Guenther v. Commissioner of Social Security
MEMORANDUM OPINION and ORDER Accepting 17 Report and Recommendation: The Commissioner's determination that Plaintiff Guenther was not disabled is affirmed: Judgment shall enter against Plaintiff Guenther and in favor of the Commissioner. Signed by Judge Leonard T Strand on 01/12/17. (kfs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
JEFFREY W. GUENTHER,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
MEMORADUM OPINION AND
ORDER ON REPORT AND
This case is before me on a Report and Recommendation (R&R) by the Honorable
Jon Stuart Scoles, Chief United States Magistrate Judge. See Doc. No. 17. Judge Scoles
recommends that I affirm the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Jeffrey W. Guenther’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). Neither party has
objected to the R&R. The deadline for such objections has expired. The procedural
history and relevant facts are set forth in the R&R and are repeated herein only to the
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 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
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.
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).
Judge Scoles noted that Guenther alleged disability due to heart attack, herniated
discs in the neck, learning disabilities and comprehension problems. Doc. No. 17 at 2.
Judge Scoles explained that Guenther seeks reversal of the ALJ's decision on three
grounds: (1) the ALJ erred in developing the record by not ordering IQ testing as
recommended by a consultative examining source, (2) the ALJ failed to properly evaluate
the opinions of Dr. Breitenstein and (3) the ALJ's RFC was not supported by substantial
evidence. Id. at 9-10. Judge Scoles discussed the development of the record as follows:
In his decision, the ALJ thoroughly addressed Guenther's intellectual
functioning and ability:
[Guenther] also alleged a learning disability and
comprehension problems in his reconsideration appeal. No
mental assessment was completed with the initial application
as [Guenther] did not initially allege a mental condition and
had no mental health treatment. [He] reports completing the
12th grade and working for 12 years as a silo construction
service worker. . . . Submitted evidence from school records
suggest low average intelligence. [Guenther] is not on
medication or in treatment for a mental condition.
(Administrative Record at 18.) The ALJ concluded that the evidence in the
record indicated "a restriction to simple work tasks and reading/writing
restrictions are appropriate.” Accordingly, the ALJ's RFC assessment
limited Guenther to performing “simple, routine tasks with no requirement
to write reports and read instructions.” Significantly, the ALJ's limitations
are consistent with Dr. Breitenstein's opinion that Guenther “worked
successfully at difficult jobs requiring cooperation and appears to basically
get along with supervisors and coworkers. He has the ability to maintain
concentration, attention, and work pace for repetitive work.”
Under the circumstances, I believe there is sufficient evidence in the
record for the ALJ's disability determination, and therefore, a consultative
examination for IQ testing was not required. See Barrett, 38 F.3d at 1023.
Moreover, I believe the ALJ fully and fairly developed the record and
addressed his findings in his decision as it pertains to Guenther's intellectual
functioning and RFC assessment. See Cox, 495 F.3d at 618. Therefore,
even if inconsistent conclusions could be drawn on this issue, I recommend
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
Doc. No. 17 at 11-12 (footnotes omitted).
Judge Scoles then addressed Dr. Breitenstein’s opinion:
In his decision, the ALJ addressed Dr. Breitenstein's opinions as follows:
Psychological consultative examiner, Joseph Brietenstein
[(sic)], PhD, opined that [Guenther] appears to have
significant impairment in understanding, remembering, and
carrying out moderate to complex instructions, particularly
written. “He has worked successfully at difficult jobs
requiring cooperation and appears to basically get along with
supervisors and coworkers. He has the ability to maintain
concentration, attention, and work pace for repetitive work.
He would probably do best in a less stressful, changeful work
environment.” The consultative examiner's opinions have
been considered and given some weight in accordance with
the brevity of their examination of [Guenther] and reliance on
her [(sic)] subjective reports of symptoms, history of
treatment, and limitations.
(Administrative Record at 21.) Furthermore, in his RFC assessment for
Guenther, while the ALJ did not specifically address the issue of a low
stress environment, he did limit Guenther to performing “simple, routine
tasks with no requirement to write reports and read instructions,” indicating
the need for a low stress job.
Therefore, having reviewed the entire record, and considered the
ALJ's discussion of the objective medical evidence and review of
Guenther's treatment history, I find that the ALJ properly considered and
weighed the opinion evidence provided by Dr. Breitenstein. Specifically,
not only did the ALJ grant Dr. Breitenstein's opinions “some” weight, but
he also addressed inconsistencies within Dr. Breitenstein's opinions where
they differed from the record as a whole. Therefore, I conclude the ALJ
properly considered and applied the factors for evaluating a consultative
examiner's opinions, and properly granted "some" weight to Dr.
Breitenstein's opinions. See Wiese, 552 F.3d at 731. Accordingly, even if
inconsistent conclusions could be drawn on this issue, the ALJ' s
conclusions should be upheld because they are supported by substantial
evidence on the record as a whole. Guilliams, 393 F.3d at 801.
Doc. No. 17 at 14-15 (footnote omitted).
Finally, Judge Scoles addressed the ALJ's RFC as follows:
In determining Guenther's RFC, the ALJ thoroughly addressed and
considered Guenther's medical history and treatment for his physical and
mental complaints. In particular, the ALJ addressed Guenther's medical
records from 2013 and 2014 concerning his neck pain. The ALJ
specifically noted Guenther only underwent conservative treatment for his
neck and back pain complaints. Furthermore, the ALJ also properly
considered and thoroughly discussed Guenther's subjective allegations of
disability in making his overall disability determination, including
determining Guenther's RFC. Therefore, having reviewed the entire
record, the Court finds that the ALJ properly considered Guenther's
medical records, observations of treating and non-treating physicians, and
Guenther's own description of his limitations in making the ALJ's RFC
assessment for Guenther. See Lacroix, 465 F.3d at 887. Furthermore, the
Court finds that the ALJ's decision is based on a fully and fairly developed
record. See Cox, 495 F.3d at 618. Because the ALJ considered the medical
evidence as a whole, the Court concludes that the ALJ made a proper RFC
determination based on a fully and fairly developed record. See Guilliams,
393 F.3d at 803; Cox, 495 F.3d at 618. The Court concludes that
Guenther's assertion that the ALJ's RFC assessment is flawed is without
Doc. No. 17 at 16 (footnotes omitted). Having rejected Guenther’s arguments, Judge
Scoles recommended that the Commissioner’s decision be affirmed. Id. at 17.
Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Scoles applied the correct legal standards and I find no error regarding his
conclusions that the ALJ properly developed the record, evaluated Dr. Breitenstein’s
opinion and determined Guenther’s RFC. As such I adopt the R&R in its entirety.
For the reasons set forth herein:
I accept Chief United States Magistrate Judge Jon Stuart Scoles’ December
27, 2016, report and recommendation (Doc. No. 17) without modification.
See 28 U.S.C. § 636(b)(1).
Pursuant to Judge Scoles’ recommendation:
The Commissioner's determination that Guenther was not disabled
is affirmed; and
Judgment shall enter against Guenther and in favor of the
IT IS SO ORDERED.
DATED this 12th day of January, 2017.
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE
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