Ramaekers v. Commissioner of Social Security
Filing
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MEMORANDUM OPINION AND ORDER Accepting 13 Report and Recommendations recommending that Commissioner's determination that Irvin was not disabled is reversed and remanded to the Commissioner of Social Security pursuant to sentence four of 42 U.S.C. Section 405(g). Signed by Judge Leonard T Strand on 3/10/16. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
JOSEPH E. RAMAEKERS,
No. C15-3004-LTS
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
MEMORADUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION
Defendant.
___________________________
I.
INTRODUCTION
This case is before me on a Report and Recommendation (R&R) filed on
November 12, 2015, by the Honorable Jon Stuart Scoles, Chief United States Magistrate
Judge. See Doc. No. 13. Judge Scoles recommends that I reverse the decision by the
Commissioner of Social Security (the Commissioner) and remand the case pursuant to
sentence four of 42 U.S.C. § 405(g). Neither party objected to Judge Scoles’ R&R.
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 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 which 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.
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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:
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
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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
Ramaekers applied for Title II disability insurance benefits. Ramaekers alleged
disability based upon post-fusion cervical spine and deep vein thrombosis of the lower
right extremity. After a hearing, an Administrative Law Judge (ALJ) applied the familiar
five-step evaluation and found that Ramaekers could work jobs that exist in significant
numbers in the national economy. (Making this a step five case.) In his complaint and
brief before this court, Ramaekers argued that the ALJ made two errors.
First,
Ramaekers argued that the ALJ failed to properly evaluate his subjective allegations of
pain and physical disability.
Second, Ramaekers argued that the ALJ’s residual
functional capacity (RFC) evaluation failed to incorporate relevant evidence from the
treating medical providers.
Judge Scoles found that the ALJ’s decision that Ramaekers was not disabled was
not supported by substantial evidence and, therefore, recommended that it be reversed
and remanded. Doc. No. 13. Specifically, Judge Scoles reviewed the ALJ’s evaluation
of Ramaekers’ subjective complaints under the appropriate legal standard and found that:
The ALJ also addressed some of the Polaski factors and explained
her reasoning for finding Ramaekers’ subjective allegations of
disability less than credible. Under such circumstances, the Court
would normally affirm the ALJ’s credibility determination. The
Court is reluctant to affirm the ALJ’s credibility determination in
this instance, however, because the ALJ’s decision lacks full
consideration of the entire record. For example, in the area of
activities of daily living, the ALJ determined that Ramaekers is
‘capable of preparing meals, and performing house and yard work.’
However, in his Function Reports for the Social Security
Administration, Ramaekers stated that he only makes simple
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lunches, like cooking a frozen pizza, and does no other cooking.
Nowhere in the record does Ramaekers indicate that he is capable of
performing any type of housework. As for yard work, Ramaekers
stated that he mows the law incrementally with breaks on a riding
lawnmower due to cramping and neck pain. Similarly, while
Ramaekers indicated that he was capable of driving, he stated that
he could only drive short distances, and generally lets his wife drive
him places. He further stated that he does no shopping on his own,
and if he goes shopping with his wife, he stays in the car while she
goes into the store. The Court believes that Ramaekers’ ability ‘to
engage in some life activities, however, does not support a finding
that [he] retains the ability to work.’ Forehand v. Barnhart, 364
F.3d 984, 988 (8th Cir. 2004).
Doc. No. 13, p. 16-17.
Judge Scoles also found that the ALJ improperly
discounted some medical evidence, stating:
The only examining physician, Dr. Scher, found that Ramaekers had
‘significant’ restriction of cervical motion. He also had some
restrictions in the lower pelvic girdle and lower extremities. Dr.
Scher also found ‘significant’ loss of grip strength in his left hand,
and ‘some diminution’ in his right hand.
Ramaekers also
demonstrated ‘decreased muscular strength in his left upper
extremity as well as in his right lower extremity.’ Dr. Scher
diagnosed Ramaekers with: (1) status post-operative cervical fusion
with ‘significant’ loss of range of motion of the neck and persistence
of cervicalgia; (2) residual left upper extremity weakness secondary
to prolonged cervical nerve compression preoperatively; (3) history
of factor V deficiency; and (4) leg pain and swelling secondary to
deep venous thrombosis. In evaluating Dr. Scher’s opinions, the ALJ
granted little weight because ‘the findings are simply not consistent
with previous orthopedic exams, and there is little objective medical
evidence that would indicate worsening of [Ramaekers’] condition.
In fact, most objective evidence ... indicates normal findings. (Ex.
12F).’ The Court finds two problems with the ALJ’s rejection of
Dr. Scher’s opinions. First, the ALJ does not address the orthopedic
exams or objective medical evidence that are allegedly inconsistent
with Dr. Scher’s opinions. Second, the record the ALJ cites in her
decision, 12F, is Dr. Scher’s opinion, not objective medical evidence
indicating normal findings that are inconsistent with Dr. Scher’s
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opinions. Moreover, after his hospitalization in January 2011 where
he was diagnosed with DVT, the medical evidence in the record
demonstrates that Ramaekers consistently sought medical treatment
for leg, back, and neck pain and issues with muscle cramping. Thus,
the Court is unpersuaded that the ALJ fully and fairly developed the
record to support a discounting of Ramaekers’ subjective allegations
based on the objective medical evidence.
Doc. No. 13, p. 17-18.1 Judge Scoles concluded:
The Court believes that the ALJ failed to fully and fairly develop the
record with regard to Ramaekers’ credibility, including the opinions
of his examining physician and the objective medical evidence as a
whole. See Cox v. Astrue, 495 F.3d 614, 618 (8th Cir. 2007)
(providing that an ALJ has a duty to develop the record fully and
fairly). Moreover, by failing to fully and fairly develop the record
in this matter, the ALJ’s reasons for discounting Ramaekers’
testimony are not supported by inconsistencies with the record as a
whole. See Wildman, 596 F.3d at 968 (providing that an ALJ may
discount a claimant’s subjective complaints ‘if there are
inconsistencies in the record as a whole’); Finch, 547 F.3d at 935
(same); Lowe, 226 F.3d at 972 (‘The ALJ may not discount a
claimant’s complaints solely because they are not fully supported by
the objective medical evidence, but the complaints may be
discounted based on inconsistencies in the record as a whole.’).
Therefore, the Court recommends that this matter be remanded for
further development of Ramaekers’ credibility determination.
Doc. No. 13, p. 19.
Judge Scoles then considered Ramaekers’ argument that the ALJ
improperly formulated Ramaekers’ RFC. Judge Scoles reviewed the appropriate
legal standard and found that:
[in the previous section], the Court recommended that remand was
necessary because the ALJ failed to fully and fairly develop the
record with regard to Ramaekers’ subjective allegations of pain and
disability. The Court also addressed the need for the ALJ on remand
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Judge Scoles also noted that Ramaekers’ extensive work history supported his claim.
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to fully and fairly develop the record with regard to the objective
medical evidence as a whole, including the opinions of Dr. Scher,
the sole examining physician in this matter. Because the ALJ did
not fully and fairly develop the record with regard to the objective
medical evidence, and failed to properly determine Ramaekers’
credibility, the Court finds that the ALJ's RFC assessment is not
based on all of the relevant evidence. See Guilliams, 393 F.3d at
803. Accordingly, the Court recommends that remand is necessary
in order that the ALJ make her RFC assessment for Ramaekers based
on all the relevant evidence, including the opinions of Dr. Scher, and
Ramaekers’ own testimony of pain and disability.
Doc. No. 13, p. 20-21. Judge Scoles then recommended that the case be remanded
to the ALJ for further consideration consistent with his opinion.
IV.
DISCUSSION
Because the parties did not object to Judge Scoles’ R&R, I review his decision for
clear error. Judge Scoles described and applied the appropriate legal standards when
reviewing the ALJ’s credibility determination and RFC finding. Judge Scoles properly
found that substantial evidence did not support the ALJ’s credibility determination
because the ALJ neither fully considered Ramaekers’ subjective complaints nor Dr.
Scher’s medical evidence. Further, Judge Scoles properly found that because the ALJ’s
credibility determination was flawed, so too was the RFC finding. I find no error – clear
or otherwise. As such, I adopt the R&R in its entirety.
V.
CONCLUSION
For the reasons set forth herein:
1.
I accept Chief United States Magistrate Judge Scoles’ November 12, 2015,
report and recommendation (Doc. No. 13) without modification. See 28
U.S.C. § 636(b)(1).
2.
Pursuant to Judge Scoles’ recommendation:
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a.
The Commissioner’s determination that Irvin was not disabled is
reversed; and
b.
remand this matter to the Commissioner of Social Security pursuant
to sentence four of 42 U.S.C. § 405(g), for further proceedings as
discussed by Judge Scoles.
c.
If Plaintiff 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
ended. 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 10th day of March, 2016.
________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE
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