Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Plum v. Berryhill

United States District Court, N.D. Iowa, Central Division

March 31, 2017

SCOTT D. PLUM, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

          LEONARD T. STRAND, CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         This case is before me on a Report and Recommendation (R&R) by the Honorable C.J. Williams, Chief United States Magistrate Judge. See Doc. No. 16. Judge Williams recommends that I affirm the decision of the Commissioner of Social Security (the Commissioner) denying plaintiff Scott Plum's application for Social Security disability benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act).

         Plum has filed timely objections (Doc. No. 17) to the R&R. The Commissioner has not filed a response. The procedural history and relevant facts are set forth in the R&R and are repeated herein only to the extent necessary.

         II. APPLICABLE STANDARDS

         A. 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 641, 645 (8th Cir. 1999.) 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.” Wester 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)).

         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 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 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, 57374 (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).

         III. THE R&R

         Judge Williams noted that Plum alleged disability due to seizures and memory loss suffered in a motorcycle accident in which he fractured his skull. Doc. No. 16 at 1-2. After setting forth the relevant facts, he reviewed the ALJ's credibility assessment, finding as follows:

The ALJ found claimant was not a credible source regarding the intensity, persistence, and functionally limiting effects of his impairments. (AR 20-21). In assessing claimant's credibility, the ALJ referenced and considered the factors set out in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). (AR 17, 21-22). The ALJ considered the following factors: (1) claimant's daily activities; (2) the duration, intensity, and frequency of pain; (3) the precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of medication; (5) any functional restrictions; (6) claimant's work history; and (7) the absence of objective medical evidence to support the claimant's complaints. (AR 21) (citing SSR 96-7p[1], 1996 WL 374186 (July 2, 1996)).
The ALJ examined claimant's daily activities and found them inconsistent with claimant's description of the severity of his alleged seizures and memory problems. (AR 19, 21). The ALJ found claimant was “capable of self-care, preparing simple foods, cleaning, laundry, and household repairs.” (AR 22). Claimant walked, biked, fished, watched television, played computer games, fed the dog, ironed clothes, shopped, went to car shows, helped friends with car repairs, used the library, mowed the yard, and went to friends' homes, sports events, and sports bars to hang out. (AR 16, 22, 334-38, 878-81). Claimant also maintained the unusual hobby of collecting thousands of four-leaf clovers and laminating them, on which he testified he spent an “inordinate” amount of time. (AR 22, 77, 319, 881). It was reasonable for the ALJ to conclude that these activities took a degree of concentration and memory that was inconsistent with claimant's statement that he was unable to remember what he did the day before the hearing. (AR 22, 44).
The ALJ also found claimant's poor compliance with medications and treatment damaged his credibility. (AR 18, 22, 503, 530, 727, 730-32, 738). Claimant's poor compliance was not the result of poverty as he was receiving his medications for free. (AR 55). See Whitman v. Colvin, 762 F.3d 701, 706 (8th Cir. 2014) (noting that noncompliance medical treatment undercuts credibility). There was also a significant gap in claimant's treatment because he failed to keep appointments in early 2012. (AR 727, 730-32).
The ALJ also concluded that the record showed claimant to be manipulative, often seeking some secondary gain. (AR 19-22). Claimant threatened to kill himself to get into or out of facilities and exaggerated his symptoms and got angry when things did not go his way. (AR 479-81). In January 2010, claimant endorsed serious depression, but a therapist observed that claimant's affect and mood were “incongruent” with his alleged depression. (AR 540-42). Similarly, in 2011, claimant was hospitalized briefly for suicidal ideation but improved rapidly and specifically requested assistance obtaining disability benefits. (AR 814, 823, 850). The ALJ properly considered this behavior and motivation in assessing claimant's credibility. See, e.g., Jones v. Astrue, 619 F.3d 963, 973 (8th Cir. 2010) (holding that ALJ could ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.