McCormick v. Commissioner of Social Security

Filing 13

ORDER Accepting 12 Report and Recommendation. The Commissioners decision is reversed and this case is remanded for further proceedings consistent with Judge Strands Report And Recommendation. The Clerk is directed to enter judgment against the Commissioner and in favor of McCormick. Signed by Judge Mark W Bennett on 8/14/2013. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ANTHONY D. McCORMICK,
No. C 12-4061-MWB
Plaintiff,
vs.
CAROLYN W. COLVIN,
Commissioner of Social Security,

ORDER ACCEPTING REPORT AND
RECOMMENDATION

Defendant.
___________________________
This case is before me on a Report And Recommendation from United States
Magistrate Judge Leonard Strand, entered on July 26, 2013 (docket no. 12). In this
case, the plaintiff, Anthony McCormick (McCormick), appeals an administrative law
judge’s (ALJ’s) decision denying McCormick Title II disability insurance benefits. I
referred the case to Judge Strand in January 2013. Upon reviewing the record, Judge
Strand found that the evidence did not support the ALJ’s decision to discount the
opinion of Dr. Luft, one of McCormick’s treating doctors. Judge Strand also found
that the ALJ did not properly evaluate McCormick’s credibility using the factors
outlined in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Based on this
finding, Judge Strand recommended that, on remand, the ALJ should:
1) Conduct a new analysis of Dr. Luft’s opinions in
accordance with the standards described in 20 C.F.R. §
404.1527. If the ALJ determines that those opinions are not
entitled to controlling weight, the ALJ shall fully explain the
reasons for that determination and shall then apply the
appropriate factors and provide good reasons for the weight
the ALJ gives to those opinions.

2) Conduct a new analysis of McCormick’s credibility using
the Polaski factors, taking into consideration the Eighth
Circuit’s guidance concerning the severe impairment of
fibromyalgia.
Report And Recommendation 36-37 (docket no. 12). No party has filed objections to
the Report And Recommendation, and the 14-day window in which parties may file
objections is now closed. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2).
I review Judge Strand’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); 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,
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however, the district 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, the parties filed no objections to the Report And Recommendation.
As a result, the parties waive both their right for me to review the Report And
Recommendation de novo and their right to appeal from Judge Strand’s findings of fact.
United States v. Wise, 588 F.3d 531, 537 n.5 (8th Cir. 2009). Thus, I will review
Judge Strand’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)).
While I examine Judge Strand’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
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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.” 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).
Having reviewed the record, and Judge Strand’s very thorough and well-written
findings of fact and conclusions of law in the July 26, 2013, Report And
Recommendation, I find no error and accept the Report And Recommendation (docket
no. 12). The Commissioner’s decision is reversed and this case is remanded for
further proceedings consistent with Judge Strand’s Report And Recommendation. The
Clerk is directed to enter judgment against the Commissioner and in favor of
McCormick.
IT IS SO ORDERED.
DATED this 14th day of August, 2013.

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