United States District Court, N.D. Iowa, Western 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 Mark R. Roberts, United States
Magistrate Judge. See Doc. No. 21. Judge Roberts
recommends that I affirm the decision by the Commissioner of
Social Security (the Commissioner) denying Shawn Alan
Knibbe's application for disability insurance benefits
and supplemental security income under Titles II and XVI of
the Social Security Act (the Act), 42 U.S.C. §§
401-34, 1381-83f. Knibbe filed timely objections (Doc. No.
22). The Commissioner did not file a response. The background
is set forth in the R&R and is repeated herein only to
the extent necessary.
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 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
Thomas v. Arn, 474 U.S. 140, 150 (1985).
applied for disability insurance benefits and supplemental
security income on December 9, 2014, alleging disability
beginning December 1, 2014, due to Parkinson's disease,
shoulder pain and lack of strength. Doc. No. 21 at 2 (citing
AR 24, 303). After a hearing, an Administrative Law Judge
(ALJ) applied the familiar five-step evaluation and found
that Knibbe was not disabled as defined in the Act. Knibbe
argues the ALJ erred by: (1) improperly weighing the medical
evidence in the record, (2) improperly considering
Knibbe's subjective complaints, and (3) basing the
residual functional capacity (RFC) on an improper
hypothetical question posed to the vocational expert (VE)
during the hearing. Judge Roberts addressed each argument
regard to the weighing of the medical evidence, Knibbe argues
the ALJ erred in “rejecting the opinion of the treating
physicians and relying upon the opinions of the non-examining
doctors.” Id. at 7 (citing Doc. No. 17 at 3).
He also argues that the ALJ erred by rejecting both the
treating physician and state agency physician opinion in
favor of the ALJ's own unsupported opinion that Knibbe
was limited to sedentary work. Id. at 7-8. He argues
his testimony was consistent with the limitations and
symptoms described in his medical records. Finally, he
asserts the ALJ failed to mention the treatment notes of his
physician, Dr. Bhatti. Id. at 8.
Roberts noted that the record identified Dr. Case, Dr.
Bertoni and Dr. Bhatti as Knibbe's treating sources.
Id. Judge Roberts identified Dr. Case as
Knibbe's main treating physician. Dr. Case provided a
medical source opinion on April 9, 2015, in which he opined
Knibbe could: sit for eight hours in an eight-hour workday,
stand/walk for three hours in an eight-hour workday,
occasionally lift ten pounds or less, rarely lift 20 pounds,
never lift 50 pounds, occasionally twist and stoop, rarely
crouch/squat and climb stairs, never climb ladders, use each
of his hands to grasp, turn and twist objects 50 percent of
an eight-hour workday, use his fingers for fine manipulation
50 percent of an eight-hour workday and reach (including
overhead reaching) 25 percent of an eight-hour workday.
Id. at 9 (citing AR 468). He would also need to
shift positions at will from standing, walking and sitting.
Id. Dr. Case found Knibbe's symptoms were rarely
severe enough to interfere with the attention and
concentration needed to perform simple work tasks, but that
Knibbe would be absent from work on average about three days
per month. Id. (citing AR 469).
gave Dr. Case's opinion “little weight”
because it was inconsistent with the medical evidence in the
record, did not include “any rationale for these
limitations” and was inconsistent with Dr. Case's
own treating notes from April 9, 2015. Id. at 9-10.
Judge Roberts agreed that Dr. Case's treatment notes did
not provide a basis for his opinion. Id. at 10. He
then considered whether the ALJ's reasons for giving Dr.
Case's opinion less than controlling weight were
supported by substantial evidence based on the factors under
20 C.F.R. §§ 404.1527(c), 416.927(c).
first factor is the examining relationship. Judge Roberts
noted that Dr. Case examined Knibbe as his treating
neurologist seven times between December 2, 2013, and April
9, 2015, prior to providing his opinion in this case.
Id. at 12. As a treating physician, Judge Roberts
noted that Dr. Case's opinion was entitled to greater
weight unless it was not supported by substantial evidence on
the record as a whole. For reasons discussed below, he agreed
with the ALJ that Dr. Case's opinion was not supported by
substantial evidence on the record as a whole. Id.
Judge Roberts considered the examining relationship a neutral
second factor is the treatment relationship. Given that Dr.
Case was a treating source and had treated Knibbe for his
Parkinson's disease, Judge Roberts concluded this factor
weighed in favor of giving Dr. Case's opinion increased
third factor is supportability. Judge Roberts noted that Dr.
Case stated he based his opinion on “physical
assessments, over time.” Id. (citing AR 469).
While this indicated some basis for his opinion, Judge
Roberts noted that it provided little information to
determine whether Dr. Case's conclusions were supported
because he did not document the types of deficiencies he
noticed, the tests he ran and the interventions he attempted
to help mediate Knibbe's symptoms. Id. at 12-13.
Judge Roberts agreed with the ALJ that the checklist format
and lack of support within Dr. Case's opinion justified
giving it less weight. Id. at 13. Judge Roberts
noted the ALJ also found Dr. Case's opinion was
inconsistent with his own treatment notes. Id. With
regard to anticipated absences of three days per month, the
ALJ found there was no documentation to support this
limitation such as missed appointments or other important
events. Id. Judge Roberts reviewed Dr. Case's
treatment notes and agreed there was no mention of missed
events in Knibbe's life among the otherwise comprehensive
discussion of all relevant topics covered in Dr. Case's
examinations of Knibbe. Id. Finally, the ALJ cited
inconsistencies in Dr. Case's treatment notes dated the
same day as his opinion. Id. Dr. Case found that
Knibbe exhibited fine finger dexterity, did not have tremors
and could twist, stoop and bend at the waist. Id. at
14. However, his opinion limited the amount that Knibbe could
be expected to perform these tasks in the workplace. Judge
Roberts concluded the record supported this reason as well.
some of the limitations expressed in Dr. Case's opinion
were supported by his treatment notes, others were not. For
example, Judge Roberts noted there was nothing in Dr.
Case's treatment notes to support the lifting limitations
he had identified. Indeed, there was no indication that Dr.
Case had ever tested Knibbe's lifting limits or that
Knibbe had ever reported difficulties with lifting. The only
thing close to a lifting limitation (other than Knibbe's
overall diagnosis of generalized bradykinesia), was a March 31,
2014, note stating Knibbe's strength was
“normal” and a June 20, 2014, treatment note
documenting Knibbe's report that he “[felt] weak
and encumbered trying to work overhead.” Id.
(citing AR 454, 456). Judge Roberts reasoned that while there
was some evidence in Dr. Case's treatment notes
supporting his opinion, there was other evidence that did
not. He concluded this factor supported the ALJ's
decision to give Dr. Case's opinion little weight.
fourth factor is consistency. The ALJ determined that Dr.
Case's opinion was not supported by other evidence in the
record as a whole and cited to specific pages documenting
that Knibbe did not have “debilitating tremors or
severe range of motion limitations.” Id. at
14-15 (citing AR 30). Upon reviewing the record, Judge
Roberts agreed with the ALJ that Dr. Case's opinion was
not supported by the record as a whole and cited specific
inconsistencies. He concluded this factor supported giving
Dr. Case's opinion limited weight. Id. at 15.
fifth factor is specialization. Judge Roberts noted that Dr.
Case is a neurologist who gave an opinion in his area of
expertise about a patient under his care. Id. While
Dr. Case's opinion was not supported by the record as a
whole, Judge Roberts concluded that this factor weighed
slightly in favor of giving the opinion more weight.
Judge Roberts discussed other factors. With regard to a
specific walking limitation of 200 feet without an assistive
device that Knibbe cited from a one-sentence letter written
by Dr. Case on September 16, 2015, Judge Roberts noted this
limitation was not supported by Dr. Case's own treatment
notes. Id. at 16. He noted the narrative sections of
Dr. Case's treatment notes did not document that Knibbe
discussed walking difficulties with Dr. Case or that Knibbe
reported the need to use an assistive device when walking.
Id. While Dr. Case described Knibbe's walking as
“quite slow for age with slow turns, ” Judge
Roberts noted there was no support in the record for a
200-foot walking distance limitation as Knibbe alleged.
Id. at 16-17. Judge Roberts concluded that the
ALJ's decision to assign “little weight” to
Dr. Case's opinion was supported by substantial evidence
in the record as a whole. Id. at 17.
Roberts next considered the opinion of Dr. Bertoni, who
completed a one-page check box form at the request of
Knibbe's attorney dated May 11, 2015. Id.
(citing AR 470). Dr. Bertoni has treated Knibbe for his
Parkinson's disease since November 2014. Id. Dr.
Bertoni marked that Knibbe had significant rigidity and
bradykinesia and that those conditions resulted in the
following limitations: sustained disturbance of gross and/or
dexterous movement and sustained disturbance of gait and/or
station. Id. This was the entire extent of his
opinion. The ALJ gave his opinion “little weight”