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Zortman v. Saul

United States District Court, N.D. Iowa, Western Division

August 19, 2019

ANDREW M. SAUL, Commissioner of Social Security,[1] Defendant.


          Leonard T. Strand, Chief Judge.


         This 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. 19. Judge Roberts recommends that I affirm the decision by the Commissioner of Social Security (the Commissioner) denying Janean Marie Zortman's application for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401-34. Zortm an filed timely objections (Doc. No. 20) and the Commissioner filed a response (Doc. No. 21). 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

         Zortman applied for disability insurance benefits on March 23, 2015, alleging disability beginning December 31, 2014, due to a back injury. Doc. No. 19 at 1-2 (citing AR 70, 169-70, 197). After a hearing, an Administrative Law Judge (ALJ) applied the familiar five-step evaluation and found that Zortman was not disabled as defined in the Act. Zortman argues the ALJ erred by: (1) improperly evaluating the opinions of her treating physicians; (2) improperly evaluating her subjective complaints; (3) failing to complete a fair hearing; and (4) relying upon a defective hypothetical. Id. at 7 (citing Doc. No. 15 at 3-4). Judge Roberts addressed each argument separately.

         In addressing the first issue, Judge Roberts noted that Zortman primarily took issue with the ALJ giving controlling weight to the opinions of the state agency physicians over the opinions of her treating physicians - Dr. Lukken and Dr. Garred. Id. With regard to Dr. Lukken, Judge Roberts noted that he has been treating Zortman since 2011 as her pain management doctor. Id. at 9. He provided a medical opinion dated April 10, 2017, in which he opined that Zortman was incapable of performing full-time work. Id. He concluded her maximum ability to stand and walk during an 8-hour workday with normal breaks would be less than two hours. Id. He also found that Zortman's maximum ability to sit would be less than two hours. Id. He noted she would need to be able to shift from sitting to standing as needed and would need to lie down at unpredictable times during the workday. Id. The maximum amount she could lift and carry on an occasional and frequent basis would be less than 10 pounds. Id. He also found she would be absent from work more than three times per month due to her impairment, symptoms and treatment. Id.

         The ALJ was “not entirely persuaded” by Dr. Lukken's opinion, stating that his chart notes did not include significant abnormal clinical findings or consistent findings of weakness. Id. Indeed, his notes contained several references to significant improvement in her symptoms. Id. The ALJ also cited an August 2015 note in which Dr. Lukken indicated he “would be willing to assist” Zortman in her pursuit of disability benefits. The ALJ concluded this suggested that Dr. Lukken's opinion was more of an accommodation than an objective assessment of her functional limitations. Therefore, the ALJ did not give Dr. Lukken's opinion controlling weight - or any specific weight for that matter. Id. at 10. Instead, he gave “greatest weight” to the opinions of the state agency physicians who reviewed the record and concluded Zortman would need to change positions every two hours for no more than five minutes at a time. Id.

         Judge Roberts concluded Dr. Lukken's opinion was not entitled to controlling weight because it was “inconsistent with the other substantial evidence in the record” and analyzed it pursuant to the six factors in 20 C.F.R. § 404.1527(c)(2). Id. at 10-16. These include: (1) the length of the treatment relationship and frequency of the examination; (2) nature and extent of the treatment relationship; (3) supportability; (4) consistency; (5) specialization and (6) other factors. Based on these factors, he concluded the ALJ's analysis of Dr. Lukken's opinion was supported by substantial evidence.

         With regard to Dr. Garred's opinion, Judge Roberts noted that he is Zortman's family physician and has been treating her in all aspects of her health since 1984. In relation to her alleged impairment, Dr. Garred prescribed pain medication and referred Zortman to various professionals for treatment. Id. at 16. He provided two medical opinion letters dated February 7, 2013, and May 4, 2015. Id.

         In the February 2013 letter, Dr. Garred explained Zortman's history of lower back issues after a lumbar laminectomy and revision surgeries. Id. at 17. He also explained her symptoms and the various treatments she has tried. Id. He noted she has a little difficulty walking due to pain, no limits with her upper extremities and was limited in moderate activities, lifting and carrying, climbing stairs, stooping, climbing, kneeling and crawling. Id. He did not find any work environment restrictions, but noted that her pace could be compromised due to pain and her pain could also be expected to limit what she could do at certain times while on the job. Id. The May 2015 letter essentially contained the same observations and opinions. Id. Dr. Garred noted that she has attempted therapy and tried clinic injections for her pain. Id. He also noted that a March 2015 MRI showed “satisfactory appearance” of various fusion sites from previous surgeries and although there was mild hypertrophy, there were no significant changes. Id.

         Judge Roberts noted the ALJ gave Dr. Garred's opinions little weight because they failed to articulate specific functional limitations and the generalized limitations he provided were at odds with the treatment notes indicating Zortman had experienced effective symptomatic relief. Id. at 17-18 (citing AR 25-26). The ALJ also cited a statement that he attributed to Dr. Garred regarding Zortman's ability to return to work and used that statement to further justify giving Dr. Garred's opinion little weight. Id. ...

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