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)
filed by the Honorable C.J. Williams, then Chief United
States Magistrate Judge. See Doc. No. 19. Judge
Williams recommends that I affirm the decision by the
Commissioner of Social Security (the Commissioner) denying
Diane Lynn Vanepps' application for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401, et seq. (the Act). Vanepps filed
timely objections (Doc. No. 20). The background is set forth
in the R&R and is repeated herein only to the extent
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 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.
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)).
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.”).
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, 573-74 (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
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).
applied for disability insurance benefits on September 16,
2013, alleging disability beginning September 13, 2013, due
to fibromyalgia and diabetes. Doc. No. 19 at 1-2 (citing AR
172, 177, 284, 349). After a hearing, an Administrative Law
Judge (ALJ) applied the familiar five-step evaluation and
found that Vanepps was not disabled as defined in the Act.
Vanepps argues the ALJ erred in determining that she was not
1. The ALJ ignored a limited remand from the Appeals Council
by reassessing claimant's impairments contrary to the law
of the case doctrine
2. The ALJ improperly evaluated the medical opinions and made
findings contrary to the evidence
3. The ALJ improperly discounted claimant's subjective
See Doc. No. 14. Judge Williams addressed each
addressing the first issue, Judge Williams noted the dispute
centered over whether the ALJ, on remand from the Appeals
Council, could reassess the severity of claimant's
fibromyalgia even though the case was remanded for a
different reason. See Doc. No. 19 at 7. The Appeals
Council found the ALJ's initial evaluation of the opinion
of consultative examiner Mark C. Taylor, M.D., to be
inadequate and inconsistent with the ALJ's residual
functional capacity (RFC) finding. Id. at 8. The
Appeals Council instructed the ALJ, on remand, to
“[g]ive further consideration to the nontreating source
opinion . . . [and] to the claimant's maximum residual
functional capacity.” Id.
remand, a different ALJ held another evidentiary hearing.
Id. The ALJ considered Dr. Taylor's 2014 opinion
and more recent medical and nonmedical evidence that was
introduced into the record. Id. The ALJ considered
Vanepps' RFC and her alleged disability due to
fibromyalgia. While the previous ALJ had concluded
Vanepps' fibromyalgia was a severe impairment (AR 142),
the ALJ on remand concluded it was not a medically
determinable impairment. AR 19-21. Vanepps challenges that
finding based on the law of the case doctrine.
Williams concluded the doctrine does not apply and the ALJ
complied with the Appeals Council's instructions on
remand. Doc. No. 19 at 8. First, he noted that the Appeals
Council vacated the ALJ's decision. Id. at 9.
Second, he noted the Appeals Council “did not mandate
that the ALJ carry over any findings from the first
decision.” Id. (quoting Crum v.
Colvin, No. C14-4055-MWB, 2015 WL 5084325 (N.D. Iowa
July 17, 2015)). Judge Williams concluded the ALJ did not err
because the ALJ abided by the directions of the Appeals
Council and was not bound by any of the previous ALJ's
Williams next considered the ALJ's evaluation of the
medical opinions. Vanepps argued that the ALJ erred “by
evaluating expert opinions contrary to the correct standards
and contrary to the evidence.” Id. at 10
(quoting Doc. No. 14 at 9). Judge Williams noted that Vanepps
criticized the ALJ's evaluation of the state agency
consultative opinions and the opinions of Emily Wagner, a
physician assistant, and Dr. Brian Heineman. She also
disputed the ALJ's discussion of the expert medical
opinions and claimed the ALJ misstated the rule expressed in
20 C.F.R. § 404.1513. Id. (citing Doc. No. 14
at 9-13). Vanepps objected to the weight the ALJ assigned the
opinions of various medical sources, stating that none of the
medical records evaluated Vanepps' functional capacity
and that the ALJ substituted his own opinions for the expert
medical opinions. Id.
Williams agreed that the administrative record does not
contain a medical opinion directly addressing how
claimant's impairments affect her ability to function,
but noted that the Eighth Circuit does not require one when
an ALJ relies on the objective medical evidence to assess a
claimant's RFC. Id. (citing Hensley v.
Colvin, 829 F.3d 926, 932 (8th Cir. 2016)). He stated
the proper standard is “whether there is sufficient
evidence of ‘how [the claimant's] impairments . . .
affect [her] residual functional capacity to do other
work,' or her ‘ability to function in the
workplace.'” Id. at 10-11 (citing
Morrow v. Berryhill, No. C16-2023-LTS, 2017 WL
3581014, at *7 (N.D. Iowa Aug. 18, 2017)). Judge Williams
noted the ALJ summarized the medical and nonmedical evidence
in significant detail in ...