United States District Court, N.D. Iowa, Cedar Rapids Division
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 Kelly K.E. Mahoney, United States Magistrate Judge.
See Doc. No. 16. Judge Mahoney recommends that I
affirm the decision of the Commissioner of Social Security
(the Commissioner) denying plaintiff Sandra Brown's
applications 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). Brown filed timely objections (Doc.
No. 17) to the R&R. The procedural history and relevant facts
are set forth in the R&R and are repeated herein only to the
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
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 fibromyalgia, rheumatoid arthritis,
osteoarthritis, cataracts, asthma, sleep apnea, diabetes,
neuropathy and surgical thyroid removal. AR 31, 42. In
support of her claim, Brown submitted residual functional
capacity (RFC) opinions drafted by her treating physician,
Kirk W. Kilburg, M.D., a consultative physician, Stanley J.
Mathew, M.D., and examining psychologists Luke Hansen, Ph.D.,
and Harlan J. Stientjes, Ph.D. At issue are the ALJ's
evaluation of those opinions, whether ALJ erred in discounting
Brown's subjective allegations, and whether the ALJ's
RFC was supported by some medical evidence.
Brown's Treating Physicians
setting forth the relevant facts, Judge Mahoney summarized
the ALJ's assessment of Dr. Kilburg's mental and
physical RFC opinions as follows:
The ALJ gave little weight to Dr. Kilburg's opinion at
two different steps in the disability analysis.
In rejecting Dr. Kilburg's mental functioning assessment,
the ALJ reasoned that “mental functioning . . . falls
outside of [Dr. Kilburg's] area of expertise[, ] and he
did not provide significant mental health treatment to
[Brown].” AR 19. Brown argues that this is not a good
reason to reject Dr. Kilburg's opinion and that she did
receive significant mental health care from Dr. Kilburg. Doc.
12 at 10-11.
“[An] ALJ [i]s not required to give controlling weight
to the opinions of treating physicians insofar as those
opinions [a]re . . . outside the doctors' area of
expertise.” Nicholson v. Berryhill, 695
Fed.Appx. 998, 999 (8th Cir. 2017 (unpublished per curiam)
(citing Wildman v. Astrue, 596 F.3d 959, 965-67 (8th
Cir. 2010)). Dr. Kilburg is not a licensed mental health
professional. His opinion that Brown suffers from depression
that causes several mental impairments, including a marked
limitation in maintaining attention and concentration (AR
544-43), is thus outside of his expertise. See Craig v.
Apfel, 212 F.3d 433, 436 (8th Cir. 2000).
Brown provides a lengthy list of citations by which she seeks
to establish Dr. Kilburg's significant involvement in her
mental health treatment. Doc. 12 at 11. For the most part,
these records merely show that Brown's depression was
listed as an “active problem” throughout the
course of her treatment by Dr. Kilburg. AR 545, 548, 819,
905-06, 912, 918-19, 926, 933, 942, 947, 950, 954-55, 957-58,
960, 964, 971, 974. In only a few places do Dr. Kilburg's
treatment notes comment substantively on Brown's mental
health, and none support his finding of marked limitation in
attention and concentration (indeed, the treatment notes in
which Dr. Kilburg evaluated Brown in that category reflect
normal findings). Prior to July 2011 (when Brown alleges her
disability began), Dr. Kilburg prescribed medication to treat
her depression, but she discontinued it. AR 339, 552, 967,
see also AR 334, 342. In November 2013, Dr. Kilburg
evaluated her mental status as good. AR 546. A note from
January 27, 2014-the day Brown brought in disability forms to
complete-states that Brown “[d]oes have a personality
disorder as well as some chronic depression, ” but
notes that “[t]h[e]se have . . . been fairly
stable.” AR 954. Brown “report[ed] being a little
depressed” in February 2014. AR 948. On January 23,
2015, despite Brown making subjective complaints of anxiety
and depression, Dr. Kilburg found that her mood and mental
health were “better today.” AR 894, 896-97. And
in March and April of 2015, Dr. Kilburg found Brown to have
normal mood, affect, judgment, thought content, behavior,
cognition, and memory. AR 1075-76, 1083-84. In July 2015, he
noted that she appeared down but also that her speech,
cognition, and memory were normal. AR 1066-67. In sum, Dr.
Kilburg's treatment records lend credence to the
ALJ's finding that Brown did not suffer from significant
mental-health limitations and that Dr. Kilburg did not
provide significant mental-health treatment to Brown. The ALJ
gave good reason for affording no weight to Dr. Kilburg's
opinions of the limitations caused by Brown's mental
impairments. See Craig, 212 F.3d at 436 (affirming
the ALJ's decision to discount primary care
physician's opinion that claimant suffered from moderate
depression because the physician “[wa]s not a licensed
mental health professional, ” his treatment notes
reflected the problem was reasonably controllable, and
claimant did not allege depression as a basis for her claim
in her initial disability report).
The ALJ also assigned little weight to Dr. Kilburg's
opinion that Brown's capacity to stand, walk, and sit are
limited to less than two hours in an eight-hour workday; that
she must shift between sitting, standing, and lying down as
needed; and that she can lift less than ten pounds (Dr.
Kilburg chose the most restrictive option in every category
on the form he filled out). AR 26, 542. The ALJ noted that
Dr. Kilburg found greater restrictions than Brown alleged in
the administrative hearing and further concluded that Dr.
Kilburg based his opinion on Brown's discredited
subjective complaints (AR 26), which is a proper basis for
discounting the opinion of a treating physician. See
Vance v. Berryhill, 860 F.3d 1114, 1120-21 (8th Cir.
2017). Brown essentially admits that there is no objective
medical evidence or findings in Dr. Kilburg's treatment
notes to support his opinion (Doc. 12 at 12-13) but argues
that neither is there any evidence to support that Dr.
Kilburg based his opinion on Brown's subjective
complaints. Dr. Kilburg completed his RFC opinion during an
appointment with Brown present. See AR 954-56. As
discussed above, Dr. Kilburg opined that Brown suffered from
marked limitations in concentrating and paying attention, as
she had routinely reported, even though his objective
psychological examinations were mostly normal. AR 544,
1066-67, 1075-76, 1083-84. The ALJ could have reasonably
found from this evidence that Dr. Kilburg relied on
Brown's subjective complaints when evaluating her
physical RFC, as he did when evaluating her mental RFC.
Moreover, as the ALJ noted, the objective medical evidence
does not support Dr. Kilburg's findings, which further
suggests he relied on Brown's subjective complaints. AR
23-26. Dr. Kilburg's physical RFC assessment recognized
that Brown suffers from diabetes and related neuropathy, and
he perhaps limited his found limitations in part to those
impairments. AR 542. The ALJ concluded, however, that
clinical evidence from Dr. Kilburg and other physicians
demonstrated Brown “did not experience substantial
complications from her diabetes, ” aside from
“very mild” neuropathy. AR 23. In August 2012,
neurological testing performed by a consulting physician
produced normal results. AR 437. After more neurological
testing in September 2014, a specialist described Brown's
neuropathy as “very mild” and noted that Brown
displayed “no obvious atrophy of the lower
extremities.” AR 1003-05. In November 2014, Dr. Kilburg
noted that Brown's gait and station were normal. AR 901.
Later, in a March 2015 examination, he found Brown to exhibit
normal strength and no sensory defects. AR 1076. During a
July 2015 exam, Dr. Kilburg found that Brown's blood
sugar levels were “adequately controlled” and
that she was not suffering from any diabetes complications,
expressly noting that Brown was not suffering from diabetic
neuropathy. AR 1060-61.
Dr. Kilburg also attributed Brown's limitations to
chronic pain. AR 542. The ALJ recognized that Brown has
primarily complained of pain in her knees and back. AR 24-25.
But x-rays of Brown's left knee have shown minimal
degenerative changes that “would not indicate a reason
for . . . significant pain, ” and x-rays of her right
knee have shown mild to moderate changes. AR 24, 850-53, 921,
923, 930-31, 941. Although Dr. Kilburg saw Brown for knee
pain in July and November 2014, he observed normal gait and
station. AR 898, 901, 911, 914. With regard to Brown's
back, x-rays and MRIs from 2014 have shown only mild
degenerative changes of the spine. AR 24, 868-71, 873-74,
908-09. And as the ALJ noted, Brown has not displayed
clinical signs associated with disabling back pain: physical
exams by Dr. Kilburg have revealed normal strength, no
swelling or tenderness, and (as already mentioned) normal
gait and station. AR 901, 907, 914, 1059, 1066-67, 1076,
1084. An August 2014 physical examination by a neurosurgical
consultant (at Dr. Kilburg's request) revealed negative
straight leg testing, and the doctor also opined that Brown
did not appear “particularly in pain.” AR 987.
Substantial evidence supports the ALJ's determination
that Dr. Kilburg relied on Brown's subjective complaints
in determining her physical RFC.
The ALJ also noted that Brown's own statements
contradicted Dr. Kilburg's assessment (AR 26), which
constitutes another valid reason to give less weight to a
treating physician's opinion. See Anderson v.
Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (finding
claimant's admitted daily activities belied the physical
limitations assigned by a treating doctor's physician).
Brown testified that “if I can try to keep my mind on
the task [of standing], which is hard, I can probably get out
two hours, but them two hours like would be normal for you
guys, it would feel like 14 hours that I worked.” AR
1156-57. Although this statement is not necessarily
inconsistent with Dr. Kilburg's finding that Brown could
not stand two hours in an eight-hour workday (as found by the
ALJ), other statements more clearly contradict the
limitations imposed by Dr. Kilburg. For instance, in
disability questionnaires, Brown reported being able to shop
in stores for up to four hours at a time (AR 204), to cook
for up to six hours (AR 225), and to spend six to eight hours
doing housework once a month (AR 225), suggesting that she is
able to stand or walk for at least two hours in a day
(contrary to Dr. Kilburg's opinion). She also reported a
daily routine that involved sitting on the couch all morning,
getting up only to fix breakfast and clean her dishes, and
watching television daily for two hours, which is
inconsistent with Dr. Kilburg's opinion that she could
not sit for two hours at a time. AR 200, 227. Also, Dr.
Kilburg opined that Brown could not lift ten pounds, but she
reported in a January 2013 pain questionnaire that she could
lift ten pounds. AR 200, 542. Especially in light of the
standard of review, substantial evidence supports that Dr.
Kilburg's RFC opinion is inconsistent with Brown's
own description of her limitations.
Doc. No. 16 at 7-11. Thus, Judge Mahoney concluded that the
ALJ gave sufficient “good reasons” to discount