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Landuyt v. Berryhill

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

March 28, 2018

KARI L. LANDUYT, 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) 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.

         Landuyt 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.

         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 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. 1994).

         To 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)).

         To 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).

         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 (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

         Landuyt 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[1] 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 Doc. 13.

         Judge 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 6-7.
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 ...

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