Vallecillo v. Commissioner of Social Security

Filing 19

MEMORANDUM OPINION AND ORDER Accepting 17 Report and Recommendations re 4 Complaint filed by Cristina Vallecillo: The Commissioner's determination that claimant was not disabled is affirmed. Judgment shall enter against claimant and in favor of the Commissioner. Signed by Judge CJ Williams on 9/5/2019. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
CRISTINA VALLECILLO,
No. 18-CV-2034-CJW-MAR
Plaintiff,
vs.
ANDREW M. SAUL, Commissioner of
Social Security,

MEMORANDUM OPINION AND
ORDER ON REPORT AND
RECOMMENDATION

Defendant.
___________________________
I.

INTRODUCTION

This matter is before the Court on a Report & Recommendation (R&R) by the
Honorable Mark A. Roberts, United States Magistrate Judge. (Doc. 17). Judge Roberts
recommends that the Court affirm the decision of the Commissioner of Social Security
(the Commissioner) denying plaintiff Cristina Vallecillo’s (claimant) application for
continuation of Disability Insurance Benefits (DIB) and Supplemental Security Income
(SSI) benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 1381, et.
seq. (Act). (Id., at 1). Claimant filed a timely objection on August 9, 2019. (Doc. 18).
The Commissioner has not responded and the deadline for a response 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 [administrative law judge (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) (citation omitted).
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 (citation
omitted), or “review the factual record de novo.” Roe v. Chater, 92 F.3d 672, 675 (8th
Cir. 1996) (citation omitted). 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 (citation omitted). The court may not reverse

2

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. 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)). A district judge may, however, elect to review an R&R under a moreexacting standard even if no objections are filed:

3

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, 154 (1985).
III.

THE R&R

Claimant applied for Social Security benefits claiming she was disabled due to
visual impairments, diabetes, arthritis in her hands, and asthma, asserting an onset date
of November 9, 2012. (AR 207, 295). On February 5, 2015, and February 23, 2015,
the Commissioner denied claimant’s application. (AR 206-15, 242). On July 22, 2015,
the Commissioner denied claimant’s request for reconsideration. (AR 134). On May
23, 2017, ALJ Gerald Meyr held a hearing on claimant’s application. (AR 173-205,
259). On December 7, 2017, the ALJ found claimant was not disabled. (AR 131-50).
On April 24, 2018, the Appeals Counsel denied claimant’s appeal of the ALJ’s decision.
(AR 1-3).
On June 13, 2018, claimant filed her complaint with this Court. (Doc. 4). By
January 23, 2019, the parties had fully briefed the issues and the Court referred the case
to Judge Roberts for a Report and Recommendation. (Docs. 13-16). In her brief,
claimant argued the ALJ erred in determining that she was not disabled because the ALJ
failed to give good reasons for assigning no weight to the bending and lifting restrictions
opined by claimant’s ophthalmologist, Dr. James Folk. (Doc. 13, at 3-8). Claimant also
challenged the validity of the ALJ’s appointment under the Appointments Clause. (Id.,
at 9-10).
Judge Roberts found the ALJ did not err in not giving Dr. Folk’s opinion
controlling weight because that opinion was inconsistent with the other evidence in the
record. (Doc. 17, at 14-28). In conducting his analysis, Judge Roberts properly focused

4

on the six factors pertinent to determining the weight to be given a medical opinion, citing
20 C.F.R. § 404.1527(c)(2). (Id., at 14). Judge Roberts found the ALJ properly
discounted Dr. Folk’s opinion about claimant’s exertional limitations because Dr. Folk
did not have a longitudinal history of treating claimant for anything other than her visual
problems.

(Id., at 14-15).

Judge Roberts likewise found that the ALJ properly

considered that Dr. Folk had no records of treating claimant for anything other than her
eye problems. (Id., at 15). Judge Roberts also found that, although Dr. Folk was a
specialist, Dr. Folk was not a specialist with regard to claimant’s exertional limitations.
(Id., at 15-16). Nevertheless, because Dr. Folk was a medical doctor, Judge Roberts
found that factor weighed “slightly in favor of affording Dr. Folk’s exertional restrictions
more weight than the ALJ afforded it.” (Id.). Judge Roberts found, however, that the
only basis Dr. Folk gave for the exertional limitations was blurred vision and that nothing
in Dr. Folk’s treatment notes supported exertional limitations. (Id., at 17-19). Finally,
Judge Roberts thoroughly and exhaustively reviewed all of the other medical evidence
and concluded that the ALJ did not err in finding that Dr. Folk’s exertional limitations
were inconsistent with that evidence. (Id., at 19-27). Judge Roberts consequently
concluded that substantial evidence in the record as a whole supported the ALJ’s decision.
(Id., at 27-28).
Judge Roberts also found that claimant waived a challenge to the ALJ’s
appointment by failing to raise the issue before the Commissioner. (Id., at 28-30).
IV.

STANDARD OF REVIEW

Claimant objects to the R&R with regard to Dr. Folk by asserting that Judge
Roberts should have “start[ed] with the ALJ’s rational for the weight afforded to Dr.
Folk’s opinions and then determin[ed] whether that rational constituted a good reason,”
instead of weighing the “factors in 20 C.F.R. § 404.1527 to determine whether the ALJ
could have provided good reasons” for the weight assigned to Dr. Folk’s opinions. (Doc.

5

18, at 2-3): Claimant further argues that Judge Roberts misapplied the harmless error
doctrine. (Id.).
As for her Appointments Clause challenge, claimant does not articulate how she
believes Judge Roberts erred. (Id., at 3-7). Claimant cites Judge Roberts’ R&R only to
note that it “decided to follow the prior decisions from the Northern District of Iowa and
not grant relief on this issue” and to note that the R&R acknowledged contrary authority.
(Doc. 18, at 4). Claimant does not explain how Judge Roberts’ detailed analysis was in
error. Rather, claimant merely repeats the arguments she made to Judge Roberts and
simply disagrees with Judge Roberts’ conclusions.

Claimant’s objection to the

Appointments Clause issue fails to comply with Local Rule 72A, which states that “[a]
party who objects to . . . a magistrate judge’s report and recommendation must file
specific, written objections to the . . . report and recommendation . . ..” (emphasis
added); accord FED. R. CIV. P. 72(b)(2) (stating that “a party may serve and file specific
written objections to the proposed findings and recommendations” (emphasis added)).
Claimant’s objection raises no specific deficiency in Judge Roberts’ analysis. Claimant’s
objection does little more than reiterate her argument that Judge Roberts previously
rejected without offering any new analysis. The Court is left to guess, then, where Judge
Roberts allegedly erred.

Indeed, claimant’s objection would require the Court to

duplicate the work Judge Roberts has already done, thus defeating the entire purpose of
an R&R.
Claimant’s objection to the Appointments Clause challenge, then, is akin to making
no objection at all. See, e.g., Howard v. Sec’y of Health & Human Servs., 932 F.2d
505, 509 (6th Cir. 1991) (finding that a general objection to the entirety of a magistrate
judge’s R&R “has the same effects as would a failure to object.”); United States v. Scott,
No. CR07–2004–MWB, 2007 WL 1668058, at *4 (N.D. Iowa June 7, 2007)
(“Therefore, the court denies defendant Scott’s objection on the ground that defendant

6

Scott has failed to state his objection with the requisite particularity.”). The Eighth
Circuit Court of Appeals has repeatedly noted that a number of circuits hold that a district
court need not conduct a de novo review of a magistrate’s order where the objecting party
makes only a general, conclusory objection. Belk v. Purkett, 15 F.3d 803, 815 (8th Cir.
1994); see also Thompson v. Nix, 897 F.2d 356, 357–58 (8th Cir. 1990) (“We also
remind parties that objections must be . . . specific to trigger de novo review by the
District Court of any portion of the magistrate’s report and recommendation.”). The
Eighth Circuit Court of Appeals has also noted that “[t]here is language in [Branch v.
Martin, 886 F.2d 1043 (8th Cir. 1989)] which indicates this Circuit’s approval of such
an exception.” Belk, 15 F.3d at 815 (citing Branch, 886 F.3d at 1046 (“In the present
case, plaintiff’s objections to the magistrate’s factual conclusions were timely filed and
specific enough to trigger de novo review.” (further citations omitted))). Still, the Eighth
Circuit Court of Appeals has suggested that, in cases involving “strikingly brief” records,
or those in which a pro se litigant objects, district courts should apply de novo review
more liberally, even in the face of general objections. See id. (holding that a pro se
litigant’s objections were “definite enough” to trigger de novo review of a concise
record); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (holding that a litigant’s
“pro se objections sufficiently directed the district court to the alleged errors”).
Here, claimant was represented by an experienced attorney. Claimant offers
nothing more than a conclusory objection to Judge Roberts’ Appointments Clause
challenge analysis. Because this objection is not sufficiently specific to trigger de novo
review, the Court will review that portion of claimant’s objection for clear error.
V.
A.

ANALYSIS

Weight Afforded to Dr. Folk’s Exertional Limitations Opinion

Claimant objects to Judge Roberts’ R&R regarding the weight the ALJ afforded
Dr. Folk’s exertional limitations opinion, arguing that Judge Roberts made two errors.

7

First, claimant argues that Judge Roberts conducted his own analysis of the factors in 20
C.F.R. § 404.1527 to determine whether there existed good reason to discount Dr. Folk’s
opinion. Claimant argues that Judge Roberts should have, instead, determined whether
the reason articulated by the ALJ was supported by substantial evidence in the record.
(Doc. 18, at 2-3). Second, claimant argues that Judge Roberts erred in conducting a
harmless error analysis again by substituting his own analysis of the factors instead of
determining whether a reasonable ALJ could have assigned more weight to Dr. Folk’s
opinion. (Id., at 3). The Court will address each of the claimed errors in turn.
1.

Whether the ALJ Gave Good Reasons for Affording No Weight to Dr.
Folk’s Exertional Limitation Opinion

Here, the ALJ gave “no weight” to Dr. Folk’s exertional limitations opinion. (AR
142). The sole reason cited by the ALJ for dismissing this opinion was that the opinion
was “beyond Dr. Folk’s expertise.” (Id.). In her appeal to this Court, claimant argued
the ALJ “failed to give good reasons for assigning no weight” to Dr. Folk’s exertional
limitations opinion. (Doc. 13, at 3). Claimant argued that a medical doctor “is able to
opine as to general physical limitations” even if the medical doctor is specialized in
another area (as, for example, ophthalmology). (Id., at 5). Claimant argued that the
regulations could support an ALJ assigning “little weight” to a medical doctor
ophthalmologist, but should have assigned more weight because Dr. Folk had “reasonable
knowledge” that claimant’s “Diabetic Macular Edema both eyes” supported a limitation
“to light exertional level work with bending or stooping limitations.” (Id.).
Judge Roberts found that Dr. Folk was, “by and large, capable of opining on
general physical exertional limitations such as lifting and bending” and, thus, found the
ALJ should have afforded “Dr. Folk’s exertional limitations more weight than” she did.
(Doc. 17, at 16). Judge Roberts correctly found the ALJ erred in affording Dr. Folk’s
exertional limitations opinion “no weight.” Judge Roberts then proceeded to review the

8

factors under 20 C.F.R. § 404.1527 to assess whether the ALJ should have afforded Dr.
Folk’s opinion any weight. Claimant does not object to Judge Roberts’ analysis that led
him to conclude for various reasons stated that Dr. Folk’s opinion was not entitled to any
weight. Upon my own review of the record and Judge Roberts’ analysis, I find it wellsupported and well-reasoned.
Nevertheless, claimant is correct that Judge Roberts conflated a review of whether
the ALJ’s stated reasons for affording Dr. Folk’s exertional limitations opinion no weight
with a review of whether the factors could have supported that finding. The ALJ’s
opinion does not reflect that she considered all of the Section 404.157 factors in affording
Dr. Folk’s exertional limitations opinion no weight. Rather, the ALJ simply stated that
she afforded that opinion no weight because it was outside Dr. Folk’s expertise. This
was error.
According to Social Security Ruling (“SSR”) 96-2p,2 the regulations require that
whenever an ALJ denies benefits, the decision:
must contain specific reasons for the weight given to the treating source’s
medical opinion, supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight
the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.
Titles II & XVI: Giving Controlling Weight to Treating Source Med. Opinions, SSR 962P (S.S.A. July 2, 1996); see 20 C.F.R. § 402.35(b)(1) (SSRs “are binding on all
components of the Social Security Administration” and “represent precedent final
opinions and orders and statements of policy and interpretations that we have adopted.”).
Ultimately, an ALJ must “give good reasons” to explain the weight given to a treating
physician’s opinion. 20 C.F.R. § 404.1527(c)(2); see also Reece v. Colvin, 834 F.3d
904, 909 (8th Cir. 2016) (“Whether the ALJ gives the opinion of a treating [source] great
or little weight, the ALJ must give good reasons for doing so.”); Prosch v. Apfel, 201

9

F.3d 1010, 1013 (8th Cir. 2000) (“Whether the ALJ grants a treating physician’s opinion
substantial or little weight, the regulations provide that the ALJ must ‘always give good
reasons’ for the particular weight given to a treating physician’s evaluation.”).
Here, as Judge Roberts correctly found, the ALJ did not give a good reason to
afford Dr. Folk’s exertional limitations opinion no weight. As a medical doctor, Dr.
Folk’s exertional limitations opinion was entitled to some weight even though it was on
a subject outside of Dr. Folk’s expertise. Even if, as Judge Roberts found and I agree,
the record supports affording Dr. Folk’s exertional limitations opinion no weight when
considering all of the Section 404.1527 factors, the ALJ did not conduct that analysis and
state her conclusions as the reason for affording Dr. Folk’s opinion no weight.
Accordingly, the Court sustains claimant’s objection to that portion of Judge Roberts’
R&R.
2.

Whether the ALJ’s Error Was Harmless

The next question is whether the ALJ’s error was harmless and whether, as
claimant asserts, Judge Roberts’ analysis of this issue was flawed. Claimant argues that
Judge Roberts should have determined “whether a reasonable ALJ could assign more
weight to Dr. Folk’s exertional limitations” opinion. (Doc. 18, at 3). Claimant cites no
authority for the proposition that the test for harmless error is whether a reasonable ALJ
could have afforded more weight to a treating physician’s opinion. Indeed, that is not
the standard for harmless error.
As Judge Roberts properly noted, an error is harmless when there is no indication
that the ALJ would have reached a different decision without the alleged error. (Doc.
17, at 27 (citing Byes v. Astrue, 687 F.3d 913 (8th Cir. 2012)). In Byes v. Astrue, the
court held that “[t]o show an error was not harmless, [claimant] must provide some
indication that the ALJ would have decided differently if the error had not occurred.”
687 F.3d at 917; see also Welsh v. Colvin, 765 F.3d 926, 929 (8th Cir. 2014) (holding

10

that ALJ’s failure to explicitly consider an applicable Social Security Ruling “had no
practical effect on the decision and therefore [was] not a sufficient reason to set aside the
ALJ’s decision”). It is the claimant’s burden to show that the error was not harmless.
Byes, 687 F.3d at 917. Failure to assign weight to a medical source’s opinion is harmless
when the unweighted opinion is consistent with the RFC. Lockwood v. Colvin, 627 F.
App’x 575, 577 (8th Cir. 2015); St. Cyre v. Saul, No. 4:18 CV 627 DDN, 2019 WL
2716193, at *3 (E.D. Mo. June 28, 2019) (“Courts have found harmless error where an
ALJ failed to afford weight to a treating physician, when an analysis of weight would not
have affected the outcome, or when the ALJ ‘engaged in a detailed discussion of their
findings, and his decision [did] not conflict with them.’” (quoting Williams v. Colvin, 98
F. Supp. 3d 614, 632 (W.D.N.Y. 2015)). A court need not reverse an ALJ’s harmless
error. See Byes, 687 F.3d at 917; Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir.
2008).
Here, Judge Roberts’ harmless error analysis was correct.

Judge Roberts

reviewed in great detail the medical record and the ALJ’s analysis of that record. Judge
Roberts correctly concluded that there is no indication that even if the ALJ had afforded
Dr. Folk’s exertional limitations opinion some weight, that it would have affected
claimant’s RFC assessment or the ALJ’s conclusion that claimant was not disabled.
Claimant has failed to carry her burden of demonstrating that the ALJ’s error was not
harmless.
Accordingly, having conducted a de novo review, I find the ALJ erred by failing
to provide good reasons for affording Dr. Folk’s exertional limitations opinion no weight,
but agree with Judge Roberts that any such error was harmless. Accordingly, I sustain
in part and overrule in part claimant’s objection to Judge Roberts’ R&R on this issue.

11

B.

Appointments Clause Challenge

As noted above, the Court reviews this portion of Judge Roberts’ R&R for clear
error because claimant failed to identify the alleged error in Judge Roberts’ analysis;
rather, claimant simply repeated the arguments she made to Judge Roberts. I find no
clear error in Judge Roberts’ R&R on claimant’s Appointments Clause challenge.
Accordingly, I overrule claimant’s objection to Judge Roberts’ R&R on this issue.
VI.

CONCLUSION

For the reasons set forth herein:
1.

Claimant’s objections (Doc. 18) to the Report and Recommendation (Doc.

17) are sustained in part and overruled in part.
2.

I accept the Report and Recommendation (Doc. 17), with modification.

See 28 U.S.C. § 636(b)(1).
3.

Pursuant to Judge Roberts’ recommendation:
a.

The Commissioner’s determination that claimant was not disabled is
affirmed; and

b.

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

IT IS SO ORDERED this 5th day of September, 2019.

__________________________________
C.J. Williams
United States District Judge
Northern District of Iowa

12