Bohlin v. Commissioner of Social Security

Filing 18

ORDER Accepting 17 Report and Recommendations without modification: The Commissioner's determination that the Claimant was not disabled is affirmed in part and remanded in part for further proceedings as described by Judge Roberts. Judgment shall enter in favor of the Claimant and against the Commissioner. Signed by Judge Leonard T Strand on 9/25/2024. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
SCOTT B.,
Plaintiff,

No. C23-4036-LTS-MAR

vs.
MARTIN J. O’MALLEY, Commissioner
of Social Security,

ORDER ON REPORT AND
RECOMMENDATION

Defendant.
I.

INTRODUCTION

This case is before me on a Report & Recommendation (R&R) by the Honorable
Mark A. Roberts, United States Magistrate Judge. Doc. 17. Judge Roberts recommends
that I affirm in part and remand in part the decision of the Commissioner of Social
Security (the Commissioner) denying the application by plaintiff Scott B. (the Claimant)
for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§
401-434. 1 Neither party has objected to the R&R and 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 . . . .”).
1

In accordance with the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States, I will refer to a Social Security
claimant by his or her first name and last initial due to significant privacy concerns.

“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).
To determine 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.” Vester 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)).
To evaluate 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 “find[s] 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 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.
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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 also 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 reviews 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 (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.

DISCUSSION

Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Roberts applied the appropriate legal standards in evaluating: (1) the ALJ’s analysis
of Dr. Jones-Thurman’s opinions, (2) whether there appears to be an actual conflict
between the Vocational Expert’s testimony and the description in the Dictionary of
Occupational Titles of how the identified jobs of housekeeper, electronics assembler and
merchandise marker are performed, (3) whether the record was fully and fairly developed
with regard to the Claimant’s January 2023 neck surgery, November 2021 ankle surgery,
recovery, use of a cane, need for a service dog and Veterans Affairs Compensation and
Pension examination records and (4) whether the ALJ was properly appointed. Based on
my review of the record, I find no error – clear or otherwise – in Judge Roberts’
recommendation. As such, I adopt the R&R in its entirety.
IV.

CONCLUSION

For the reasons set forth herein:
1.

I accept Judge Roberts’ R&R (Doc. 17) without modification. See 28

U.S.C. § 636(b)(1).
2.

Pursuant to Judge Roberts’ recommendation:
a.

The Commissioner’s determination that the Claimant was not

disabled is affirmed in part and remanded in part for further proceedings
as described by Judge Roberts.
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b.

Judgment shall enter in favor of the Claimant and against the

Commissioner.2
c.

If the Claimant 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 this 25th day of September, 2024.

__________________________
Leonard T. Strand
United States District Judge

2

The Claimant filed this action under sentence four of 42 U.S.C. § 405(g). Doc. 10 at 36. A
party who wins a sentence-four remand is a prevailing party for purposes of the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412. See Shalala v. Schaefer, 509 U.S. 292, 299 (1993)
(“No holding of this Court has ever denied prevailing-party status (under § 2412(d)(1)(B)) to a
plaintiff who won a remand order pursuant to sentence four of § 405(g).”).

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