United States District Court, N.D. Iowa, Cedar Rapids Division
DELISA M. WARE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
LEONARD T. STRAND, CHIEF JUDGE.
case is before me on a Report & Recommendation (R&R)
by the Honorable C.J. Williams, Chief United States
Magistrate Judge. Doc. No. 19. Judge Williams recommends that
I reverse the decision of the Commissioner of Social Security
and remand this case with instructions pursuant to sentence
four of 42 U.S.C. § 405(g). The Commissioner has filed
an objection (Doc. No. 20) to the R&R and Ware has
responded (Doc. No. 21).
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 . . . 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 and detracts from the Commissioner's decision.
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) (citation omitted).
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, does not “reweigh the evidence
presented to the ALJ, ” Baldwin, 349 F.3d at
555 (citation omitted), or “review the factual record
de novo.” Roe v. Chater, 92 F.3d 672, 675 (8th
Cir. 1996) (citation omitted). 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 (citation omitted). 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) (“[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 (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
Thomas v. Arn, 474 U.S. 140, 150 (1985).
alleged disability due to degenerative disc disease in her
neck and lower back, fibromyalgia, schizophrenia, right
shoulder rotator cuff tear, right-knee osteoarthritis and
asthma. AR 25. The ALJ found that each of these impairments
except right-knee osteoarthritis were severe. Id.
The ALJ next determined that Ware retained the Residual
Functional Capacity (RFC) to perform “light work”
with certain physical restrictions: “[Ware] can only
occasionally climb, balance, stoop, kneel, crouch and crawl;
she can occasionally lift overhead bilaterally; should avoid
concentrated exposure to extreme heat and cold; and should
avoid concentrated exposure to pulmonary irritants.” AR
The ALJ determined that although Ware was no longer capable
of performing past relevant work, there are jobs that exist
in significant numbers in the national economy that Ware can
perform. AR 29. As a result, the ALJ found that Ware was not
issue is (1) whether the ALJ erred in finding that
osteoarthritis of the knee was not a severe impairment, (2)
whether the ALJ's decision was supported by substantial
evidence when the ALJ failed to notice or evaluate Dr.
Cromer's opinions, (3) whether the ALJ failed to provide
good reasons for discounting the treating doctor's
medical source opinion, and (4) whether the ALJ's Step
Five findings were erroneous because the ALJ failed to
resolve a conflict between the RFC's overhead lifting
limitations and the lifting requirements of the jobs
identified by the vocational expert. ...