Gann v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATION: Recommending that the Commissioner's determination that Plaintiff Gann was not disabled be affirmed and that judgment be entered in favor of the Commissioner and against Gann: Objections to R&R due by 02/17/2015. Signed by Magistrate Judge Leonard T Strand on 01/30/15. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
BONNIE JEAN GANN,
Plaintiff,

No. C14-4026-MWB

vs.

REPORT
AND RECOMMENDATION

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

____________________
Plaintiff Bonnie Jean Gann seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying her application for
Supplemental Security Income benefits (SSI) under Title XVI of the Social Security Act,
42 U.S.C. § 401 et seq. (Act). Gann contends that the administrative record (AR) does
not contain substantial evidence to support the Commissioner’s decision that she was not
disabled during the relevant period of time. For the reasons that follow, I recommend
that the Commissioner’s decision be affirmed.
I.

BACKGROUND

Gann was born in 1980 and has a high school diploma. AR 42-44. She has past
relevant work as certified nursing assistant, laborer, bus person, housekeeper, fast food
worker and newspaper carrier. AR 278. She applied for SSI on March 31, 2011. AR
156-64. Her application was denied initially and on reconsideration. AR 83-90, 96-106.
Gann then requested a hearing before an Administrative Law Judge (ALJ) and on
November 20, 2012, ALJ James D. Goodman held a hearing during which Gann testified.
AR 32-65. At the conclusion of the hearing, the ALJ left the record open to allow Gann

to submit additional evidence. AR 12. The ALJ also directed written interrogatories to
Jim van Eck, a vocational expert (VE).

Id.

The VE submitted answers to the

interrogatories on December 10, 2012. AR 278-79. The ALJ then forwarded those
answers to Gann’s counsel and invited a response. AR 280. Gann’s counsel submitted
a written response on January 25, 2013. AR 282-83.
On February 7, 2013, the ALJ issued a decision finding Gann was not disabled
since March 31, 2011, the date her application was filed. AR 12-25. Gann sought review
of this decision by the Appeals Council, which denied review on January 24, 2014. AR
1-6. The ALJ’s decision thus became the final decision of the Commissioner. AR 1; see
also 20 C.F.R. § 416.1481.
On March 26, 2014, Gann filed a complaint (Doc. No. 3) in this court seeking
review of the Commissioner’s decision. This matter has been referred to me pursuant to
28 U.S.C. § 636(b)(1)(B) for the filing of a report and recommended disposition of the
case. The parties have briefed the issues and the matter is now fully submitted.
II.

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
A disability is defined as the inability to engage in any substantial gainful activity

by reason of any medically determinable physical or mental impairment which can be
expected to result in death or that has lasted or can be expected to last for a continuous
period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §
416.905. A claimant has a disability when the claimant is “not only unable to do his
previous work but cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists . . . in significant numbers
either in the region where such individual lives or in several regions of the country.”
42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows a five-step sequential evaluation process outlined in the
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regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir.
2007). First, the Commissioner will consider a claimant’s work activity. If the claimant
is engaged in substantial gainful activity, then the claimant is not disabled. 20 C.F.R. §
416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit the
claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d at
707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes
include (1) physical functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3)
understanding, carrying out, and remembering simple instructions; (4) use of judgment;
(5) responding appropriately to supervision, co-workers, and usual work situations; and
(6) dealing with changes in a routine work setting. Id. § 416.921(b)(1)-(6); see Bowen
v. Yuckert, 482 U.S. 137, 141 (1987). “The sequential evaluation process may be
terminated at step two only when the claimant’s impairment or combination of
impairments would have no more than a minimal impact on her ability to work.” Page
v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled, regardless of age, education, and work experience. 20 C.F.R.
§§ 416.920(a)(4)(iii), 416.920(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.
1998).
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Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) to determine the claimant’s “ability to meet
the physical, mental, sensory, and other requirements” of the claimant’s past relevant
work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a medical question
defined wholly in terms of the claimant’s physical ability to perform exertional tasks or,
in other words, what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation
marks omitted); see 20 C.F.R. § 416.945(a)(1).

The claimant is responsible for

providing evidence the Commissioner will use to make a finding as to the claimant’s
RFC, but the Commissioner is responsible for developing the claimant’s “complete
medical history, including arranging for a consultative examination(s) if necessary, and
making every reasonable effort to help [the claimant] get medical reports from [the
claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3). The Commissioner also
will consider certain non-medical evidence and other evidence listed in the regulations.
See id. If a claimant retains the RFC to perform past relevant work, then the claimant is
not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant
to perform past relevant work, then the burden shifts to the Commissioner to show that
there is other work that the claimant can do, given the claimant’s RFC as determined at
Step Four, and his or her age, education, and work experience. See Bladow v. Apfel,
205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must show not only that
the claimant’s RFC will allow the claimant to make an adjustment to other work, but also
that the other work exists in significant numbers in the national economy. Eichelberger
v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. § 416.920(a)(4)(v). If the
claimant can make an adjustment to other work that exists in significant numbers in the
national economy, then the Commissioner will find the claimant is not disabled. If the
claimant cannot make an adjustment to other work, then the Commissioner will find that
4

the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). At Step Five, even though the
burden of production shifts to the Commissioner, the burden of persuasion to prove
disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004).
III.

ALJ’S FINDINGS

The ALJ made the following findings:
(1)

The record contains no evidence that the claimant
engaged in substantial gainful activity since March 31,
2011, the application date (see, e.g. Exhibit 3D) (20
CFR 416.971 et seq.).

(2)

The claimant has the following severe impairments:
obesity (Exhibit 9F, p.4), post-traumatic stress
disorder (Exhibit 8F, p.6; Exhibit 32F, p.6); bipolar I
disorder (Exhibit 1F, p.3; Exhibit 8F, p.6; Exhibit
32F, p.6), attention deficit hyperactivity disorder
(ADHD) (Exhibit 8F, p.6; Exhibit 32F, p.6),
borderline personality disorder (Exhibit 8F, p.6;
Exhibit 32F, p.6), and antisocial personality disorder
(Exhibit 8F, p.6) (20 CFR 416.920(c)).

(3)

The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 416.925 and 416.926).

(4)

After careful consideration of the entire record, I find
that the claimant has the residual functional capacity to
lift and carry 50 pounds occasionally and 25 pounds
frequently, stand and walk for up to six hours, and sit
for up to six hours, cumulatively. She may alternate
her position every two hours. She may climb, balance,
kneel, handle, and grip frequently. The claimant may
frequently bend, crouch, and crawl, but she may never
climb ladders, ropes, or scaffolds. In addition, the
claimant may have occasional contact with co-workers
and supervisors. The claimant also may undertake
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work at a stress level of five on a scale of one to 10,
one being, by example, the work of a night dishwasher,
and 10 being the work of an air traffic controller (as
these occupations are generally performed in the
national economy).
(5)

The claimant is capable of performing past relevant
work as a Certified Nursing Assistant, Laborer, Bus
Person, Housekeeper, Fast Food Worker, and
Newspaper Carrier. This work does not requires the
performance of work-related activities precluded by
the claimants residual functional capacity (20 CFR
416.965).

(6)

The claimant has not been under a “disability,” as
defined in the Social Security Act, since March 31,
2011, the date the application was filed (20 CFR
416.920(g)).

AR 14-25.
IV.

THE SUBSTANTIAL EVIDENCE STANDARD

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.
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
6

evidence.” Wester 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)).
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.”).

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V.

DISCUSSION

Gann raises the following arguments in contending that the ALJ’s decision is not
supported by substantial evidence:
(1)

The ALJ erred in finding that Gann’s migraine
headaches and fibromyalgia were not severe
impairments.

(2)

The ALJ’s determination of Gann’s RFC, along with
the hypothetical questions he submitted to the VE, are
not supported by substantial evidence on the record as
a whole.

(3)

The ALJ erred by discrediting Gann’s subjective
allegations.

I will address these arguments separately.
A.

Migraine Headaches and Fibromyalgia
1.

Applicable Standards

At Step Two, the ALJ must consider whether a medically determinable
impairment is “severe.” 20 C.F.R. § 416.920(a)(4)(ii). A severe impairment is one
which “significantly limits [the claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 416.920(c). Basic work activities include physical functions
such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or
handling; capacities for seeing, hearing and speaking; understanding, carrying out, and
remembering simple instructions; use of judgment; responding appropriately to
supervision, co-workers and usual work situations; and dealing with changes in a routine
work setting. 20 C.F.R. § 416.921(b). If the impairment would have no more than a
minimal effect on the claimant’s ability to work, it is not severe. Page, 484 F.3d at
1043.
It is the claimant’s burden to establish that his or her impairment or combination
of impairments is severe. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000).
8

“Severity is not an onerous requirement for the claimant to meet, but it is also not a
toothless standard . . . .” Kirby, 500 F.3d at 708 (internal citation omitted). When a
claimant has multiple impairments, “the Social Security Act requires the Commissioner
to consider the combined effect of all impairments without regard to whether any such
impairment, if considered separately, would be of sufficient medical severity to be
disabling.” Cunningham v. Apfel, 222 F.3d 496, 501 (8th Cir. 2000).
In determining the severity of a medically determinable impairment, the ALJ must
consider a claimant’s symptom-related limitations and make a credibility finding on his
or her alleged limitations. See Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001)
(the ALJ erred at Step Two by failing to evaluate the claimant’s subjective complaints);
see also SSR 96-7p, 1996 WL 374186 (July 2, 1996). While the ALJ may conclude that
the medical evidence does not support a claimant’s subjective allegations, this is only one
factor that should be considered. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984) (“The absence of an objective medical basis which supports the degree of severity
of subjective complaints alleged is just one factor to be considered in evaluating the
credibility of the testimony and complaints.”). The ALJ is required to explicitly discredit
a claimant and provide reasons. See Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir.
2007) (“[A]n ALJ who rejects such [subjective] complaints must make an express
credibility determination explaining the reasons for discrediting the complaints”).
2.

The ALJ’s Findings

The ALJ discussed migraine headaches only briefly, noting that Gann has a history
of suffering from them but finding that there is nothing in the record to indicate that they
have any effect on her functioning. AR 15. With regard to fibromyalgia, the ALJ
referenced a consultative examination conducted in June 2011 by Douglas W. Martin,
M.D. AR 15 (citing AR 439-45). The ALJ noted that Dr. Martin found Gann to be
positive for pain at all 18 tender points used to assess fibromyalgia. Id. (citing AR 441).
However, the ALJ also pointed out that according to Dr. Martin, Gann “complained of
9

significant pain” every place he touched Gann. Id. The ALJ also stated that another
consultative examiner had questioned the credibility of Gann’s pain response during a
prior examination. Id. (citing AR 293). That examiner had rather bluntly referred to
Gann as an “expert manipulator” who appeared to have studied for the consultative
examination. AR 293. Finally, the ALJ referenced Gann’s treatment records from 2011
and 2012 and found they do not support Gann’s claim that fibromyalgia is a severe
impairment. AR 15.
3.

Analysis

Gann disputes the ALJ’s finding that there is nothing in the record to indicate that
migraine headaches or fibromyalgia have any effect on her ability to function. Gann cites
treatment records from 2011 and 2012 which indicate that she received treatment for
these conditions. Doc. No. 12 at 9-10; Doc. No. 16 at 2-3. Gann also relies on her own
testimony that she suffers from migraines “a lot.” Doc. No. 12 at 9. The Commissioner
argues that the ALJ’s finding is correct because while the record reflects that Gann
sometimes sought treatment for migraines and fibromyalgia, Gann did not attempt to
show that these conditions significantly impair her ability to perform work functions.
Doc. No. 13 at 6-8.
The Commissioner has the better argument. Simply pointing to instances in which
Gann was treated for migraines and fibromyalgia, or stating that migraines occurred “a
lot,” does not demonstrate that these conditions significantly limited Gann’s physical or
mental ability to do basic work activities. Moreover, while the ALJ did not undertake
an express credibility analysis at Step Two, he did so later in his decision and provided
several reasons for concluding that Gann’s subjective allegations are exaggerated. AR
23-24. As I will discuss further, infra, I find that the ALJ’s credibility assessment is
supported by substantial evidence on the record as a whole.

10

In short, the ALJ (a) correctly concluded that the medical evidence did not
demonstrate that migraine headaches and fibromyalgia significantly limited Gann’s ability
to perform work activities and (b) properly discredited Gann’s subjective allegations
about those impairments. As such, the ALJ did not err at Step Two by concluding that
migraine headaches and fibromyalgia are not severe impairments.
B.

The RFC and Hypothetical Questions
1.

Applicable Standards
a.

The RFC Determination

At Step Four, the claimant has the burden to prove his or her RFC. Harris v.
Barnhart, 356 F.3d 926, 930 (8th Cir. 2004).

The claimant’s RFC is “what [the

claimant] can still do” despite his or her “physical or mental limitations.” 20 C.F.R. §
404.1545(a)(1). The ALJ must determine RFC “based on all the relevant evidence,
including medical records, observations of treating physicians and others, and claimant’s
own description of her limitations.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010)
(citing Page, 484 F.3d at 1043).

RFC is a medical question, meaning the ALJ’s

assessment must be supported by “some medical evidence” of the claimant’s ability to
function in the workplace. Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). “It is the
ALJ’s function to resolve conflicts among the opinions of various treating and examining
physicians. The ALJ may reject the conclusions of any medical expert, whether hired by
the claimant or the government if they are inconsistent with the record as a whole.”
Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001).
b.

Hypothetical Questions to the VE

As noted earlier, the question at Step Four is whether the claimant has the RFC to
perform past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). Because
the claimant bears the burden of proof on this issue, VE testimony is not required. Lewis,
11

353 F.3d at 648. If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled and the analysis does not proceed to Step Five. 20 C.F.R. §
416.920(a)(4)(iv).
If the analysis reaches Step Five, the Commissioner ordinarily can rely on the
testimony of a VE to show the claimant can perform other work. 20 C.F.R. § 416.966(e);
Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008). Such testimony “constitutes
substantial evidence when it is based on a hypothetical that accounts for all of the
claimant’s proven impairments.” Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010).
The hypothetical question must include “those impairments that the ALJ finds are
substantially supported by the record as a whole.” Pickney v. Chater, 96 F.3d 294, 296
(8th Cir. 1996). “[A]n ALJ may omit alleged impairments from a hypothetical question
posed to a vocational expert when ‘[t]here is no medical evidence that those conditions
impose any restrictions on [the claimant’s] functional capabilities.’” Owen v. Astrue,
551 F.3d 792, 801-02 (8th Cir. 2008) (quoting Haynes v. Shalala, 26 F.3d 812, 815 (8th
Cir. 1994)). Thus, to obtain valid VE testimony about a claimant’s ability to perform
other work, the hypothetical questions posed to the VE should mirror the limitations
described in a properly-formulated RFC.
2.

The Parties’ Arguments

Gann raises two primary issues. First, she argues that the ALJ’s findings about
her mental RFC improperly contradicted certain of his other findings. Specifically, she
points out that in the process of determining whether her mental impairments met or
medically equaled the “paragraph B” criteria of listings 12.02, 12.04, 12.06 and 12.08,
the ALJ found that she had marked difficulties with regard to concentration, persistence
or pace. Gann also notes the ALJ afforded great weight to the opinion of Denise
Marandola, Ph.D., a consultative examiner, and that her opinion included findings that
Gann has poor memory, was highly volatile and could not handle money. AR 20, 436.
12

Gann contends that the ALJ erred by not incorporating these mental limitations into the
RFC.
Second, Gann argues that these alleged omissions in the RFC infected the
hypothetical written questions posed to the VE after the hearing, as those questions did
not include proven mental impairments.

She contends that when her then-counsel1

brought this issue to the ALJ’s attention, the ALJ should have conducted another hearing
to allow cross-examination of the VE. In any event, Gann argues that the VE’s testimony
cannot constitute substantial evidence because the hypothetical questions were flawed.
With regard to Gann’s first argument, the Commissioner denies that any actual
inconsistencies exist. As for the ALJ’s Step Three2 finding that Gann had marked
difficulties with regard to concentration, persistence or pace, the Commissioner notes
that the Step Three analysis differs from the RFC analysis. Indeed, the Commissioner
appears to argue that findings made at Step Three are not relevant to the formulation of
a claimant’s RFC. The Commissioner also argues that the ALJ did, in any event, account
for those marked limitations in the RFC.
As for Dr. Marandola’s opinion, the Commissioner contends that even upon
affording it great weight, the ALJ was not required to reflexively adopt it in its entirety.
Instead, the Commissioner contends that the ALJ correctly weighed that opinion against
other evidence of record and explained how he reconciled inconsistencies.

In short, the

Commissioner argues that the ALJ’s determination of Gann’s RFC is supported by
substantial evidence, notwithstanding any alleged inconsistencies.

1

Gann’s counsel of record in this case was not the attorney who represented her during the ALJ’s
proceedings.

2

Both parties refer to this as a Step Two finding. Doc. No. 13 at 8-9; Doc. No. 16 at 3-4. The
ALJ made the finding at Step Three, when considering whether Gann has a listed impairment.
AR 16-18.

13

In response to Gann’s second argument, the Commissioner points out Gann’s
arguments are not material because VE opinion evidence is not necessary at Step Four.
The Commissioner also denies that the ALJ committed procedural error in failing to
conduct another hearing after the VE submitted answers to the post-hearing
interrogatories. The Commission argues that such a hearing was not required and, in
any event, that Gann failed to request it.
3.

Analysis
a.

The RFC Determination

I will first address Gann’s arguments that the ALJ’s assessment of her RFC is
flawed because it is inconsistent with (a) his own Step Three findings and (b) Dr.
Marandola’s opinion. I will then discuss the ultimate question of whether the RFC, as
formulated by the ALJ, is supported by substantial evidence on the record as a whole.
i.

The Step Three Findings

In considering whether Gann has a listed mental impairment, the ALJ found that
she had marked difficulties with regard to concentration, persistence or pace and
explained that a “marked” limitation means “more than moderate but less than extreme.”
AR 17. The ALJ also stated that the “Paragraph B” mental assessment findings are
limited to the ratings at Steps Two and Three of the sequential evaluation process and are
not part of the RFC assessment. AR 18. Gann alleges that this creates an internal
inconsistency in the ALJ’s analysis and contends that when a marked limitation is found
at Step Two or Step Three, that limitation must be accounted for in the RFC. Doc. No.
12 at 3-4. Gann cites no authority for this proposition.
Meanwhile, the Commissioner cites only one authority to argue that “Paragraph
B” findings are “limited to” Step Two and Step Three and are not part of the RFC
assessment. Doc. No. 13 at 9 (citing SSR 96-8p, 1996 WL 374184, at *2). The specified
page of the referenced ruling includes only a general discussion of the RFC assessment.
14

It does not state that findings made at Step Two or Step Three are irrelevant to the RFC
determination. Indeed, the following instruction appears later in the ruling:
In assessing RFC, the adjudicator must consider limitations and restrictions
imposed by all of an individual's impairments, even those that are not
“severe.” While a “not severe” impairment(s) standing alone may not
significantly limit an individual's ability to do basic work activities, it may-when considered with limitations or restrictions due to other impairments-be critical to the outcome of a claim. For example, in combination with
limitations imposed by an individual's other impairments, the limitations
due to such a “not severe” impairment may prevent an individual from
performing past relevant work or may narrow the range of other work that
the individual may still be able to do.
SSR 96-8p, 1996 WL 374184, at *5. Thus, to the extent the Commission argues that
Step Two or Step Three findings are entirely irrelevant to the RFC determination, I reject
that argument. A claimant’s marked limitations do not magically disappear when the
analysis moves to Step Four. All limitations, even non-severe ones, must be considered
during the RFC assessment.
I likewise reject Gann’s apparent argument that a marked limitation found at Step
Two or Step Three must be reflected in the RFC. The RFC is not simply a laundry list
of impairments and limitations. Instead, it is an explanation of “what [the claimant] can
still do” despite his or her “physical or mental limitations.” 20 C.F.R. § 404.1545(a)(1).
Thus, for example, a finding of a severe impairment at Step Two does not automatically
require that the ALJ include corresponding functional limitations at Step Four. See e.g.,
Griffeth v. Comm’r of Soc. Sec., 217 Fed. Appx. 425, 429 (6th Cir. 2007) (quoting Yang
v. Comm’r of Soc. Sec., No. 00-10446-BC, 2004 WL 1765480, at *5 (E.D. Mich. July
14, 2004)) (“A claimant’s severe impairment may or may not affect his or her functional
capacity to do work. One does not necessarily establish the other.”); Taylor v. Astrue,
Civil Action No. BPG-11-0032, 2012 WL 294532 (D. Md. Jan. 31, 2012) (“It is possible,
therefore, for an ALJ to find at step two that a claimant’s condition is severe—because
the medical evidence does not conclusively prove otherwise—and yet at step four find no
15

substantial evidence that the condition actually limits the claimant’s ability to work.”)
(citing cases).
In short, impairments found at Step Two or Step Three, whether severe or not,
should be considered while formulating the RFC but do not automatically translate into
limitations on the claimant’s ability to work. Thus, the RFC in this case is not flawed
simply because it does not reflexively recite the ALJ’s prior finding that Gann had marked
difficulties with regard to concentration, persistence or pace. Instead, the RFC must be
reviewed in light of the entire record, as discussed further in Section B(3)(a)(iii), infra.
ii.

Dr. Marandola’s Opinion

Gann also argues that the RFC is defective because the ALJ afforded great weight
to Dr. Marandola’s opinion but did not include all aspects of that opinion in the RFC.
Doc. No. 12 at 11-12; Doc. No. 16 at 4-5. In particular, she points to Dr. Marandola’s
findings that she had poor memory, was highly volatile and could not handle money, AR
436, and argues that the ALJ failed to include these limitations in the RFC. Again,
however, this argument misses the point. Giving great weight to a medical opinion does
not mean that the entire opinion must be incorporated into the RFC. “Great weight”
does not equate to the “controlling weight” that must be afforded to certain opinions of
a treating physician, which means the ALJ must defer to that physician's medical opinions
about the nature and severity of an applicant's impairments, including symptoms,
diagnosis and prognosis, what an applicant is capable of doing despite the impairment,
and the resulting restrictions. 20 C.F.R. § 416.927(c)(2); Ellis v. Barnhart, 392 F.3d
988, 995 (8th Cir. 2005).
When no medical opinion is entitled to controlling weight, the ALJ must formulate
a claimant’s RFC “based on all the relevant evidence, including medical records,
observations of treating physicians and others, and claimant’s own description of her
limitations.” Jones, 619 F.3d at 971. Here, the ALJ determined that Dr. Marandola’s
opinion was entitled to more weight than other opinions in the record, including opinions
16

provided by another consultative examiner and a state agency consultant. AR 21. That
does not mean, however, that the ALJ was required to incorporate each and every aspect
of that opinion into the RFC. Again, the RFC must be reviewed in light of the entire
record, not simply in comparison to Dr. Marandola’s opinion.
iii.

Substantial Evidence

As noted above, the Commissioner’s decision must be affirmed “if it is supported
by substantial evidence on the record as a whole.” Pelkey, 433 F.3d at 577. If the
evidence is such that the decision falls within the so-called “zone of choice,” then it must
be affirmed regardless of whether the reviewing court would have reached the same
conclusion. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006). Here, I find that
the ALJ’s formulation of Gann’s RFC meets this standard. The ALJ provided a lengthy
explanation, with precise citations to the record, for each component of the physical RFC
and mental RFC. AR 18-24.
With regard to his physical RFC findings, the ALJ discussed Gann’s treatment
records and explained how those records support a conclusion that she can perform work
at the medium exertional level. AR 18-19. He further noted that he had taken Gann’s
obesity into account, as required, and found that no evidence suggested additional
physical limitations relating to obesity. AR 19. The ALJ then addressed the opinion
evidence of record concerning Gann’s physical impairments and provided good reasons
for the weight given to all such evidence. AR 19. Having carefully reviewed the record,
I conclude that the ALJ’s physical RFC findings are supported by substantial evidence.3
As for Gann’s mental RFC, the ALJ provided an overview of Gann’s treatment
records and explained why he considered them to be consistent with his RFC findings.
AR 20-21. He also set forth a detailed analysis of the medical opinions concerning Gann’s
3

Apart from incorporating her contention that the ALJ should have found migraine headaches
and fibromyalgia to be severe impairments, Gann did not attempt to develop any specific
arguments concerning the ALJ’s physical RFC findings. Doc. No. 12 at 14.

17

mental impairments, including Dr. Marandola’s, and offered reasons for the weight
afforded to each. AR 20-22. In affording Dr. Marandola’s opinion great weight, the
ALJ explained that the RFC restricts Gann to only occasional contact with co-workers
and supervisors because of that opinion. AR 20. The ALJ then discussed the other
opinions of record and explained how the opinion of another consultative examiner,
Michael Baker, Ph.D., also supports the limitations incorporated into Gann’s RFC. AR
21.
While the ALJ’s mental RFC discussion does not specifically discuss his Step
Three finding that Gann has marked difficulties with regard to concentration, persistence
or pace, he did include a restriction on Gann’s ability to tolerate stress.

AR 18.

Specifically, he found that she could work at a stress level of no more than five on a scale
of one to ten. Id. This restriction is consistent with the Step Three finding and further
demonstrates that the ALJ properly considered the entire record in formulating Gann’s
mental RFC.
Finally, the ALJ undertook a lengthy analysis of Gann’s credibility and explained
why he discredited her subjective allegations of disabling symptoms. AR 22-24. As I
will explain in Section V(3)(B), infra, the ALJ’s credibility findings are supported by
substantial evidence. Thus, I find that the ALJ properly considered all evidence of
record, gave good reasons for the weight given to the various medical opinions and
formulated an RFC that falls squarely within the permissible “zone of choice.”
b.

The Questions to the VE

My conclusion that the ALJ’s formulation of Gann’s RFC is supported by
substantial evidence largely answers her arguments concerning the VE’s (written)
testimony. Gann acknowledges that the hypothetical questions the ALJ posed to the VE
were based on the ALJ’s RFC findings. Doc. No. 12 at 10-11 (citing AR 274). Because
the RFC was proper, hypothetical questions based on that RFC properly addressed “those
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impairments that the ALJ finds are substantially supported by the record as a whole.”
Pickney, 96 F.3d at 296.
In answering the ALJ’s hypothetical questions, the VE reported that an individual
with Gann’s vocational profile and RFC could perform all of Gann’s past relevant work,
including certified nursing assistant, laborer, bus person, housekeeper, fast food worker
and newspaper carrier. AR 278-79. Because this testimony was in response to properlyformed hypothetical questions, it constitutes substantial evidence supporting the ALJ’s
finding that Gann is able to perform past relevant work. Hulsey, 622 F.3d at 922.4
This leaves for discussion Gann’s objection to the process by which the ALJ
obtained the VE’s opinions after the hearing. She relies on Wallace v. Bowen, 869 F.2d
187 (3d. Cir. 1989),5 for the proposition that the ALJ should have conducted a new
hearing because the VE’s opinion was obtained post-hearing, thus depriving her counsel
of the opportunity for cross-examination. Wallace holds that when an ALJ
chooses to go outside the testimony adduced at the hearing in making a
determination on a social security claim, the ALJ must afford the claimant
not only an opportunity to comment and present evidence but also an
opportunity to cross-examine the authors of any post-hearing reports when
such cross-examination is necessary to the full presentation of the case, and
must reopen the hearing for that purpose if requested.
Id. at 193. In Wallace, the claimant’s attorney made various written objections to the
use of post-hearing reports, including the observation that he had not had “the opportunity
to confront these physicians and challenge their conclusions.” Id. at 194. The ALJ
nonetheless relied on the post-hearing reports without providing an opportunity for cross-

4

In addition, and as noted above, the Commissioner is correct that VE testimony was not
necessary at Step Four, as it was Gann’s burden to prove that she was unable to perform past
relevant work. Lewis, 353 F.3d at 648.

5

Bizarrely, both parties cited Wallace as a decision of the Eighth Circuit Court of Appeals, thus
suggesting it to be binding authority. Doc. No. 12 at 14; Doc. No. 13 at 11. It isn’t.

19

examination. Id. Under these circumstances, the Third Circuit Court of Appeals held
that remand was necessary to permit cross-examination. Id.
The Eighth Circuit Court of Appeals addressed Wallace in Coffin v. Sullivan, 895
F.2d 1206 (8th Cir. 1990), a case neither party cited. The court stated, in relevant part:
In the case before us, the report was issued post-hearing, and the vocational
expert who prepared the report did not examine Coffin. The practice of
allowing post-hearing reports is not uncommon. The ALJ frequently will
not close the record after the hearing either to order a post-hearing
examination of the claimant or to allow the claimant to introduce posthearing evidence in support of his claim. See Wallace v. Bowen, 869 F.2d
187, 191–92 (3d Cir.1988); Hudson v. Heckler, 755 F.2d 781, 783 (11th
Cir. 1985), cert. granted, Bowen v. Hudson, 488 U.S. 980, 109 S.Ct. 527,
102 L.Ed.2d 559 (1988), aff'd on other grounds, Sullivan v. Hudson, 490
U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989). Further, this circuit
affirmed the decision of an ALJ who created hypothetical claimants, relied
on the reports of vocational experts, and submitted post-hearing
interrogatories. See Buckler v. Bowen, 860 F.2d 308, 310–11 (8th Cir.
1988). Thus, we do not find that the factual distinctions of whether the
reports were issued before or after the hearing, or whether the claimant was
examined by the reporting expert, to be crucial to our decision. Rather, the
proper focus in this case is on the requirements of due process, and whether
the post-hearing interrogatories posed to the vocational expert satisfied
those requirements.
Due process requires that a claimant be given the opportunity to crossexamine and subpoena the individuals who submit reports. See Richardson
[v. Perales], 402 U.S. [389,] 402, 91 S. Ct. [1420,] 1427; McClees v.
Sullivan, 879 F.2d 451, 452 (8th Cir. 1989). The ALJ, however, is not
required to inform the claimant's attorney that the claimant has a right to
cross-examine the vocational expert. See Hudson, 755 F.2d at 785. The
ALJ is required to allow the claimant to cross-examine the witness, but if
the claimant's attorney fails to object to the post-hearing reports or remains
silent when the opportunity to request cross-examination arises, the right to
cross-examination is waived. See Wallace, 869 F.2d at 194 (claimant's
attorney objected to post-hearing reports and did not waive right to crossexamination, but this conduct must be contrasted with that of an attorney
who does not object); Hudson, 755 at 784–85 (claimant's legal
representative had opportunity to cross-examine doctor but did not respond
and, thus, waived right).
20

As previously indicated, in this case the ALJ sent Coffin's attorney two
letters which indicated that Coffin could object to the interrogatories,
propose his own interrogatories, comment on the evidence, and submit
additional evidence. We hold that these letters satisfied due process
requirements. However, our holding is limited to the facts of this case. If
Coffin had been unrepresented, he would not have waived his right to crossexamination. If a claimant represents himself, the ALJ has a special
responsibility to inform the claimant that he has the right of crossexamination. Coffin, however, was represented by a lawyer, an individual
who is presumed to know about the right of cross-examination. The ALJ,
therefore, is not required to list and explain every option available to an
attorney in order to meet due process requirements. Thus, no due process
violation occurred.
895 F.2d at 1211-12 [emphasis added].
Here, the ALJ complied with Coffin by disclosing the new VE evidence to Gann’s
counsel and giving him the opportunity to respond. AR 280. While Gann’s counsel did
submit a detailed response, he did not request the opportunity to cross-examine the VE.
AR 282-83. Indeed, he stated that “in the interest of time,” he would not request that
additional interrogatories be submitted to the VE. AR 282. Instead, he highlighted
alleged flaws in the VE’s answers and noted that the VE had not had the benefit of hearing
Gann’s testimony. AR 282-83.
If the ALJ would have rejected a request for cross-examination, or would have
refused a request to submit additional interrogatories to the VE, Gann would have a valid
complaint. See, e.g., Rahe v. Astrue, 840 F. Supp. 2d 1119, 1137-39 (N.D. Iowa 2011)
(claimant’s due process rights were violated when the claimant’s counsel submitted
additional interrogatories but the ALJ declined to forward those interrogatories to the
VE). Under the facts present here, however, Gann’s procedural due process argument
is without merit.

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3.

Gann’s Credibility
A.

Applicable Standards

“The credibility of a claimant’s subjective testimony is primarily for the ALJ to
decide, not the courts.” Pearsall, 274 F.3d at 1218. Accordingly, the court must “defer
to the ALJ’s determinations regarding the credibility of testimony, so long as they are
supported by good reasons and substantial evidence.” Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005). An ALJ may discount a claimant’s subjective complaints if
there are inconsistencies in the record as a whole. Id. “An ALJ who rejects [subjective]
complaints must make an express credibility determination explaining the reasons for
discrediting the complaints.” Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
In assessing a claimant’s credibility, the ALJ must consider “the claimant’s prior
work history; daily activities, duration, frequency, and intensity of pain; dosage,
effectiveness and side effects of medication; precipitating and aggravating factors; and
functional restrictions.” Medhaug v. Astrue, 578 F.3d 805, 816 (8th Cir. 2009) (citing
Polaski, 739 F.2d at 1322); see also SSR 96-7p, 1996 WL 374186. The ALJ is not
required to discuss each factor as long as he or she “acknowledges and considers the
factors before discounting a claimant’s subjective complaints.” Moore v. Astrue, 572
F.3d 520, 524 (8th Cir. 2009). Another relevant factor is “the absence of objective
medical evidence to support the complaints.” Mouser v. Astrue, 545 F.3d 634, 638 (8th
Cir. 2008) (quoting Wheeler v. Apfel, 224 F.3d 891, 894 (8th Cir. 2000)). However,
lack of objective medical evidence cannot be the sole reason for discounting a claimant’s
subjective complaints. Mouser, 545 F.3d at 638.
When an ALJ explicitly discredits the claimant’s testimony and gives good reason
for doing so, the court should normally defer to the ALJ’s credibility determination.
Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003). It is not the court’s role to reweigh the evidence. See 42 U.S.C. § 405(g); see also Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000) (“[I]f, after reviewing the record, [the Court] find[s] that it is
22

possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Commissioner’s] findings, [the Court] must affirm the decision of the
Commissioner.”) [citations and quotations omitted].
B.

Analysis

The ALJ commenced the credibility analysis by referencing SSR 96-7p, which
lists the relevant factors. AR 23. He then provided the following reasons for concluding
that Gann’s subjective allegations were “less than fully credible:”
1.

There is no evidence that she complained of energy or
motivation to any treating doctors, and no evidence that her
medications were adjusted because of such complaints.

2.

There is no evidence that she has difficulties performing her daily
activities and those activities tend to show that she has the ability to
perform work.

3.

She did not demonstrate difficulty focusing or concentrating during
the hearing.

4.

Her limited treatment history does not support her allegations
and there is no evidence that she received regular mental health
treatment after July 2012.

5.

She has been described as exhibiting exaggeration during
examinations.

AR 23-24. Gann attacks three of these reasons as being inaccurate.
First, she states that she complained about lack of energy on two occasions, once
to Molly Earleywine, P.A.-C., and once to Laurie Warren, P.A. Doc. No. 12 at 15
(citing AR 503, 713-14). Gann did tell Ms. Warren on May 2, 2011, that her “energy
and motivation have been up and down.”

AR 503.

Likewise, in completing a

questionnaire for Ms. Earleywine on December 8, 2011, Gann answering an inquiry
about feeling tired or having little energy by responding: “Nearly every day.” AR 71323

14. Thus, the ALJ erred in stating that there is “no evidence that [Gann] complained of
energy and motivation to any of her treating doctors.” AR 23.6 More accurately, he
should have stated that there is little evidence of such complaints. In addition, Gann does
not challenge the ALJ’s statement that her medication was never adjusted due to
complaints that she lacked energy or motivation. Thus, the ALJ’s larger point – which
is that the contemporaneous treatment records are not consistent with Gann’s subjective
allegations concerning energy and motivation7 – is not entirely inaccurate.
Second, Gann points out that she did seek mental health treatment on three
occasions after July 2012. Doc. No. 12 at 15 (citing AR 1157, 1159 and 1161). And,
in fact, Gann saw Dr. Idahosa, a psychiatrist, on August 24, 2012, September 24, 2012,
and October 22, 2012. AR 1157, 1159 and 1161. Thus, the ALJ’s statement that Gann
did not receive regular mental health treatment after July 2012 is incorrect. I will not
consider that to be a good reason supporting the ALJ’s decision to discredit Gann’s
subjective allegations.
Third, Gann takes issue with the ALJ’s reliance on comments contained in a
written consultative examination report from January 2010. Doc. No. 12 at 15. That
report, which is signed by both James Rusch, P.A.-C, and Jeffrey Krohn, M.D.,8 raised
issues about Gann’s credibility. AR 292-93. At one point, the report states that Gann
“seems to want to exaggerate her impairments” and provides examples. AR 293. It then
concludes as follows:
Perhaps I have become jaded over the years, but Bonnie seems to be an
expert manipulator. Maybe it is her extensive hospitalizations but I have
never seen anyone who could so easily list off mental health diagnoses and
6

Technically, neither Ms. Earleywine nor Ms. Warren was a “treating doctor.” However, I
assume the ALJ did not intend to split hairs to that degree.

7

Gann did not testify about lacking energy or motivation during the hearing, but she did include
that allegation in her written report of disability. AR 40-63, 232, 235.

8

I agree with Gann that the report appears to have been written by Mr. Rusch, as Dr. Krohn did
not sign off on the report until 12 days later. AR 293.

24

medication lists without error or notes. If she truly has ADHD and learning
disabilities this should have been much more difficult. It's as though she
has studied for today's evaluation. She has been institutionalized with
hospitals and prisons and I get the impression that this has trained her to
give the answers she anticipates I am looking for. I am not an expert in
mental health. I would not be able to determine her impairment for these
problems. As far as physical impairments are concerned, I do not believe
she has significant impairment. She claims to have carpal tunnel syndrome
but states that she refuses to have any surgical correction of this problem.
I did not she [sic] any muscle wasting secondary to this. She denies any
parasthesias. She denies any problems handling objects. That is usually
the first complaint patients complain of with carpal tunnel syndrome - they
can't handle objects well due to the parasthesias. I think an evaluation by
any orthopedist is necessary and (if necessary) definitive treatment be
initiated. Her ranges of motion are fairly normal, her strength is normal
and her gait is normal. Her Fibromyalgia Evaluation indicates that she
claims to feel pain over most of the control points as well as almost all of
the actual points. If I can be of further assistance please let me know.
Id. Gann complains that Mr. Rusch “had no business attacking the credibility of Gann’s
statements regarding her mental health” and concludes that “the ALJ erred in using them
to discount Gann’s credibility.” Doc. No. 12 at 15.
Gann cites no authority for the proposition that an ALJ cannot give weight to a
consultative examiner’s concerns that the claimant was exaggerating symptoms. Clearly,
a claimant’s past exaggeration of impairments is an appropriate credibility factor.
Stephens v. Shalala, 46 F.3d 37, 39 (8th Cir. 1995). Moreover, while Mr. Rusch
acknowledged that he is not “an expert in mental health,” he did not simply attack “the
credibility of Gann’s statements regarding her mental health,” as Gann now suggests. He
provided specific examples as to how, and why, he believes Gann exaggerated her
physical symptoms, as well. AR 293. I reject Gann’s unsupported legal argument that
the ALJ erred in considering Mr. Rusch’s concerns.
Gann does not address the ALJ’s other stated reasons for discounting her
credibility. With regard to activities of daily living, the ALJ noted that Gann walks to
25

the library, takes the bus, attends appointments and is able to shower and dress herself.
AR 24. He further observed that Gann performs chores, attends meetings and church
services, does her own shopping and sometimes goes to temporary work agencies. Id.
The ALJ found that these activities suggest that Gann has greater physical and mental
capabilities than she alleges. Id. “‘Acts which are inconsistent with a claimant’s assertion
of disability reflect negatively upon that claimant’s credibility.’” Heino v. Astrue, 578
F.3d 873, 881 (8th Cir. 2009) (quoting Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir.
2001)). The ALJ’s consideration of Gann’s daily activities was appropriate and his
findings are supported by substantial evidence.
The ALJ also noted that Gann appeared to have no difficulty focusing or
concentrating during the hearing. AR 23. While an ALJ’s observations cannot be the
sole basis of his or her decision, “it is not an error to include his observations as one of
several factors.” Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008). Indeed, “[t]he
ALJ’s personal observations of the claimant’s demeanor during the hearing is completely
proper in making credibility determinations.” Johnson, 240 F.3d at 1147-48.
In short, and apart from the ALJ’s error concerning mental health treatment after
July 2012, the reasons supplied by the ALJ for discounting Gann’s credibility are valid
factors supported by substantial evidence. As such, I must defer to the ALJ’s credibility
determination. Gregg, 354 F.3d at 714. I reject Gann’s argument that the ALJ erred in
this regard.
VI.

CONCLUSION AND RECOMMENDATION

For the reasons set forth herein, I RESPECTFULLY RECOMMEND that the
Commissioner’s determination that Gann was not disabled be affirmed and that judgment
be entered in favor of the Commissioner and against Gann.
Objections to this Report and Recommendation in accordance with 28 U.S.C.
' 636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within fourteen (14) days of the
26

service of a copy of this Report and Recommendation. Objections must specify the parts
of the Report and Recommendation to which objections are made, as well as the parts of
the record forming the basis for the objections. See Fed. R. Civ. P. 72. Failure to object
to the Report and Recommendation waives the right to de novo review by the district
court of any portion of the Report and Recommendation as well as the right to appeal
from the findings of fact contained therein. United States v. Wise, 588 F.3d 531, 537
n.5 (8th Cir. 2009).

IT IS SO ORDERED.
DATED this 30th day of January, 2015.

________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE

27