Turner Steele v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION and ORDER: Accepting 20 Report and Recommendation: The Commissioner's determination that Plaintiff Steele was not disabled is reversed and this matter is remanded to the Commissioner for further proceedings: See text of Order for further information. Signed by Judge Leonard T Strand on 01/23/17. (kfs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
MELANIE ANNE TURNER STEELE,
Plaintiff,

No. C15-4233-LTS

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

MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

Defendant.
___________________________
I.

INTRODUCTION

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.
20. 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
expired.
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 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
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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
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:
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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

Steele applied for disability insurance benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. § 401 et seq. (Act) on April 23, 2012, alleging she became
disabled on December 4, 2010, due to diabetes, depression, anxiety, neuropathy, high
blood pressure and incontinence. After a hearing, an Administrative Law Judge (ALJ)
applied the familiar five-step evaluation and found that Steele was not disabled as defined
in the Act. Steele argues the ALJ erred in determining that she was not disabled because:
1.

The ALJ failed to properly weigh the medical opinion evidence in
accordance with the regulations and provide good reasons for the
weight given to each source.

2.

The ALJ’s residual functional capacity (RFC) assessment was not
supported by substantial evidence.

See Doc. No. 17.

Specifically, she argues that no evidence supported the ALJ’s

determination that Steele can stand and walk most of the day. To the contrary, all doctors
opined that she would need a sedentary job. Id.
Judge Scoles first summarized the applicable legal principles. Doc. No. 20 at 911. He noted that an ALJ’s RFC assessment must be based on all of the relevant evidence
and must be supported be some medical evidence in the record. Id. at 10 (citing Guilliams
v. Barnhart, 393 F.3d 798, 803 (8th Cir. 2005); Lacroix v. Barnhart, 465 F.3d 881, 887
(8th Cir. 2006); Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2004)). He also noted that
the ALJ has a duty to develop the record fully and fairly, which may include ordering
medical examinations and tests when the medical evidence is insufficient to determine
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whether a claim is disabled. Id. at 10-11 (citing Cox v. Astrue, 495 F.3d 614, 618 (8th
Cir. 2007); Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir. 1994)).
Judge Scoles then noted that the record includes opinions from two state agency
non-examining doctors, Dr. Byrnes and Dr. Cromer, and a consultative examining
source, Amy J. Tegels, APRN. Id. at 11. He explained that all of these medical sources
found Steele’s ability to stand/walk was limited to no more than two hours in an eighthour work day, meaning she is capable of sedentary work only. Id. (citing SSR 83-10,
1983 WL 31251 at *5-6). Judge Scoles pointed out that the ALJ addressed Dr. Cromer’s
and Tegels’ opinions, but not Dr. Byrnes’.
Judge Scoles noted that the ALJ gave “substantial weight” to Dr. Cromer’s opinion
and adopted nearly all of his findings in the RFC, except for the standing/walking
limitation. Id. at 12. The ALJ reasoned that the standing/walking limitation was not
supported by the record, as there was no indication that treating providers has imposed a
standing/walking restriction. Id. As for Tegels’ opinion, the ALJ gave it “partial
weight” and reasoned that the sedentary limitation appeared to based “solely on [Steele’s]
subjective complaints.” Id. (citing the Administrative Record at 329).
After reviewing the record, Judge Scoles found that the ALJ failed to fully explain
her reasons for determining that Steele is capable of light work as opposed to sedentary
work. Specifically, he stated:
First, the ALJ points to no evidence in the record to support her assertion
that Dr. Cromer’s standing/walking limitation “is not supported by the
record.” In fact, a review of the entire record demonstrates that beginning
in March 2011, consistent with Dr. Cromer’s and Tegels’ opinions, Steele
started complaining about foot tingling and pain, and was diagnosed with
diabetic peripheral neuropathy. Additional treatment notes in 2011 and
2012 consistently provide diagnoses of diabetic peripheral neuropathy and
complaints from Steele of foot pain, numbness, and tingling. Second, while
the ALJ is correct that no treatment provider recommended a restriction on
standing or walking, the record reveals that no treatment provider
recommended any type of restriction or limitation as it pertains to Steele
and her functional abilities. Third, the Court is unpersuaded that Tegels’
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reliance on Steele’s “subjective complaints” is an adequate reason for
disregarding Tegels’ opinions. . . .Finally, the ALJ provides no explanation
in her decision for her conclusion that Steele’s RFC includes the ability to
perform light work, even though the record shows that she was consistently
diagnosed and treated for peripheral diabetic neuropathy, and Dr. Byrnes,
Dr. Cromer, and Tegels all limited her [to] sedentary work.
Id. at 12-13. Based on the inconsistency between the ALJ’s RFC and the medical
opinions regarding Steele’s ability to stand/walk, Judge Scoles found the ALJ’s decision
was not supported by substantial evidence. Id. at 13. He recommends that the ALJ’s
decision be reversed and this case remanded for the ALJ to fully and fairly develop the
record as it pertains to Steele’s RFC. Id. He also recommends that the ALJ order a
consultative examination to address Steele’s functional abilities and limitations, especially
her ability to stand and walk during an eight-hour workday. Id.
IV.

DISCUSSION

Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Scoles applied the appropriate legal standards in concluding the ALJ’s RFC
assessment was not supported by substantial evidence. I find no error – clear or otherwise
– in his recommendation. As such, I adopt the R&R in its entirety.
V.

CONCLUSION

For the reasons set forth herein:
1.

I accept Judge Scoles’ R&R (Doc. No. 20) without modification. See 28
U.S.C. § 636(b)(1).

2.

Pursuant to Judge Scoles’ recommendation:
a.

The Commissioner’s determination that Steele was not disabled is
reversed and this matter is remanded to the Commissioner for
further proceedings as discussed by Judge Scoles.

b.

Judgment shall enter in favor of Steele and against the Commissioner.
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c.

If Steele 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
ended.

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 23rd day of January, 2017.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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