United States District Court, N.D. Iowa, Eastern Division
MARY F. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER ON REPORT AND
Leonard T. Strand, Chief Judge
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. 22. Judge Williams recommends
that I affirm the decision of the Commissioner of Social
Security (the Commissioner) denying plaintiff Mary F.
Johnson's application for Social Security disability
insurance 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).
filed timely objections (Doc. No. 23) to the R&R, and the
Commissioner responded on August 22, 2017 (Doc. No. 25). The
procedural history and relevant facts are set forth in the
R&R and are repeated herein only to the extent necessary.
Judicial Review of the Commissioner's
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 also 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.
determine 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 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)).
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, “do[es] 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 “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 (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 also Goff v. Barnhart, 421 F.3d 785, 789
(8th Cir. 2005).
Review of Report and Recommendation
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.
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)). 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
Thomas v. Arn, 474 U.S. 140, 150 (1985).
alleged disability due to degenerative disc disease, obesity,
diabetes and high blood pressure. AR 129. In support of her
claim, Johnson submitted residual functional capacity (RFC)
opinions drafted by her treating physician, Gennaro
Sagliocca, M.D., and by an examining psychologist, Ann L.
Jacobs, Ph.D. At issue are the ALJ's evaluation of those
opinions, as well as whether ALJ erred in discounting
Johnson's subjective allegations.
setting forth the relevant facts, Judge Williams summarized
the ALJ's assessment of Dr. Sagliocca's opinion as
Dr. Sagliocca is a kidney specialist and saw claimant on only
three occasions in the course of fewer than six months,
between October 2012 and March 2013. (AR 1013-19, 1097-98).
Dr. Sagliocca's records, including laboratory reports,
consist of nine pages. Dr. Sagliocca diagnosed claimant as
having renal kidney disease. (AR 1015, 1097, 1099). On her
last visit to Dr. Sagliocca on March 28, 2013, Dr. Sagliocca
noted that claimant was “doing fairly well” and
had “no other complaints, ” although she did
“complain of some back pain.” (AR 1097). During
the same visit, claimant asked Dr. Sagliocca “to fill
out some disability papers.” (Id.). Dr.
Sagliocca filled out a disability questionnaire form,
populated by checkboxes, supplied by claimant's attorney.
In response to question 3, asking Dr. Sagliocca to describe
claimant's symptoms, it appears that he wrote “back
pain” and an indecipherable word. (AR 1099). Dr.
Sagliocca did not answer the question: “Have the
patient's impairments lasted or can they be expected to
last at least twelve months?” (AR 1100).
Sagliocca then checked a number of boxes assessing claimant
with the following limitations:
Sit and stand continuously 45 minutes
Stand 15 minutes
In an 8 hour day the patient can:
sit 2 hours;
stand 45 minutes, and,
walk 30 minutes or less
Needs periods of walking in an 8 hour ...