White v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION AND ORDER Accepting 19 Report and Recommendations re 1 Complaint filed by Larry C White, recommending that the District Court accept in part and remand in part the case to the ALJ for further proceedings (see text). Signed by Chief Judge Leonard T Strand on 3/18/2019. (src)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
LARRY C. WHITE,
No. C18-2005-LTS
Plaintiff,
vs.
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 Mark A. Roberts, United States Magistrate Judge. See Doc. No. 19. Judge
Roberts recommends that I reverse and remand the decision by the Commissioner of
Social Security (the Commissioner) denying Larry C. White’s application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434.
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 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.” Vester 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
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(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
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.
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Thomas v. Arn, 474 U.S. 140, 150 (1985).
III.

THE R&R

White applied for disability insurance benefits on September 25, 2014, alleging he
became disabled on December 18, 2013, due to various disc and joint issues with his
back.

See Doc. No. 19 at 1 (citing AR 138-39, 138, 171).

After a hearing, an

Administrative Law Judge (ALJ) applied the familiar five-step evaluation and found that
White was not disabled as defined in the Act. White argues the ALJ erred in the following
ways:
1.

Determining that White can perform work that exists in significant
numbers in the national economy

2.

Determining that White would not be off task more than ten percent
of the time

3.

Failing to fully develop the record by rejecting all medical opinion
evidence and failing to obtain a consultative examination.

Id. at 7; see also Doc. No. 11. Additionally, he challenges the ALJ’s appointment under
Lucia v. S.E.C., 138 S. Ct. 2044 (2018). Judge Roberts addressed each argument
separately.
With regard to whether White can perform other work available in significant
numbers in the national economy, Judge Roberts first noted the Commissioner has
conceded the ALJ erred with regard to the number of jobs identified that White could
purportedly perform.

Because the ALJ found White had a limitation on overhead

reaching, the Commissioner states that only the semiconductor bonder job represents
work that White can perform.

There are 55,000 semiconductor bonder positions

available in the national economy. Judge Roberts found this constituted a “significant
number.” See Doc. No. 19 at 7-8 (citing Welsh v. Colvin, 765 F.3d 926, 930 (8th Cir.
2014) (in which the court held that 36,000 jobs constituted a significant number of jobs)).
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Judge Roberts then went on to consider White’s argument that it was not clear
from the record whether White could perform that job of semiconductor bonder based on
confusion regarding the applicable limitations in the hypothetical questions. He explained
that the ALJ included the following restriction in his first hypothetical: “a sit/stand option
allowing the person to sit or stand alternatively at will provided the person is not off task
by more than 10 percent of the work period . . .” Id. at 8 (citing AR 45). The vocational
expert (VE) responded that White could not perform his past work but could perform
work as a semiconductor bonder, ampule sealer and document preparer.

Id.

As

explained above, however, given White’s limitations with regard to overhead reaching,
semiconductor bonder is the only position he can potentially perform. Id. The ALJ then
modified the hypothetical as follows: “Same individual, same limitations except that the
person would be off task by more than 10 percent of the work period in addition to
regularly-scheduled breaks, lunches, or bathroom and water breaks. Would that preclude
work at all exertional levels?” Id. The VE responded that 10 percent was the limit and
more than that would preclude all work. Id. (citing AR 46).
Judge Roberts found no confusion among the limitations in each hypothetical. He
explained that the first hypothetical included a limitation of no more than 10 percent off
task and the second included a limitation of more than 10 percent off task. Id. He also
found that the VE was clear that work was available with a sit/stand option in which the
person would not be off task for more than 10 percent of the work period, but no work
was available if the alternating positions caused the person to be off task for more than
10 percent of the work period. Id. Judge Roberts explained that the real issue was
whether White would, in fact, be off task more than 10 percent of the time. Id. at 9.
Judge Roberts next considered the ALJ’s residual functional capacity (RFC)
determination, which included a finding that White “must be able to sit or stand
alternatively, at will, provided he is not off task more than 10% of the work period.” Id.
(quoting AR 13). White argued the evidence in the record demonstrates he would be off
task more than 10 percent of the time. He also argued that the ALJ failed to properly
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credit the opinions of Dr. Segal (his treating surgeon) and Dr. Delbridge (who performed
an independent medical examination at claimant’s expense), as well as his own subjective
complaints, particularly related to the 10 percent limitation. Id. (citing AR 183). Judge
Roberts concluded the ALJ did not explain how the evidence supported his conclusion
that White could meet the RFC restriction of being able to sit and stand alternatively, at
will, without being off task more than 10% of the work period. Id. at 10 (citing AR 13).
Compounding this lack of explanation, Judge Roberts noted the ALJ gave little
weight to the treating and examining opinions in the record.

Id.

These opinions

(completed within six weeks before the administrative hearing) stated that White would
be off task 15 percent of the time (Dr. Delbridge) and 25 percent or more of the time
(Dr. Segal). Id. In giving Dr. Segal’s opinion “limited weight,” Judge Roberts noted
that the ALJ found it unsupported and contradicted by the evidence as a whole but did
not explain the basis for his conclusion. Id. at 11. For instance, the ALJ did not cite
any evidence contradicting Dr. Segal’s opinion that White would be off task 25 percent
or more of the time or state that Dr. Segal’s opinion contained cursory statements or was
internally inconsistent. Judge Roberts concluded the ALJ failed to give good reasons for
the weight he assigned Dr. Segal’s opinion. Id. at 12.
Likewise, Judge Roberts found the ALJ failed to explain why he did not fully
credit Dr. Delbridge’s opinion that White would be off task 15 percent of the time. Id.
The ALJ discounted Dr. Delbridge’s opinion because it was “contradicted by the evidence
as a whole, including his own reported findings: he noted, for example, that the claimant
demonstrated good grip and range of motion of his arms, shoulders and hands, yet opined
he could use his arms to reach forward only 15% of the day.” Id. (citing AR 15). Judge
Roberts noted the ALJ failed to cite any particular evidence in the “evidence as a whole”
that contradicted Dr. Delbridge’s opinion. Id. He also noted that the ALJ failed to
explain why White’s grip and range of motion were inconsistent with his difficulties
reaching forward. Id. White had testified that his reaching abilities were not limited by
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range of motion, but by pain. Id. Finally, Judge Roberts noted the ALJ said nothing
about Dr. Delbridge’s opinion that White would be off task 15 percent of the time. Id.
As to other medical opinion evidence, Judge Roberts noted the ALJ similarly
discounted the opinions of John May, M.D., and Laura Griffin, D.O., state agency
medical consultants, as well as the opinions of physical therapist Michelle Breitbach. Id.
Again, the ALJ gave these opinions limited or little weight in favor of the unexplained
“evidence as a whole.” Id. The ALJ did the same with regard to White’s subjective
complaints, finding them unsupported by “the evidence as a whole.” Id. at 12-13.
Judge Roberts reasoned that while the medical source opinions could perhaps be
discounted after proper analysis, the ALJ’s opinion must be supported by substantial
evidence. Id. at 13. Because the ALJ did not explain how his conclusion that White
would be off task no more than 10 percent of the work period was supported by the
evidence, Judge Roberts recommends that I remand the case for the ALJ to properly
explain this conclusion, including his rejection of the medical opinions.1 Id. If, after
proper evaluation of Dr. Segal’s and Dr. Delbridge’s opinions, the ALJ determines that
the medical evidence in the administrative record does not address White’s current
limitations, Judge Roberts recommends that the ALJ order a consultative examination so
there will be updated medical evidence in the record. Id. at 27-28.
Finally, Judge Roberts addressed White’s argument that the ALJ was not properly
appointed under Lucia v. S.E.C., 138 S. Ct. 2044 (2018). Id. at 28-29. Following
previous decisions by this court finding that Lucia requires an Appointments Clause issue
to be raised before the ALJ’s decision becomes final, Judge Roberts concluded that White
failed to timely raise this argument because he raised it for the first time in his opening

1

Judge Roberts provides a more detailed analysis of the opinions of Dr. Segal, Dr. Delbridge
and the state agency medical consultants and the ALJ’s discussion of each. In doing so, he
identifies additional gaps between the medical evidence and opinion evidence and the ALJ’s
conclusions regarding White’s limitations. See Doc. No. 19 at 13-28.

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brief to this court. Id. He recommends that White’s request for remand on a Lucia basis
be denied. Id.
IV.

DISCUSSION

Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Roberts applied the appropriate legal standards in considering the ALJ’s evaluation
of the medical opinion evidence. Based on my review of the record, I find no error –
clear or otherwise – in Judge Roberts’ recommendation. As such, I adopt the R&R in
its entirety.
V.

CONCLUSION

For the reasons set forth herein:
1.

I accept Judge Roberts’ R&R (Doc. No. 19) without modification. See 28
U.S.C. § 636(b)(1).

2.

Pursuant to Judge Roberts’ recommendation:
a.

The Commissioner’s determination that White was not disabled is
reversed and this matter is remanded to the Commissioner for
further proceedings as described by Judge Roberts.

b.

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

c.

If White wishes to request an award of attorney’s fees and costs
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412,
an application may be filed up until 30 days after the judgment
becomes “not appealable,” i.e., 30 days after the 60-day time for
appeal has ended. See Shalala v. Schaefer, 509 U.S. 292, 296
(1993); 28 U.S.C. §§ 2412(d)(1)(B), (d)(2)(G).

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IT IS SO ORDERED.
DATED this 18th day of March, 2019.

________________________________
Leonard T. Strand, Chief Judge

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