Schmidt v. Commissioner of Social Security

Filing 18

MEMORANDUM OPINION AND ORDER Accepting 17 Report and Recommendation which determined the Commissioner's decision that Schmidt was not disabled is reversed and remanded to the Commissioner for further proceedings as described by Judge Williams. Judgment shall enter in favor of Schmidt and against the Commissioner. Signed by Chief Judge Leonard T Strand on 2/21/2017. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
TAMMY JOANNE SCHMIDT,
Plaintiff,

No. C16-3017-LTS

vs.

MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
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. See Doc. No. 17. Judge
Williams 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 objected to the 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 v. Barnhart, 353 F.3d 642, 645 (8th Cir.
2003). 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,
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

Schmidt applied for disability insurance benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. (Act) on March 25, 2013. She alleged that she
became disabled on February 11, 2013, due to asthma, migraines, auto-immune disease,
arthritis, borderline osteoporosis, allergies, Clostridium difficile, high blood pressure,
Graves’ disease, acid reflux and hypothyroidism.

Doc. No. 17 at 1-2 (citing

Administrative Record (AR) at 222). After a hearing, an Administrative Law Judge
(ALJ) applied the familiar five-step evaluation and found that Schmidt was not disabled
as defined in the Act.
Schmidt argues the ALJ erred in determining that she was not disabled because:
1.

Substantial evidence does not support the ALJ’s decision that
Schmidt is able to perform substantial gainful activity including past
work.

2.

The ALJ did not give appropriate weight to the opinions of Schmidt’s
treating physicians.

See Doc. No. 13. After reviewing her arguments, Judge Williams concluded Schmidt
had actually raised four issues: (1) the ALJ failed to give proper weight to opinions of
Schmidt’s treating physicians, (2) she improperly evaluated claimant’s credibility, (3) she
relied upon a flawed opinion by the vocational expert and (4) she improperly determined
Schmidt’s residual functional capacity (RFC) with regard to her physical impairments.
Doc. No. 17 at 8. Judge Williams addressed each of these issues in turn.
With regard to the medical opinions, Judge Williams noted that the ALJ gave
“significant weight” to the opinions of the non-examining state agency medical
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consultants. Id. at 9. The ALJ found that their opinions were reliable because they are
familiar with the disability determination process and they had based their opinions on a
comprehensive review of the record. Id. (citing AR at 21). The ALJ also gave significant
weight to the opinion of treating source Brandt Riley, D.O. Id. The opinions of treating
sources Gary Levinson, M.D., Jamie Brantner, Marcia E. Ring, Ph.D., and Carrie
Lankin were given little to no weight. Id.
The ALJ gave Dr. Levinson’s opinions little weight because they were “not
supported by his own treatment notes” and made legal, rather than medical, conclusions.
Id. She gave Brantner’s opinion little weight because she was not an acceptable medical
source and “her assessment [was] not reasonably supported by the findings of a
contemporaneous examination.” Id. She gave Dr. Ring’s opinion no weight because
none of her treatment records established a medically determinable mental impairment.
Id. Finally, the ALJ gave little weight to Lankin’s recommendation that Schmidt avoid
using stairs because she was not an acceptable medical source and there was no evidence
that Schmidt’s knee pain had persisted. Id.
Schmidt argues that the ALJ should have given more weight to Dr. Levinson’s
opinion. Dr. Levinson specializes in pulmonary medicine and has treated Schmidt since
2005.

Id. at 10.

The ALJ discredited Dr. Levinson’s opinion that Schmidt had

uncontrolled asthma that essentially made her homebound. She noted that Schmidt did
not present with any chronic respiratory abnormalities on exam. Id. at 12 (citing AR at
21). The ALJ also noted that Schmidt was asymptomatic during the overwhelming
majority of appointments, which required her to venture into public. Id. Finally, the
ALJ gave no weight to Dr. Levinson’s statements that Schmidt was disabled and unable
to return to her prior work because these were not medical opinions.
Schmidt argues the ALJ should have accounted for the fact that her condition
improved after Dr. Levinson recommended she quit her job and stay at home to avoid
the airborne irritants she encountered at work. Judge Williams noted the record shows
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Schmidt’s condition worsened in 2011 and 2012, at which time Dr. Levinson prescribed
increasing dosages of steroids and other medication that carried adverse side effects. Id.
(citing AR at 28-40, 402-441, 501, 509, 642). Schmidt took many hours of sick leave
during this time due to her breathing problems. Id. (citing AR at 40-41, 260). Judge
Williams noted that the record reflects that Dr. Levinson had advised Schmidt to quit her
job to avoid exposure to irritants. Id. (citing AR at 580). The record also supports her
assertion that her condition improved after she left her employment and stayed at home
to limit her exposure to irritants. Id. at 12-13 (citing AR at 42, 567, 570).
Judge Williams concluded that the ALJ failed to provide good reasons for
discounting Dr. Levinson’s opinion in light of the medical records. First, he noted that
the ALJ failed to address the change in symptoms after Schmidt left employment.
Second, he did not find Schmidt’s ability to attend doctor’s appointments to be noteworthy
because “there is an obvious, significant difference between the claimant’s relatively brief
exposure to irritants when attending a doctor’s appointment and the exposure she would
have working daily in an environment where she interacted with customers.” Id. at 13.
Finally, Judge Williams noted that the opinion’s consistency with the medical records is
only one factor the ALJ should consider in determining its weight.

He found the

remaining factors (whether the source had examined and/or treated the claimant and to
what extent, whether the opinion relies on probative evidence and provides a persuasive
rationale, the source’s specialization and the source’s familiarity with the Commissioner’s
standards and the extent to which the source is familiar with the case record) all supported
giving greater weight to Dr. Levinson’s opinion. Ultimately, Judge Williams concluded
that the ALJ erred in assigning little weight to Dr. Levinson’s opinion given that he is a
pulmonary specialist who has treated Schmidt for years.
Judges Williams then addressed the ALJ’s credibility determination. He noted
that the ALJ stated she was “not persuaded by the claimant’s reportedly extreme
limitations with regard to her activities of daily living because those assertions lack
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objective support and because she is a self-described ‘homemaker.’” Id. at 15 (quoting
AR at 20). Judge Williams concluded this was not a good, detailed reason for discrediting
Schmidt’s subjective allegations. Id. at 16. He noted that the ALJ did not acknowledge
the medically-documented change in Schmidt’s functionality after she stopped working
and limited her exposure to irritants. The ALJ also failed to discuss Schmidt’s daily
activities and the objective support that she found was lacking. Id.

Moreover, the ALJ

failed to identify any inconsistencies between Schmidt’s subjective allegations and the
record and failed to discuss Schmidt’s steady work history, which is generally considered
indicative of credibility. Id. at 16-17. Finally, the ALJ failed to explain the significance
of her statement that Schmidt was a self-identified homemaker. Because that statement
can be interpreted multiple ways, Judge Williams stated that he was at a loss as to how it
impacted the ALJ’s credibility determination given that the ALJ provided no further
explanation. Therefore, Judge Williams recommends this case be remanded for the ALJ
to more fully explain her credibility determination. Id. at 18.
Next, Judge Williams addressed the opinion of the vocational expert (VE). Id.
Schmidt argues the ALJ posed an inadequate hypothetical to the VE and therefore, should
not have relied on the VE’s testimony based on that hypothetical. Schmidt argues: (1)
the ALJ failed to include her frequent absenteeism due to asthma in the hypothetical and
(2) the VE testified she could perform work as a cashier/customer service representative,
but that work requires contact with irritants, which the hypothetical explicitly prohibited.
Judge Williams found no error with respect to the exposure to irritants in the
cashier/customer service representative position, as the ALJ’s hypothetical provided the
individual could not be exposed to pulmonary irritants such as fumes, odors, dust or
gases. The VE testified that an individual in a cashier/customer service representative
position may be exposed to irritants such as the smell of smoke on customers’ clothes or
aromatic soaps. As long as those irritants were not problematic, then the VE testified
she could return to her prior work. Id. at 18 (citing AR at 58-59). Judge Williams noted
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the record supported the hypothetical question provided by the ALJ and it did not appear
to be materially lacking. Id. With regard to Schmidt’s absenteeism, however, Judge
Williams recommends that the ALJ take a second look on remand, as this limitation
appeared to be based on Dr. Levinson’s opinion and Schmidt’s testimony, which the ALJ
had improperly discredited. Id. at 19.
Finally, with regard to Schmidt’s RFC, Schmidt argues the ALJ should have
accounted for her physical limitations. Id. The ALJ concluded Schmidt could perform
light work. Schmidt argues she should have been limited to sedentary work because the
medical evidence indicates she cannot stand for more than four to five hours a day or lift
more than 10 to 15 pounds. Id. Judge Williams concluded the ALJ’s RFC determination
was supported by substantial evidence in the record. Id.
Based on the above analysis, Judge Williams recommends that I reverse the
Commissioner’s determination that Schmidt was not disabled and remand the case for
further proceedings.
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 failed to
give appropriate weight to Dr. Levinson’s opinion and failed to thoroughly explain her
reasons for discrediting Schmidt’s subjective allegations. I find no error – clear or
otherwise – in Judge Williams’ recommendation and 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:
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a.

The Commissioner’s determination that Schmidt was not disabled is
reversed and this matter is remanded to the Commissioner for
further proceedings as described by Judge Williams.

b.

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

c.

If Schmidt 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 21st day of February, 2017.

________________________________
LEONARD T. STRAND
CHIEF UNITED STATES DISTRICT JUDGE

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