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. 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.
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 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
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.
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.
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.
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.
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.
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.