Crum v. Commissioner of Social Security
MEMORANDUM OPINION and ORDER: Accepting 18 Report and Recommendation: The ALJ's decision is affirmed. Signed by Judge Mark W Bennett on 08/27/15. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
NOAH WILLIAM CRUM,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
MEMORANDUM OPINION AND
MAGISTRATE’S REPORT AND
TABLE OF CONTENTS
INTRODUCTION AND BACKGROUND .............................................. 2
Procedural Background ........................................................... 2
Factual Background ............................................................... 3
DISABILITY CLAIM AND ONSET DATE ........................................... 5
LEGAL ANALYSIS ........................................................................ 5
Standard Of Review ................................................................ 5
Crum’s Objections ................................................................ 11
Law of the case objection ............................................... 11
Hypothetical question to the VE objection ........................... 16
CONCLUSION ............................................................................ 20
INTRODUCTION AND BACKGROUND
This case is before me on a Report and Recommendation from United States
Magistrate Judge Leonard T. Strand, filed on July 17, 2015 (docket no. 18). In his
Report and Recommendation, Judge Strand recommends that I affirm the Commissioner’s
decision. Plaintiff Noah William Crum has filed timely objections to the Report and
Crum objects to the Report and Recommendation on the following grounds: (1)
the Administrative Law Judge’s (“ALJ’s”) decision regarding Crum’s residual functional
capacity violates the law of the case doctrine; and (2) the ALJ’s posed improper
hypothetical question to the vocational expert (“VE”). Crum requests that the case be
reversed and remanded for further proceedings.
The Commissioner filed a timely response to Crum’s objections. The
Commissioner contends that the ALJ correctly weighed the evidence and made a
substantially supported finding based on the record as a whole that Crum did not qualify
for benefits because he could perform three different jobs available in substantial numbers
in the national economy. The Commissioner further argues that the law of the case
doctrine did not require that the ALJ adopt the factual findings from his initial decision
after the Appeals Council remanded the case for reconsideration of the evidence and
analysis of new evidence.
Finally, the Commissioner contends that the VE identified
jobs that matched the ALJ’s hypothetical question and the ALJ then cited as work that
Crum could undertake. Therefore, the Commissioner argues that I should overrule all
of Crum’s objections and accept the Report and Recommendation.
For the reasons discussed below, I accept the Report and Recommendation, and
affirm the Commissioner’s decision that Crum is not disabled. Accordingly, I enter
judgment in favor of the Commissioner and against Crum.
On remand from the Appeals Council, the ALJ made the following findings:
The claimant meets the insured status requirements of
the Social Security Act through December 31, 2013.
The claimant has not engaged in substantial gainful
activity since December 17, 2009, the amended alleged onset
date (20 C.F.R. § 404.1571 et seq., and 416.971 et seq.).
The claimant has the following severe impairments:
depressive disorder, not otherwise specified (NOS); anxiety
disorder, NOS; diabetes mellitus; a history of atherosclerotic
heart disease; hypertension; and obesity (20 C.F.R. §
404.1520(c) and 416.920(c)).
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 C.F.R. §
Part 404, Subpart P, Appendix 1 (20 C.F.R. § 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 C.F.R. §
404.1567(b) and 416.967(b), i.e., he can lift and carry 20
pounds occasionally and ten pounds frequently; sit six hours
in an eight-hour workday; stand six hours in an eight-hour
workday; walk six hours in an eight-hour workday; and has
unlimited use of the extremities. He should avoid climbing
ladders and scaffolding. He should avoid constant fingering,
bilaterally. He should avoid concentrated vibration. Due to
his mental impairments, he should be able to remember and
understand instructions, procedures, and locations. Due to
trying to interact with supervisors, co-workers, and the public
would need to look at some type of employment that would
be absolutely minimized and certainly not working with the
general public at all. He could exercise good judgment and
respond appropriately to changes in the workplace.
The claimant is unable to perform any past relevant
work (20 C.F.R. § 404.1565 and 416.965).
The claimant was born on December 17, 1959 and was
50 years old, which is defined as a person closely approaching
advanced age (age 50-54), on the amended alleged disability
onset date (20 C.F.R. § 404.1563 and 416.963).
The claimant has at least a high school education and
is able to communicate in English (20 C.F.R.§ 404.1564 and
Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that the
claimant is “not disabled,” whether or not the claimant has
transferable job skills. (See SSR 82-41 and 20 C.F.R. Part
404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work
experience, and residual functional capacity, there are jobs
that exist in significant numbers in the national economy that
the claimant can perform (20 C.F.R. § 404.1569, 4041569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined
in the Social Security Act, from December 17, 2009, the
amended alleged onset date, through the date of this decision
(20 C.F.R. § 404.1520(g) and 416.920(g)).
AR at 12-29.
DISABILITY CLAIM AND ONSET DATE
On January 9, 2009, Crum filed for Social Security Disability Benefits (DIB) and
SSI under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. He
alleged a disability onset date of February 3, 2012. Id. He claimed that his disability
was a consequence of his anxiety, depression, diabetes, heart disease, hypertension, and
Standard Of Review
I review the magistrate judge’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
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 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.
De novo review, of course, is nondeferential and generally allows a reviewing
court to make an “independent review” of the entire matter. Salve Regina College v.
Russell, 499 U.S. 225, 238 (1991) (noting also that “[w]hen de novo review is compelled,
no form of appellate deference is acceptable”); see Doe v. Chao, 540 U.S. 614, 620-19
(2004) (noting de novo review is “distinct from any form of deferential review”). The
de novo review of a magistrate judge’s report and recommendation, however, only means
a district court “‘give[s] fresh consideration to those issues to which specific objection
has been made.’” United States v. Raddatz, 447 U.S. 667, 675 (1980) (quoting H.R.
Rep. No. 94-1609, at 3, reprinted in 1976 U.S.C.C.A.N. 6162, 6163 (discussing how
certain amendments affect 28 U.S.C. § 636(b))). Thus, while de novo review generally
entails review of an entire matter, in the context of § 636 a district court’s required de
novo review is limited to “de novo determination[s]” of only “those portions” or
“specified proposed findings” to which objections have been made.
28 U.S.C. §
636(b)(1); see Thomas, 474 U.S. at 154 (“Any party that desires plenary consideration
by the Article III judge of any issue need only ask.” (emphasis added)). Consequently,
the Eighth Circuit Court of Appeals has indicated de novo review would only be required
if objections were “specific enough to trigger de novo review.” Branch v. Martin, 886
F.2d 1043, 1046 (8th Cir. 1989). Despite this “specificity” requirement to trigger de
novo review, 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 a result,
the Eighth Circuit Court of Appeals has been willing to “liberally construe” otherwise
general pro se objections to require a de novo review of all “alleged errors,” see Hudson
v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995), and to conclude that general objections
require “full de novo review” if the record is concise, Belk, 15 F.3d at 815 (“Therefore,
even had petitioner’s objections lacked specificity, a de novo review would still have been
appropriate given such a concise record.”). Even if the reviewing court must construe
objections liberally to require de novo review, it is clear to me that there is a distinction
between making an objection and making no objection at all. See Cooperative Fin.
Assoc., Inc. v. Garst, 917 F. Supp. 1356, 1373 (N.D. Iowa 1996) (“The court finds that
the distinction between a flawed effort to bring objections to the district court’s attention
and no effort to make such objections is appropriate.”). Therefore, I will strive to provide
de novo review of all issues that might be addressed by any objection, whether general
or specific, but will not feel compelled to give de novo review to matters to which no
objection at all has been made.
In the absence of any objection, the Eighth Circuit Court of Appeals has indicated
a district court should review a magistrate judge’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”); Branch, 886 F.2d at 1046 (contrasting de novo review with “clearly
erroneous standard” of review, and recognizing de novo review was required because
objections were filed). I am unaware of any case that has described the clearly erroneous
standard of review in the context of a district court’s review of a magistrate judge’s report
and recommendation to which no objection has been filed. In other contexts, however,
the Supreme Court has stated the “foremost” principle under this standard of review “is
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, 57374 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Thus,
the clearly erroneous standard of review is deferential, see Dixon v. Crete Med. Clinic,
P.C., 498 F.3D 837, 847 (8th Cir. 2007) (noting a finding is not clearly erroneous even
if another view is supported by the evidence), but a district court may still reject the
magistrate judge’s report and recommendation when the district court is “left with a
definite and firm conviction that a mistake has been committed,” U.S. Gypsum Co., 333
U.S. at 395.
Even though some “lesser review” than de novo is not “positively require[d]” by
statute, Thomas, 474 U.S. at 150, Eighth Circuit precedent leads me to believe that a
clearly erroneous standard of review should generally be used as the baseline standard to
review all findings in a magistrate judge’s report and recommendation that are not
objected to or when the parties fail to file any timely objections, see Grinder, 73 F.3d at
795; Taylor, 910 F.2d at 520; Branch, 886 F.2d at 1046; see also FED. R. CIV. P. 72(b)
advisory committee’s note (“When no timely objection is filed, the court need only satisfy
itself that there is no clear error on the face of the record in order to accept the
recommendation.”). In the context of the review of a magistrate judge’s report and
recommendation, I believe one further caveat is necessary: a district court always
remains free to render its own decision under de novo review, regardless of whether it
feels a mistake has been committed. See Thomas, 474 U.S. at 153-54. Thus, while a
clearly erroneous standard of review is deferential and the minimum standard appropriate
in this context, it is not mandatory, and I may choose to apply a less deferential standard.1
The Eighth Circuit Court of Appeals, in the context of a dispositive matter
originally referred to a magistrate judge, does not review a district court’s decision in
similar fashion. The Eighth Circuit Court of Appeals will either apply a clearly erroneous
or plain error standard to review factual findings, depending on whether the appellant
originally objected to the magistrate judge’s report and recommendation. See United
States v. Brooks, 285 F.3d 1102, 1105 (8th Cir. 2002) (“Ordinarily, we review a district
court’s factual findings for clear error . . . . Here, however, the record reflects that [the
appellant] did not object to the magistrate’s report and recommendation, and therefore
we review the court’s factual determinations for plain error.” (citations omitted)); United
States v. Looking, 156 F.3d 803, 809 (8th Cir. 1998) (“[W]here the defendant fails to
file timely objections to the magistrate judge’s report and recommendation, the factual
conclusions underlying that defendant’s appeal are reviewed for plain error.”). The plain
error standard of review is different than a clearly erroneous standard of review, see
United States v. Barth, 424 F.3d 752, 764 (8th Cir. 2005) (explaining the four elements
of plain error review), and ultimately the plain error standard appears to be discretionary,
as the failure to file objections technically waives the appellant’s right to appeal factual
findings, see Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994) (stating an appellant
who did not object to the magistrate judge’s report and recommendation waives his or
Here, Crum has objected to several of Judge Strand’s findings. Although I will
review these findings de novo, and Judge Strand’s other findings for clear error, I 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) (citing
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.”
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002); see also Page, 484 F.3d at 1042
(“Substantial evidence is relevant evidence which a reasonable mind would accept as
adequate to support the Commissioner’s conclusion.” (quoting Haggard, 175 F.3d at
594)). “If, after review, [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 denial of benefits.” Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008) (quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996)). Even if the
her right to appeal factual findings, but then choosing to “review the magistrate judge’s
findings of fact for plain error”). An appellant does not waive his or her right to appeal
questions of law or mixed questions of law and fact by failing to object to the magistrate
judge’s report and recommendation. United States v. Benshop, 138 F.3d 1229, 1234
(8th Cir. 1998) (“The rule in this circuit is that a failure to object to a magistrate judge’s
report and recommendation will not result in a waiver of the right to appeal ‘”when the
questions involved are questions of law or mixed questions of law and fact.”’” (quoting
Francis v. Bowen, 804 F.2d 103, 104 (8th Cir. 1986), in turn quoting Nash v. Black,
781 F.2d 665, 667 (8th Cir. 1986))). In addition, legal conclusions will be reviewed de
novo, regardless of whether an appellant objected to a magistrate judge’s report and
recommendation. See, e.g., United States v. Maxwell, 498 F.3d 799, 801 n.2 (8th Cir.
2007) (“In cases like this one, ‘where the defendant fails to file timely objections to the
magistrate judge’s report and recommendation, the factual conclusions underlying that
defendant’s appeal are reviewed for plain error.’ We review the district court’s legal
conclusions de novo.” (citation omitted)).
court would have “‘weighed the evidence differently,’” the Commissioner’s decision will
not be disturbed unless “it falls outside the available ‘zone of choice.’” Nicola v. Astrue,
480 F.3d 885, 886 (8th Cir. 2007) (quoting Hacker v. Barnhart, 459 F.3d 934, 936 (8th
With these standards in mind, I turn to consider Crum’s objections to Judge
Strand’s Report and Recommendation.
Law of the case objection
Crum contends that the ALJ’s decision on remand violated the law of the case by
amending Crum’s RFC. Crum argues that the Appeals Council’s remand order did not
permit the ALJ to make a de novo determination of his RFC. The Commissioner argues
no violation of the law of the case occurred because the remand order did not preclude
the ALJ from a de novo determination of Crum’s RFC based on the ALJ’s reconsideration
of all evidence, including new evidence presented on remand.
The ALJ’s discretion to make a de novo determination of Crum’s RFC is limited
by two related principles, the mandate rule and the law of the case doctrine. As I
“The law of the case doctrine prevents the relitigation
of a settled issue in a case and requires courts to adhere to
decisions made in earlier proceedings. . . .” Brachtel, 132
F.3d at 419 (quoting United States v. Bartsh, 69 F.3d 864,
866 (8th Cir. 1995)). It also applies to administrative
agencies on remand. Id. “This principle [of law of the case]
applies to all matters decided by necessary implication as well
as those addressed directly.” Calderon v. Astrue, 683
F.Supp.2d 273, 276 (E.D.N.Y.2010) (quoting Carrillo v.
Heckler, 599 F. Supp. 1164, 1168 (S.D.N.Y. 1984)). This
is particularly important in Social Security appeals “because
a district court is never called upon to address issues resolved
in the claimant's favor; the claimant obviously cannot
challenge such determinations, and the Commissioner cannot
challenge them because they were made by him or his delegate
in the first place.” Calderon, 683 F. Supp.2d at 276–77.
Meyerhoff v. Colvin, No. C12-3046-MWB. 2013 WL 3283696, at *18 (N.D. Iowa June
“‘The mandate rule requires a lower court to adhere to the commands of a higher
court on remand.’” United States v. Adams, 746 F.3d 734, 744 (7th Cir. 2014) (quoting
United States v. Polland, 56 F.3d 776, 777 (7th Cir. 1995)); see United States v. Moored,
38 F.3d 1419, 1421 (6th Cir. 1994) (citing United States v. Bell, 988 F.2d 247, 250 (1st
Cir. 1993)). “The basic tenet of the mandate rule is that a district court is bound to the
scope of the remand issued by the court of appeals.” United States v. Campbell, 168
F.3d 263, 265 (6th Cir.1999). “In essence, the mandate rule is a specific application of
the law-of-the-case doctrine.” Id.; see Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.1992).
A remand may be general or limited in scope. Allard Enters., Inc. v. Advanced
Programming Res., Inc., 249 F.3d 564, 570 (6th Cir. 2001). A limited remand explicitly
outlines the issues to be addressed by a district court and creates “a narrow framework
within which the district court must operate.” United States v. Campbell, 168 F.3d 263,
265 (6th Cir.1999) (citing United States v. Moore, 131 F.3d 595, 598 (6th Cir.1997)).
Thus, the law of the case doctrine does not apply to general remand orders or the issues
that formed the basis for remand. See Williams v. Apfel, 65 F. Supp. 2d 1223, 1230
(N.D. Okla. 1999). When subsequent proceedings follow a general remand, the ALJ
may properly decide anything not foreclosed by the mandate. See Guidry v. Sheet Metal
Workers Int’l Ass’n, 10 F.3d 700, 706 (10th Cir. 1993) (“When further proceedings
follow a general remand, the lower court is free to decide anything not foreclosed by the
mandate issued by the higher court.”) (quotation marks omitted); see also Pittsburg Cty.
Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 711 (10th Cir. 2004) (same)
To decide whether the ALJ violated the Appeals Council’s remand order, it is
necessary to examine the remand order and then look at what the ALJ did. Meyerhoff v.
Colvin, No. C12-3046-MWB. 2013 WL 3283696, at *17 (holding that the scope of
remand was governed by the Appeals Council’s remand order); see Hicks v. Gates Rubber
Co., 928 F.2d 966, 969 (10th Cir. 1991)( “To decide whether the district court violated
the mandate, it is necessary to examine the mandate and then look at what the district
court did.”); see also Barber v. Int'l Bhd. of Boilermakers, 841 F.2d 1067, 1071 (11th
Cir. 1988) (“As should be apparent, the application of these mandate rule principles will
. . . depend considerably on the stage a case has reached when it goes up on appeal and
on the language of the appellate court's mandate and/or opinion.”).
The ALJ’s first RFC determination of Crum stated in pertinent part:
Due to his mental impairments, he would have moderate
limitations in the ability to respond appropriately to changes
in the work setting and in the ability to complete a normal
workday or workweek without interruptions from
psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of
AR at 120. The Appeals Council’s remand order stated in relevant part:
Upon remand the [ALJ] will:
Obtain additional evidence concerning the claimant’s
mental and physical impairments in order to complete
the administrative record in accordance with the
examinations and existing medical evidence (20 CFR
404.1512-1513 and 416.912-913). The additional
evidence may include, if warranted and available,
consultative examinations with psychological testing
and medical source statements about what the claimant
can still do despite the impairments.
Give further consideration to the claimant’s maximum
residual functional capacity and provide appropriate
rationale with specific references to evidence of record
in support of the assessed limitations (20 CFR
404.1545 and 416.945 and Social Security Ruling 8516 and 96-8p) . . .
In compliance with the above, the [ALJ] will offer . . . a
hearing, address the evidence which was submitted with the
request for review, take any further action needed to complete
the administrative record and issue a new decision.
AR at 135-36.
On remand, the ALJ conducted a second evidentiary hearing. Following that
hearing, the ALJ made the following findings regarding Crum’s RFC:
Due to his mental impairments, he should be able to
remember and understand instructions, procedures, and
locations. Due to trying to interact with supervisors, coworkers, and the public would need to look at some type of
employment that would be absolutely minimized and certainly
not working with the general public at all. He could exercise
good judgment and respond appropriately to changes in the
AR at 15.
Crum argues that the ALJ was bound to the mental limitations he set out in his
first decision and could only clarify or add detail to those limitations on remand.
Examination of the Appeals Council’s remand order fails to supports Crum’s argument.
In its remand order, the Appeals Council did not mandate that the ALJ carry over any
findings from the first decision. To the contrary, the Appeals Council vacated the hearing
“Vacate” means “[t]o nullify or cancel; make void; invalidate.” BLACK’S LAW
DICTIONARY 1584 (8th ed. 2004); see United States v. Maxwell, 590 F.3d 585, 589 (8th
Cir. 2010) (“‘A judgment vacated on appeal is of no further force and effect.’”) (quoting
Riha v. Int'l Tel. & Tel. Corp., 533 F.2d 1053, 1054 (8th Cir. 1976); Creighton v.
Anderson, 922 F.2d 443, 449 (8th Cir. 1990) (“A vacated opinion has no further force
and effect.”); see also Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., --F.3d ----, 2015 WL 4727198, at *11 (D.C. Cir. 2015) (noting that “the word ‘vacate’
means, among other things, ‘to cancel or rescind’ and ‘to make of no authority or
validity.’”) (quoting Action on Smoking & Health v. Civil Aeronautics Bd., 713 F.2d
795, 797 (D.C. Cir. 1983)); Rice v. Alpha Sec., Inc., 556 Fed. App’x 257, 259 (4th Cir.
2014) (noting that “[t]he effect of ‘vacating’ an order is to ‘nullify or cancel; make void;
invalidate.’”(quoting Ferguson v. Commonwealth, 51 Va. App. 427, 658 S.E.2d 692,
695 (2008)); NLRB v. Goodless Bros. Elec. Co., 285 F.3d 102, 110 (1st Cir. 2002)
(defining “vacate” as “to render inoperative; deprive of validity; void; annul” and that
an order to vacate “wipes the slate clean”).
In Massachi v. Astrue, 486 F.3d 1149, 1154 (9th Cir. 2007), the Ninth Circuit
Court of Appeals rejected precisely the same argument made by Crum here. In Massachi,
a social security claimant argued that the ALJ was not free on remand to change the
claimant’s RFC and that the ALJ's new finding was error. Id. Rejecting this argument,
the court of appeals pointed out that, because the Appeals Council vacated the ALJ's
original decision and specifically instructed the ALJ to reassess the claimant’s residual
functional capacity, “the ALJ's original finding no longer existed.” Id. Likewise, here,
by vacating the ALJ’s original decision, the Appeals Council indicated that the ALJ’s
original decision should have no effect on remand. Moreover, the Appeals Council did
not impose any express limits on the scope of the ALJ’s reconsideration on remand. Nor
did the Appeals Council explicitly or impliedly decide any issues of fact concerning
Crum’s RFC. Instead, the Appeals Council directed the ALJ to assess the compatibility
of Crum’s abilities with the demands of his past relevant work and to assess the
importance of new evidence related to Crum’s spinal functioning. The Appeals Council
directed that the ALJ should obtain additional evidence concerning Crum’s mental and
physical impairments; further consider Crum’s residual functional capacity; and, if
necessary, obtain the services of a vocational expert and ask hypothetical questions that
reflected the specific limitations established by the record as a whole. The Appeals
Council instructed the ALJ to provide Crum a hearing, address the new evidence, take
any further necessary actions, and issue a new decision. The ALJ followed the Appeals
Council’s directive by giving “further consideration to the claimant’s maximum residual
functional capacity” and making new findings as to Crum’s RFC. In doing so, the ALJ
received and considered approximately 350 pages of new medical evidence. Considering
the Appeals Council’s emphasis in its remand order directing the ALJ to review new
evidence, and its utter lack of any mention of binding facts, Judge Strand correctly
determined that the law of the case doctrine was inapplicable to the ALJ’s decision on
remand. Accordingly, Crum’s objection is denied.
Hypothetical question to the VE objection
Crum also objects to that portion of the Report and Recommendation in which
Judge Strand rejected Crum’s argument that even if the law of the case does not apply,
the ALJ should have posed a different hypothetical question to the VE.
It is generally accepted that VE testimony in response to a hypothetical question
is substantial evidence if the hypothetical sets forth the credible impairments with
reasonable precision.2 See Starr v. Sullivan, 981 F.2d 1006 (8th Cir. 1992). As the
Eighth Circuit Court of Appeals has explained:
“A hypothetical question must precisely describe a claimant's
impairments so that the vocational expert may accurately
assess whether jobs exist for the claimant.” Newton v.
Chater, 92 F.3d 688, 694–95 (8th Cir. 1996). Testimony
from a vocational expert based on a properly-phrased
hypothetical constitutes substantial evidence. Roe v. Chater,
92 F.3d 672, 675 (8th Cir. 1996). The converse is also true.
See Newton, 92 F.3d at 695. However, “[w]hile the
hypothetical question must set forth all the claimant's
impairments, [citation omitted], it need not use specific
diagnostic or symptomatic terms where other descriptive
terms can adequately define the claimant's impairments.”
Roe, 92 F.3d at 676.
Howard v. Massanari, 255 F.3d 557, 581–82 (8th Cir. 2001); accord Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001).
Crum argues that the ALJ failed to incorporate all of Crum’s limitations in his
RFC in posing hypothetical questions to the VE. Specifically, Crum argues that medical
records support his contention that Jeanette Tobin, a licensed social worker, “noted that
Mr. Crum’s insight and concentration were only fair, and his memory was poor, in
numerous medical records over a lengthy period of time between the first and second
hearings[.]” Crum’s objections at 9-10. However, Judge Strand accurately observed
that, “[n]otes from Ms. Tobin classify [Crum’s] judgment as good and his insight as
A series of hypothetical questions, rather than a single question, is also acceptable
so long as all credible limitations were presented to the vocational expert. See Bland v.
Bowen, 861 F.2d 533, 534 (8th Cir. 1988) (VE was asked series of hypothetical questions
that embodied claimant's various exertional and nonexertional limitations); Ward v.
Heckler, 786 F.2d 844, 848 (8th Cir. 1986) (ALJ posed series of hypothetical questions
that included claimant's physical impairments, but varied severity of limitations
either fair or excellent. AR 743, 748, 752, 754, 758, 760, 886, 890-96, 901, 903, 90714, 1022, 1027-29, 1032, 1037-39.” Report and Recommendation at 17. Judge Strand
further recognized that the ALJ discussed Tobin’s findings in the course of the ALJ’s
RFC determination and made a specific finding that Tobin’s opinion was not supported
by the medical evidence, including her own treatment notes.
Crum also argues that the ALJ erred by not asking the VE if his testimony was
consistent with the Dictionary of Occupational Titles (“DOT”).
Crum argues that the
DOT job descriptions for the positions of production assembler and cleaner are
inconsistent with the VE’s testimony. Judge Strand correctly determined that such an
error was harmless because the record did not disclose any actual conflict between the
VE’s testimony and the DOT’s descriptions of the positions of production assembler and
cleaner. The DOT describes the production assembler position as follows:
Performs any combination of following repetitive tasks on
assembly line to mass produce small products, such as ball
bearings, automobile door locking units, speedometers,
condensers, distributors, ignition coils, drafting table
subassemblies, or carburetors: Positions parts in specified
relationship to each other, using hands, tweezers, or tongs.
Bolts, screws, clips, cements, or otherwise fastens parts
together by hand or using handtools or portable powered
tools. Frequently works at bench as member of assembly
group assembling one or two specific parts and passing unit
to another worker. Loads and unloads previously setup
machines, such as arbor presses, drill presses, taps, spotwelding machines, riveting machines, milling machines, or
broaches, to perform fastening, force fitting, or light metalcutting operation on assembly line. May be assigned to
different work stations as production needs require or shift
from one station to another to reduce fatigue factor. May be
known according to product assembled.
DOT 706.684-022. The DOT’s description of the cleaner position is:
Cleans rooms and halls in commercial establishments, such as
hotels, restaurants, clubs, beauty parlors, and dormitories,
performing any combination of following duties: Sorts,
counts, folds, marks, or carries linens. Makes beds.
Replenishes supplies, such as drinking glasses and writing
supplies. Checks wraps and renders personal assistance to
patrons. Moves furniture, hangs drapes, and rolls carpets.
Performs other duties as described under CLEANER (any
industry) I Master Title. May be designated according to type
of establishment cleaned as Beauty Parlor Cleaner (personal
ser.); Motel Cleaner (hotel & rest.); or according to area
cleaned as Sleeping Room Cleaner (hotel & rest.).
DOT 323.687-014. Crum argues that these descriptions are inconsistent with the VE’s
testimony because the ALJ’s hypothetical included a restriction that interaction with
supervisors, coworkers, and the public must be “absolutely minimized.” AR 68. Crum
contends that both positions would require him to have more than minimal interactions
with coworkers or the public.
Crum’s argument is not well founded. As Judge Strand
recognized, under the DOT’s specifications, neither position requires significant
interaction with people and no talking. See e.g. DOT 706.684–022, Assembler, Small
Products I, 1991 WL 679050 (indicating that taking instructions and helping people are
not a significant aspect of this occupation and that talking does not exist in this
occupation); DOT § 323.687–014, 1991 WL 672783 (not requiring talking). Thus, I
agree with Judge Strand that there is no conflict between the VE’s testimony and the
DOT’s descriptions of these positions. Accordingly, Crum’s objection is denied.
For the reasons previously discussed, I deny Crum’s objections to Judge Strand’s
Report and Recommendation, accept Judge Strand’s Report and Recommendation, and
affirm the ALJ’s decision. Although Crum’s condition does cause him some limitations
in the type of work that he can perform, he is not disabled. The ALJ’s decision was
supported by substantial evidence in the record as a whole.
IT IS SO ORDERED.
DATED this 27th day of August, 2015.
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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