Dawdy v. Commissioner of Social Security

Filing 25

MEMORANDUM OPINION AND ORDER: Accepting 23 Report and Recommendation: The Commissioner's decision is reversed and remanded for further proceedings consistent with this opinion. Signed by Judge Mark W Bennett on 01/20/12. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

ROBERT DAWDY, JR.,
Plaintiff,

No. C 10-4063-MWB

vs.
MICHAEL J. ASTRUE, Commissioner
of Social Security,

MEMORANDUM OPINION AND
ORDER REGARDING
MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION

Defendant.
____________________
TABLE OF CONTENTS
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
III. ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Credibility Of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.
Dawdy’s credibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.
Credibility of lay witnesses . . . . . . . . . . . . . . . . . . . . . . . . 7
B. Listing 12.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. Dawdy’s GAF Score . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. Treating Physician’s Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. DIRECTIONS ON REMAND

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. INTRODUCTION
This case is before me pursuant to a Report and Recommendation (docket no. 23)
from Chief United States Magistrate Judge Paul Zoss, regarding plaintiff Robert Dawdy,
Jr.’s claims for disability insurance benefits (DIB) and supplemental security income
benefits (SSI), pursuant to Titles II and XVI of the Social Security Act.
I quote from Judge Zoss’s Report And Recommendation to introduce the
background of this case:
Dawdy was born in 1963, has a GED, and previously worked
as a restaurant cook and telephone solicitor. AR 116, 332,
593, 609. On March 9 and August 16, 2005, Dawdy applied
for DIB and SSI, alleging disability beginning on December
15, 2002 (later amended to March 1, 2005), due to seizures.
AR 14, 86-90, 219, 223, 586-91, 603. The Commissioner
denied Dawdy’s applications initially and again on
reconsideration; consequently, Dawdy requested a hearing
before an Administrative Law Judge (“ALJ”). AR 50-61. On
March 17, 2008, ALJ Jan Dutton held a hearing in which
Dawdy and a vocational expert (“VE”) testified. AR 599-634.
On June 4, 2008, the ALJ issued a decision finding Dawdy not
disabled since the alleged onset date of disability of March 1,
2005. AR 11-23. Dawdy sought review of this decision by
the Appeals Council, which denied review on May 14, 2010.
AR 7-10. The ALJ’s decision thus became the final decision
of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.
Report And Recommendation at 1-2 (docket no. 23).
On July 1, 2010, Dawdy filed a complaint with this court, seeking review of the
ALJ’s decision.

The case was referred to Judge Zoss, pursuant to 28 U.S.C.

§ 636(b)(1)(B), for the filing of a report and recommended disposition of the case. After
briefing from Dawdy and the Commissioner, Judge Zoss issued a Report And
Recommendation on October 25, 2011 (docket no. 23), in which he found that the ALJ’s
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decision was neither supported by substantial evidence nor based on proper legal standards.
Judge Zoss recommended that the ALJ’s decision be reversed and remanded for further
proceedings. Neither Dawdy nor the Commissioner filed an objection to Judge Zoss’s
Report And Recommendation.
II. STANDARD OF REVIEW
I review Judge Zoss’s Report And Recommendation pursuant to the statutory
standards found in 28 U.S.C. § 636(b)(1):
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
Court explained:
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

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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.
In this case, no objections have been filed. As a result, I review Judge Zoss’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”). The United States Supreme Court has explained 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 (1985) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)) (internal quotation marks
omitted).
While I examine Judge Zoss’s Report And Recommendation for clear error, I also
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) (quoting
Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999)). Under this deferential standard,
“[s]ubstantial evidence is less than a preponderance but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.”
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Krogmeier v.

Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002); see also Page, 484 F.3d at 1042. In
reviewing the Commissioner’s denial of benefits to determine if it is supported by
substantial evidence, the court must “not only . . . consider evidence in the record that
supports the Commissioner’s determination, but also any evidence that detracts from that
conclusion.” Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005) (citing Hutsell v.
Massanari, 259 F.3d 707, 711 (8th Cir. 2001)). Nonetheless, even if a court “might have
reached a different conclusion had [it] been the initial finder of fact,” the Commissioner’s
decision will not be disturbed “unless the record contains insufficient evidence to support
the outcome.” See Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007) (citations
omitted).
III. ANALYSIS
Judge Zoss made four central findings in his Report And Recommendation: 1) the
ALJ’s determinations of the credibility of Dawdy and two lay witnesses, Dawdy’s
girlfriend and father, were supported by substantial evidence; 2) the ALJ’s finding that
Dawdy’s mental impairment did not meet or equal the criteria of Listing 12.04 was
supported by substantial evidence; 3) the ALJ failed to consider Dawdy’s Global
Assessment of Functioning (GAF) score, which warrants remand; and 4) the ALJ failed
to consider the opinion of Dawdy’s treating physician, Dr. Taylor, that Dawdy “would be
likely to miss two or more days of work per month on an unscheduled basis,” AR 577,
which also warrants remand. I review these findings for clear error.
A. Credibility Of Witnesses
1.

Dawdy’s credibility

“The credibility of a claimant’s subjective testimony is primarily for the ALJ to
decide, not the courts.” Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).
When evaluating a claimant’s subjective complaints, the ALJ must consider 1) the
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claimant’s daily activities; 2) the duration, frequency, and intensity of the pain;
3) precipitating and aggravating factors; 4) dosage, effectiveness, and side effects of
medication; and 5) functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984); see 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii) (codifying
Polaski factors); see also Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010).
Nonetheless, “[t]he ALJ is not required to discuss each Polaski factor as long as ‘he
acknowledges and considers the factors before discounting a claimant’s subjective
complaints.’” Halverson, 600 F.3d at 932 (quoting Moore v. Astrue, 572 F.3d 520, 524
(8th Cir. 2009)). Additionally, “‘acts which are inconsistent with a claimant’s assertion
of disability reflect negatively upon that claimant’s credibility,’” id. (quoting Heino v.
Astrue, 578 F.3d 873, 881 (8th Cir. 2009)), and the ALJ may discredit “‘a claimant’s
subjective complaints if there are inconsistencies in the record as whole,’” id. (quoting
Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008)). The failure to seek medical
treatment may reflect adversely on the credibility of a claimant’s subjective complaints.
See Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir. 1996). Courts generally defer to
an ALJ’s credibility finding when the ALJ “‘explicitly discredits the claimant’s testimony
and gives good reason for doing so.’” Halverson, 600 F.3d at 932 (quoting Juszczyk v.
Astrue, 542 F.3d 626, 632 (8th Cir. 2008)). The Eighth Circuit Court of Appeals has
cautioned judges against “substitut[ing] [their] opinion for that of the ALJ, who is in a
better position to assess credibility.” See Eichelberger v. Barnhart, 390 F.3d 584, 590
(8th Cir. 2004) (citing Brown v. Chater, 87 F.3d 963, 965 (8th Cir. 1996)).
Here, the ALJ properly acknowledged and considered the Polaski factors. See AR
19 (citing requirements of 20 C.F.R. §§ 404.1529, 416.929). The ALJ then articulated
her rationale for discounting Dawdy’s subjective complaints (AR 19-20): among other
reasons, Dawdy’s testimony was inconsistent with his daily activities and with the medical
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record, as he had not sought psychiatric or neurologic care and because the medical record
did not substantiate the severity of symptoms to which he testified. Because the ALJ’s
credibility determination was supported by substantial evidence, I agree with Judge Zoss
that it must be affirmed.
2.

Credibility of lay witnesses

Likewise, “[an] ALJ is, of course, free to believe or disbelieve any or all . . . lay
witnesses,” and may discount lay witness testimony if it is inconsistent with the medical
record. See Grebenich v. Chater, 121 F.3d 1193, 1199-1200 (8th Cir. 1997). Here, the
ALJ explicitly considered the submissions from Dawdy’s father and girlfriend. AR 20-21.
The ALJ discounted the credibility of Dawdy’s father because the severity of Dawdy’s
symptoms, as alleged by his father, was inconsistent with the medical record. AR 20.
Similarly, the ALJ discredited the log submitted by Dawdy’s girlfriend because the dates
of Dawdy’s seizures, as tracked by the girlfriend’s log, were inconsistent with the medical
record. AR 21. Because the ALJ discounted the lay witnesses’ credibility here for proper
reasons, I will not disturb her credibility determinations. Therefore, I also agree with
Judge Zoss’s finding regarding the lay witnesses’ credibility.
B. Listing 12.04
The dispute between the parties regarding Listing 12.04, Affective Disorders,
concerned whether Dawdy satisfied the criteria outlined by paragraph (B) of the listing,

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which provides that a claimant’s affective disorder must “result[] in at least two of the
following:”
1.

Marked restriction of activities of daily living; or

1

Alternatively, a claimant may meet or equal Listing 12.04 by satisfying paragraph
(C). 20 C.F.R. Pt. 404, subpt. P, app. 1, § 12.04. Because Dawdy does not contend that
he satisfies paragraph (C), however, I do not consider it.
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2.

Marked difficulties in maintaining social functioning; or

3.

Marked difficulties in maintaining concentration, persistence,
or pace; or

4.

Repeated episodes of decompensation, each of extended
duration.

20 C.F.R. Pt. 404, subpt. P, app. 1, § 12.04(B). The burden is on the claimant to
establish that he meets or equals a listing. See Carlson v. Astrue, 604 F.3d 589, 593 (8th
Cir. 2010). Dawdy argued to Judge Zoss that he suffers marked difficulties in maintaining
social functioning and marked difficulties in maintaining concentration, persistence, or
pace, thereby satisfying paragraph (B). Consequently, Dawdy contended that the ALJ
erred in finding that he experienced only moderate difficulties in maintaining social
functioning and moderate difficulties in maintaining concentration, persistence, or pace.
As Judge Zoss properly found, the ALJ’s determination that Dawdy’s mental
impairment did not meet or equal Listing 12.04 was supported by substantial evidence.
The state agency consulting doctor, Dr. Lovell, found that Dawdy experienced moderate
difficulties in maintaining social functioning because, although he experienced some
difficulty interacting with authority figures, his activities of daily living demonstrated that
he could talk with others regularly and shop on his own. AR 390-91, 394. Dr. Lovell
also found that Dawdy experienced moderate difficulties in maintaining concentration,
persistence, or pace, because, although Dawdy’s thinking was at times slow and he
experienced some memory difficulties, he was able to do a variety of daily activities, such
as cooking, laundry, mowing, and home repairs, as well as play drums and guitar. Id.
In contrast to Dr. Lovell’s report, however, Dr. Stokes, the psychologist who examined
Dawdy to determine if he was competent to stand trial in state court, found that Dawdy
suffers “a high level of anxiety[] and feelings of paranoia,” resulting in a “high risk for
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further harm to himself and to others,” and that he has “a long standing history of memory
difficulties and . . . perceived lapses of time and may therefore not be able to process and
recall events from one day to the next.” AR 556. Nonetheless, it is not for me to reweigh
the evidence that was before the ALJ. See Baldwin v. Barnhart, 349 F.3d 549, 555 (8th
Cir. 2003) (“[Courts] do not reweigh the evidence presented to the ALJ . . . .”). Rather,
because substantial evidence, particularly Dr. Lovell’s report, supports the ALJ’s finding
that Dawdy experiences moderate, rather than marked, difficulties in maintaining social
functioning and in concentration, pace, and persistence, I agree with Judge Zoss that the
ALJ’s decision that Dawdy does not meet or equal Listing 12.04 must be affirmed.
C. Dawdy’s GAF Score
“[T]he ALJ is not free to ignore medical evidence but rather must consider the
whole record.” Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir. 2000). Moreover, “[w]hile
a ‘deficiency in opinion-writing is not a sufficient reason to set aside an ALJ’s finding
where the deficiency [has] no practical effect on the outcome of the case,’ inaccuracies,
incomplete analyses, and unresolved conflicts of evidence can serve as a basis for
remand.” Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005) (citing Reeder, 214
F.3d at 988; Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir. 1992)).
Here, after performing a consultive examination, Dr. Baker, a licensed
2

psychologist, diagnosed Dawdy with a GAF score of 45 on September 15, 2005. AR
2

I quote from Judge Zoss’s explanation of the GAF:
The GAF, or global assessment of functioning, scale rates
psychological, social, and occupational functioning; it is
divided into ten ranges of functioning. Am. Psychiatric Ass’n,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th
ed. text rev. 2000). A GAF rating between 41-50 indicates
(continued...)
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521. The Vocational Expert (VE) testified at Dawdy’s hearing that an individual with a
GAF score of 45 would not be able to sustain employment. AR 632. The ALJ’s opinion,
however, failed to discuss Dawdy’s GAF score and the VE’s testimony regarding GAF
scores. Because the ALJ failed to factor this significant evidence into her decision (or
explain why she rejected such evidence), I agree with Judge Zoss that remand is
appropriate for the ALJ to consider Dawdy’s GAF score and the VE’s testimony that
someone with a GAF score of 45 could not sustain employment.
D. Treating Physician’s Opinion
“‘[A] treating physician’s opinion is generally entitled to substantial weight,’” but
it “‘does not automatically control in the face of other credible evidence on the record that
detracts from that opinion.’” Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010) (quoting
Heino v. Astrue, 578 F.3d 873, 880 (8th Cir. 2009)). “‘When an ALJ discounts a treating
physician’s opinion, he should give good reasons for doing so.’” Id. (quoting Davidson
v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007)). Here, Dr. Taylor, Dawdy’s treating
physician, opined that Dawdy “would be likely to miss two or more days of work per
month on an unscheduled basis.” AR 577. The ALJ did not consider Dr. Taylor’s opinion
on this point, nor did she explain her reasons for discounting it. Dr. Taylor’s opinion
regarding Dawdy’s likely absences from work is significant, as the VE testified in Dawdy’s
hearing that an individual who misses two or more days of work per month on an
2

(...continued)
“serious symptoms (e.g., suicidal ideation, severe obsessional
rituals, frequent shoplifting) or any serious impairment in
social, occupational, or school functioning (e.g., no friends,
unable to keep a job).” Id. at 34; see also Martise v. Astrue,
641 F.3d 909, 917 n.5 (8th Cir. 2011).
Report And Recommendation at 7 n.1 (docket no. 23).
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unscheduled basis would not be competitively employable. AR 631. The ALJ erred in
failing to consider, or explain why she discounted, Dr. Taylor’s opinion that Dawdy would
miss two or more days of work per month on an unscheduled basis. Thus, I agree with
Judge Zoss that remand is proper for the ALJ to consider this part of Dr. Taylor’s opinion
and the VE’s testimony regarding absences from work.
IV. DIRECTIONS ON REMAND
On remand, the ALJ should consider 1) Dawdy’s GAF score (AR 521) and the VE’s
testimony that an individual with Dawdy’s GAF score could not sustain employment (AR
632); and 2) Dr. Taylor’s opinion that Dawdy would miss two or more days of work per
month on an unscheduled basis (AR 577) and the VE’s testimony that an individual who
misses two or more days of work per month on an unscheduled basis would not be
competitively employable (AR 631).
V. CONCLUSION
THEREFORE, I find that the Commissioner’s decision is neither supported by
substantial evidence nor based on proper legal standards. Judge Zoss recommended that
this case be reversed and remanded for further proceedings and that judgment be entered
in favor of Dawdy and against the Commissioner. I agree and thus accept Judge Zoss’s
well-reasoned and well-written Report and Recommendation (docket no. 23).

The

Commissioner’s decision is reversed and remanded for further proceedings consistent
with this opinion. The Clerk is directed to enter judgment in favor of Dawdy and against
the Commissioner.

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IT IS SO ORDERED.
DATED this 20th day of January, 2012.

__________________________________
MARK W. BENNETT
U. S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

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