United States District Court, N.D. Iowa, Eastern Division
DONNY J. SEXTON, Plaintiff,
ANDREW M. SAUL, 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 Mark A. Roberts, United States Magistrate
Judge. Doc. No. 19. Judge Roberts recommends that I affirm
the decision of the Commissioner of Social Security (the
Commissioner) denying plaintiff Donny J. Sexton's
application for disability insurance benefits (DIB) and
supplemental security income (SSI) under Titles II and XVI of
the Social Security Act, 42 U.S.C. § 401, et seq. (Act).
Sexton filed a timely objection to the R&R on April 17,
2019. Doc. No. 20. The Commissioner has not responded and the
deadline for a response has expired. The procedural history
and relevant facts are set forth in the R&R and are
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 . . . 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) (citing Cline v. Sullivan,
939 F.2d 560, 564 (8th Cir. 1991)).
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 (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 “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 (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 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 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
Thomas v. Arn, 474 U.S. 140, 150 (1985).
protectively filed an application for DIB and SSI on January
8, 2015, alleging an onset date of January 1, 2009. AR 26. A
hearing was held before an Administrative Law Judge (ALJ) on
May 17, 2017. AR 26. The ALJ concluded that Sexton had severe
impairments due to major depression, generalized anxiety
disorder, panic disorder and personality disorder. AR 29. She
found that he has the residual functional capacity (RFC) to:
[P]erform a full range of work at all exertional levels but
with the following nonexertional limitations: the claimant
cannot work at unprotected heights, hazardous machinery or
standing bodies of water. He can perform three to four-step
tasks that are simple, repetitive and routine. The claimant
cannot interact with the public, but can occasionally
interact with co-workers and supervisors.
AR 30-31. With this RFC, the ALJ found there were jobs that
exist in significant numbers in the national economy that
Sexton can perform. AR 34. Sexton's request for review
was denied on March 6, 2018. AR 1. He filed a complaint on
May 14, 2018, and Judge Roberts filed his R&R on April 4,
argued that the ALJ's decision was erroneous because it
was not supported by substantial evidence. Sexton argued that
(1) the ALJ's RFC was deficient as it did not account for
a need for extra supervision, (2) the ALJ did not properly
question the vocational expert (VE) or develop the record
when necessary and (3) the ALJ did not cite any
inconsistencies she allegedly relied on when giving little
weight to the medical opinions. Doc. No. 15 at 3-7. Sexton
also argued that the ALJ's decision should be vacated and
remanded because the ALJ was not properly appointed.
Id. at 7. Judge Roberts addressed both of these
arguments in his R&R.