Bohr v. Commissioner of Social Security

Filing 16

MEMORANDUM Opinion and Order Accepting 15 Report and Recommendations re 3 Complaint. The Commissioners determination that Plaintiff was not disabled is affirmed. Judgment shall enter in favor of the Defendant. Signed by Chief Judge Leonard T Strand on 10/2/2017. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
GERALD G. BOHR,
Plaintiff,

No. C16-2108-LTS

vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

MEMORANDUM OPINION
AND ORDER ON REPORT AND
RECOMMENDATION

Defendant.
____________________
I.

INTRODUCTION

This case is before me on a Report & Recommendation (R&R) by the Honorable
C.J. Williams, Chief United States Magistrate Judge. Doc. No. 15. Judge Williams
recommends that I affirm the Commissioner’s determination that plaintiff Gerald G. Bohr
was not disabled. 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 . . . 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).
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.
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.
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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 (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
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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

Bohr filed an application for disability insurance benefits on July 8, 2013, alleging
an onset date of August 1, 2010. AR 11. In a 2015 decision, an ALJ concluded that
Bohr had severe impairments due to degenerative disc disease bilateral knees, status-post
total knee replacement, osteoarthritis, obesity and depression. AR 13. She found that
while Bohr was unable to perform any past relevant work (AR 26), there were other jobs
that exist in significant numbers in the national economy that he could perform. AR 27.
Bohr’s request for review was denied on July 28, 2016. AR 1. He filed a complaint on
September 20, 2016, and Judge Williams filed his R&R on September 7, 2017.
Bohr argued that the ALJ’s decision was erroneous because she (1) failed to
properly consider the conclusions of examining physician Dr. Noli Mendoza, (2) failed
to give a good reason for discounting a finding of disability by the Department of Veterans
Affairs (VA), (3) made a residual functional capacity (RFC) assessment that was not
supported by substantial medical evidence and (4) discounted Bohr’s subjective
allegations without identifying inconsistencies in the record. Doc. No. 15 at 7.
Judge Williams addressed each issue separately. He summarized the ALJ’s finding
on the first issue as follows:
Dr. Mendoza performed compensation and pension evaluations on
Claimant in February and September 2012. (AR 23). Although Dr.
Mendoza was a treating physician and did opine that Claimant could not
perform sedentary or light work, could not sit for extended periods greater
than fifteen minutes, and could not walk more than a few yards, Dr.
Mendoza also found that Claimant could lift, carry, push, and pull up to
twenty pounds. (AR 404-05). Notably, Dr. Mendoza offered no support for
his findings that Claimant was limited in sitting, standing, and walking
greater than a few yards. (Id.). Absent substantiation for the assertion that
Claimant was limited in these activities, coupled with Dr. Mendoza’s
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finding that Claimant could handle upwards of twenty pounds, the ALJ
found that Dr. Mendoza’s opinions were internally inconsistent. (Id.).
The ALJ further found that prior to Dr. Mendoza’s evaluations,
Claimant reportedly had no issues with daily activities, “could walk and
climb stairs okay,” and had reported only “mild to moderate functional
impairment during flare-ups, but . . . this was ‘annoying mostly.’” (AR
23). Subsequent to Dr. Mendoza’s evaluations, Claimant reported in May
2013 that he was able to walk up to three miles, assisted with Memorial
Day celebrations, went camping, horseback riding, and served as a
volunteer football coach for his son’s team. (AR 23). Finally, following
knee surgery, Claimant’s condition improved and was progressing as
expected. (AR 24). In December 2014, Claimant walked up to one mile
twice per week and was assessed no walking restrictions. (Id.).
Doc. No. 15 at 8. Because Bohr’s own admissions and Dr. Mendoza’s evaluation notes
were inconsistent with Dr. Mendoza’s opinion, the ALJ afforded the opinion little weight.
Doc. No. 15 at 8–9.

Judge Williams held that the ALJ correctly found that Dr.

Mendoza’s records did not support the limitations he imposed and that the evidence on
the record as a whole was inconsistent with Dr. Mendoza’s opinions. Doc. No. 15 at 9.
He found that the ALJ properly looked to other substantial evidence in the record and
that Bohr’s own assertions about his physical activities contradicted Dr. Mendoza’s
opinion. Doc. No. 15 at 10.
Next, Judge Williams addressed the weight that the ALJ gave the VA’s finding of
disability. He found that the ALJ fully considered the evidence underlying the VA’s
finding and properly declined to adopt the VA’s determination. Judge Williams stated:
Contrary to Claimant’s assertions, the ALJ did fully consider the
evidence underlying the VA’s disability determination. In addition to noting
that Claimant had only a seventy percent service connected disability and
was paid at one hundred percent due to a finding of unemployability (AR
16, 23, 44), the ALJ went on to address the evidence underlying the VA’s
decision. Notably, the ALJ determined that Dr. Paul Pellett, M.D., who
treated Claimant in connection with his VA claim, made findings that were
inconsistent with both his own treatment notes and with the substantial
evidence in the record as a whole. (AR 22-23). The Eighth Circuit Court
of Appeals has repeatedly held that where an ALJ considers the evidence
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underlying another agency’s finding of disability, this consideration is
sufficient to satisfy the demand to give such a finding explicit attention.
Baker v. Colvin, 620 F. App’x 550, 555 (8th Cir. 2015); Pelkey, 433 F.3d
at 579 (“[T]he ALJ did not err because he fully considered the evidence
underlying the VA’s final conclusion that [Claimant] was 60 percent
disabled.”). Thus, although the ALJ did not explicitly reference the VA’s
determination throughout her own decision, the ALJ’s thorough assessment
of the evidence used in the VA’s determination shows that the ALJ did, in
fact, give explicit attention to the VA’s finding. The ALJ was not bound by
the VA’s finding and thus was fully entitled to find that Claimant was not
entitled to disability benefits following a consideration of the VA’s finding.
20 C.F.R. § 1504; Pelkey, 433 F.3d at 579; Jenkins, 76 F.3d at 233.
Doc. No. 15 at 11.
Judge Williams next found that the ALJ’s RFC findings were supported by
substantial evidence and that the ALJ properly assessed the medical evidence available in
the record. Doc. No. 15 at 13.
[T]he ALJ found that Dr. Mendoza’s opinions were conclusory and did not
provide any support for the findings that Claimant could not sit for extended
periods of time and could not walk more than a few yards. (AR 23).
Furthermore, as discussed extensively above, Claimant’s admissions
regarding his physical activities, capabilities, and potential ability to work
with some assistance from the VA provided an adequate basis upon which
the ALJ could find conflict with Dr. Mendoza’s opinion and therefore not
accord Dr. Mendoza’s opinion controlling weight. Note that while the ALJ
did not wholly disregard Dr. Mendoza’s opinion—rather, the ALJ
“afforded [Dr. Mendoza’s] opinions little weight (AR 24)—an ALJ has the
discretion to disregard such conclusory statements as those rendered by Dr.
Mendoza, contrary to what Claimant may argue. Finally, while affording
little weight to Dr. Pellett’s ultimate conclusion of Claimant’s inability to
work, the ALJ spent a significant amount of time discussing the medical
evidence provided by Dr. Pellett in evaluating Claimant’s disability status.
As the ALJ clearly did rely on Dr. Pellett’s underlying medical opinions,
and only refused reliance on those findings that were within the ALJ’s
prerogative, the ALJ’s ultimate denial of disability benefits was supported
by medical evidence. (AR 22).
Doc. No. 15 at 12–13.
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Finally, Judge Williams held that the ALJ properly found that Bohr’s subjective
statements were not supported by the objective medical evidence due to inconsistencies
in his reports regarding his pain, mobility and daily activities. Doc. No. 15 at 14. His
treatment record and reported recovery were also inconsistent with his claimed
limitations. Doc. No. 15 at 14–15. Judge Williams stated,
[t]he ALJ did not disregard Claimant’s allegations of pain, as the ALJ
incorporated into her residual functional capacity assessment limitations on
how much weight Claimant could lift and carry, restrictions on his ability
to sit, stand, walk, kneel, and crouch, and determined that Claimant could
never crawl. (AR 15). Further, Claimant’s back pain was well controlled
and manageable with medication, and he progressed in the normal fashion
following knee surgery. Significantly, Claimant’s statements to medical
providers regarding his physical abilities and activities, as well as his
complaints of pain, show wide variances from the allegations Claimant
testified to.
Doc. No. 15 at 16.
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 for evaluating the weight the ALJ
gave a treating source’s opinion, the weight the ALJ gave to another agency’s disability
determination, the claimant’s credibility determination and the support of substantial
evidence for the claimant’s RFC. I find no error 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 without modification. See 28 U.S.C. §

636(b)(1).
2.

Pursuant to Judge Williams’ recommendation:
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a.

The Commissioner’s determination that Gerald G. Bohr was not

disabled is affirmed.
b.

Judgement shall enter in favor of the Commissioner.

IT IS SO ORDERED.
DATED this 2nd day of October, 2017.

__________________________
Leonard T. Strand, Chief Judge

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