Figgins v. Commissioner of Social Security
MEMORANDUM OPINION and ORDER: Declining to Adopt 15 Report and Recommendation: The Commissioner's decision is affirmed: The Clerk shall enter judgment in favor of the Commissioner and against Figgins. Signed by Judge Mark W Bennett on 04/29/14. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
No. C 13-3022-MWB
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER REGARDING REPORT AND
TABLE OF CONTENTS
Procedural Background ........................................................... 2
ALJ’s Determinations .............................................................. 2
Judge Strand’s R&R ............................................................... 9
ANALYSIS ................................................................................. 10
Standard of Review ............................................................... 10
The Commissioner’s Objection ................................................. 15
Figgins’s Objection ............................................................... 18
CONCLUSION ............................................................................ 22
This case is before me on a Report and Recommendation (R&R) from Judge
Leonard Strand, filed on January 2, 2014 (docket no. 15). In the R&R, Judge Strand
recommends that I reverse and remand a decision by the Commissioner of Social Security
(the Commissioner) denying plaintiff Charity Figgins (Figgins) disability benefits under
Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq.
Commissioner and Figgins have timely filed objections to the R&R (docket nos. 16 and
17). For the reasons discussed below, I decline to adopt the recommendations in the
R&R, and, instead, affirm the Commissioner’s decision.
Judge Strand summarized this case’s procedural background:
[Figgins] protectively filed her applications for [benefits] on
November 5, 2010. AR 11. The applications were denied
initially and on reconsideration. Id. Figgins then requested a
hearing, which was conducted May 14, 2012, by
Administrative Law Judge (ALJ) John Sandbothe. Id. Figgins
testified during the hearing, as did her counselor and a
vocational expert (VE). AR 30-59. The ALJ issued a decision
denying Figgins’s application on June 13, 2012. AR 11-21.
On February 20, 2013, the Appeals Council denied Figgins’s
request for review. AR 1-3. As such, the ALJ’s decision is
the final decision of the Commissioner. AR 1; see also 20
C.F.R. §§ 404.981, 416.1481.
On April 16, 2013, Figgins commenced an action in [federal]
court seeking review of the ALJ’s decision.
(Docket no. 15, at 2). Judge Strand issued his R&R on January 2, 2014. I must now
decide whether to adopt the recommendation in the R&R in light of the parties’
Neither party objects to Judge Strand’s summary of the ALJ’s determinations in
this case. I therefore adopt the summary from the R&R. The ALJ found:
(1) The claimant meets the insured status requirements of the
Social Security Act through June 30, 2013.
(2) The claimant has not engaged in substantial gainful activity
since November 5, 2010, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).
(3) The claimant has the following severe impairments:
hepatitis C, bipolar disorder, anxiety, obesity, borderline
personality disorder, and history of substance abuse (20 CFR
404.1520(c) and 416.920(c)).
(4) The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926).
(5) After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform medium work as defined in 20 CFR
404.1567(c) and 416.967(c), as she is able to lift or carry 50
pounds occasionally and 25 pounds frequently but is limited
to simple, routine, repetitive work with superficial contact
with the public and no more than a regular pace.
(6) The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
(7) The claimant was born on November 21, 1984 and was 25
years old, which is defined as a younger individual age 1849, on the alleged disability onset date (20 CFR 404.1563 and
(8) The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564 and
(9) Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that the
claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).
(10) Considering the claimant’s age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy that
the claimant can perform (20 CFR 404.1569, 404.1569a,
416.969, and 416.969a).
(11) The claimant has not been under a disability, as defined
in the Social Security Act, from November 5, 2010 through
the date of this decision (20 CFR 404.1520(g) and
(Docket no. 15, at 5-7); AR 13-21.
Judge Strand went on to analyze the ALJ’s findings at each step in the sequential
At Step Two, the ALJ found all of Figgins’s claimed
impairments (hepatitis C, bipolar disorder, anxiety, obesity,
borderline personality disorder, and history of substance
abuse) to be severe, as they cause more than minimal
limitations in her ability to perform work-related activities.
AR 13. At Step Three, the ALJ found that none of Figgins’s
impairments, individually or in combination, met or equaled
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. AR 14. With regard to the physical impairments
of hepatitis C and obesity, the ALJ noted that no evidence
indicates limitations or complications sufficient to satisfy any
listing. Id. Figgins does not challenge this finding.
As for mental impairments, the ALJ stated that he considered
listings 12.04, 12.06, 12.08 and 12.09, and concluded that
Figgins’s impairments do not meet those listings. Id. He first
analyzed the “paragraph B” criteria, noting that to satisfy
these criteria the impairments must cause at least two
“marked” limitations or one “marked” limitation and
“repeated” episodes of decompensation. Id. A “marked”
limitation is one that is more than moderate but less than
extreme. Id. The ALJ found that Figgins had no restrictions
concerning activities of daily living, mild difficulties in social
functioning and moderate difficulties with regard to
concentration, persistence or pace. Id. The ALJ also found
that Figgins had experienced no episodes of decompensation
which have been of extended duration. Id. Therefore, the ALJ
found the paragraph B criteria were not satisfied. AR 15. He
also stated that he had considered the “paragraph C” criteria
and that the evidence failed to establish those criteria, as well.
Id. Figgins does not challenge any of these findings.
At Step Four, the ALJ provided a residual functional capacity
(RFC) assessment and found that Figgins had the RFC to
perform medium work except that she is limited to simple,
routine, repetitive work with superficial contact with the
public and no more than a regular pace. Id. In explaining this
determination, the ALJ first addressed the credibility of
Figgins’s statements concerning the disabling effects of her
impairments. AR 15. He referenced the relevant factors for
weighing a claimant’s credibility and concluded that her
statements were not credible to the extent that they were
inconsistent with his RFC determination. Id. He provided the
following reasons for this finding: (1) Figgins’s allegations of
total disability are inconsistent with the objective medical
evidence, (2) her own statements concerning her activities
indicate that her symptoms are not as severe as alleged, (3)
Figgins’s ability to work on a part-time basis and her efforts
to find full-time employment were inconsistent with her
allegations and (4) the medical opinions, as weighted by the
ALJ, do not support Figgins’s allegations. AR 16-19.
With regard to the medical evidence, the ALJ acknowledged
that it “reflect[s] a long history of depression, bipolar
disorder, borderline personality disorder, and substance use
including methamphetamines, cocaine, marijuana, and
alcohol.” AR 16. He noted, however, that she completed
addiction treatment in August 2010 and that she receives
ongoing therapy to manage her mental health symptoms. Id.
The ALJ pointed out that Figgins’s treating psychiatrist, Dr.
Ramos, managed her symptoms with medication and, in
December 2010, found that she demonstrated a good mood,
full affect, no suicidal or homicidal thoughts and no paranoia.
Id. At the same time, however, Dr. Ramos expressed concern
about Figgins’s use of marijuana. AR 548. Indeed, she had
stopped taking her prescription medication (Risperdal) and
instead was smoking marijuana three times a day, declaring it
to be “the wonder drug.” Id. Dr. Ramos counseled Figgins to
stop using marijuana and prescribed Invega as an alternative.
The ALJ next discussed Figgins’s visits to the emergency
room in January 2011, where she reported anxiety and
feelings of hopelessness and worthlessness. AR 16. Figgins
denied having suicidal ideation but indicated that she was still
smoking marijuana daily. AR 556. After her second visit in
three days she was admitted to the hospital and discharged one
day later. AR 556-66. The Minnesota Multiphasic Personality
Inventory-2 test was administered but produced invalid results
“due to a rather exaggerated response pattern.” AR 564.
The ALJ noted that Figgins was admitted again, this time for
several days, in June 2011. AR 17. This resulted from a
suicide attempt involving an overdose of Tylenol. AR 17,
614, 680-81, 687-90. Upon admission she was having a very
difficult time controlling her emotions but had stabilized
enough to be released five days later. AR 682. She returned
to the emergency room in August 2011, stating that she was
out of her prescription medication and was feeling anxious
and angry. AR 669.
The ALJ next noted that progress reports during 2011 by Dr.
Ramos and Judy Johnson, a nurse practitioner, indicated
Figgins was doing reasonably well while on her medications.
AR 17. By December 2011, Figgins reported that she was
feeling much better and was hoping to be reunited with her
children, who were in foster care. AR 17, 653. She also stated
that she was looking for work and was attending school online
on a full-time basis. AR 17, 654.
As for Figgins’s reports of her daily activities, the ALJ noted
that she acknowledged being able to “do everything at times.”
AR 19. He also described Figgins’s reports that she likes
being around people she knows, cares for her personal
hygiene, prepares meals, shops, performs household chores
and drives a car. Id. In addition, the ALJ noted that Figgins
watches movies and television, takes part in arts and crafts
activities, plays video games with friends and enjoys putting
on makeup and singing. Id. Moreover, by the time of the
hearing Figgins had custody of her children and testified that
her daily activities include taking care of them and going to
the store. AR 19, 41-42.
With regard to opinion evidence, the ALJ first discussed
questionnaires completed by Nurse Johnson in May 2012, in
which she reported that Figgins has difficulty managing stress
in the workplace, has only fair-to-poor work-related abilities
and should be limited to no more than part-time work. AR 17,
716-21. The ALJ found that this opinion was not entitled to
great weight because (a) Nurse Johnson is not an acceptable
medical source and (b) her assessment is not supported by
either the evidence of record or Nurse Johnson’s own
treatment notes. AR 17.
A psychologist, Dr. Harper, provided opinions based on an
evaluation of Figgins in August 2011 regarding her parenting
abilities. Id. He diagnosed major depressive disorder,
generalized anxiety disorder, borderline personality disorder
and marijuana dependence. AR 17, 593-605. Dr. Harper
found that Figgins was not capable of caring for her children
and that she needed intensive mental health treatment. AR
603. He opined that her mental health issues were likely to
interfere with her ability to maintain employment and
recommended that she seek disability benefits. AR 604. The
ALJ determined that Dr. Harper’s opinions were not entitled
to great weight. AR 18. He noted that the evaluation was
conducted to determine Figgins’s parenting abilities, not her
ability to function in the workplace. He also found that Dr.
Harper’s opinion as to Figgins’s ability to work was
inconsistent with the evidence of record. Id.
Dr. Vos, a social worker, saw Figgins for regular therapy
sessions beginning in February 2011. AR 17. In May 2012,
Dr. Vos prepared a written opinion indicating that Figgins has
serious limitations in her ability to function and noting that
Figgins suffered from considerable stress and anxiety while
working part-time for two months. AR 18, 707-09. Like Dr.
Harper, Dr. Vos concluded that Figgins’s mental health
problems would continue to interfere with her ability to be
employed. AR 709. The ALJ found that Dr. Vos’s opinions
were not entitled to great weight. AR 18. He noted that Dr.
Vos’s own records indicated that Figgins was stable and was
making excellent progress. Id. He also found that Dr. Vos’s
opinions were inconsistent with other evidence in the record.
The ALJ then discussed opinions provided by state agency
consultants based on their review of Figgins’s records. A
medical consultant, Dr. Weis, found that Figgins’s physical
impairments of hepatitis C and obesity did not prevent her
from being able to perform medium work. AR 19. Two
psychological consultants, Dr. Wright and Dr. Tashner,
found that Figgins had no more than moderate functional
limitations, including moderate limitations in (a) the ability to
carry out detailed instructions, (b) the ability to work in
coordination with or in proximity to others without becoming
distracted, (c) the ability to complete a workday and
workweek without interruptions from psychological
symptoms and (d) the ability to perform at a consistent pace
without an unreasonable number and length of rest periods.
AR 19, 80- 83, 587. The ALJ found that the opinions of the
psychological consultants were entitled to substantial weight
because they were supported by the medical evidence,
Figgins’s work activities and her daily activities. AR 19.
After determining Figgins’s RFC, he found that the
limitations included in that RFC prevent her from performing
any of her past relevant work. Id. This required the ALJ to
proceed to Step Five and determine whether Figgins is able to
perform other jobs that exist in significant numbers in the
national economy. AR 20. Based on the VE’s answers to
hypothetical questions that incorporated Figgins’s age,
education, work experience and RFC, the ALJ found the
answer to be “yes.” AR 20-21. The VE’s testimony indicated
that Figgins was capable of performing such positions as
laundry worker, marker and housekeeper/cleaner. AR 20, 57.
As such, the ALJ concluded that Figgins was not disabled
within the meaning of the Act. AR 21.
(Docket no. 15, at 7-12) (footnotes omitted).
Judge Strand’s R&R
On judicial review before Judge Strand, Figgins only challenged the ALJ’s
findings regarding her mental impairments. Specifically, Figgins raised three arguments:
“(1) the ALJ improperly evaluated Figgins’s subjective impairments, (2) the [vocational
expert’s (VE’s)] testimony was flawed because it was based on improper hypothetical
questions and (3) the ALJ erred in his weighting of the various medical opinions” (docket
no. 15, at 13). Judge Strand rejected (1) and (3), holding that “the ALJ’s weighting and
analysis of the medical evidence was supported by substantial evidence in the record”
(docket no. 15, at 27), and that the ALJ provided good reasons for discounting Figgins’s
Still, Judge Strand recommends that I reverse and remand this case on a ground
not raised by Figgins—that the ALJ failed to properly develop the record as required by
Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000). Judge Strand held that, under Nevland,
the record in this case is undeveloped because “it does not contain a medical opinion
from an acceptable treating or examining source as to [Figgins’s] mental RFC” (docket
no. 15, at 28). Thus, Judge Strand concluded that “the ALJ failed to fulfill his obligation
to fully and fairly develop the record by neglecting to either (a) obtain a medical opinion
concerning Figgins’s mental RFC from Dr. Ramos, the treating psychiatrist, or—at
least—(b) arranging a consultative psychiatric or psychological examination to obtain
such an opinion” (docket no. 15, at 29).
As for the vocational expert’s testimony, Judge Strand noted that “the ALJ will
have to determine whether it is necessary to obtain additional VE testimony” after reevaluating Figgins’s mental RFC on remand (docket no. 15, at 33).
Standard of Review
I review Judge Strand’s R&R under the statutory standards found in 28 U.S.C. §
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) (2006); see Fed. R. Civ. P. 72(b) (stating identical requirements);
N.D. Ia. L.R. 72, 72.1 (allowing the referral of dispositive matters to a magistrate judge
but not articulating any standards to review the magistrate judge’s report and
recommendation). While examining these statutory standards, the United States Supreme
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, 154 (1985). Thus, a district court may review de novo
any issue in a magistrate judge’s report and recommendation at any time. Id. If a party
files an objection to the magistrate judge’s report and recommendation, however, the
district court must “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). In the absence of an objection, the district court is not required “to give any
more consideration to the magistrate’s report than the court considers appropriate.”
Thomas, 474 U.S. at 150.
De novo review, of course, is nondeferential and generally allows a reviewing
court to make an “independent review” of the entire matter. Salve Regina College v.
Russell, 499 U.S. 225, 238 (1991) (noting also that “[w]hen de novo review is compelled,
no form of appellate deference is acceptable”); see Doe v. Chao, 540 U.S. 614, 620-19
(2004) (noting de novo review is “distinct from any form of deferential review”). The
de novo review of a magistrate judge’s report and recommendation, however, only means
a district court “‘give[s] fresh consideration to those issues to which specific objection
has been made.’” United States v. Raddatz, 447 U.S. 667, 675 (1980) (quoting H.R.
Rep. No. 94-1609, at 3, reprinted in 1976 U.S.C.C.A.N. 6162, 6163 (discussing how
certain amendments affect 28 U.S.C. § 636(b))). Thus, while de novo review generally
entails review of an entire matter, in the context of § 636 a district court’s required de
novo review is limited to “de novo determination[s]” of only “those portions” or
“specified proposed findings” to which objections have been made.
§ 636(b)(1); see Thomas, 474 U.S. at 154 (“Any party that desires plenary consideration
by the Article III judge of any issue need only ask.”). Consequently, the Eighth Circuit
Court of Appeals has indicated de novo review would only be required if objections were
“specific enough to trigger de novo review.” Branch v. Martin, 886 F.2d 1043, 1046
(8th Cir. 1989). Despite this “specificity” requirement to trigger de novo review, the
Eighth Circuit Court of Appeals has “emphasized the necessity . . . of retention by the
district court of substantial control over the ultimate disposition of matters referred to a
magistrate.” Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). As a result, the Eighth
Circuit Court of Appeals has been willing to “liberally construe” otherwise general pro
se objections to require a de novo review of all “alleged errors,” see Hudson v. Gammon,
46 F.3d 785, 786 (8th Cir. 1995), and to conclude that general objections require “full
de novo review” if the record is concise. Belk, 15 F.3d at 815 (“Therefore, even had
petitioner’s objections lacked specificity, a de novo review would still have been
appropriate given such a concise record.”). Even if the reviewing court must construe
objections liberally to require de novo review, it is clear to this court that there is a
distinction between making an objection and making no objection at all. See Coop. Fin.
Assoc., Inc. v. Garst, 917 F. Supp. 1356, 1373 (N.D. Iowa 1996) (“The court finds that
the distinction between a flawed effort to bring objections to the district court’s attention
and no effort to make such objections is appropriate.”). Therefore, I will strive to provide
de novo review of all issues that might be addressed by any objection, whether general
or specific, but will not feel compelled to give de novo review to matters to which no
objection at all has been made.
In the absence of any objection, the Eighth Circuit Court of Appeals has indicated
a district court should review a magistrate judge’s report and recommendation under a
clearly erroneous standard of review. See Grinder v. Gammon, 73 F.3d 793, 795 (8th
Cir. 1996) (noting when no objections are filed and the time for filing objections has
expired, “[the district court judge] would only have to review the findings of the
magistrate judge for clear error”); Taylor v. Farrier, 910 F.2d 518, 520 (8th Cir. 1990)
(noting the advisory committee’s note to Fed. R. Civ. P. 72(b) indicates “when no timely
objection is filed the court need only satisfy itself that there is no clear error on the face
of the record”); Branch, 886 F.2d at 1046 (contrasting de novo review with “clearly
erroneous standard” of review, and recognizing de novo review was required because
objections were filed). The United States Supreme Court has stated that the “foremost”
principle under the “clearly erroneous” standard of review “is that ‘[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)). Thus, the clearly
erroneous standard of review is deferential, see Dixon v. Crete Medical Clinic, P.C., 498
F.3D 837, 847 (8th Cir. 2007) (noting a finding is not clearly erroneous even if another
view is supported by the evidence), but a district court may still reject the magistrate
judge’s report and recommendation when the district court is “left with a definite and
firm conviction that a mistake has been committed.” U.S. Gypsum Co., 333 U.S. at 395.
Even though some “lesser review” than de novo is not “positively require[d]” by
statute, Thomas, 474 U.S. at 150, Eighth Circuit precedent leads me to believe that a
clearly erroneous standard of review should generally be used as the baseline standard to
review all findings in a magistrate judge’s report and recommendation that are not
objected to or when the parties fail to file any timely objections, see Grinder, 73 F.3d at
795; Taylor, 910 F.2d at 520; Branch, 886 F.2d at 1046; see also Fed. R. Civ. P. 72(b)
advisory committee’s note (“When no timely objection is filed, the court need only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.”). In the context of the review of a magistrate judge’s report and
recommendation, I believe one further caveat is necessary: a district court always
remains free to render its own decision under de novo review, regardless of whether it
feels a mistake has been committed. See Thomas, 474 U.S. at 153-54. Thus, while a
clearly erroneous standard of review is deferential and the minimum standard appropriate
in this context, it is not mandatory, and I may choose to apply a less deferential standard.1
The Eighth Circuit Court of Appeals, in the context of a dispositive matter originally
referred to a magistrate judge, does not review a district court’s decision in similar
fashion. The Eighth Circuit Court of Appeals will either apply a clearly erroneous or
plain error standard to review factual findings, depending on whether the appellant
originally objected to the magistrate judge’s report and recommendation. See United
States v. Brooks, 285 F.3d 1102, 1105 (8th Cir. 2002) (“Ordinarily, we review a district
Here, both the Commissioner and Figgins have objected to some of Judge Strand’s
findings. Although I will review these findings de novo, and Judge Strand’s other
findings for clear error, I review the Commissioner’s decision to determine whether the
correct legal standards were applied and “whether the Commissioner’s findings are
supported by substantial evidence in the record as a whole.” Page v. Astrue, 484 F.3d
1040, 1042 (8th Cir. 2007) (citing Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999)).
Under this deferential standard, “[s]ubstantial evidence is less than a preponderance but
court’s factual findings for clear error . . . . Here, however, the record reflects that [the
appellant] did not object to the magistrate’s report and recommendation, and therefore
we review the court’s factual determinations for plain error.” (citations omitted)); United
States v. Looking, 156 F.3d 803, 809 (8th Cir. 1998) (“[W]here the defendant fails to
file timely objections to the magistrate judge’s report and recommendation, the factual
conclusions underlying that defendant’s appeal are reviewed for plain error.”). The plain
error standard of review is different than a clearly erroneous standard of review, see
United States v. Barth, 424 F.3d 752, 764 (8th Cir. 2005) (explaining the four elements
of plain error review), and ultimately the plain error standard appears to be discretionary,
as the failure to file objections technically waives the appellant’s right to appeal factual
findings. See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (stating an appellant
who did not object to the magistrate judge’s report and recommendation waives his or
her right to appeal factual findings, but then choosing to “review the magistrate judge’s
findings of fact for plain error”). An appellant does not waive his or her right to appeal
questions of law or mixed questions of law and fact by failing to object to the magistrate
judge’s report and recommendation. United States v. Benshop, 138 F.3d 1229, 1234
(8th Cir. 1998) (“The rule in this circuit is that a failure to object to a magistrate judge’s
report and recommendation will not result in a waiver of the right to appeal ‘“when the
questions involved are questions of law or mixed questions of law and fact.’” (quoting
Francis v. Bowen, 804 F.2d 103, 104 (8th Cir. 1986), in turn quoting Nash v. Black,
781 F.2d 665, 667 (8th Cir. 1986))). In addition, legal conclusions will be reviewed de
novo, regardless of whether an appellant objected to a magistrate judge’s report and
recommendation. See, e.g., United States v. Maxwell, 498 F.3d 799, 801 n.2 (8th Cir.
2007) (“In cases like this one, ‘where the defendant fails to file timely objections to the
magistrate judge’s report and recommendation, the factual conclusions underlying that
defendant’s appeal are reviewed for plain error.’ We review the district court’s legal
conclusions de novo.” (citation omitted)).
is enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002); see also
Page, 484 F.3d at 1042 (“Substantial evidence is relevant evidence which a reasonable
mind would accept as adequate to support the Commissioner’s conclusion.” (quoting
Haggard, 175 F.3d at 594)). “If, after review, [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 denial of benefits.” Finch v. Astrue,
547 F.3d 933, 935 (8th Cir. 2008) (quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir.
Even if the court would have “‘weighed the evidence differently,’” the
Commissioner’s decision will not be disturbed unless “it falls outside the available ‘zone
of choice.’” Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007) (quoting Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir. 2006)).
The Commissioner’s Objection
The Commissioner objects to Judge Strand’s conclusion that Nevland compels
remand in this case. In Nevland, the Eighth Circuit Court of Appeals noted “that it is
the duty of the ALJ to fully and fairly develop the record, even when, as in this case, the
claimant is represented by counsel.” Nevland, 204 F.3d at 857 (citing Warner v. Heckler,
722 F.2d 428, 431 (8th Cir. 1983)). “[T]he ALJ’s duty to develop the record exists
independent of the claimant’s burden in the case.” Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir.2004) (citing Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)). The
court in Nevland held that the ALJ failed to properly develop the record before finding,
at Step 5, that a claimant was not disabled. Nevland, 204 F.3d at 858. Importantly, the
court in Nevland noted that
there is no medical evidence about how [the claimant’s]
impairments affect his ability to function now. The ALJ relied
on the opinions of non-treating, non-examining physicians
who reviewed the reports of the treating physicians to form
an opinion of [the claimant’s] RFC. In our opinion, this does
not satisfy the ALJ’s duty to fully and fairly develop the
Id. Based on the lack of medical evidence, the court in Nevland remanded the case,
holding that “the ALJ should have sought  an opinion from [the claimant’s] treating
physicians or, in the alternative, ordered consultative examinations, including psychiatric
and/or psychological evaluations to assess [the claimant’s] mental and physical residual
functional capacity.” Id.
I have applied Nevland to reverse and remand cases in which there is little medical
evidence related to a claimant’s ability to function in the workplace. See, e.g., AlHameed v. Colvin, No. C 13-3009-MWB, 2013 WL 6858427, at *16 (N.D. Iowa Dec.
30, 2013) (remanding, under Nevland, where the record “contain[ed] insufficient
evidence of the nature and severity of [a claimant’s] impairments during the relevant
period of time, including her symptoms, diagnosis and prognosis, what she is capable of
doing despite the impairments, and the resulting restrictions” (internal quotation marks
omitted)); Hattig v. Colvin, No. C 12-4092-MWB, 2013 WL 6511866, at *11 (N.D.
Iowa Dec. 12, 2013) (same).
But, Nevland does not compel remand in every case that lacks a medical opinion
from a treating physician. “While the ALJ has an independent duty to develop the record
in a social security disability hearing, the ALJ is not required ‘to seek additional clarifying
statements from a treating physician unless a crucial issue is undeveloped.’” Goff v.
Barnhart, 421 F.3d 785, 791 (8th Cir. 2005) (quoting Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir. 2004)) (emphasis added). “[A]n ALJ is permitted to issue a decision
without obtaining additional medical evidence so long as other evidence in the record
provides a sufficient basis for the ALJ’s decision.” Naber v. Shalala, 22 F.3d 186, 189
(8th Cir. 1994). A claimant’s records need not explicitly discuss work-related limitations,
as long as the records describe the claimant’s “functional limitations with sufficient
generalized clarity to allow for an understanding of how those limitations function in a
work environment.” Cox v. Astrue, 495 F.3d 614, 620 n.6 (8th Cir. 2007).
For example, I recently held in Agan v. Astrue, 922 F. Supp. 2d 730, 756 (N.D.
Iowa 2013), that an ALJ properly denied a claimant benefits without first obtaining a
treating doctor’s opinion on the claimant’s work-related limitations. In Agan, “the ALJ’s
RFC assessment [was] supported by substantial evidence in the record,” and “[t]he ALJ
did not rely solely on non-treating doctors to form an opinion on [the claimant’s] RFC.”
Id. at 755. The claimant in Agan claimed a disability based on back pain. Id. at 752.
Unlike in Nevland, the record in Agan contained “medical evidence following [the
claimant’s] last back surgery . . . which indicated that he was ‘doing very well postoperatively.’” Id. at 755. “Physical examinations following [the claimant’s] surgery
indicated normal functioning of his extremities.” Id. The record in Agan even contained
evidence that, after his back surgery, the claimant “was working full-time with no
limitations noted at his follow-up exam.” Id. Based on this record, I found that “[t]he
medical evidence, including physical examination treatment notes from the treating
physicians, provide[d] sufficient support for a finding that [the claimant] was able to
function in the workplace.” Id. at 756. Thus, I held that the ALJ in Agan did not need
to further develop the claimant’s medical record. Id.
Based on these standards, Nevland does not compel remand here. Unlike Nevland,
this is not a case in which there is “no medical evidence” related to Figgins’s mental
RFC. To the contrary, as Judge Strand noted, “the record in this case contains a rather
unique array of evidence concerning Figgins’s mental impairments” (docket no. 15, at
28). In particular, the ALJ reviewed progress notes or opinions from Ramos, Johnson,
Vos, and Harper—all of whom treated or evaluated Figgins—discussing Figgins’s mental
impairments. Many of these records (referenced in more detail below) explicitly discuss
Figgins’s employability, while others “allow for an understanding of how [Figgins’s]
limitations function in a work environment.” Cox, 495 F.3d at 620 n.6. While the ALJ
ultimately discounted some of the treating caretakers’ opinions, the ALJ did not do so on
an undeveloped record. In fact, as is discussed below, the ALJ was able to discount
Vos’s, Johnson’s, and Harper’s opinions because the record contained treatment records
that conflicted with their disability opinions. Thus, like in Agan, “[t]he medical evidence,
including . . . treatment notes from the treating physicians [and other caretakers],
provide[d] sufficient support for” the ALJ’s findings, such that the ALJ was not required
to further develop the record. Agan, 922 F. Supp. 2d at 756. Remand under Nevland is
Figgins objects to Judge Strand’s finding “that the ALJ’s decision is supported by
substantial evidence in the record as a whole, specifically as to the weight given to the
various treating sources’ opinions (docket no. 17, at 2). Figgins argues that the ALJ
improperly discounted Vos’s, Johnson’s, and Harper’s opinions in favor of opinions from
state agency psychological consultants. Interestingly, Figgins concedes that “[i]f one
only looks at each report individually and without considering the supporting evidence
from all the other sources, one might reach the decision reached by the ALJ” (docket no.
17, at 5). But Figgins argues that, “when looking at the entire picture the evidence
supporting [Figgins’s] claim is overwhelming [because] [t]here is a consistent opinion
among those who have treated [Figgins], examined her or supervised her that she is
simply not capable of performing competitive work”(docket no. 17, at 5). In short,
Figgins argues that the record as a whole is greater than the sum of its parts—that, while
the ALJ might have a sufficient basis to discount Vos’s, Johnson’s, and Harper’s opinions
individually, the alleged consensus among treating sources is reason to reverse the ALJ’s
In their objections, the parties do not dispute that Vos’s, Johnson’s, and Harper’s
opinions are not entitled to controlling weight because Vos and Johnson are not
“acceptable medical sources” and Harper, who is an acceptable medical source, is not a
“treating source.” Under social security regulations, Vos, a social worker, and Johnson,
a nurse, are considered “other sources.” See Sloan v. Astrue, 499 F.3d 883, 888 (8th
Cir. 2007) (noting that social workers and nurse practitioners are “other sources” (citing
20 C.F.R. §§ 404.1513(d), 416.913(d)). The ALJ
generally should explain the weight given to opinions from
these “other sources,” or otherwise ensure that the discussion
of the evidence in the determination or decision allows a
claimant or subsequent reviewer to follow the adjudicator’s
reasoning, when such opinions may have an effect on the
outcome of the case.
SSR 06-03p; 71 Fed. Reg. 45593-03, 45596 (Aug. 9, 2006). But “[i]nformation from
these ‘other sources’ cannot establish the existence of a medically determinable
impairment . . . there must be evidence from an ‘acceptable medical source’ for this
purpose.” Sloan, 499 F.3d at 888 (quoting SSR 06-03p). While Harper is an acceptable
medical source, Figgins concedes that Harper is not a treating source. Thus, Harper’s
opinion is not—and cannot be—entitled to controlling weight. SSR 96-2P (July 2, 1996)
(“Although opinions from other acceptable medical sources may be entitled to great
weight, and may even be entitled to more weight than a treating source’s opinion in
appropriate circumstances, opinions from sources other than treating sources can never
be entitled to ‘controlling weight.’”).
Based on these standards, Judge Strand concluded that the ALJ offered sufficient
reasons to discount Vos’s, Johnson’s, and Harper’s opinions in favor of the agency
consultants’ opinions. Judge Strand noted the evidence supporting the ALJ’s decision to
discount Vos’s opinion:
Over approximately one year of repeated interactions, Dr.
Vos’s treatment notes reflected consistent progress and
improvements. AR 607-46. When supporting Figgins’s effort
to regain custody of her children, Dr. Vos spoke positively of
Figgins’s successful efforts to obtain employment. AR 646.
She then continued to report positive progress for the next two
months. AR 644. After Figgins’s children were returned,
however, Dr. Vos wrote an opinion in support of Figgins’s
application for disability benefits stating that Figgins’s mental
health problems would interfere with her employability. AR
There is no evidence that Figgins’s work performance at Kraft
was deficient or that she was otherwise at risk of being
discharged due to performance or attendance issues. Nor, as
noted above, is there any indication in Dr. Vos’s own
contemporaneous treatment notes suggesting that Figgins was
struggling with the stresses of working and caring for
children. Under these circumstances, it was not unreasonable
for the ALJ to question the credibility of Dr. Vos’s opinions.
Frankly, one could easily conclude that those opinions
changed over a very short period of time to fit the differing
purposes for which they were offered.
(Docket no. 15, at 20-21). Judge Strand also noted the evidence supporting the ALJ’s
decision to discount Johnson’s opinion:
Nurse Johnson’s treatment notes from late 2011 and early
2012 reflect progress and improvements. For example, a
progress report in December 2011 stated that Figgins was
doing “much better,” was looking for work and was in the
process of attempting to re-gain custody of her children. AR
653-54. The record contains no intervening progress reports
from Nurse Johnson that suggest the limitations she described
in the opinions she issued in May 2012.
(Docket no. 15, at 22). Finally, Judge Strand noted the evidence supporting the ALJ’s
decision to discount Harper’s opinion:
Dr. Harper’s written report, while extensive, does not
specifically address Figgins’s employment-related abilities
and restrictions. AR 597-605. This is not surprising in light
of the fact that the evaluation was not conducted for that
purpose. Indeed, Figgins’s brief does not cite to any specific
opinion by Dr. Harper that the ALJ should have adopted,
other than his conclusion that Figgins’s mental health issues
would interfere with her successful employment. Doc. No. 11
As noted above, however, an opinion that an applicant is not
able to work is not a medical opinion. [Ellis v. Barnhart, 392
F.3d 988, 994 (8th Cir. 2005)]. Thus, the ALJ was not
required to consider Dr. Harper’s conclusion that Figgins’s
mental health issues will “probably” interfere with successful
employment. Instead, the ALJ was required to give
consideration to any opinions as to the nature and severity of
Figgins’s impairments, including symptoms, diagnosis and
prognosis, what she was capable of doing despite her
impairments, and the resulting restrictions. 20 C.F.R. §§
404.1527(a)(2) and 416.927(a)(2). To the extent Dr. Harper’s
report does describe restrictions that might translate to the
workplace, the ALJ did not ignore those restrictions. For
example, Dr. Harper noted that Figgins has limited social
skills that may contribute to “awkward, inept or inappropriate
management of interpersonal relationships.” AR 602. The
ALJ, in determining Figgins’s RFC, found that she is limited
“to simple, routine, repetitive work with superficial contact
with the public and no more than a regular pace.” AR 15.
(Docket no. 15, at 23-24).
Figgins’s objection does not respond with particularity to the ALJ’s, or Judge
Strand’s, reasons for discounting these opinions. Rather, Figgins essentially argues that
the consensus between Vos, Johnson, and Harper is sufficient to warrant reversing the
Commissioner’s decision. Figgins also points to the consistency between Vos’s hearing
testimony and earlier opinion, Johnson’s long treatment relationship with Figgins, and
the results of Harper’s “full range of psychological testing” as evidence that the ALJ
should have given these sources’ opinions more weight. At best, Figgins provides
reasons why the ALJ could have given these sources more weight. But my review here
is limited to determining whether substantial evidence supports the ALJ’s decision, not
whether there is evidence that could support a different conclusion. Van Vickle v. Astrue,
539 F.3d 825, 828 (8th Cir. 2008).
“[T]he fact that [Figgins] can point to some
contradictory evidence in the record does not lead to a conclusion that the ALJ’s decision
is not supported by substantial evidence.” Id. at 829. This is especially true here, where
none of the opinions relied on by Figgins are entitled to controlling weight. Because I
agree with Judge Strand that the ALJ provided sufficient reasons, supported by substantial
evidence, for discounting Vos’s, Johnson’s, and Harper’s opinions in favor of the agency
consultants’ opinions, I conclude that remand based on Figgins’s objection is
For the reasons discussed above, I decline to adopt the recommendations in the
R&R. The Commissioner’s decision is affirmed. The Clerk shall enter judgment in
favor of the Commissioner and against Figgins.
IT IS SO ORDERED.
DATED this 29th day of April, 2014.
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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