Burkhardt v. Commissioner of Social Security
ORDER Accepting 20 Report and Recommendations without modification. The Commissioners determination that Burkhardt was not disabled is affirmed. Judgment shall enter in favor of the Commissioner and against the plaintiff. Signed by Chief Judge Leonard T Strand on 6/30/2017. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
MEMORANDUM OPINION AND
ORDER ON REPORT AND
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. 20. Judge
Williams recommends that I affirm the decision of the Commissioner of Social Security
(the Commissioner). Neither party has objected to the R&R. The deadline for such
objections has expired.
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 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.
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).
Burkhardt applied for disability insurance benefits (DIB) and supplemental security
income (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq.
(Act) on January 28, 2013. She alleged she became disabled on November 23, 2011,
due to bipolar disorder, panic attacks, manic depression, asthma, post-traumatic stress
disorder and gastro-esophageal reflux disease. After a hearing, an Administrative Law
Judge (ALJ) applied the familiar five-step evaluation and found that Burkhardt was not
disabled as defined in the Act. Burkhardt argues the ALJ erred in determining that she
was not disabled because the ALJ did not properly weigh the medical opinions to
determine if Burkhardt met Listing 12.04 (affective disorders), 12.06 (anxiety disorders)
or 12.08 (panic disorders). See Doc. No. 16.
Judge Williams first discussed the requirements for meeting the various Listings.
He noted that the ALJ found Burkhardt did not satisfy Listing 12.04, 12.06 or 12.08
because she did not have marked limitations in at least two B criteria categories1 and
The relevant B criteria categories include: activities of daily living; social functioning;
concentration, persistence or pace; and episodes of decompensation. See 20 C.F.R. Pt. 404,
Subpt. P, App. 1, §§ 12.04, 12.06 and 12.08 (2015). The Listings have since been amended so
that the B criteria now require a claimant to prove an extreme limitation of one, or marked
limitation of two, of the following areas of mental functioning:
Understand, remember, or apply information
Interact with others
Concentrate, persist, or maintain pace
Adapt or manage oneself.
could not satisfy the C criteria2 for either Listing 12.04 or 12.06 (Listing 12.08 does not
include C criteria). See Doc. No. 20 at 10-11 (citing AR 18-20).
With regard to the B criteria, Judge Williams noted that the ALJ found only mild
restriction in Burkhardt’s daily activities, moderate difficulties with social functioning,
moderate difficulties with concentration, persistence or pace and no episodes of
decompensation of extended duration.
However, Burkhardt argues that she has an
extreme limitation as to social functioning, meaning she essentially cannot function in
this area. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(F)(2) (2017) (defining
extreme limitation as “not able to function in this area independently, appropriately,
effectively, and on a sustained basis.”). As noted supra n.1, an extreme limitation would
not satisfy the B criteria in the applicable 2015 regulations.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 12.04, 12.06 and 12.08 (2017). These amendments
are not retroactive. Therefore, references to the Listings in this order refer to the Listings
effective in 2015, which the ALJ applied in her decision and Judge Williams in his R&R.
The C criteria of Listing 12.04 require the claimant to show:
Medically documented history of a chronic affective disorder of at least 2 years'
duration that has caused more than a minimal limitation of ability to do basic work
activities, with symptoms or signs currently attenuated by medication or
psychosocial support, and one of the following:
1. Repeated episodes of decompensation, each of extended duration; or
2. A residual disease process that has resulted in such marginal adjustment that
even a minimal increase in mental demands or change in the environment would
be predicted to cause the individual to decompensate; or
3. Current history of 1 or more years' inability to function outside a highly
supportive living arrangement, with an indication of continued need for such an
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.04(C) (2015). Listing 12.06(C) requires the
claimant to show “complete inability to function independently outside the area of one’s
home.” Id. § 12.06(C) (2015).
Judge Williams noted that the ALJ considered Burkhardt’s allegation of severe
difficulties with social functioning, but found she “generally demonstrated normal mood
and affect to her treating providers and ha[d] not been noted to have difficulties with
social interaction on exam.” Doc. No. 20 at 10 (citing AR 19, 22, 402-403, 405, 410,
414, 416-17, 427, 430, 436, 439, 488, 537, 541, 584). While Burkhardt was hospitalized
in January 2013 after threatening to kill her husband, the ALJ noted she was off her
medication at this time and had been using amphetamines. Id. (citing AR 19, 22, 378,
408). The ALJ also reasoned that Burkhardt had quickly improved on other occasions
when her symptoms were exacerbated. Id. (citing AR 22, 416-17, 422-23).
regularly shopped in stores, interacted with friends and family on a daily basis and
worked part-time. Id. (citing AR 19, 254, 270-72, 280). Finally, the ALJ relied on the
opinions of state agency medical consultants, Russell Lark, Ph.D. and Dee Wright,
Ph.D., who concluded that Burkhardt had moderate limitations in social functioning after
reviewing her medical records.
Burkhardt argues that the ALJ’s determination regarding her social functioning is
not supported by substantial evidence because she has a demonstrated inability to get
along with employers and family members, even going so far as wanting to hurt them.
Judge Williams noted that the ALJ considered this evidence but found it mitigated by the
fact that Burkhardt had been using amphetamines at this time and was noncompliant with
her medication. Second, the ALJ highlighted evidence showing that Burkhardt was able
to function socially. Id. at 12 (citing AR 19, 22, 270-72, 280, 402-03, 405, 410, 414,
416-17, 427, 430, 436, 439, 488, 537, 541, 584). Third, Judge Williams noted that the
ALJ accommodated Burkhardt’s limitations in social functioning by precluding Burkhardt
from working with large crowds in the residual functional capacity (RFC) assessment.
The ALJ also found she could have no interaction with the public; no more than
occasional interaction with coworkers and supervisors; and could not work in close
proximity to others. Id. (citing AR 20).
Burkhardt argues the ALJ erred by stating no medical opinion evidence indicated
her impairments were marked or extreme. Judge Williams noted that claimant bears the
burden of proof and, in any event, the ALJ relied on the opinions of the state agency
medical consultants who found Burkhardt did not have marked or extreme limitations
based on their review of Burkhardt’s medical records. Id.
Finally, Burkhardt argues her Global Assessment of Functioning (GAF) scores
support extreme limitations because they vary widely in range. Judge Williams noted
that Burkhardt’s GAF scores were generally in the 50s, which are associated with
moderate limitations. Her GAF score of 27 occurred while she was off her medication
and on amphetamines, which the ALJ addressed. Id. (citing AR 19, 382-83). Therefore,
with regard to the B criteria, Judge Williams found the ALJ’s decision was supported by
substantial evidence. Id.
With regard to the C criteria for Listings 12.04 and 12.06, Burkhart argues she
has been in treatment for two years and has not adapted to changes in environment or
demands that are not part of her everyday life. She states this is evidenced by her inability
to get along with others and hold employment. She also argues that under Listing 12.06,
her treatment for two years “at times diminishes the symptoms and signs of her mental
disorder.” Id. at 13 (citing Doc. No. 18 at 9).
Judge Williams noted the C criteria were not applicable in this case. Listing
12.04(C) requires a claimant to show repeated episodes of decompensation of extended
duration; symptoms so severe that “even a minimal increase in mental demands or change
in the environment would be predicted to cause [her] to decompensate;” or a history of
“one or more years’ inability to function outside a highly supportive living arrangement,
with an indication of continued need for such an arrangement.” Id. (citing 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.04(C) (2015). He noted Listing 12.06(C) requires the
claimant to show a “complete inability to function independently outside the area of [her]
Judge Williams acknowledged the evidence indicating that Burkhardt had
difficulties with her employers, but noted the ALJ had accommodated these limitations
with a highly restrictive RFC assessment. Indeed, the evidence did not show she was
completely unable to function outside of a carefully controlled environment as
contemplated by the Listings. The ALJ cited evidence that Burkhardt was able to shop,
attend appointments and engage in part time work. Therefore, Judge Williams found that
substantial evidence supported the ALJ’s findings that Burkhart did not meet the C criteria
in that she did not experience repeated episodes of decompensation of extended duration,
and was able to function without a highly supportive living environment. Id.
For these reasons, Judge Williams recommends that the ALJ’s decision be
affirmed. Id. at 14.
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’s decision
was supported by substantial evidence. He correctly found the ALJ committed no error
in finding Burkhardt did not have an impairment or combination of impairments that met
or medically equaled of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1 based on the record as a whole. Therefore, I find no error – clear or
otherwise – in his recommendation. As such, I adopt the R&R in its entirety.
For the reasons set forth herein:
I accept Judge Williams’ R&R (Doc. No. 20) without modification. See
28 U.S.C. § 636(b)(1).
Pursuant to Judge Williams’ recommendation:
The Commissioner’s determination that Burkhardt was not disabled
Judgment shall enter in favor of the Commissioner and against the
IT IS SO ORDERED.
DATED this 30th day of June, 2017.
Leonard T. Strand, Chief Judge
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