Irvin v. Commissioner of Social Security

Filing 20

ORDER Accepting 17 Report and Recommendations affirming the Commissioner's determination that Irvin was not disabled. Judgment shall enter against Irvin and in favor of the Commissioner. Signed by Judge Leonard T Strand on 3/7/16. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CRAIG ALLEN IRVIN,
No. C15-4007-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
November 2, 2015, by the Honorable Jon Stuart Scoles, Chief United States Magistrate
Judge. See Doc. No. 17. Judge Scoles recommends that I affirm the decision by the
Commissioner of Social Security (the Commissioner) denying plaintiff Craig Allen Irvin
Social Security Disability benefits (DIB) and Supplemental Security Income benefits (SSI)
under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act).
Irvin filed timely objections (Doc. No. 18) to the R&R on November 13, 2015.
The Commissioner then filed a response (Doc. No. 19) 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 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
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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.”).
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
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definite and firm conviction that a mistake has been committed.” Anderson v. City of
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 that Irvin was not disabled was
supported by substantial evidence and, therefore, recommended that it be affirmed. Doc.
No. 17.

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).

Within his R&R, Judge Scoles set out the standards for

evaluating the medical opinion evidence as follows:
An ALJ is required to "assess the record as a whole to determine
whether treating physicians' opinions are inconsistent with substantial
evidence of the record." Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir.
2007) (citing 20 C.F.R. § 404.1527(d)(2)). "Although a treating
physician's opinion is entitled to great weight, it does not automatically
control or obviate the need to evaluate the record as a whole." Hogan v.
Apfel, 239 F.3d 958, 961 (8th Cir. 2001) (citing Prosch v Apfel, 201 F.3d
1010, 1013 (8th Cir. 2000)). "The ALJ may discount or disregard such an
opinion if other medical assessments are supported by superior medical
evidence, or if the treating physician has offered inconsistent opinions."
Id.; see also Travis, 477 F.3d at 1041 ("A physician's statement that is 'not
supported by diagnoses based on objective evidence' will not support a
finding of disability. Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir.
2003). If the doctor's opinion is 'inconsistent with or contrary to the
medical evidence as a whole, the ALJ can accord it less weight.' Id.");
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Strongson v. Barnhart, 361 P.3d 1066, 1070 (8th Cir. 2004) (an ALJ does
not need to give controlling weight to a physician's RFC if it is inconsistent
with other substantial evidence in the record); Cabrnoch v. Bowen, 881
F.2d 561, 564 (8th Cir. 1989) (the resolution of conflicts of opinion among
various treating and examining physicians is the proper function of an ALJ).
The ALJ may discount or disregard a treating physician's opinion if other
medical assessments are supported by superior medical evidence, or if the
treating physician has offered inconsistent opinions. Hamilton v. Astrue,
518 F.3d 607, 609 (8th Cir. 2008).
Also, the regulations require an ALJ to give "good reasons" for
assigning weight to statements provided by a treating physician. See 20
C.P.R. § 404.1527(c)(2); 20 C.P.R. § 416.927(c)(2); see also Cline v.
Colvin, 771 P.3d 1098, 1105 (8th Cir. 2014) ("[L]ess weight may be given
to the treating physician's opinion, but the ALJ must always 'give good
reasons' for doing so. Anderson v. Astrue, 696 P.3d 790, 793 (8th Cir.
2012) (quoting 20 C.P.R. § 404.1527 (c)(2)). "). The decision must contain
specific reasons for the weight given to the treating source's medical
opinion, supported by evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source's medical opinion and the reasons
for that weight. SSR 96-2P, 1996 WL 374188 (1996).
Id. at 13-14. Judge Scoles found that the ALJ properly discounted the opinions of Ahmed
Mohammed, M.D., and Sophia Chao, a physical therapist, due to inconsistencies between
those opinions and the record as a whole. Id. at 17. Judge Scoles also found (a) that the
ALJ's credibility determination was supported by substantial evidence and (b) that the
hypothetical question posed to the VE properly reflected the ALJ’s findings and
conclusions, all of which were supported by substantial evidence. Id. at 20-22.
IV.
A.

DISCUSSION

Irvin’s Objection
Irvin objects to Judge Scoles’ finding that the ALJ properly weighed the medical

evidence and contends that the ALJ should have given more weight to the treating source,
Dr. Mohammed, and the physical therapist, Ms. Chao. Doc. No. 18. Thus, I must
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determine de novo whether the ALJ properly evaluated the medical evidence. Because
Irvin did not object to any other portion of the R&R, I will review the remainder of the
R&R for clear error.
B.

The ALJ’s Consideration of the Medical Evidence
The ALJ noted that Irvin submitted, post-hearing, a joint medical source statement

that had been prepared by Ms. Chao and Dr. Mohammed on December 30, 2011 (more
than one year before the hearing). AR 16. In that statement, the two providers opined
that Irvin’s limitations were greater than those found by state agency physicians. AR 16.
The ALJ also noted, however, that the statement was not new information, as it was
already contained in the record. Id. Moreover, the ALJ explained that state agency
consulting physicians Jan Hunter, D.O., and Gary Cromer, M.D., had reviewed the
statement and had concluded that it merely recited Irvin’s subjective complaints. Id.
Additionally, the ALJ found that the limitations described in the statement were “out of
proportion with the objective medical evidence.” Id.
An ALJ may discount a treating source opinion if it is unsupported by objective
medical evidence. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012). Having
carefully considered the objective medical evidence cited by the ALJ, I agree that it
illustrates only a modest degree of degenerative disc disease at Irvin’s lumbar spine and
that Irvin otherwise has a negative lumbosacral spine. For example, on July 30, 2012,
radiologist Calvin Andersen, M.D., reviewed imagery ordered by Dr. Mohammed and
found that Irvin had a “very modest degenerative disc and degenerative facet disease”
but was “otherwise negative” with regard to his lumbosacral spine. AR 567. This finding
is consistent with the ALJ’s conclusion that the joint medical source statement provided
by Ms. Chao and Dr. Mohammed was not supported by the objective medical evidence.
Additionally, the ALJ found that Irvin’s testimony was inconsistent with the joint
medical source statement. During the hearing, when Irvin was asked: “Is there anything
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wrong with your hands?” AR 46. He answered: “No.” Id. However, Ms. Chao and
Dr. Mohammed reported that Irvin’s left hand function was limited to only occasional
reaching (other than overhead), handling, fingering, feeling and pushing/pulling. AR
693. Ms. Chao and Dr. Mohammed also reported that Irvin could never reach over his
head with his left hand. Id. Moreover, Dr. Mohammed opined that Irvin could only use
his hand for 2% of an eight hour workday and only use his fingers for 3% of an 8 hour
workday. AR 686. These statements are in stark contrast to Irvin’s acknowledgment
that nothing is wrong with his hands. The ALJ did not err in discounting the joint medical
source statement on this basis. See Medhaug v. Astrue, 578 F.3d 805, 815 (8th Cir.
2009) (an ALJ may discount a treating source's opinion if it is inconsistent with claimant's
testimony).
In short, 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 Irvin’s objection to that portion of the R&R.
B.

Judge Scoles’ Remaining Findings
Judge Scoles described and applied the appropriate legal standards when reviewing

the ALJ's credibility determination and the hypothetical question posed to the VE. I find
no error – clear or otherwise. As such, I adopt the R&R in its entirety.
V.

CONCLUSION

For the reasons set forth herein:
1.

Irvin’s November 13, 2015, objections (Doc. No. 18) to the magistrate
judge’s report and recommendation are overruled;

2.

I accept Chief United States Magistrate Judge Scoles’ November 2, 2015,
report and recommendation (Doc. No. 17) without modification. See 28
U.S.C. § 636(b)(1).
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3.

Pursuant to Judge Scoles’ recommendation:
a.

The Commissioner's determination that Irvin was not disabled is
affirmed; and

b.

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

IT IS SO ORDERED.
DATED this 7th day of March, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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