Corwin v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER Accepting 19 Report and Recommendations to reverse and remand to the Commissioner for further proceedings. Judgment shall enter in favor of Corwin and against the Commissioner. Signed by Judge Leonard T Strand on 1/26/17. (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CAROLYN W. COLVIN, 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.
19. 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. The deadline for such 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).
Corwin applied for disability insurance benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. (Act) on December 28, 2012, alleging she became
disabled on January 1, 2011,1 due to left shoulder problems, cervical spine problems and
mood disorders. After a hearing, an Administrative Law Judge (ALJ) applied the familiar
five-step evaluation and found that Corwin was not disabled as defined in the Act.
Corwin argues the ALJ erred in determining that she was not disabled because:
The ALJ failed to fully and fairly develop the record by not obtaining
treatment records from Dr. Lorne Johnson, the consultative
psychologist who also treated Corwin.
The ALJ’s residual functional capacity (RFC) assessment was not
supported by substantial medical evidence from a treating or
The ALJ’s RFC assessment is flawed because the ALJ discounted
Corwin’s subjective allegations without identifying inconsistencies
in the record as a whole.
See Doc. No. 13. Judge Scoles addressed each argument separately, beginning with
Corwin’s credibility, followed by Dr. Johnson’s opinions and finally, the RFC
With regard to Corwin’s credibility, Judge Scoles found that the ALJ’s decision
“lacks the required detail for discrediting a claimant and explaining the inconsistencies
That onset date was amended to November 1, 2012, at the administrative hearing. See Doc.
No. 9-2 at 75 (Administrative Record at 74).
between the claimant’s subjective allegations and the record as a whole.” Doc. No. 19
at 13. The ALJ’s entire analysis of Corwin’s credibility consisted of the following:
After careful consideration of the evidence, the undersigned finds that
[Corwin’s] medically determinable impairments could reasonably be
expected to cause the alleged symptoms; however, [Corwin’s] statements
concerning the intensity, persistence and limiting effects of these symptoms
are not credible for the reasons explained in this decision.
Id. at 12 (citing Administrative Record at 81-82). The ALJ went on to state that Corwin
“experiences some symptoms and limitations; however, the record does not fully support
the severity of [her] allegations.” Id. (citing Administrative Record at 82). Judge Scoles
noted the ALJ’s decision “provides no reasons for discounting Corwin’s testimony other
than a single generic statement that the record does not support her allegations of pain
and disability.” Id. at 13. He found it lacked full consideration of Polaski v. Heckler,
739 F.2d 1320 (8th Cir. 1984), or any of the Polaski factors. For these reasons, Judge
Scoles recommends remand with instruction for the ALJ to further develop the record
and to provide detailed reasons if the ALJ discounts Corwin’s credibility. Id.
With regard to Dr. Johnson, Judge Scoles noted that the ALJ considered him to
be a consultative examiner and that neither the ALJ, nor Corwin’s attorney at the
administrative hearing, was aware that he was also a treating source. Id. at 14. Corwin
contends that the ALJ failed to fully and fairly develop the record by not obtaining Dr.
Johnson’s treatment records and neglecting to evaluate his opinion as a treating source
opinion. Judge Scoles noted the ALJ gave only “limited weight” to Dr. Johnson’s
assessment of a GAF score of 47, finding only “partial” support for it in the record
without further explanation. Id. at 15. The ALJ also gave “some weight” to Dr.
Johnson’s opinion that Corwin had difficulty with concentration and “no weight” to his
opinion that she had impairments in social interaction and using good judgment. The
ALJ reasoned, “[t]here is nothing in the consultative examination report that would
suggest any limits at all in those areas. [Corwin] is able to respond to minimal changes
that would arise in simple and repetitive work.” Id. at 15-16 (quoting Administrative
Record at 81).
Judge Scoles found that while the ALJ thoroughly evaluated some aspects of Dr.
Johnson’s opinion, he failed to explain his reasoning for other aspects. Id. at 16. For
instance, Dr. Johnson had opined Corwin “has a severe deficit in maintaining attention,
concentration, and particularly pace,” but the ALJ only gave these findings “some”
weight without explaining why. Moreover, the ALJ completely failed to address certain
other findings from Dr. Johnson’s mental status examination of Corwin, which were
consistent with Corwin’s subjective allegations.
For these reasons, Judge Scoles
recommends that on remand, the ALJ should also fully address Dr. Johnson’s opinions,
especially with regard to Corwin’s concentration and fatigue, which he gave “some”
weight to without further explanation. Judge Scoles also recommends that the ALJ and
Corwin’s attorney should work to fully develop the record by obtaining any treatment
records from Dr. Johnson. Id. at 17.
With regard to the RFC assessment, Judge Scoles concluded that because the ALJ
did not fully and fairly develop the record with regard to Corwin’s credibility and Dr.
Johnson’s opinions, the ALJ’s RFC assessment is not based on all of the relevant
evidence. He recommends that the ALJ should revisit the RFC determination after
considering all of the relevant evidence on remand. Id. at 18-19.
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)
properly evaluate Corwin’s subjective allegations, (2) fully and fairly develop the record
and properly consider the opinions of Dr. Johnson and (3) conduct an RFC assessment
based on all of the relevant evidence. Therefore, I find no error – clear or otherwise –
in his recommendation. As such, I adopt the R&R in its entirety.
For the reasons set forth herein:
I accept Judge Scoles’ R&R (Doc. No. 19) without modification. See 28
U.S.C. § 636(b)(1).
Pursuant to Judge Scoles’ recommendation:
The Commissioner’s determination that Corwin was not disabled is
reversed and this matter is remanded to the Commissioner for
further proceedings as discussed by Judge Scoles.
Judgment shall enter in favor of Corwin and against the
If Corwin 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 26th day of January, 2017.
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE
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