Halliday v. Commissioner of Social Security
Filing
22
MEMORANDUM AND OPINION Not Accepting Report and Recommendation for 20 Report and Recommendations. The Commissioner's determination that Halliday was not disabled is reversed and this case is remanded to the Commissioner for further proceedings consistent with this order. Judgment shall enter against the Commissioner and in favor of Halliday. Signed by Judge Leonard T Strand on 01/26/2017. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
LINDA M. HALLIDAY,
Plaintiff,
No. C15-4258-LTS
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) by the Honorable
Jon Stuart Scoles, then Chief United States Magistrate Judge. See Doc. No. 20. Judge
Scoles recommends that I affirm the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Linda M. Halliday’s applications for Social Security
disability benefits (DIB) and supplemental security income benefits (SSI) under Titles II
and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act).
Halliday has filed timely objections (Doc. No. 21) to the R&R. The Commissioner
has not filed a response. 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 v. Barnhart, 353 F.3d 642,
645 (8th Cir. 2003). 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
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 if 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 noted that Halliday alleges disability due to seizures, blurry vision
and back problems. Doc. No. 20 at 2. After setting forth the relevant facts, he reviewed
the ALJ's credibility assessment, concluding as follows:
In her decision, the ALJ thoroughly considered and discussed
Halliday's treatment history, medical evidence, functional restrictions,
activities of daily living, work history, and use of medications in making
her credibility determination. Thus, having reviewed the entire record, the
Court finds that the ALJ adequately considered and addressed the Polaski
factors in determining that Halliday's 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 the analytical framework is recognized and
considered. Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996).”).
Accordingly, because the ALJ seriously considered, but for good reasons
explicitly discredited Halliday's 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.
Id. at 13-14.
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In assessing the medical evidence, Judge Scoles reviewed the ALJ's evaluation of
opinions prepared by Michael Luft, D.O., a consultative examining physician, and Jamie
Whitmer, D.C., a treating chiropractor. With regard to Dr. Luft’s opinion, Judge Scoles
found:
Having reviewed the entire record, and considered the ALJ's
discussion of the objective medical evidence and review of Halliday's
treatment history, the Court finds the ALJ properly considered and weighed
the opinion evidence provided by Dr. Luft. Specifically, the ALJ granted
Dr. Luft's opinions some/reduced weight, and addressed inconsistencies
within Dr. Luft'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/reduced weight to Dr. Luft'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.
Id. at 16. As for Dr. Whitmer’s opinion, Judge Scoles found:
Having reviewed the entire record, the Court finds that the ALJ
properly considered Dr. Whitmer's opinions in accordance with SSR 0603p. Furthermore, the ALJ properly articulated her reasons for finding Dr.
Whitmer's opinions to be entitled to “little weight,” and for finding his
opinions to be inconsistent with the record as a whole. See Raney, 396
F.3d at 1010 (Providing that in considering the opinions of a medical source
that is not an “acceptable medical source,” an “ALJ has more discretion
and is permitted to consider any inconsistencies found within the record.”);
see also Kirby, 500 F.3d at 709 (providing that an ALJ is entitled to give
less weight to a medical source opinion where the opinion is based on a
claimant's subjective complaints rather than on objective medical evidence);
Sloan, 499 F.3d at 889 (providing that a factor to consider in weighing
evidence from a medical source that is not an “acceptable medical source”
is the consistency of such as source's opinions with the record as a whole).
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.
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Id. at 18.
Finally, Judge Scoles reviewed the hypothetical questions posed to the vocational
expert. Judge Scoles found that the ALJ thoroughly considered the record and posed
questions that properly included all impairments supported by substantial evidence. Id.
at 19. Based on his findings, Judge Scoles recommends that I affirm the ALJ's decision.
Id. at 20.
IV.
DISCUSSION
Halliday objects to Judge Scoles findings that the ALJ properly evaluated (1) Dr.
Luft’s opinion, (2) Dr. Whitmer’s opinion and (3) Halliday’s credibility. Doc. No. 21.
I will review these issues de novo.
A.
Dr. Luft’s Opinion
Halliday argues that the weight the ALJ gave to Dr. Luft’s opinion is not supported
by substantial evidence. Based on my de novo review, I agree and conclude that the ALJ
failed to properly evaluate Dr. Halliday’s opinion in accordance with the Commissioner’s
regulations.
Dr. Luft opined that Halliday has osteoarthritis of her hip and knees, is not be able
to climb or crawl, cannot complete an eight hour day standing, will need to change
positions every two hours, has no sitting limitations or hand limitations and cannot lift
over 25 pounds frequently. AR 779-80. Dr. Luft also opined that Halliday has a stable
seizure disorder with medication, can meet general eye sight requirements for most jobs
and would be able to handle her own cash benefits. Id. at 780. Dr. Luft found that
Halliday has grip strength of 3/5 with both hands and extremity strength of 4/5 in both
upper extremities and both lower extremities. AR 776-77.
The ALJ noted Dr. Luft’s findings but concluded that his opinion was based almost
entirely on Halliday’s subjective complaints. AR 449. Based on this interpretation, the
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ALJ gave Dr. Luft’s opinion only some weight. AR 449; see Hogan v. Apfel, 239 F.3d
958, 961 (8th Cir. 2001); see also Stormo v. Barnhart, 377 F.3d 801, 805-06 (8th Cir.
2004) (“Such opinions are given less weight if they are inconsistent with the record as a
whole or if the conclusions consist of vague, conclusory statements unsupported by
medically acceptable data.”). “An ALJ may properly discount a doctor's opinion when
it is based on a claimant's subjective complaints.” Renstrom v. Astrue, 680 F.3d 1057,
1064 (8th Cir. 2012); see also Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007). Here,
however, Dr. Luft’s opinion followed a consultative examination that included objective
findings. No evidence suggests that his opinion as to Halliday’s vocational capabilities
was based largely on Halliday’s subjective complaints, with little or no objective support.
The ALJ also stated that Dr. Luft’s opinion was not supported by the x-ray
evidence. Following an x-ray, Jeffrey K. Powers, M.D., opined that Halliday had mild
to early moderate bulky osteoarthritis changes at the left hip joint that may suggest an
early cam defect, but “[n]o acute or pathologic osseous findings seen throughout.” AR
802-04.
While the x-ray does not illustrate acute distress, Dr. Luft’s relied on
osteoarthritis in Halliday’s hip and knees to conclude that she cannot stand for eight hours
a day. The x-ray does not rebut this finding, nor does it suggest that Dr. Luft based his
opinion on Halliday’s subjective complaints. In fact, the x-ray findings support Dr.
Luft’s diagnosis of moderate osteoarthritis.
Because the ALJ did not provide good reasons, supported by the record, for
discounting Dr. Luft’s opinion, remand is necessary with instructions for the ALJ to
reevaluate that opinion.
B.
Dr. Whitmer’s Opinion
Halliday argues that the ALJ improperly ignored the opinion of her treating
chiropractor, Dr. Whitmer. Halliday argues that this opinion supports her subjective
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complaints and that the ALJ improperly relied on non-treating, non-examining sources to
determine her RFC.
The ALJ gave Dr. Whitmer’s opinion little weight. AR 449. The ALJ correctly
noted that while chiropractors are not acceptable medical sources, Dr. Whitmer did have
a treatment relationship with Halliday. See 20 C.F.R. §§ 404.1513(d), 416.913(d).
Information from non-acceptable sources cannot establish a medically-determinable
impairment but may be used to “provide insight into the severity of the impairment(s)
and how it affects the individual’s ability to function.” Sloan v. Astrue, 499 F.3d 883,
888 (8th Cir. 2007). The ALJ found that although Dr. Whitmer reported that Halliday’s
daily chronic pain interfered with all exertional activities, his statements were vague and
he failed to provide any vocationally-relevant limitations. AR 449.
However, Dr. Whitmer expressly found, in a report dated June 24, 2014, that
Halliday cannot sit or stand for greater than 15 minutes due to pain in her lumbar spine
and left hip. AR 783. Dr. Whitmer also opined that Halliday cannot walk more than
100 meters due to pain and cannot stoop, squat, crawl, climb or kneel due to pain in her
left hip, left knee and lower back. Id. It does not appear that the ALJ considered the
vocational restrictions set forth in this report. Indeed, the ALJ stated that she considered
the statements of Dr. Whitmer that are set forth in Exhibits 7F and 17F. AR 449. Dr.
Whitmer’s June 24, 2014, report is contained in Exhibit 5F. AR 783.
Although an ALJ has more discretion in determining the weight to afford “other
source” evidence, in this case the ALJ simply failed to consider Dr. Whitmer’s detailed
findings. This was error. See Taillefer v. Colvin, No. 14-1281, 2016 WL 617121, at
*18 (D. Minn. Jan. 29, 2016) (finding that the ALJ's failure to consider other source
evidence required remand); see also Lacroix v. Barnhart, 465 F.3d 881, 886-87 (8th Cir.
2006) (finding no error when the ALJ discussed the opinions of other sources and
provided good reasons for discounting them). As such, I find remand is necessary with
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instructions that the ALJ give full consideration to all of Dr. Whitmer’s opinions in
assessing Halliday’s RFC, as the Commissioner’s regulations require.
C.
The Credibility Assessment
The AJL found Halliday’s statements as to the intensity, persistence and limiting
effects of her symptoms to be “not entirely credible.” AR 447. Among other things,
the ALJ based this conclusion on (a) the failure to take seizure medication, (b) a
significant gap in treatment history, (c) conservative care and (d) her activities of daily
living. AR 448. All of these reasons are proper if supported by the record. Here,
however, I have determined that remand is necessary for further evaluation of the opinion
evidence. Thus, it will be necessary for the ALJ to reevaluate Halliday’s credibility after
reexamining the opinions of Dr. Luft and Dr. Whitmer.
V.
CONCLUSION
For the reasons set forth herein:
1.
Plaintiff’s objections (Doc. No. 21) are sustained.
2.
Judge Scoles’ Report and Recommendation (Doc. No. 20) is not accepted.
3.
Pursuant to this order, the Commissioner’s determination that Halliday was
not disabled is reversed and this case is remanded to the Commissioner for further
proceedings consistent with this order.
4.
Judgment shall enter against the Commissioner and in favor of Halliday.
5.
If Halliday 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 60day 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).
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IT IS SO ORDERED.
DATED this 26th day of January, 2017.
________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE
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