Leadbetter v. Saul
ORDER ADOPTING 33 REPORT AND RECOMMENDATIONS - The court OVERRULES Victoria L.s objections and ADOPTS IN FULL the Report and Recommendation. Accordingly, the court affirms the final agency decision of the Commissioner of Social Security denying benefits. Signed by Judge Jill N. Parrish on 6/4/21. (alf)
2021 JUN 4 PM 12:06
U.S. DISTRICT COURT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER ADOPTING REPORT AND
ANDREW M. SAUL, Commissioner of
Case No. 1:20-cv-00029-JNP-DBP
Judge Jill N. Parrish
Before the court is plaintiff Victoria L.’s objection to the Report and Recommendation
issued by Judge Pead. The court overrules Victoria L.’s objection and adopts the Report and
Alleging that she could no longer work due to various chronic conditions, Victoria L.
applied for disability benefits from the Social Security Administration. After her claim was denied,
she requested a hearing before an Administrative Law Judge (ALJ). The ALJ considered numerous
medical records and written opinions regarding Victoria L.’s ability to work, including records and
reports authored by Dr. Eliason, who was treating her Crohn’s disease. In an October 2015 medical
record, Dr. Eliason opined that Victoria L.’s Crohn’s disease was not being controlled well by the
medication she was taking. Dr. Eliason prescribed a new medication. In a letter dated March 19,
2018, Dr. Eliason stated that Victoria L. was doing much better and that her Crohn’s disease was
“fairly well controlled at this time.” Dr. Eliason’s letter also contained generic statements about
patients with Crohn’s disease followed by an assessment of Victoria L.’s possible future work
When patients are doing well, they can typically perform all responsibilities work
[sic] including lifting, carrying, sitting, standing, and walking in a work setting.
However, if their disease is not well controlled or they’re having an exacerbation
they may not be able to do any of the aforementioned responsibilities. Some
patients with Crohn’s disease will miss 1-3 days of work per month due to
symptoms of the disease, particularly if the disease is not well controlled. If the
disease is well controlled, patients can go months without missing any work. My
impression is that [Victoria L.’s] disease is fairly well controlled at this time. . . . In
summary, [Victoria L.] may miss on average 1-3 days per month of work, however
if she is having an exacerbation of her Crohn’s could [sic] mis up to 1-2 weeks.
After considering Victoria L.’s testimony and multiple medical opinions, the ALJ
determined that she could, with some restrictions, work full time. In evaluating Dr. Eliason’s letter,
the ALJ stated:
Gastroenterologist, Eric G. Eliason, D.O., opined the claimant might miss on
average 1-3 days per month of work due to her Crohn’s disease and when having
an exacerbation could miss 1-2 weeks. The undersigned gives some weight to the
opinion of Dr. Eliason, as it was based on his treating relationship with the claimant;
however, his opinion is speculative and inconsistent with the letter which it was
contained [sic] that noted the claimant’s condition was doing much better after a
Accordingly, the ALJ determined that Victoria L. was not disabled with the meaning of the Social
Security Act and denied her application for disability benefits.
Victoria L. filed a petition for review with this court, which referred the case to Magistrate
Judge Pead. Victoria L. argued in her briefing that the ALJ’s determination was in error because
he failed to give more weight to Dr. Eliason’s opinion. Judge Pead issued a Report and
Recommendation affirming the ALJ’s determination. He reasoned that the ALJ was within his
discretion to give only some weight to Dr. Eliason’s letter because it was speculative. Victoria L.
objected to Judge Pead’s Report and Recommendation.
STANDARD OF REVIEW
“The findings of the Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). The substantial evidence
threshold “is not high.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Substantial evidence
“means—and means only—‘such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Id. (citation omitted). “In reviewing the record to make the substantial
evidence determination, [a court] may not reweigh the evidence nor substitute [its] judgment for
the [Commissioner’s].” Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014) (third alteration in
original) (citation omitted).
In reviewing a magistrate judge’s Report and Recommendation, the district court “must
determine de novo any part of the [report] that has been properly objected to.” FED. R. CIV. P.
The ALJ found that Victoria L. was capable of working full time. In his Report and
Recommendation, Judge Pead concluded that the ALJ’s finding was supported by substantial
evidence. Victoria L. now raises two objections to the report and recommendation.
First, she argues that a portion of the Report and Recommendation rests on faulty
reasoning. The ALJ gave only some weight to Dr. Eliason’s opinion because he found it to be
speculative and internally inconstant. Judge Pead concluded that the ALJ did not err because “Dr.
Eliason described how Crohn’s disease could affect ‘some people’ and stated that Plaintiff ‘may’
miss days of work or ‘could’ miss one or two weeks of work ‘if’ she had an exacerbation.” ECF
No. 33 at 6. In other words, Dr. Eliason’s opinion was not based upon his observations and
treatment of Victoria L. Rather Dr. Eliason described in general terms how much work some people
with Crohn’s disease miss and then opined that Victoria L. “may miss” a similar amount of work.
Judge Pead also reasoned that “Plaintiff was hospitalized due to Chron’s disease flare-ups for six
days over a two-year period; not for ‘one to two weeks’ as Dr. Eliason speculated.” Id. Victoria L.
criticizes this sentence of the Report and Recommendation, arguing that she missed more days of
work than the days on which she was hospitalized. She also argues that she was hospitalized for
more than six days during the two-year period.
The court concludes that Victoria L.’s argument is not a sufficient basis to second guess the
the ALJ’s determination that Dr. Eliason’s opinion merited only “some weight.” Even if the court
were to agree with her criticism of a single sentence found in the Report and Recommendation,
the court agrees with Judge Pead’s broader contention—that the ALJ did not err by failing to adopt
Dr. Eliason’s opinion wholesale because it was not based on an individualized assessment of
Victoria L.’s condition, which was well managed as of early 2018. In short, Victoria L. has not
shown that the ALJ committed an error warranting a remand with further instructions.
Second, Victoria L. argues that the ALJ erred because he cherrypicked evidence supporting
his conclusion that she could work and ignored her testimony supporting her contention that her
condition prevented her from working. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th
Cir. 2012) (“The regulations require the ALJ to ‘consider all evidence in [the] case record when
[he] make[s] a determination or decision whether [claimant is] disabled.’ He may not ‘pick and
choose among medical reports, using portions of evidence favorable to his position while ignoring
other evidence.’” (alterations in original) (citations omitted)). But Victoria L. never made this
argument in her briefing to Judge Pead. She may not raise it for the first time in an objection to the
Report and Recommendation. See Standing Akimbo, LLC v. United States, 955 F.3d 1146, 1159
(10th Cir. 2020). Moreover, the court concludes that the ALJ acknowledged Victoria L.’s testimony
about her symptoms and discussed her medical history at length. The ALJ determined, however,
that “the claimant’s statements concerning the intensity, persistence, and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the record.”
Thus, the ALJ did not selectively exclude Victoria. L.’s testimony from his decision-making
process. Nor is he required to discuss every part of her testimony. See Wall v. Astrue, 561 F.3d
1048, 1067 (10th Cir. 2009) (“The ALJ is not required to ‘discuss every piece of evidence.’”
The court OVERRULES Victoria L.s objections and ADOPTS IN FULL the Report and
Recommendation. Accordingly, the court affirms the final agency decision of the Commissioner
of Social Security denying benefits.
SO ORDERED June 4, 2021.
BY THE COURT:
JILL N. PARRISH
United States District Judge
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