United States District Court, N.D. Iowa, Cedar Rapids Division
KARI L. LANDUYT, 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 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 Kari L.
Landuyt's application for disability insurance benefits
under Title II of the Social Security Act, 42 U.S.C. §
401, et seq.
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 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
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 based on osteoarthritis in her lower back,
numbness and tingling in her feet and hands, tight hip and
thigh muscles, grinding and clicking in her knees, fatigue,
heart arrhythmia, and balance issues. AR 84-85. The record
also demonstrates diagnoses of myofascial pain syndrome and,
later, fibromyalgia. In support of her claim, Landuyt
submitted two residual functional capacity (RFC)
opinions by her treating physician, Dr. Clete Younger. AR
714, 778. Although Dr. Younger opined that Landuyt had
disabling symptoms as a result of her fibromyalgia, the ALJ
gave “little overall weight” to this opinion and
determined that Landuyt retained the RFC to do past work. At
issue is whether the ALJ erred in (1) failing to find
Landuyt's fibromyalgia was a severe impairment; (2)
attributing little weight to Dr. Younger's opinions; and
(3) failing to order a consultative examination. See
Mahoney first considered whether substantial evidence
supported the ALJ's finding that Landuyt's
fibromyalgia was not a severe impairment:
Landuyt argues the ALJ improperly found that although
“[f]ibromyalgia was noted later in the treatment
records, ” no “formal fibromyalgia tender point
testing was administered, per the requirements of SSR
12-2p.” AR 17. Landuyt points to evidence (Doc. 13 at
6) that Dr. Younger administered such testing in March 2016
(after the ALJ issued her written opinion) and found all 14
tender points positive bilaterally (AR 774), as well as other
treatment notes that discuss Landuyt's “tender
points” without listing the location and number of
tender points (AR 725-26, 731-32, 737, 740, 755, 762 (noting
“multiple tender points in neck and back” and
“[n]o focal tenderness and no focal bone
tenderness” in September and October 2014, before
Landuyt was diagnosed with fibromyalgia; “multiple
tender points in both sides” and “[s]table
diffuse tender points of the upper back and low back”
in July 2015, after Landuyt was diagnosed with fibromyalgia;
“stable tender points of chronic intermittent and
variable joint pains” in August 2015; and
“[d]iffuse tender points particularly in her back
unchanged from the last visit” in October 2015)).
Landuyt argues the ALJ's error was material because if
the ALJ had found fibromyalgia to be a severe impairment, she
would have credited Dr. Younger's opinions. Doc. 13 at
Here, the record shows the ALJ was aware that Landuyt had
recently been diagnosed with fibromyalgia at the time of the
hearing. AR 39, 55, 82 (noting her fibromyalgia diagnosis).
The ALJ found that Landuyt had the severe impairment of
myofascial pain syndrome, but not fibromyalgia. AR 14.
Myofascial pain syndrome is a “disorder that may have
symptoms or signs that are the same or similar to those
resulting from [fibromyalgia].” SSR 12-2p, 77 Fed. Reg.
at 43642 n.7. Substantial evidence in the record (including
Dr. Younger's own treatment notes) supports that Landuyt
suffered from myofascial pain syndrome, which involves
similar symptoms as fibromyalgia. See AR 451-60
(prior provider diagnosing osteoarthritis, back pain, and
arthritis that were improved with medication and physical
therapy), 505-12 (Dr. Younger's records diagnosing
chronic low back pain with no significant functional
limitations and controlled by medication), 736-45 (Dr.
Younger's records diagnosing myofascial pain syndrome).
In support of her argument that the ALJ erred by failing to
include fibromyalgia as a severe impairment, Landuyt cites
Dr. Younger's March 2016 treatment notes and medical
source statement (AR 774-85), which document he found that
Landuyt had 14 positive tender points and that she met the
criteria for a fibromyalgia diagnosis. Doc. 13 at 6. These
records were submitted after the ALJ's written decision
in December 2015 and were therefore not part of the record
the ALJ considered (the Appeals Council admitted this
evidence into the record but found it “does not provide
a basis for changing the [ALJ's] decision”). AR 2,
5. Other records from Dr. Younger (from July to November
2015), issued after the administrative hearing but before the
ALJ's written opinion, include a diagnosis of
fibromyalgia. AR 724-32, 754-68. Although these records note
“multiple tender points, ” they do not indicate
the number and location of ...