Hoosman v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER accepting 18 Report and Recommendation affirming Commissioner's determination that CW was not disabled. Judgment shall enter in favor of the Commissioner and against the plaintiff. Signed by Chief Judge Leonard T Strand on 3/23/17. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
STEPHANIE HOOSMAN, on behalf of
C.W., her minor child,
Plaintiff,

No. C16-2028-LTS

vs.
NANCY A. BERRYHILL, 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 C.J. Williams, Chief United States Magistrate Judge. See Doc. No. 18. Judge
Williams recommends that I affirm the decision by the Commissioner of Social Security
(the Commissioner). 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
because substantial evidence would have supported an opposite decision.” Baker v.
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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:
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
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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 Williams noted that Hoosman applied for supplemental security income
(SSI) benefits on behalf of C.W., her minor child, under Title XVI of the Social Security
Act (Act) on March 27, 2014, and alleged that C.W. became disabled on March 1, 2011,
due to ADHD, ADD and dyslexia. After a hearing, an Administrative Law Judge (ALJ)
applied the standard three-step evaluation for determining whether a child is disabled and
found that C.W. was not disabled as defined in the Act. Hoosman argues that the ALJ
erred in two ways: (1) finding that C.W.’s other impairments were not severe and (2)
finding that C.W. did not have a marked or extreme limitation in (a) attending and
completing tasks, (b) acquiring and using information and (c) moving about and
manipulating objects.
With regard to the ALJ’s finding that C.W. did not have other severe impairments,
Judge Williams noted:
The Court need not determine whether claimant's alleged additional
impairments were severe based on mere diagnosis because any error was
harmless. “Where an ALJ errs by failing to find an impairment to be
severe, such error is harmless if the ALJ finds the claimant to suffer from
another severe impairment, continues in the evaluation process, and
considers the effects of the impairment at the other steps of the evaluation
process.” Faint v. Colvin, 26 F. Supp.3d 896, 910 (E.D. Mo. 2014).
Here, the ALJ considered all of claimant's impairments and found claimant
had two severe impairments: ADHD and dyslexia. (AR 19). Therefore,
any error in omitting claimant's additional alleged impairments from the
list of severe impairments at step two was harmless because step two was
resolved in claimant's favor. Toye v. Astrue, No. C11-3035-MWB, 2012
WL 1969224, at *10 (N.D. Iowa June 1, 2012).
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Doc. No. 18 at 8. Judge Williams found that because the claimant was unable to show,
“given the record, the ALJ would have decided the case differently had he labeled these
additional impairments as severe,” any error was harmless. Id. at 8-9. Turning next to
the issue of marked or extreme limitations, Judge Williams outlined the ALJ's findings
and the record as follows:
The ALJ properly summarized the standard used to determine the
extent of a limitation in this domain. (AR 24–25). The ALJ then analyzed
the record regarding this domain. The ALJ noted the observations of
claimant's teachers and gave them all some weight. (AR 25). Generally,
these teachers noted claimant had some difficulty with attention and
completion of tasks, but that he was able to complete some assignments
independently, could keep on track with some assignments, and
demonstrated an ability to listen and follow directions. (AR 175, 218).
Two of his teachers specifically opined that claimant had only a slight or
“no problem” with attention and completing tasks. (AR 167, 189).
Another teacher noted that claimant's performance, including his attention
and completion of tasks, improved noticeably when she informed claimant
that he may be held back a grade. (AR 177).
The ALJ also noted that claimant's teachers generally found his
performance improved when he was taking his medication for ADHD. (AR
25, 187–203). The ALJ noted that this was consistent with evidence from
medical records. (AR 21). My own review of the medical records indicated
there is support for this conclusion. See, e.g., (AR 409) (noting
improvement in attention and concentration when claimant taking
medication); (AR 421) (noting changes when claimant was not on
medication); (AR 429) (reflecting maternal aunt's observation that claimant
doing well on medication). An impairment cannot be considered a listed
impairment if it can be controlled by medication. See, e.g., Briggs v.
Callahan, 139 F.3d 606, 609 (8th Cir. 1998) (finding denial of benefits
supported when child's hyperactivity improved with medication and
behavior was appropriate at school).
Doc. No. 18 at 9-10. Judge Williams found the record contained sufficient evidence for
the ALJ to conclude that C.W.’s limitations in the domain of attention and completion of
tasks were not marked. Id. at 10. As such, Judge Williams found the ALJ committed
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no error on this issue. Judge Williams then summarized the ALJ's findings with regard
to C.W.’s ability to acquire and use information as follows:
The ALJ properly summarized the standard used to determine the
extent of a limitation in this domain. (AR 22–23). Generally speaking, in
the domain of “acquiring and using information,” an ALJ considers, among
other things, how well a child acquires, learns, and uses information. 20
C.F.R. § 416.926a(g). The ALJ analyzed the record regarding this domain.
The ALJ noted the observations of claimant's teachers and gave them all
some weight. (AR 25). The ALJ noted that claimant had some difficulties
in math, vocabulary, and writing, but that some of his performance
problems occurred because he was not listening and was instead talking to
friends. (AR 23, 217). Again, when a teacher mentioned to claimant the
possibility of holding him back a grade, his performance improved
markedly. (AR 24, 177). Overall, the ALJ noted that claimant was making
progress and his performance in the domain of acquiring and using
information was not significantly discrepant from his peers. (AR 24, 166,
176, 187, 196–97). Finally, the ALJ again noted that claimant's teachers
observed improvement in his performance when he was on his medication.
(AR 23, 188).
The ALJ also considered the medical records as it pertains to this
domain as well. (AR 21–22). The medical evidence corroborates the
observations claimant's teachers made. Claimant's performance was not so
deficient for him to qualify for the Iowa Individualized Education Plan
program at his school. (AR 334). In April 2013, claimant took selected
subtests of the Wechsler Intelligence Scale for Children, Fourth Edition,
which resulted in scores indicating average verbal abilities and below
average nonverbal abilities. (AR 335). Test scores also showed claimant
had some difficulty with math and reading comprehension, consistent with
his diagnosis of dyslexia and dyscalculia. (AR 336). Claimant was not on
his medications when he took these tests. (AR 335). Dr. Bobbita Nag,
M.D., opined on a number occasions between 2012 and January 2014, that
claimant's intelligence functioning was in the average range. (AR 258–61,
268, 270, 273, 411, 413, 415, 419, 423, 425, 427, 429).
Doc. No. 18 at 11-12. Judge Williams found that the record supported the ALJ's decision
and the ALJ committed no error in determining that C.W. did not have marked limitations
in the domain of attending and completing tasks. Id. at 12-13.
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As for C.W.’s ability to move about and manipulate objects, Judge Williams
summarized the ALJ's findings and the record as follows:
The ALJ properly summarized the standard used to determine the
extent of a limitation in this domain. (AR 27). Generally speaking, in the
domain of “moving about and manipulating objects,” the ALJ considered
claimant's ability to move his body from one place to another and how a
child moves and manipulates objects—activities that may require gross
and/or fine motor skills. (AR 27) (citing 20 C.F.R. § 416.926a(j)). The
ALJ analyzed the record regarding this domain. The ALJ considered
claimant's teachers' observations, to which he gave “weight,” “some
weight,” and “considerable weight.” (AR 27, 169, 220). The teachers
uniformly observed no problems in this domain. (AR 27, 169, 220).
The ALJ considered the medical records as it pertains to this domain
as well. (AR 21–22). In his summary of the medical evidence, the ALJ
did not note any reference in impairments in claimant's ability to move
about or manipulate objects. My own examination of the medical records
fails to reveal evidence claimant had significant difficulty moving or
manipulating objects, with one exception regarding a 2013 examination at
the University of Iowa Hospitals and Clinics as described in the next
paragraph. A July 2011 physical examination revealed that claimant's left
hand was less coordinated than his right in an exercise simulating playing
the piano, was slower on the right side in making rapid alternating
movements, and reduced right one-leg standing coordination. (AR 237–
39). Despite these observations, claimant was able to perform all of the
functions with full 5/5 muscle strength, symmetrical reflexes, and a normal
gait. Id. An August 2011 examination showed normal gait and range of
motion, no muscle weakness or reduced muscle tone, and intact and
symmetrical reflexes. (AR 277–78). In April 2012, claimant was evaluated
and found to have normal motor skills. (AR 251). September 2012
examinations showed normal range of motion and normal gait, with no
reference to difficulties in movement or manipulation of objects. (AR 316–
21). At the hearing, claimant's mother testified the only motor skill issues
claimant had was “Just with writing. The way he holds his pencil is
different. So his writing for an eleven-year-old is very sloppy and is very
hard to read.” (AR 441).
Doc. No. 18 at 13-14. Judge Williams similarly found that the record supported the
ALJ's decision and that the ALJ committed no error in determining that C.W. did not
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have a marked limitation in the domain of moving about and manipulating objects. Id.
Based on these findings, Judge Williams recommends that I affirm the Commissioner’s
decision. Id. at 15.
IV.

DISCUSSION

Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Williams applied the appropriate legal standards in concluding the ALJ committed
no error in finding (1) that C.W.’s other impairments were not severe and (2) that C.W.
did not have a marked or extreme limitation in (a) attending and completing tasks, (b)
acquiring and using information or (c) moving about and manipulating objects.
Therefore, 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 Williams’ R&R (Doc. No. 18) without modification. See
28 U.S.C. § 636(b)(1).

2.

Pursuant to Judge Williams’ recommendation:
a.

The Commissioner’s determination that C.W. was not disabled is
affirmed.

b.

Judgment shall enter in favor of the Commissioner and against the
plaintiff.

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IT IS SO ORDERED.
DATED this 23rd day of March, 2017.

________________________________
LEONARD T. STRAND
CHIEF UNITED STATES DISTRICT JUDGE

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