United States District Court, N.D. Iowa, Cedar Rapids Division
JENNIFER K. MINNEY, 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)
filed by the Honorable C.J. Williams, Chief United States
Magistrate Judge. See Doc. No. 14. Judge Williams
recommends that I affirm the decision of the Commissioner of
Social Security (the Commissioner) denying plaintiff Jennifer
K. Minney's application for disability insurance benefits
(DIB) and supplemental security income (SSI) under Titles II
and XVI of the Social Security Act (the Act). See 42
U.S.C. §§ 401-434; 42 U.S.C. §§
has filed timely objections (Doc. No. 15) 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.
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 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, 353 F.3d at 645. 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.
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)).
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
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, 573-74 (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
Thomas v. Arn, 474 U.S. 140, 150 (1985).
applied for DIB and SSI on February 23, 2010, alleging she
became disabled on February 27, 2007, due to bipolar
disorder, borderline personality disorder and various
physical impairments. Doc. No. 14 at 2 (citing Administrative
Record (AR) 16, 158, 165); AR 222. Minney previously sought
judicial review of a May 18, 2012, decision by the
Administrative Law Judge (ALJ). On March 5, 2014, this court
reversed and remanded the decision for further development of
the opinion of Minney's treating psychiatrist, Ali
Safdar, M.D. The ALJ was instructed to “provide clear
reasons for accepting or rejecting Dr. Safdar's opinions
and support his reasons with evidence from the record.”
Doc. No. 14 at 2 (citing Minney v. Colvin,
13-cv-0037-JSS, Doc. No. 16 at 2).
held a supplemental hearing on April 6, 2016, during which
Minney and Dr. Safdar testified. AR 1472-1514. On June 6,
2016, the ALJ again denied benefits.Minney again sought judicial
review of the ALJ's decision. Minney argues the ALJ erred
in determining that she was not disabled because:
1. The ALJ failed to properly evaluate the work-related
limitations from her treating psychiatrist, Dr. Safdar, in
calculating her residual functional capacity (RFC).
2. The RFC assessment is not supported by substantial medical
evidence from a treating or examining source.
See Doc. No. 10. Judge Williams addressed each
argument in his R&R.
regard to Minney's RFC, the ALJ found she could perform
sedentary work, but could have no concentrated exposure to
pulmonary irritants. AR 1449. She could perform simple
routine tasks, involving no more than simple work-related
decisions and few workplace changes. She could also have
brief and superficial interaction with the public and
coworkers, and occasional interaction with supervisors.
Williams first considered the ALJ's evaluation of
Minney's daily activities and credibility, as he found
these influenced the weight the ALJ assigned to Dr.
Safdar's opinions and the RFC assessment. The ALJ found
Minney was not credible regarding the intensity, persistence
and functionally limiting effects of her impairments.
See Doc. No. 14 at 9. In evaluating the
Polaski factors, the ALJ found that Minney's
daily activities were inconsistent with the level of severity
she described for her impairments. Specifically, the ALJ
noted that Minney cared for her two minor children and the
family pets, did laundry, prepared meals for the family and
maintained her own self-care. Id. She also attended
play groups and a breastfeeding group while maintaining
relationships with her husband and mother-in-law, who helped
homeschool Minney's eight year-old child. Id. at
10. Finally, he noted that she paid bills, handled bank
accounts, sewed, knitted, crocheted, played games and read.
Id. The ALJ found these activities were inconsistent
with Minney's allegations that she had difficulties
caring for herself, social functioning, handling stress and
regard to her prior work history, the ALJ discredited
Minney's assertion that she stopped working due to her
impairments. Id. During her pregnancy she indicated
that she intended to become a stay-at-home mother and did not
return to work after the birth of her first child.
Id. at 10-11. Moreover, while Minney alleged she had
suffered from her impairments since 2002, she continued to
work until 2007. Id. at 11. Finally, the ALJ noted
Minney was not compliant with her medication. Id.
Judge Williams concluded there was substantial evidence in
the record as a whole to support the ALJ's credibility
determination. Minney does not challenge this aspect of the
regard to the medical opinion evidence, Minney argues the ALJ
did not give proper weight to the opinion of her treating
psychiatrist, Dr. Ali Safdar. In September 2010, Dr. Safdar
found serious limitations in 14 areas and moderate
limitations in three areas. Id. at 11-12. He
concluded Minney would have four or more episodes of
decompensation, each of extended duration, within a 12-month
time frame and would miss work more than four days per month.
Id. at 12. In March 2016, he found serious
limitations in nine areas and the same previous moderate
limitations in three areas. He also found Minney would
continue to have the four or more episodes of decompensation
in a year and four or more absences from work per month.
Id. at 13.
asked Dr. Safdar how he arrived at the conclusion that Minney
would miss four or more days of work per month and he replied
that it was the highest number on the form. Id. He
attributed it to Minney's “emotional instability,
you know not sleeping, too much sleeping, lack of energy,
kind of bouncing back and forth, not really coping or
functioning day to day.” Id. (citing AR
1485-86). He explained that when he sees patients for
medication management, he does not perform a work assessment
or a disability evaluation every time, so many of the notes
have information missing. Id. Regarding the multiple
episodes of decompensation per year, Dr. Safdar explained
that Minney had not been able to maintain stability for any
significant length of time. While she might do well for a
week or ten days, she would go back to being either
depressed, manic, paranoid or seeing and hearing things. He
stated that she has not been able to function at a sustained
level for any significant length of time and that every day
is a different day and different situation for her.
Id. (citing AR 1486-87). With regard to certain
notes that indicated Minney was doing well and not having too
many mood swings, he explained those notes are like
“snapshots” and that Minney's symptoms could
change from day to day. Id. at 14.
assigned Dr. Safdar's opinions “little weight,
” concluding that his medical notes and observations
were inconsistent with the limitations he assigned.
Id. at 15 (citing AR 1456-58). Judge Williams
acknowledged that Dr. Safdar is an acceptable medical source
and that this court previously remanded this case after the
ALJ reached the same conclusion about Dr. Safdar's
opinions. As noted above, in the previous case Judge Scoles
found that the ALJ had failed to explain the basis for
discounting Dr. Safdar's opinions. Therefore, Judge
Williams considered whether the ALJ provided an adequate
explanation on remand for again giving Dr. Safdar's
opinions little weight, concluding that he did.
Judge Williams referenced the fact that prior to his 2010
opinion, Dr. Safdar had seen Minney on only three occasions
that year. While he saw Minney every four to six weeks from
2010 to 2016, none of those visits were long and most were
focused on her medications. Judge Williams reasoned that Dr.
Safdar's treating relationship with Minney was “not
the type of long-term, frequent and close doctor/patient
relationship deserving of great weight” simply because
Dr. Safdar was Minney's treating psychiatrist. He noted
that Dr. Safdar had never treated Minney during any period of
employment and his treatment notes did not reflect that he
had asked about her prior work experience or current ability
Williams discussed the ALJ's finding that Dr.
Safdar's opinion was inconsistent with his own treatment
records. As an example, he noted that Dr. Safdar's
treatment notes from 2010 indicated that Minney was generally
doing well on her medication and had normal mental status
findings, although there were periods of fluctuation.
Regarding Dr. Safdar's explanation for why his notes
lacked further information, Judge Williams stated that the
ALJ could not be found to have erred “when relying on a
treating physician's notes in assessing the degree to
which they are consistent or inconsistent with the
doctor's opinion.” Id. at 16. He added
that the ALJ could not be expected to speculate as to what
the doctor could have put in his notes. Id. As to