Davis v. Commissioner of Social Security

Filing 16

ORDER Accepting 13 Report and Recommendation affirming Commissioner's determination that Davis was not disabled. Judgment shall enter against Davis and in favor of the Commissioner. See text of Order for details. Signed by Judge Leonard T Strand on 3/16/16. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SANDRA DAVIS,
No. C15-4002-LTS
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

MEMORADUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

Defendant.
___________________________
I.

INTRODUCTION

This case is before me on a Report and Recommendation (R&R) filed on October
29, 2015, by the Honorable Jon Stuart Scoles, Chief United States Magistrate Judge. See
Doc. No. 13. Judge Scoles recommends that I affirm the decision by the Commissioner
of Social Security (the Commissioner) denying plaintiff Sandra Davis Social Security
Disability benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § 401 et
seq. (Act). Davis filed timely objections (Doc. No. 14) to the R&R on November 12,
2015. The Commissioner then filed a response (Doc. No. 15) to the objections. The
procedural history and relevant facts are set forth in the R&R and are repeated herein
only to the extent necessary.
II.
A.

APPLICABLE STANDARDS

Judicial Review of the Commissioner’s Decision
The Commissioner’s decision must be affirmed “if it is supported by substantial

evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as

to any fact, if supported by substantial evidence, shall be conclusive . . . .”). “Substantial
evidence is less than a preponderance, but enough that a reasonable mind might accept
as adequate to support a conclusion.” Lewis, 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 [Administrative Law Judge (ALJ)], but
it [does] not re-weigh the 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
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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.”).
B.

Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following

standards: 
Within fourteen days after being served with a copy, any party may serve
and file written objections to such proposed findings and recommendations
as provided by rules of court. A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Thus, when a party objects to
any portion of an R&R, the district judge must undertake a de novo review of that portion.
Any portions of an R&R to which no objections have been made must be reviewed
under at least a “clearly erroneous” standard. See, e.g., Grinder v. Gammon, 73 F.3d
793, 795 (8th Cir. 1996) (noting that when no objections are filed “[the district court
judge] would only have to review the findings of the magistrate judge for clear error”).
As the Supreme Court has explained, “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Anderson v. City of
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Bessemer City, 470 U.S. 564, 573 74 (1985) (quoting United States v. U.S. Gypsum Co.,
333 U.S. 364, 395 (1948)). However, a district judge may elect to review an R&R under
a more-exacting standard even if no objections are filed:
Any party that desires plenary consideration by the Article III judge of any
issue need only ask. Moreover, while the statute does not require the judge
to review an issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the request of a party,
under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
III.

THE R&R

Judge Scoles found that the ALJ’s decision was supported by substantial evidence
and, therefore, recommended that it be affirmed. Doc. No. 13. Specifically, Judge
Scoles reviewed the ALJ’s evaluation of the medical evidence, the ALJ’s credibility
determination and the hypothetical question posed to the Vocational Expert (VE).
Judge Scoles set out the standards for evaluating the medical opinion evidence as
follows:
An ALJ is required to evaluate every medical opinion he or she receives
from a claimant. 20 C.P.R. § 416.927(c). If the medical opinion is not
from a treating source, then the ALJ considers the following factors for
determining the weight to be given to the non-treating medical opinion:
“(I) examining relationship, (2) treating relationship, (3) supportability,
(4) consistency, (5) specialization, and (6) other factors.” Wiese, 552 P.3d
at 731 (citing 20 C.P.R. §§ 404.1527(d)). “‘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.’” Wagner, 499 P.3d at 848 (quoting Pearsall
v. Massanari, 274 P.3d 1211, 1219 (8th Cir. 2001)).
An ALJ also has a duty to develop the record fully and fairly. Cox v.
Astrue, 495 P.3d 614, 618 (8th Cir. 2007); Sneed v. Barnhart, 360 P.3d
834, 838 (8th Cir. 2004); Wilcutts v. Apfel, 143 P.3d 1134, 1137 (8th Cir.
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1998). Because an administrative hearing is a non-adversarial proceeding,
the ALJ must develop the record fully and fairly in order that “‘deserving
claimants who apply for benefits receive justice.’” Wilcutts, 143 P.3d at
1138 (quoting Battles v. Shalala, 36 P.3d 43, 44 (8th Cir. 1994)).
Id. at 14. Judge Scoles found that the ALJ properly gave “some” weight to the opinions
of Dr. Sunil Bansal, a consultative examining doctor. Judge Scoles stated:
Having reviewed the entire record, and considered the ALJ’s discussion of
the objective medical evidence and review of Davis’ treatment history, the
Court finds that the ALJ properly considered and weighed the opinion
evidence provided by Dr. Bansal. Specifically, the ALJ granted Dr.
Bansal’s opinions “some” weight, and addressed inconsistencies within Dr.
Bansal’s opinions and the record as a whole. Therefore, the Court
concludes that the ALJ properly considered and applied the factors for
evaluating a consultative examiner’s opinions, and properly granted “some”
weight to Dr. Bansal’s opinions.
See Wiese, 552 F.3d at 731.
Accordingly, even if inconsistent conclusions could be drawn on this issue,
the Court upholds the conclusions of the ALJ because they are supported
by substantial evidence on the record as a whole. Guilliams, 393 F.3d at
801.
Doc. No. 13 at 16.
Judge Scoles then set out the familiar five factor credibility test from Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984), and found that the ALJ’s credibility
determination was supported by substantial evidence, stating:
It is clear from the ALJ’s decision that he thoroughly considered and
discussed Davis’ treatment history, the objective medical evidence, her
functional restrictions, activities of daily living, work history, and use of
medications in making his credibility determination. Thus, having
reviewed the entire record, the Court finds that the ALJ adequately
considered and addressed the Polaski factors in determining that Davis’
subjective allegations of disability were not credible. See Johnson, 240
F.3d at 1148; see also Goff, 421 F.3d at 791 (an ALJ is not required to
explicitly discuss each Polaski factor, it is sufficient if the ALJ
acknowledges and considers those factors before discounting a claimant’s
subjective complaints); Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (“The ALJ is not required to discuss each Polaski factor as long as
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the analytical framework is recognized and considered. Brown v. Chater,
81 F.3d 963, 966 (8th Cir. 1996).”). Accordingly, because the ALJ
seriously considered, but for good reasons explicitly discredited Davis’
subjective complaints, the Court will not disturb the ALJ’s credibility
determination. See Johnson, 240 F.3d at 1148. Even if inconsistent
conclusions could be drawn on this issue, the Court upholds the conclusions
of the ALJ because they are supported by substantial evidence on the record
as a whole. Guilliams, 393 F.3d at 801.
Doc. No. 13 at 21. Finally, Judge Scoles applied the appropriate methodology and found
that the ALJ’s residual functional capacity (RFC) evaluation is supported by substantial
evidence, stating:
In determining Davis’ RFC, the ALJ thoroughly addressed and considered
Davis’ medical history and treatment for her complaints. The ALJ also
properly considered and thoroughly discussed Davis’ subjective allegations
of disability in making his overall disability determination, including
determining Davis’ RFC. Therefore, having reviewed the entire record,
the Court finds that the ALJ properly considered Davis’ medical records,
observations of treating and non-treating physicians, and Davis’ own
description of his limitations in making the ALJ’s RFC assessment for
Davis. See Lacroix, 465 F.3d at 887. Furthermore, the Court finds that
the ALJ’s decision is based on a fully and fairly developed record. See
Cox, 495 F.3d at 618. Because the ALJ considered the medical evidence
as a whole, the Court concludes that the ALJ made a proper RFC
determination based on a fully and fairly developed record. See Guilliams,
393 F.3d at 803; Cox, 495 F.3d at 618. The Court concludes that Davis’
assertion that the ALJ’s RFC assessment is flawed is without merit.
Id. at 23.
IV.
A.

DISCUSSION

Davis’ Objections
Davis objects to Judge Scoles’ finding that the ALJ properly weighed the medical

evidence and contends that the ALJ should have given more weight to Dr. Bansal’s
opinion. Doc. No. 14. Davis also disputes Judge Scoles’ finding that the ALJ properly
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considered her credibility. She argues that because those findings are flawed, the RFC
finding made by the ALJ is not supported by substantial evidence. Accordingly, she asks
that I reject Judge Scoles’ recommendation and reverse the ALJ’s decision upon my de
novo review. Id.
B.

The ALJ’s Consideration of the Medical Evidence
Davis’ first objection deals with the opinion of Dr. Bansal. Davis argues that the

ALJ failed to properly consider Dr. Bansal’s opinion and that the opinion supports a
finding that she is disabled. In examining Dr. Bansal’s report, the ALJ stated:
[Davis] underwent a May 2011 independent medical exam secondary to her
workers compensation claim. She was limited to lifting 20 pounds, with
no frequent bending, squatting, climbing, twisting, or kneeling, and
frequent position changes, with no standing or walking for longer than 20
minutes (Ex. 12P). This opinion receives some weight. The limitation to
"light" lifting and carrying is consistent with other evidence of record and
other opinions. However, the limitation to frequent positional changes is
not consistent with treating source recommendations nor is it consistent with
the limited objective findings reflected in the record, including no reduction
of strength or range of motion and normal gait.
Administrative Record (AR) 37. Judge Scoles found that the ALJ properly considered
and weighed Dr. Bansal’s opinions. Specifically, Judge Scoles noted that the ALJ gave
those opinions “some” weight after addressing inconsistencies between Dr. Bansal’s
opinions and the record as a whole. For instance, Dr. Bansal opined that Davis would
often need to frequently change positions. However, the ALJ noted that “[t]he content
of the treatment notes does not suggest any reports of significant limitations such as
inability to sit or stand more than briefly . . .” AR 36. That finding is supported by
medical evidence, such as Dr. May’s statement that “[Davis’] allegation that sitting is
limited to just 20 minutes is not supported by the MER, which erodes the credibility of
this allegation.” AR 108. Accordingly, Judge Scoles concluded that the ALJ properly
considered and applied the factors for evaluating a consultative examiner’s opinions, and
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properly afforded only “some” weight to Dr. Bansal’s opinions. Based on my de novo
review, I agree with Judge Scoles that the ALJ’s evaluation of the medical evidence is
supported by substantial evidence in the record as a whole. I therefore overrule Davis’
objection to that portion of the R&R.
C.

Credibility Determination
Davis next argues that Judge Scoles erred in evaluating the credibility of her

subjective complaints. As I discussed above, Judge Scoles found that ALJ thoroughly
considered and discussed Davis’ treatment history, the objective medical evidence, her
functional restrictions, activities of daily living, work history, and use of medications in
making his credibility determination.

Judge Scoles found that the ALJ seriously

considered, but for good reasons discredited, Davis’ subjective complaints. Davis argues
that her subjective complaints are supported by substantial evidence and that both the ALJ
and Judge Scoles erred by not considering testimony and evidence related to her
somatization disorder. As set out in her objections:
A somatization disorder explains a lack of objective medical support and
must be addressed by the ALJ before relying on a lack of objective medical
support to discredit the claimant. . . In order to fully and fairly develop
the record, should Dr. Bansal’s opinions be rejected, a psychiatrist’s
opinion is needed to establish how somatization affects Davis’s ability to
work. . . The ALJ[] additionally erred by not addressing how somatization
affected the ALJ’s evaluation of Davis’s subjective complaints . . . an ALJ
should not rely on a lack of objective medical support to find a claimant not
credible—which is essentially a finding that the claimant exaggerates his or
her symptoms—without discussion of the impact of the claimant’s diagnosed
somatization disorder. . . This is compounded when fibromyalgia is
involved.
Doc. No. 13-1 at 4-6. Davis expanded this argument in her prior brief:
An ALJ errs by failing to properly consider a somatoform disorder when it
is a primary impairment—in such cases, “shortcomings in the objective
medical data that support [the claimant’s] alleged physical ailments are
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irrelevant since [the claimant’s] primary disorder, as clinically diagnosed,
causes her to exaggerate her physical problems in her mind beyond what
the medical data indicate.” Easter v. Bowen, 867 F.2d 1128, 1130 (8th
Cir. 1989). An ALJ may discount subjective complaints of a claimant with
somatoform disorder if the ALJ provides an express finding that the
claimant’s testimony is not credible and explains why. See Metz v. Shalala,
49 F.3d 374, 377 (8th Cir. 1995). These cases lead to the following
straightforward point: “An ‘ALJ cannot simply ignore…medical evidence
that [claimant] suffers from pain having its origin in a psychological
disorder.’” O’Donnell v. Barnhart, 318 F.3d 811, 818 (8th Cir. 2003)
(quoting Reinhart v. Secretary, 733 F.2d 571, 572–73 (8th Cir. 1984)).
Doc. No. 10 at 17.
Davis argues that because Dr. Theodore Liautaud diagnosed Davis with a
somatization pain disorder, the ALJ erred by failing to consider that ailment in crafting
the RFC. However, the Commissioner squarely rebutted that argument, stating:
[P]laintiff for the first time relies upon a single notation of somatoform
disorder from a one-time consultative physician that she had ignored until
her brief to this Court, and then extrapolates an argument the ALJ’s failure
to consider an impairment she did allege to cause any limitations requires
reversal. But the ALJ generally does not need to develop the record or
evaluate impairments that the plaintiff did not allege during the
administrative proceedings to contribute to her disability. See Kitts v. Apfel,
204 F.3d 785, 786 (8th Cir. 2000), accord Rye v. Soc. Sec’y. Admin., 295
F. App’x 110, 112 (8th Cir. 2008), Dunahoo v. Apfel, 241 F.3d 1033, 1039
(8th Cir. 2001).
Doc. No. 11 at 14. The Commissioner is correct that because Davis did not allege a
somatoform disorder during the administrative proceedings, the ALJ had no duty to
evaluate it. Moreover, as Davis acknowledges in her own brief, a somatoform disorder
must be given special consideration when it is a primary impairment. Doc. No. 10 at
17. There is no serious argument that a disorder mentioned once in the record and not
relied upon as a basis for claiming disability is a primary impairment.
What the ALJ did do was analyze Davis’ symptoms, her subjective complaints and
the objective medical evidence:
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The undersigned considered her activities of daily living. . . She reports
no difficulty caring for personal needs or preparing simple meals (Ex. 8E).
She does no outdoor chores but does light housework with breaks. She
shops in a grocery store with assistance of her husband. . . She spends her
day watching television, reading, and taking brief, short walks. She testified
that many days, she experiences an acute pain flare rendering her
bedridden. These activities of daily living are significantly limited and
consistent with her allegations. However, they receive limited weight.
There is no corroboration for these extreme limitations. One would expect
that if she were, at best, so limited that she can do very little throughout the
day and, at worst, completely bedridden, she would have made such reports
to providers and sought treatment more frequently. Her reports of her
activities of daily living are simply not credible when juxtaposed against the
backdrop of the entire record.
AR 36-37. In coming to that conclusion, the ALJ pointed to specific information in the
record.
Similarly, her use of treatment methods is inconsistent with her allegations.
She underwent physical therapy prior to the alleged onset date, which was
successful, but has not participated in physical therapy since her alleged
onset date, although there was recommendation therefor (Ex. 5F, p. 1).
She has not attempted trigger point or spinal injections. She lost some
weight, which is to her credit. However, her allegation that she uses
crutches when her lower extremities hurt is not borne out in the medical
record. As for medication use, the record is clear that she has had difficulty
with numerous pain and fibromyalgia medications, including Lyrica and
Cymbalta (Ex. 5F, p. 1). . . However, at a recent appointment, she
reported no difficulty with her current medication regimen of tramadol,
Neurontin, and hydrocodone, at the dosages they were currently prescribed
(Ex. 6F, p. 1).
AR 35-36. In short, the ALJ found that regardless of what impairment was giving rise
to her subjective complaints, the medical record as a whole did not support a finding that
those complaints existed to the extent Davis claimed they did. Upon my de novo review,
I agree with and adopt that portion of the R&R in which Judge Scoles found that the
ALJ’s credibility determination is supported by substantial evidence in the record.
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Davis also argues that Judge Scoles erred by failing to address (a) her argument
regarding somatization disorder and (b) a letter written to her attorney by David Crippin,
M.D., dated June 5, 2014. I find no merit to Davis’ contention that these issues affect
the outcome of her claim. As discussed above, neither the ALJ nor Judge Scoles had a
duty to consider the somatoform disorder, but both the ALJ and Judge Scoles considered
Davis’ subjective complaints. With regard to Dr. Crippin’s letter, defendant points out:
[The letter was] dated nine months after the ALJ issued his decision. Doc.
14 at 6. Neither the agency nor the Court considers evidence related to a
period after the ALJ’s decision. See Whitney v. Astrue, 668 F.3d 1004,
1006 (8th Cir. 2012) (citing Williams v. Sullivan, 905 F.2d 214, 216 (8th
Cir. 1990)). Further, as the opinion was a conclusion plaintiff was disabled
and unemployable, Dr. Crippin’s post-decision opinion is not entitled to
any special significance because it is an opinion on an issue reserved to the
Commissioner. See SSR 96-5p, 1996 WL 374183, at *2 (July 2, 1996);
see also 20 C.F.R. § 404.1527(e).
Doc. No. 15 at 4-5. I agree. Dr. Crippin’s late letter is completely conclusory and
infringes on areas reserved to the ALJ. Dr. Crippin wrote:
Regarding your letter of 6/4/14, you are correct. I did see Sandy and also
her husband at the same time. As you know, she struggles with chronic
pain and debilitating flare ups of arthritis, etc. As far as I’m concerned,
she should be considered totally disabled at this time. Really, I do not have
a timeline on how long this will be. It could certainly be long term and
without end. She is also seeing Dr. Wisco and I’m hoping he can come up
with some medicine to try to help with the pain. As far as diagnosis, it’s a
little bit hard to define. She certainly has some elements of fibromyalgia
and other types of polyarthritis. Unfortunately, these things don’t fit much
of a disability protocol as far as rating. Clearly from a fatigue, achiness,
etc. standpoint she really is unemployable at this time.
AR 8. Dr. Crippin’s letter adds nothing to the medical record other than general and
unsupported conclusions. Indeed, Dr. Crippin specifically states that a diagnosis is
elusive. Id. Judge Scoles did not err by failing to expressly address the letter.

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D.

RFC Finding
Finally, Davis argues that the ALJ’s RFC finding is not supported by substantial

evidence. However, that argument is premised on her arguments that the ALJ improperly
weighed Dr. Bansal’s opinions and improperly rejected some of Davis’ subjective
complaints. As discussed above, neither argument has merit. The ALJ constructed an
RFC that is supported by substantial evidence in the record as a whole. Accordingly, I
find no error – clear or otherwise. I adopt the R&R in its entirety.
V.

CONCLUSION

For the reasons set forth herein:
1.

Davis’ November 12, 2015, objections (Doc. No. 14) to the magistrate
judge’s report and recommendation are overruled;

2.

I accept Chief United States Magistrate Judge Scoles’ October 29, 2015,
report and recommendation (Doc. No. 13) without modification. See 28
U.S.C. § 636(b)(1).

3.

Pursuant to Judge Scoles’ recommendation:
a.

The Commissioner’s determination that Davis was not disabled is
affirmed; and

b.

Judgment shall enter against Davis and in favor of the
Commissioner.

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IT IS SO ORDERED.
DATED this 16th day of March, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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