Jennings v. Commissioner of Social Security
Filing
26
MEMORANDUM Opinion and Order Accepting 24 Report and Recommendation without modification. The Commissioners determination that Plaintiff was not disabled is reversed and this matter is remanded to the Commissioner for further proceedings as described by Chief Magistrate Judge CJ Williams. Judgment shall enter in favor of Plaintiff and against the Defendant. Signed by Chief Judge Leonard T Strand on 8/29/2018. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
VANESSA K. JENNINGS,
Plaintiff,
No. C17-3062-LTS
vs.
NANCY A. BERRYHILL, Deputy
Commissioner of Operations,1
MEMORANDUM OPINION
AND ORDER ON REPORT AND
RECOMMENDATION
Defendant.
____________________
I.
INTRODUCTION
This case is before me on a Report & Recommendation (R&R) by the Honorable
C.J. Williams, Chief United States Magistrate Judge. Doc. No. 24. Judge Williams
recommends that I reverse and remand the decision of the Commissioner of Social
Security (the Commissioner) denying the applications by plaintiff Vanessa K. Jennings
for disability insurance benefits (DIB) and supplemental security income (SSI) under
Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et. seq. (Act).
Judge Williams recommends I remand with instructions to reevaluate whether
work exists in significant numbers in the national economy that Jennings can perform. If
the Commissioner finds Jennings can perform the job of document preparer, then Judge
Williams recommends I instruct the Commissioner to make specific findings with respect
1
On March 6, 2018, the Government Accountability Office stated that as of November 17, 2017,
Nancy Berryhill’s status as Acting Commissioner violated the Federal Vacancies Reform Act (5
U.S.C. § 3346(a)(1)). U.S. Gov’t Accountability Off., GAO-B-329853, Violation of the Time
Limit Imposed by the Federal Vacancies Reform Act of 1998—Commissioner, Social Security
Administration (2018). As of that date, Berryhill was not authorized to serve using the title of
Acting Commissioner. Therefore, as of November 17, 2017, she has been leading the agency
from her position of record, Deputy Commissioner of Operations. For simplicity, I will continue
to refer to the defendant as “the Commissioner” throughout this order.
to whether Jennings has the reasoning level necessary to perform the job. 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 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).
To determine 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.” Vester 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)).
To evaluate 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
2
“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 “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 [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 if 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 also 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.
3
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 (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). Thus, a district court may review de novo
any issue in a magistrate judge’s report and recommendation at any time. Id. 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 this court has
previously stated, “[e]ven 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 . . . .” Lynch v. Astrue, 687 F. Supp. 2d
841 (2010) (citing Coop. Fin. Assoc. v. Garst, 917 F. Supp. 1356, 1373 (N.D. Iowa
1996)). This court will provide de novo review of all issues that might be addressed by
any objection, but will review for clear error matters to which no objection at all has
been made.
Id.
4
III.
THE R&R
On November 23, 2009, Jennings filed applications for social security benefits,
which were denied administratively and, later, by a federal district court. AR 192.
Jennings subsequently filed her present applications for DIB and SSI benefits, alleging
disability beginning March 1, 2012. An Administrative Law Judge (ALJ) found Jennings
had severe impairments of disability due to obesity, obstructive sleep apnea, epilepsy,
major depressive disorder, general anxiety disorder, posttraumatic stress disorder,
asthma, chronic obstructive pulmonary disease and hearing loss. AR 194. The ALJ
found Jennings unable to perform any past relevant work but found there were jobs that
existed in significant numbers in the national economy she could perform. AR 208.
Therefore, the ALJ found that Jennings was not disabled. Id.
Jennings raises four issues in arguing that the ALJ erred: (1) the ALJ did not
properly evaluate the opinions of Nirmal Bastola, M.D., and Dan Murphy, Ph.D., (2)
the ALJ’s RFC assessment is not supported by substantial evidence on the record as a
whole, (3) the ALJ failed to prove that other work exists in significant numbers in the
national economy that Jennings can perform and (4) the Commissioner failed to provide
a complete administrative record. With respect to the first argument, Judge William
addressed each medical opinion separately.
Judge Williams noted that Dr. Bastola
assessed both physical and mental limitations. Doc. No. 24 at 10. He found that the
record was insufficient to demonstrate that Dr. Bastola’s opinions were independently
corroborated because those opinions were “offered on a form that was largely a checkbox
form.” Id. at 11. As such, Judge Williams held that the ALJ could properly discount
them. Id. at 12. He also found that the ALJ provided good reasons for the weight
afforded to Dr. Bastola’s opinions and considered all relevant evidence. Id. at 12–13.
Judge Williams next found that the ALJ’s assessment of Jennings’ RFC was not
inconsistent with Dr. Murphy’s opinion. Id. at 14–15. Dr. Murphy opined that Jennings
could understand and remember simple instructions as well as detailed instructions with
some difficulty. Id. at 14. Even if the RFC assessment was inconsistent, Judge Williams
5
found there was no error in the ALJ’s treatment of Dr. Murphy’s opinion. Id.at 15. The
ALJ highlighted evidence that did not support the limitations Dr. Murphy suggested,
which was sufficient to support the ALJ’s decision. Id. at 16.
With respect to Jennings’ second argument, Judge Williams found that the ALJ
addressed both Jennings’ physical and mental impairments, relied on statements by the
claimant and her friends and discussed the medical records “at length.” Id. at 17. The
ALJ’s discussion of the records came from multiple sources, was limited to recounting
information and applying it to the RFC standard. Id. at 17–18. Judge Williams stated,
“[t]he ALJ’s decision shows that he carefully considered each piece of evidence and relied
on the findings contained in the medical records themselves, as well as the opinions
offered by the various medical sources.” Id. at 19. He found the ALJ’s decision was
supported by substantial evidence on the record as a whole. Id.
As for Jennings’ third argument, Judge Williams noted that the ALJ found
Jennings could perform the work of both an addresser and a document preparer. Id. He
then addressed whether Jennings was mentally capable of performing the work of a
document preparer. Id. at 20. After noting the definition of “document preparer” in the
Dictionary of Occupational Titles, he found there was tension between the ALJ’s RFC
assessment and the reasoning level necessary to perform that work, which the ALJ did
not resolve. Id. The Dictionary states that a document preparer requires a reasoning
level of three, which Judge Williams stated is inconsistent with the ALJ’s limitation of
“simple, routine tasks with simple instructions.” Id. at 20. He found that because the
record was insufficient to resolve this tension, he could not determine whether Jennings
could perform the job. Id. at 20, 23.
Judge Williams then turned to whether the job of addresser exists in significant
numbers in the national economy. Id. at 21. Judge Williams noted that the vocational
expert’s definition of the work was different than the definition provided in the Dictionary
of Occupational Titles.
Id.
He found that the ALJ did not provide a reasonable
explanation for the conflict and that the record is insufficient to determine whether the
6
vocational expert’s testimony is reliable. Id. at 22. Therefore, Judge Williams was
“unable to definitively find whether the job of addresser exists in significant numbers in
the national economy.” Id. Judge Williams recommended that I reverse and remand the
ALJ’s decision with instructions to reevaluate whether work exists in significant numbers
in the national economy that Jennings could perform. Id. at 23. Additionally, Judge
Williams recommends that if the ALJ finds Jennings can perform the job of document
preparer, I should direct the ALJ to make specific findings as to whether Jennings has
the necessary level of reasoning. Id.
As for Jennings’ fourth argument, Judge Williams found that the medical records
Jennings alleges were not reviewed were, in fact, present in the record. Id. at 23–24.
As a result, Judge Williams found that the record is complete. Id.
IV.
ANALYSIS
Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Williams applied the appropriate legal standards for evaluating (1) the ALJ’s
treatment of and weight assigned to the medical opinions, (2) the ALJ’s RFC assessment,
(3) the ALJ’s determination of whether work exists in significant numbers in the national
economy that Jennings could perform and (4) the completeness of the record. Based on
my review of the record, I find no error – clear or otherwise – in Judge Williams’
recommendation. As such, I adopt the R&R in its entirety.
V.
CONCLUSIONS
For the reasons set forth herein:
1.
I accept Judge Williams’ R&R (Doc. No. 24) without modification. See
28 U.S.C. § 636(b)(1).
7
2.
Pursuant to Judge Williams’ recommendation:
a.
The Commissioner’s determination that Jennings 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 Jennings and against the
Commissioner.
c.
If Jennings 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 29th day of August, 2018.
__________________________
Leonard T. Strand, Chief Judge
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?