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Minney v. Berryhill

United States District Court, N.D. Iowa, Cedar Rapids Division

February 1, 2018

JENNIFER K. MINNEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

          Leonard T. Strand, Chief Judge

         I. INTRODUCTION

         This 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. §§ 1381-1385.

         Minney 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.

         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, 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. 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.” 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)).

         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 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.”).

         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, 573-74 (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 standard.

Thomas v. Arn, 474 U.S. 140, 150 (1985).

         III. THE R&R

         Minney 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).

         The ALJ 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.[1]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.

         With 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. Id.

         Judge 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[2] 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 becoming distracted.

         With 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 ALJ's decision.

         With 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.

         The ALJ 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.

         The ALJ 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.

         Specifically, 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 to work.

         Judge 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 ...


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