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Dyslin v. Commissioner of Social Security

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

March 25, 2019

LARRY D. DYSLIN, II., Plaintiff,


          Leonard T. Strand, Chief Judge.


         This 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.


         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 . . . 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) (citation omitted).

         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, 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.”).

         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

         Dyslin 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.

         Dyslin 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.

         Dyslin 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.

         Next, 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 ...

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