to sedentary work, Judge Williams stated:
The ALJ could properly disregard this portion of Dr. Chapman’s opinion
because it is not a medical opinion; rather, it is opinion regarding
employability that is for the Commissioner alone to make. See, e.g.,
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Perkins, 648 F.3d at 898 (medical source’s opinion that claimant was
“disabled or cannot be gainfully employed gets no deference because it
invades the province of the Commissioner to make the ultimate disability
determination.”) (internal quotation marks and citation omitted); Davidson
v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009) (“[A] treating physician’s
opinion that a claimant is ‘disabled’ or ‘unable to work,’ does not carry
‘any special significance,’ because it invades the province of the
Commissioner to make the ultimate determination of disability.”) (citation
and internal citation omitted); Ellis v. Barnhart, 392 F.3d 988, 994 (8th
Cir. 2005) (“A medical source opinion that an applicant is ‘disabled’ or
‘unable to work,’ however, involves an issue reserved for the
Commissioner and therefore is not the type of ‘medical opinion’ to which
the Commissioner gives controlling weight.”); Hayes v. Astrue, No. 2:11CV-04132, 2012 WL 393406 at *6 (W.D. Mo. Feb. 6, 2012) (finding that
the ALJ properly rejected a medical source’s opinion that the claimant was
limited to sedentary work because that was a determination reserved for the
Commissioner).
Doc. No. 17 at 13-14.
Third, Klein alleged that the ALJ failed to properly consider the factors for
reviewing evidence from medical sources as required by 20 C.F.R. § 404.1527. Doc.
No. 13 at 5. Judge Williams rejected this argument, stating:
The ALJ clearly took into account that Dr. Chapman was an orthopedic
surgeon who treated claimant since at least April 2014. AR 24-26. The
ALJ also considered not only Dr. Chapman’s medical records, but the
medical evidence as a whole. AR 21-27. Although the Commissioner’s
brief does, to some degree, rely on portions of the record not specifically
cited by the ALJ in her decision, I do not find it is either a case of post hoc
justification or cherry picking of the record. Rather, a review of the record
as a whole shows there was substantial evidence supporting a finding that
claimant’s impairments were not as severe as either she or Dr. Chapman
claimed.
Doc. No. 17 at 14.
Fourth, Klein argued that the ALJ improperly rejected certain findings by Dr.
Chapman on grounds that those findings were mere statements of Klein’s subjective
complaints. Doc. No. 13 at 6-8. Judge Williams determined that the ALJ did not reject
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Dr. Chapman’s opinions, but instead permissibly discounted the weight afforded to
subjective complaints, stating:
First, to be clear, I do not find the ALJ “rejected” Dr. Chapman’s opinion
as claimant alleges. As noted above, the ALJ’s residual functional capacity
assessment is substantially similar to Dr. Chapman’s opinion of claimant’s
limitations. Second, I find support in the record for the ALJ’s conclusion
that Dr. Chapman appeared to have accepted claimant’s subjective
complaints uncritically. As the Commissioner points out, the limitations
Dr. Chapman listed mirror claimant’s self-reported limitations. AR 61922. An ALJ may properly discount the weight afforded a medical source’s
opinion when it appears it was largely based on the claimant’s subjective
complaints. See Kirby, 500 F.3d at 709 (holding that an ALJ “was entitled
to give less weight to [a medical source’s] opinion, because it was based
largely on [the claimant’s] subjective complaints rather than on objective
medical evidence.”).
Doc. No. 17 at 15-16.
Fifth, Klein argued that the ALJ erred in giving too great a weight to the state
agency reviewing physicians’ opinions.

Doc. No. 13 at 6-8.

Judge Williams

acknowledged that although the opinions of state agency reviewing physicians do not by
themselves constitute substantial evidence to support the ALJ’s decision, nothing
precludes an ALJ from assigning great weight to those opinions:
Importantly, the ALJ considered the medical record as a whole, and her
assessment of the state agency reviewing physicians’ opinions was just a
part of that review. An ALJ does not err when she considers the opinion
of a state agency medical consultant, along with the medical evidence as a
whole, in reaching her decision. Casey v. Astrue, 503 F.3d 687, 694 (8th
Cir. 2007) (“The ALJ did not err in considering the opinion of [a state
agency reviewing physician] along with the medical evidence as a whole.”).
Therefore, although the opinions of the state agency reviewing physicians
could not, by themselves, constitute substantial evidence to support the
ALJ’s decision, the ALJ’s consideration of those opinions, along with all
the other medical evidence, does not detract from the substantial evidence
supporting the ALJ’s decision.
Doc. No. 17 at 17-18.
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Klein made three arguments regarding the ALJ’s assessment of her subjective
complaints, which Judge Williams rejected. Doc. No. 13 at 8-14. First, Klein argued
that the ALJ failed to make express findings with regard to all of her subjective
allegations. Id. at 9. Judge Williams determined that an ALJ is not required to make an
express credibility finding with regard to all of a claimant’s subjective allegations and,
therefore, failing to do so was not error:
“An ALJ may discount a claimant’s subjective complaints if there are
inconsistencies in the record as a whole.” Van Vickle v. Astrue, 539 F.3d
825, 828 (8th Cir. 2009) (citations omitted). The ALJ does not need to
discuss each Polaski factor as long as he or she “acknowledges and
considers the factors before discounting a claimant’s subjective
complaints.” Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009) (citations
and internal quotation marks omitted).
Doc. No. 17 at 19. Judge Williams further stated:
Claimant cites Ricketts v. Sec’y of Health & Human Servs., 902 F.2d 661
(8th Cir. 1990) for the proposition that an “ALJ must make an express
credibility finding regarding all of the claimant’s allegations.” Doc. 13, at
9 (emphasis claimant’s). That is not the holding of Ricketts, however.
Rather, in Ricketts, the court remanded the case and instructed the ALJ to
“compare all Ricketts’ impairments, including credible subjective
complaints, with the demands of operating an elevator in determining
whether Ricketts can perform his past work.” Ricketts, 902 F.2d at 664.
The Ricketts Court did not announce a rule that ALJs must expressly make
a credibility finding on each and every subjective complaint.
Id. at 19-20. Judge Williams also emphasized Klein’s work history:
[T]he fact a claimant worked despite impairments may also be seen as
indicating the claimant is not as disabled as alleged. See, e.g., Van Vickle,
539 F.3d at 830 (ALJ may discount credibility if claimant continues to work
despite alleging disabling limitations); Dodson v. Chater, 101 F.3d 533,
534 (8th Cir. 1996) (finding the ALJ’s decision to discount credibility of
claimant’s subjective complaints valid in part because claimant continued to
work despite impairments); Dixon v. Sullivan, 905 F.2d 237, 238-39 (8th
Cir. 1990) (upholding ALJ’s credibility finding based in part on the fact
claimant continued to work despite alleged impairments and lost his job
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only because of his use of marijuana and not because he could not perform
the job). Ultimately, this is within the zone of choice afforded an ALJ to
determine whether work history supports or detracts from a claimant’s
credibility and it is not for this Court to second guess that assessment where
there are, as here, adequate grounds for the ALJ to reach that credibility
conclusion.
Id. at 20-21 (footnote omitted).
Second, Klein argued that the ALJ erred in considering the fact that she smoked.
Doc. No. 13 at 11. Judge Williams found that the ALJ did not err in this respect, stating:
The ALJ did not find claimant was barred from benefits because she failed
to stop smoking. Rather, the ALJ found claimant’s failure to stop smoking,
despite repeated instructions from medical providers that it impacted her
treatment, as detracting from her credibility. This is permissible. See,
e.g., Mouser, 545 F.3d at 638 (the ALJ appropriately considered claimant’s
failure to stop smoking in making his credibility determination); Strickland
v. Barnhart, 143 Fed. App’x 726, 726 (8th Cir. 2005) (same)
(unpublished); Wheeler, 224 F.3d at 895 (finding it proper for ALJ to
consider claimant’s continued smoking, despite doctor’s orders to stop, in
assessing credibility); but see O’Donnell v. Barnhart, 318 F.3d 811, 819
(8th Cir. 2003) (failure to stop smoking does not show claimant’s
complaints of disabling pain are not credible where the record shows
claimant participates in physical therapy, nerve epidural blocks,
medication, and other procedures to reduce pain).
Doc. No. 17 at 21.
Third, Klein argued that the ALJ erred by not including all her subjective
complaints in the RFC. Doc. No. 13 at 12-14. Judge Williams found no error, stating:
An ALJ “is not required to believe every allegation of disabling
[symptoms], or else disability benefits would be available for the asking, a
result plainly contrary” to the law. Molina v. Astrue, 674 F.3d 1104, 1112
(9th Cir. 2012) (quotation and internal quotation marks omitted). See also
Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (holding “the ALJ
was not required to believe all of [claimant’s] assertions concerning those
daily activities.”). In the end, it is not for a reviewing court to disturb an
ALJ’s credibility finding where it is clear the ALJ has considered the record
and has articulated good reasons for it. Pena v. Chater, 76 F.3d 906, 908
9

(8th Cir. 1996) (“We will not disturb the decision of an [administrative law
judge] who seriously considers, but for good reasons explicitly discredits,
a claimant’s testimony of disabling pain.” (quoting Browning, 958 F.2d at
821) (alterations in original)).
Doc. No. 17 at 21-22.
IV.

DISCUSSION

Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Williams applied the appropriate legal standards in concluding the ALJ committed
no error in (1) evaluating the opinions of claimant’s treating orthopedic surgeon, Dr.
Michael Chapman and; (2) assessing claimant’s subjective complaints and ultimately not
incorporating claimant’s claimed functional limitations into the RFC. Therefore, I find
no error – clear or otherwise – in his recommendation. Rather, I agree that the ALJ’s
decision was supported by substantial evidence in the record. 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. 17) without modification. See
28 U.S.C. § 636(b)(1).

2.

Pursuant to Judge Williams’ recommendation:
a.

The Commissioner’s determination that claimant was not disabled is
affirmed.

b.

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

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IT IS SO ORDERED.
DATED this 2nd day of June, 2017.

__________________________
Leonard T. Strand, Chief Judge

11