Frazer v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER Accepting 20 Report and Recommendations re 4 Complaint filed by Robert A Frazer: The Commissioners determination that Frazer was not disabled is reversed and this matter is remanded to the Commissioner for further proceedings. Judgment shall enter in favor of Frazer and against the Commissioner. Signed by Chief Judge Leonard T Strand on 8/12/2019. (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
ROBERT Z. FRAZER,
ANDREW M. SAUL, Commissioner of
MEMORANDUM OPINION AND
ORDER ON REPORT AND
This case is before me on a Report and Recommendation (R&R) filed by the
Honorable Kelly K.E. Mahoney, Chief United States Magistrate Judge. See Doc. No.
Judge Mahoney recommends that I reverse and remand the decision by the
Commissioner of Social Security (the Commissioner) denying Robert Z. Frazer’s
application for supplemental security income (SSI) under Title XVI of the Social Security
Act (the Act), 42 U.S.C. §§ 1381-1383f. 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.
Andrew M. Saul was sworn in as Commissioner of Social Security on June 17, 2019. Pursuant
to Federal Rule of Civil Procedure 25(d), he has been substituted for Acting Commissioner
Nancy A. Berryhill as the defendant in this suit.
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
(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).
Frazer applied for SSI on September 25, 2014, alleging disability due to
schizophrenia and physical issues. Doc. No. 20 (citing AR 62, 163-71). After a hearing,
an Administrative Law Judge (ALJ) applied the familiar five-step evaluation and found
that Frazer was not disabled as defined in the Act. Frazer argues the ALJ’s residual
functional capacity (RFC) determination is not supported by some medical evidence and
the ALJ failed to adequately limit Frazer’s contact with the public and coworkers. Id. at
4; Doc. Nos. 16, 18. Additionally, he challenges the ALJ’s appointment under Lucia v.
S.E.C., 138 S. Ct. 2044 (2018). Judge Mahoney addressed each argument separately.
With regard to the RFC determination, Judge Mahoney noted that the mental RFC
opinions in the record found Frazer had marked limitations in his ability to interact with
the public, moderate to marked limitations in his ability to interact with coworkers and
no more than moderate limitations in his ability to interact with supervisors. Doc. No.
20 at 5. Judge Mahoney noted that the ALJ discussed each of the four medical opinions2
in the record and, despite noting that all of them found greater limitations in Frazer’s
ability to interact with the public compared to coworkers and supervisors, made no
distinction between Frazer’s ability to interact with the public versus coworkers and
The medical opinions came from Dr. Scott and Dr. Roland (both consultative examiners) and
Dr. Shafer and Dr. Lark (both non-examining state agency reviewers). Doc. No. 20 at 5.
supervisors. Id. at 6. The ALJ limited Frazer to occasional contact with all three groups.
Id. Judge Mahoney noted the vocational expert’s testimony that if the ALJ’s RFC
determination had included no contact with the public and occasional interaction with
coworkers and supervisors, Frazer would be precluded from performing other work. Id.
Judge Mahoney considered each medical opinion, including both the RFC
assessment and narrative portion of the opinion. She noted that Dr. Shafer (a nonexamining state agency reviewer) found that Frazer had marked limitations in his ability
to interact with the public and moderate limitations in his ability to interact with
coworkers and supervisors. Id. at 7 (citing AR 71-72). Dr. Shafer’s narrative explained
that Frazer could “interact appropriately with coworkers and supervisors on at least a
limited basis” but offered no further comment on Frazer’s ability to interact with the
Id. (citing AR 72).
Judge Mahoney concluded that the only plausible
interpretation is that Dr. Shafer (and Dr. Lark, who affirmed the opinion on
reconsideration) found Frazer had greater limitations in his ability to interact with the
public compared with his ability to interact with supervisors and coworkers. Id. The
ALJ recognized the difference in limitations in Dr. Shafer’s opinion, but did not impose
greater limitations on Frazer’s ability to interact with the public than his ability to interact
with coworkers and supervisors. Id. Judge Mahoney found that Dr. Shafer’s opinion
did not support the ALJ’s conclusion. Id.
Judge Mahoney explained that she considered the possibility that the ALJ intended
“only occasional contact” would account for Frazer’s marked limitations in interacting
with the public and thereby imposed greater limitations on Frazer’s ability to interact with
coworkers and supervisors than were found by Dr. Shafer. Id. at 7-8. However, she
concluded this did not appear to be the case and that the ALJ had rejected the medical
opinions that found Frazer was markedly limited in his ability to interact with the public
even though the ALJ gave such opinions significant weight. Id. at 8. Instead, the ALJ
seemed to find that Frazer had only moderate limitations in his ability to interact with the
public and could have occasional contact in all areas of social functioning. Id.
Judge Mahoney concluded that this occasional-contact limitation failed to
sufficiently address Frazer’s marked limitations in that area of functioning as noted in the
medical opinions. Id. She distinguished Moore v. Astrue, 623 F.3d 599, 602 (8th Cir.
2010), in which the court affirmed an ALJ’s determination that the claimant could interact
with supervisors, coworkers and the general public on an “infrequent basis.” In that
case, three medical source opinions found that the claimant had (1) no ability to deal with
the public or supervisors and a “poor” ability to deal with coworkers; (2) only “slight”
limitations in his abilities to interact with others; and (3) moderate limitations in
interacting with supervisors and coworkers and marked (but not extreme) limitations in
interacting with the public. Id. (citing Moore, 623 F.3d at 602-03). While one of the
opinions supported the claimant’s position that he could not interact with others in a work
setting, the opinions also supported the ALJ’s determination that the claimant could
interact with others on an “infrequent basis.” Id.
In contrast to Moore, Judge Mahoney noted that none of the medical opinions here
supported the ALJ’s determination regarding Frazer’s ability to interact with the public.
Id. She also distinguished Moore based on the claimants’ severe impairments. Moore
suffered from borderline intellectual functioning, learning disorder, oppositional defiant
disorder and adjustment disorder with depression, while Frazer suffers from
schizophrenia that causes paranoia and auditory hallucinations. Id. n.8. Judge Mahoney
also noted there was other substantial evidence in the record that supported the ALJ’s
limitation in Moore (such as daily activities) that was absent from the record here. Id.
Judge Mahoney concluded that because all the medical opinions in this case found Frazer
more limited in his ability to interact with the public, the ALJ should have included
greater limitations on Frazer’s ability to interact with the public compared to his ability
to interact with coworkers and supervisors. Id. at 9-10.
Judge Mahoney addressed the Commissioner’s argument that the RFC need not be
supported by a specific medical opinion. She noted that while that is true, the ALJ’s
conclusion in this case was not supported by some medical evidence. Id. at 10. Indeed,
she noted the ALJ gave significant weight to the state agency medical opinions, but did
not account for their conclusions that Frazer had marked limitations in his ability to
interact with the public. Id. She cited numerous cases standing for the proposition that
an ALJ may not impose fewer limitations than found in all the medical opinion evidence
and thereby formulate the ALJ’s own medical opinion. Id.
Judge Mahoney then addressed Frazer’s argument that the ALJ erred in evaluating
the medical opinions in a general sense. She noted that the ALJ gave partial weight to
Dr. Scott’s opinion based on Frazer’s treatment records and activities of daily living. Id.
at 11 (citing AR 28). The ALJ gave little weight to Dr. Roland’s opinion because it was
not consistent with the record as a whole based on activities of daily living, examination
records, improvement with counseling, statements from his mother, his work history and
his interest in seeking employment. Id. (citing AR 30). Judge Mahoney concluded that
while these could constitute good reasons for the ALJ to give less weight to medical
opinions, it was not clear whether they were good reasons in this case given the nature
of Frazer’s impairment. Id. Because she determined that the ALJ erred in calculating
Frazer’s RFC with regard to his ability to interact with the public, she recommends that
the ALJ reevaluate each of the medical opinions and other evidence in the record in
determining Frazer’s RFC.
Finally, Judge Mahoney addressed Frazer’s argument that the ALJ was not
properly appointed under Lucia v. S.E.C., 138 S. Ct. 2044 (2018). Id. at 12-14. She
noted that the vast majority of courts to address this issue (including district courts in the
Eighth Circuit and this court) have held that a claimant forfeits his or her Lucia-based
Appointment Clause challenge by failing to raise it to the Social Security Administration
and have declined to excuse the forfeiture. Id. at 14-16 (citing cases). Relying on the
reasoning of these decisions, she recommends I reject Frazer’s Appointments Clause
Because the parties did not object to the R&R, I have reviewed it for clear error.
Judge Mahoney applied the appropriate legal standards in considering whether the ALJ’s
RFC determination was supported by some medical evidence. Based on my review of
the record, I find no error – clear or otherwise – in Judge Mahoney’s recommendation.
As such, I adopt the R&R in its entirety.
For the reasons set forth herein:
I accept Judge Mahony’s R&R (Doc. No. 20) without modification. See
28 U.S.C. § 636(b)(1).
Pursuant to Judge Mahoney’s recommendation:
The Commissioner’s determination that Frazer was not disabled is
reversed and this matter is remanded to the Commissioner for
further proceedings as described by Judge Mahoney.
Judgment shall enter in favor of Frazer and against the
If Frazer 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).
IT IS SO ORDERED.
DATED this 12th day of August, 2019.
Leonard T. Strand, Chief Judge
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