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Vanepps v. Commissioner of Social Security

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

March 18, 2019



          Leonard T. Strand, Chief Judge.


         This 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 necessary.


         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 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).

         In 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)).

         In 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.”).

         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, 573-74 (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 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

         Vanepps 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 disabled because:

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 complaints

See Doc. No. 14. Judge Williams addressed each argument separately.

         In 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.

         On 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.

         Judge 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 findings. Id.

         Judge 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.

         Judge 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 ...

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