Davila v. Commissioner of Social Security
ORDER Accepting 17 Report and Recommendations for 3 Complaint filed by Lorenna Marie Davila. The Commissioner's decision is reversed and this matter is remanded for further proceedings. Judgment shall enter in favor of Plaintiff and against the Defendant. Signed by Judge Leonard T Strand on 1/18/2017. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
LORENNA MARIE DAVILA, o/b/o
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER ON REPORT AND
This case is before me on a Report and Recommendation (R&R) filed by the
Honorable Jon Stuart Scoles, then Chief United States Magistrate Judge. See Doc. No.
17. Judge Scoles recommends that I reverse the decision by the Commissioner of Social
Security (the Commissioner) and remand this case pursuant to sentence four of 42 U.S.C.
§ 405(g). Neither party has objected to the R&R. The deadline for such objections has
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.
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 that 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.”).
Review of Report and Recommendation
A district judge must review a magistrate judge’s R&R under the following
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
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
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).
Davila applied for supplemental security income benefits (SSI) under Title XVI of
the Social Security Act, 42 U.S.C. § 401 et seq. (Act) on behalf of her minor son, J.A.L.
She alleged disability due to ADHD, bipolar disorder and conduct disorder. After a
hearing, an Administrative Law Judge (ALJ) applied the familiar five-step evaluation and
found that J.A.L. was not disabled as defined in the Act. Davila argues the ALJ erred
in determining that J.A.L. was not disabled for the following reasons:
The ALJ failed to follow appropriate rules and guidelines in
evaluating and weighing opinion evidence
The ALJ failed to discuss or explain the correct criteria for Listings
112.04 and 112.011, and failed to discuss or explain any factual
evaluation of the criteria of those listings.
See Doc. No. 13.
After reviewing the record, Judge Scoles found that the ALJ failed to: (1) properly
evaluate the opinions of treating sources Dr. Idahosa and Paul Koson and (2) fully and
fairly develop the record with regard to whether J.A.L. meets or equals Listings §§
112.04 and 112.11. He recommends that the ALJ’s decision be reversed and remanded
with instructions to explain the weight given to the treating source opinions and fully
develop the record as to the Listings. Doc. No. 17.
With regard to Dr. Idahosa, Judge Scoles first noted that Dr. Idahosa was J.A.L.’s
treating psychiatrist. The ALJ gave Dr. Idahosa’s opinion little weight. She reasoned it
was not consistent with the treatment records, which stated that J.A.L. had done well on
medication and had GAF scores of 55 in October and November 2013.1 Doc. No. 17 at
10-11 (citing Administrative Record at 21). Judge Scoles found this was insufficient
based on the following reasons:
First, Dr. Idahosa’s opinions regarding J.A.L.’s mood disorders and
ADHD are consistent with the opinions of Paul Koson, J.A.L.’s treating
counselor. Second, the ALJ does not fully explain her reasons for finding
Dr. Idahosa’s opinions inconsistent with treatment records, or fully address
the totality of Dr. Idahosa’s treatment records. For example, while the ALJ
notes J.A.L. did “well” with medication and twice had GAF scores of 55,
the ALJ does not address Dr. Idahosa’s finding that J.A.L.’s behavior gets
progressively worse throughout the day and into the evening as J.A.L.’s
medications wear off. Third, Dr. Idahosa’s treatment notes are consistent
in describing J.A.L.’s mood disorder symptoms with his treating source
statement. Fourth, Dr. Idahosa met with J.A.L. monthly to check and
adjust his medications so that he could function well at school.
Doc. No. 17 at 11 [footnotes omitted]. Judge Scoles concluded the ALJ failed to give
“good reasons” for rejecting Dr. Idahosa’s opinions and failed to fully and fairly develop
the record with regard to those opinions. Id. at 12. He stated that on remand, the ALJ
“should provide clear reasons for accepting or rejecting Dr. Idahosa’s opinions and
support her reasons with evidence from the record.” Id.
As for Paul Koson, Judge Scoles noted that as a behavioral counselor, he is not
considered an “acceptable medical source.”
Nonetheless, the ALJ was required to
consider his opinion in making the disability determination and describe the weight given
to it. The ALJ gave Koson’s opinion little weight because it was “not consistent with the
treatment records.” Judge Scoles stated:
Similar to the Court’s discussion of Dr. Idahosa’s opinions . . ., the ALJ
does not fully explain her reasons for finding [Koson’s] opinions
inconsistent with treatment records. In fact, the ALJ gives no reasons for
finding Koson’s opinions inconsistent with treatment records. Contrary to
the ALJ’s conclusion, Koson’s opinions are consistent with medical
evidence in the record. For example, the symptoms articulated by Koson
for J.A.L.’s mood disorders and ADHD are consistent with the findings of
A GAF score of 55 is indicative of moderate, not marked, limitations.
a colleague who examined J.A.L. Moreover, Koson’s opinions are
consistent with Dr. Idahosa’s findings.
Doc. No. 17 at 13 [footnotes omitted]. Thus, Judge Scoles found the ALJ failed to
properly address Koson’s opinions and fully and fairly develop the record with regard to
those opinions. Id. He stated that on remand, the ALJ should provide clear reasons for
accepting or rejecting Koson’s opinions and support her reasons with evidence from the
Finally, Judge Scoles found the ALJ failed to properly consider and discuss
whether J.A.L. met or equaled the Listings. Both Dr. Idahosa and Koson opined that
J.A.L. met Listings §§ 112.04 and 112.11 for mood disorders and ADHD. The ALJ
Although the treating sources indicated the claimant met listing 112.04 and
112.11, this is not supported in a review of the evidence. The claimant
does not have marked limitation of function as noted below.
Doc. No. 10-2 at 18. The Commissioner acknowledged that the ALJ “should have
provided an express discussion of her finding that J.A.L. did not meet or medically equal
either listing.” Doc. No. 17 at 14 (citing Doc. No. 14 at 12). Judge Scoles determined
that on remand, the ALJ should address Dr. Idahosa’s and Koson’s opinions that J.A.L.
meets Listings §§ 112.04 and 112.11.
Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Scoles applied the appropriate legal standards for the evaluation of treating source
opinions (whether acceptable medical sources or otherwise) and the ALJ’s obligation to
fully and fairly develop the record. He correctly found that the ALJ failed to fully explain
the weight given to Dr. Idahosa’s and Koson’s opinions and also failed to fully develop
the record as to whether J.A.L. meets or equals Listings §§ 112.04 and 112.11. I find
no error – clear or otherwise – in his recommendation. As such I adopt the R&R in its
For the reasons set forth herein:
I accept Judge Scoles’ R&R (Doc. No. 17) without modification. See 28
U.S.C. § 636(b)(1).
Pursuant to Judge Scoles’ recommendation:
The Commissioner’s determination that J.A.L. was not disabled is
reversed and this matter is remanded to the Commissioner for
further proceedings as discussed by Judge Scoles.
Judgment shall enter in favor of Davila and against the
If Davila wishes to request an award of attorney's fees and costs under
the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, an
application may be filed up until 30 days after the judgment becomes
“not appealable,” i.e., 30 days after the 60-day time for appeal has
See Shalala v. Schaefer, 509 U.S. 292, 296 (1993); 28
U.S.C. §§ 2412(d)(1)(B), (d)(2)(G).
IT IS SO ORDERED.
DATED this 18th day of January, 2017.
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE
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