Waters v. Commissioner of Social Security

Filing 22

ORDER adopting in part 19 Report and Recommendation; overruling 20 Objections to 19 Report and Recommendation; and dismissing with prejudice 3 Complaint filed by Carl E Waters. The final decision of the Commissioner is affirmed. (See order text). Signed by Judge Linda R Reade on 9/14/17. (ksy)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION

CARL E. WATERS,
Plaintiff,

No. 16-CV-2081-LRR

vs.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
____________________
I. INTRODUCTION
The matter before the court is Plaintiff Carl E. Waters’s Objections (docket no. 20)
to United States Magistrate Judge Kelly K.E. Mahoney’s Report and Recommendation
(docket no. 19), which recommends that the court affirm Defendant Commissioner of
Social Security’s (“Commissioner”) final decision to deny disability benefits to Plaintiff.
II. PROCEDURAL HISTORY
On July 19, 2016, Waters filed a Complaint (docket no. 3), seeking judicial review
of the Commissioner’s final decision denying Waters’s application for Title II disability
insurance and Title XVI Supplemental Security Income (“SSI”). On October 4, 2016, the
Commissioner filed an Answer (docket no. 10). On January 5, 2017, Waters filed the
Plaintiff’s Brief (docket no. 15). On February 2, 2017, the Commissioner filed the
Defendant’s Brief (docket no. 16). On February 14, 2017, the matter was referred to
Judge Mahoney for issuance of a report and recommendation. On July 10, 2017, Judge
Mahoney issued the Report and Recommendation. On July 24, 2017, Waters filed the
Objections. On August 7, 2017, the Commissioner filed a Response (docket no. 21) to the
Objections. The matter is fully submitted and ready for decision.

III. STANDARD OF REVIEW
A. Review of Final Decision
When the Commissioner adopts an Administrative Law Judge’s (“ALJ”) findings
and conclusions as its final decision, the final decision is subject to judicial review. See
42 U.S.C. § 405(g). The court will “affirm the Commissioner’s decision if supported by
substantial evidence on the record as a whole.” Anderson v. Astrue, 696 F.3d 790, 793
(8th Cir. 2012). “Substantial evidence is ‘less than a preponderance but enough that a
reasonable mind would find it adequate to support the conclusion.’” Id. (alteration
omitted) (quoting Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010)). In determining
whether substantial evidence supports the Commissioner’s decision, the court “consider[s]
the evidence that supports the Commissioner’s decision as well as the evidence that detracts
from it.” Jones, 619 F.3d at 968 (8th Cir. 2010) (quoting Kluesner v. Astrue, 607 F.3d
533, 536 (8th Cir. 2010)). A court “will not disturb the denial of benefits so long as the
ALJ’s decision falls within the available ‘zone of choice.’” Casey v. Astrue, 503 F.3d 687,
691 (8th Cir. 2007) (quoting Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). “If,
after reviewing the entire record, it is possible to draw two inconsistent positions, and the
Commissioner has adopted one of those positions,” the court must affirm the
Commissioner’s decision. Anderson, 696 F.3d at 793.
When reviewing the Commissioner’s decision, the court “must judge the propriety
of such action solely by the grounds invoked by the agency” and may not affirm the
decision based on a post hoc rationale that “it considers to be a more adequate or proper
basis.” Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947); see also,
e.g., Hanson v. Colvin, 760 F.3d 759, 762 (7th Cir. 2014) (applying Chenery analysis in
context of social security benefits); Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir.
2007) (same); Strom v. Astrue, Civil No. 07-150, 2008 WL 583690, at *27 (D. Minn.
Mar. 3, 2008) (same). In other words, “‘a reviewing court may not uphold an agency

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decision based on reasons not articulated by the agency,’ when ‘the agency has failed to
make a necessary determination of fact or policy’ upon which the court’s alternative basis
is premised.” Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001) (alterations omitted)
(quoting Healtheast Bethesda Lutheran Hosp. & Rehab. Ctr. v. Shalala, 164 F.3d 415,
418 (8th Cir. 1998)).
B. Review of Report and Recommendation
The standard of review to be applied by the court to a report and recommendation
of a magistrate judge is established by statute:
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.
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (providing that, when a party
properly objects to a report and recommendation on a dispositive motion, a district court
must determine de novo the magistrate judge’s recommendation). The Eighth Circuit has
repeatedly held that it is reversible error for a district court to fail to conduct a de novo
review of a magistrate judge’s report and recommendation when such review is required.
See, e.g., United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003); Hosna v.
Groose, 80 F.3d 298, 306 (8th Cir. 1996); Hudson v. Gammon, 46 F.3d 785, 786 (8th
Cir. 1995); Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). The statute governing
review provides only for de novo review of “those portions of the report or specified
proposed findings or recommendations to which objection is made.”

28 U.S.C. §

636(b)(1). The court reviews the unobjected-to portions of the proposed findings or
recommendations for “plain error.” See United States v. Rodriguez, 484 F.3d 1006, 101011 (8th Cir. 2007) (noting that, where a party does not file objections to a magistrate’s
report and recommendation, the party waives the right to de novo review and the court will
review the decision for plain error).
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IV. ANALYSIS
In the Objections, Waters argues that: (1) Judge Mahoney applied the wrong
standard in reviewing the ALJ’s decision at step three of the five-step sequential process
for determining whether Waters is disabled and that the ALJ did not properly consider
whether Waters’s conditions in total equaled a listed impairment; and (2) the ALJ erred in
calculating Waters’s residual functioning capacity (“RFC”) because he improperly
discounted Waters’s subjective complaints of pain. See Objections at 3-11.
After conducting a de novo review of the objected-to portions of the Report and
Recommendation and the Administrative Record (“AR”) (docket nos. 11-1 through 11-10),
the court overrules the Objections. Waters is correct in that Social Security Ruling 83-19
was rescinded on August 1, 1991.

See Nelson v. Sullivan, 966 F.2d

363, 368 (8th Cir. 1992); see also Social Security Administration, Rulings
Superseded, Rescinded, or Modified, https://www.ssa.gov/OP_Home/rulings/rulfind2.html
(last visited September 13, 2017). Social Security Ruling 83-19 provided that “[a]
claimant cannot qualify for benefits under the ‘equivalence’ step [of step three] by showing
that the overall functional impact of his unlisted impairment or combination of impairments
is as severe as that of a listed impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990)
(citing Social Security Ruling 83-19). Since then, the Commissioner has stated that a
combination of impairments, if the findings in support of which “are at least of equal
medical significance to those of a listed impairment,” are sufficient to support a finding
of disability at step three. See 20 C.F.R. § 404.1526(b)(3).
The ALJ, however, applied the proper standard in determining whether Waters’s
combined impairments were medically equivalent to a listed impairment. The ALJ
specifically stated that he “considered all of the claimant’s impairments individually and
in combination but can find no evidence that the combined clinical findings from such
impairments reach the level of severity contemplated in the Listings.” AR at 12. The ALJ

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carefully considered whether Waters met the criteria for paragraph B of Listing 4.02. Id.
Though, as Waters argues, the ALJ did not explicitly consider each other impairment in
the Listings, such a procedure is not only unrealistic but also is not required. See
Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011) (“There is no error when an ALJ
fails to explain why an impairment does not equal one of the listed impairments as long as
the overall conclusion is supported by the record.”). Upon review, the court finds that the
ALJ’s conclusions were supported by substantial evidence in the record.

Waters

emphasizes his especially low ejection fraction, a measurement describing how much blood
is expelled from the heart with each contraction, and his obesity in arguing that the ALJ
erred in finding the combination of his impairments did not equal one of the Listing
impairments.

See Objections at 4-5.

However, the ALJ explicitly considered and

recognized Waters’s low ejection fraction, and was undoubtedly aware of his obesity and
the limitations it placed on his functioning. See AR at 11-12. The ALJ specifically found
that Waters did not meet the other criteria for Listing 4.02B and that the combination of
his conditions were not equivalent to the same or any other Listing. Id. at 12. Such a
finding is supported by the medical evidence in the record. The court shall overrule the
first Objection.
Waters’s second objection amounts to a request to reweigh the evidence relied on
by the ALJ. See Objections at 7-11. The ALJ appropriately discussed the factors from
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), in his decision, and ultimately
concluded that Waters’s allegations regarding “the intensity, persistence and limiting
effects of [his] symptoms” were “not entirely credible.” AR at 13. The ALJ relied on
Waters’s “full strength and range of motion, activities of daily living, and consistent
observation of shortness of breath with only moderate to severe exertion” when
determining Waters’s RFC. Id. at 14. The ALJ also relied on the findings of several
medical sources to support his findings, including a consultative physician who specifically

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noted that Waters could sit for extended periods of time and could frequently handle and
manipulate objects with his hands. See id.; see also id. at 481. The ALJ also considered
medical opinions stating that Waters denied “chest pain and activity level change, despite
his cardiomyopathy, as well as one instance when he acknowledged shortness of breathonly
with moderate to severe exertion.” Id. at 14; see also id. at 564, 607, 609, 611, 613, 615,
617, 619. The ALJ also relied on Waters’s own admissions of daily activity—including
“the ability to perform personal care tasks independently, occasionally taking his dog for
a walk, preparation of simple meals, riding in a car, shopping in stores for up to an hour,
watching television, playing cards, and traveling to friends’ and his grandmother’s homes
regularly.” Id. at 14. In the ALJ’s opinion, such activities were “consistent with an
ability to perform sedentary work.” Id. While Waters objects to the specifics underlying
several of these findings, his base argument is that the ALJ improperly weighed and
evaluated the Polaski factors, and inappropriately discounted his subjective allegations of
pain and limitation. See Objections at 9-11. The court is not at liberty to reverse the
ALJ’s decision merely because there is conflicting evidence in the record below, or even
because the court would independently reach a different conclusion. See Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (“A decision is not outside that ‘zone of
choice’ simply because [the court] may have reached a different conclusion had [the court]
been the fact finder in the first instance.”); Guillams v. Barnhart, 393 F.3d 798, 801 (8th
Cir. 2005) (“[E]ven if inconsistent conclusions may be drawn from the evidence, the
agency’s decision will be upheld if it is supported by substantial evidence in the record as
a whole.”). Upon review, the court finds that the record as a whole supported the ALJ’s
consideration of the Polaski factors in assessing Waters’s subjective complaints. The
ALJ’s assessment of Waters’s RFC was correct and the ALJ’s conclusion that benefits
should be denied was supported by substantial evidence.

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V. CONCLUSION
In light of the foregoing, it is hereby ORDERED:
(1)

The Objections (docket no. 20) are OVERRULED;

(2)

The Report and Recommendation (docket no. 19) is ADOPTED IN PART
to the extent that it did not rely on a rescinded Social Security Ruling and
properly concluded that the Commissioner’s decision was correct;

(3)

The final decision of the Commissioner is AFFIRMED; and

(3)

The Complaint (docket no. 3) is DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.
DATED this 14th day of September, 2017.

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