United States District Court, N.D. Iowa, Cedar Rapids Division
LARRY D. DYSLIN, II., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER ON REPORT AND
Leonard T. Strand, Chief Judge.
case is before me on a Report & Recommendation (R&R)
by the Honorable Kelly K.E. Mahoney, Chief United States
Magistrate Judge. Doc. No. 19. Judge Mahoney recommends that
I reverse the decision of the Commissioner of Social Security
(the Commissioner) denying plaintiff Larry Dyslin's
application for supplemental security income (SSI) benefits
under Title XVI of the Social Security Act, 42 U.S.C.
§§ 1381, et. seq. (Act), and remand for further
proceedings. Both parties have filed timely objections (Doc.
Nos. 20, 21) to the R&R.
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 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) (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).
applied for SSI on September 22, 2014, alleging an onset date
of January 1, 1987, due to schizophrenia, bipolar disorder,
borderline personality disorder, antisocial personality
disorder and impulse control disorder. AR 12, 14. After a
hearing, an Administrative Law Judge (ALJ) applied the
familiar five-step evaluation and found there were jobs in
significant numbers in the national economy that Dyslin could
perform based on his residual functional capacity (RFC) and,
therefore, he was not disabled as defined in the Act. AR
22-23. Dyslin argued that the ALJ erred in determining he was
not disabled because (1) the ALJ improperly relied on the
testimony of the vocational expert (VE), (2) the evidence
showed Dyslin is unable to function outside of a
“highly structured, supportive environment” and
(3) the ALJ's appointment was unconstitutional.
See Doc. No. 11 at 3-14. Judge Mahoney addressed
each argument in her R&R.
first argued that the ALJ erred in relying on the VE's
testimony because he failed to resolve a conflict between the
testimony and the O*NET database of occupational information.
Doc. No. 19 at 6-7. Judge Mahoney found that VE testimony
cannot constitute substantial evidence to prove that jobs
exist in significant numbers in the national economy if the
VE testimony conflicts with the Dictionary of Occupational
Titles (DOT). Id. at 7. However, she concluded that
this is not necessarily true with regard to O*NET.
Id. at 9. In any event, Judge Mahoney found that the
VE's testimony was not in direct conflict with O*NET.
Id. at 8-9.
also argued that the ALJ erred in relying on the VE's
testimony because it did not support the personal hygiene
limitations the ALJ found were necessary. Id. at 10.
Judge Mahoney found that an ALJ's reliance on a VE's
testimony is improper if the VE changes a hypothetical beyond
the ALJ's instructions. Id. She explained,
Here, the ALJ asked the VE if a hypothetical person with
Dyslin's RFC, including someone who would not always be
able to “maintain appropriate personal hygiene or work
attire, ” could perform work in the national economy.
AR 66. The VE responded that “the question of clothing
or hygiene would be an issue of whether or not it was
offensive or not.” Id. When the ALJ responded,
“Understood, ” the VE elaborated: “So, if
there's a correction to be made and there's a
standard by the employer that says, you have so many
reprimands based on my request and/or hygiene, then I believe
once the -- if it's offensive to the other workers then
it would eliminate positions, otherwise, I do not see it as a
factor . . . . Those positions would remain as previously
identified.” Id. Dyslin argues that the
VE's testimony does not support the ALJ's RFC
determination because the ALJ did not resolve whether
Dyslin's personal hygiene would offend others.
I agree (although I find it to be a close issue). . . .[T]he
VE changed the hypothetical by adding that the hypothetical
person's inability to always maintain personal hygiene
would not be “offensive” to others. The ALJ did
not specify in the decision the degree of Dyslin's
personal-hygiene issues (are they nonoffensive?). See
Vail v. Barnhart, 84 Fed.Appx. 1, 2, 4 (10th Cir. 2003)
(holding that VE's testimony did not support ALJ's
step-five determination when VE testified no positions
existed for a person that “would have to alternate
sitting and standing as needed”; but that positions
existed if the “brief changes of position” were
not “as needed”; and the ALJ found the claimant
needed “brief changes of position” without
specifying “how often [the claimant] would need to
change positions”). Nor did the ALJ ask the VE to
elaborate on what he meant by offensive- Would some people be
“offended” by a worker's bad body odor? Would
it depend on the job the worker was doing? Would it depend
how often the person had to interact with the worker? The VE
here also suggested that by “offensive, ” he
simply meant in violation of the employer's standards and
subjecting the person to reprimand, although it is not
entirely clear (and presumably, not wearing appropriate work
attire would violate standards). I find the VE's
testimony here . . . amounts to a “qualified
response” or change to the hypothetical.
Id. at 10-11.
Judge Mahoney addressed Dyslin's argument that the record
shows he cannot function outside of a structured, supportive
environment. Id. at 12. She explained that the ALJ
found Dyslin did not meet the listing for either
schizophrenia or personality and impulse-control ...