United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER ON REPORT
LEONARD T. STRAND, CHIEF JUDGE.
case is before me on a Report and Recommendation (R&R)
filed by the Honorable Mark A. Roberts, United States
Magistrate Judge. See Doc. No. 16. Judge Roberts
recommends that I affirm the decision by the Commissioner of
Social Security (the Commissioner) denying Candi
Olson’s application for disability insurance benefits
under Title II of the Social Security Act (the Act), 42
U.S.C. §§ 401-34. Olson filed timely objections
(Doc. No. 17). The background is set forth in the R&R and
is repeated herein only to the extent necessary.
APPLICABLE STANDARDS A. Judicial Review of 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.
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 February 11,
2015, alleging disability beginning July 1, 2012, due to
fibromyalgia, chronic back and joint pain, arthritis,
degenerative disc disease, depression and anxiety. Doc. No.
16 at 2 (citing AR 162, 198). After a hearing, an
Administrative Law Judge (ALJ) applied the familiar five-step
evaluation and found that Olson was not disabled as defined
in the Act. Olson argues the ALJ erred by: (1) improperly
evaluating the opinion of her treating physician, Dr. Kahl;
(2) improperly evaluating her subjective complaints and
failing to give her the opportunity to present her best
disability case and (3) relying on a defective hypothetical.
Id. at 7-8 (citing Doc. No. 12 at 1). Judge Roberts
addressed each argument separately.
Roberts first addressed Dr. Kahl’s opinion as well as
other medical opinions in the record. Dr. Kahl began treating
Olson on March 24, 2015, and wrote her opinion on May 28,
2015. Doc. No. 16 at 8. Dr. Kahl stated Olson was incapable
of performing either full-time or part-time work.
Id. (citing AR 590). She concluded Olson could stand
and walk two hours during an eight-hour workday and sit four
hours during an eight-hour workday. Id. (citing AR
593). She also found that Olson was limited to lifting and
carrying 10 pounds or less occasionally. Id. (citing
AR 591). Dr. Kahl noted Olson’s orthopedist restricted
Olson’s lifting to 15 pounds. Id. Olson could
occasionally twist, climb, kneel, crouch, reach, pull, push,
firmly grasp with both hands, finely grasp with both hands,
work overhead, use static neck flexion, frequently rotate her
neck and walk up an incline. Id. (citing AR 592).
She could never bend, stoop or crawl. Id. Dr. Kahl
estimated Olson would need four 15 to 20-minute unscheduled
breaks during the workday in addition to standard breaks and
lunch. Id. at 9 (citing AR 591). Finally, she
concluded Olson’s impairments would cause her to be
absent from work four or more times per month. The ALJ gave
her opinion little weight. Id.
Roberts next considered the opinions of the state agency
medical consultants, Dr. Cromer and Dr. Hunter. On June 9,
2015, Dr. Cromer opined that Olson could occasionally lift
and/or carry 10 pounds; frequently lift and/or carry 10
pounds; stand and/or walk two hours in an eight-hour day; sit
six hours in an eight-hour day; occasionally balance, stoop,
kneel, crouch and climb ramps and stairs; frequently handle
and finger; do unlimited pushing and/or pulling with a
10-pound limit; do unlimited reaching; never climb ladders,
ropes or scaffolds, or crawl; and should avoid concentrated
exposure to extreme cold and vibration. Id. (citing
AR 60-61). Dr. Hunter affirmed this opinion on July 30, 2015.
Id. (citing AR 77). The ALJ assigned these opinions
great weight, finding they were consistent with the medical
evidence of record. Id. (citing AR 21).
record also contained opinions from a consultative examiner,
Dr. Keizer, and a state agency psychological consultant, Dr.
Ryan, concerning Olson’s mental impairments. After
examining Olson, Dr. Keizer issued her opinion on May 15,
2015, finding Olson would experience some limitations in her
ability to maintain attention, concentration and mental pace
for an eight-hour day and this would likely fluctuate given
her level of pain, use of medications and “amount of
restorative sleep.” Id. at 10 (citing AR 587).
She found Olson would have mild limitations in her ability to
respond appropriately to changes in the workplace, but that
her ability to interact in the workplace was appropriate.
Id. The ALJ gave Dr. Keizer’s opinion great
weight, stating “the expert is a specialist who is
familiar with social security policy and regulations, she
personally examined the claimant, and provided an explanation
with references [to] her examination findings to support her
opinion.” Id. (citing AR 21).
gave Dr. Ryan’s March 20, 2014, opinion substantial
weight. Dr. Ryan opined Olson had mild restrictions in
activities of daily living; no difficulties in maintaining
social functioning; and moderate difficulties in maintaining
concentration, persistence, or pace. Id. (citing AR
62-64). She found Olson could carry out instructions
consisting of three to four steps and perform work tasks
consistent with that ability. Id. (citing AR 64).
Dr. Tashner, another state agency psychological consultant
affirmed Dr. Ryan’s opinion on July 31, 2015.
Id. (citing AR 79). The ALJ disagreed that Olson had
only mild limits in her ability to maintain concentration,
persistence and pace, but otherwise found the opinions were
“well supported with specific references to medical
evidence, [were] . . . internally consistent as well as
consistent with the evidence as a whole, [and because there
was] no objective evidence contradicting” their
opinions. Id. (citing AR 21).
reviewing the regulations and case law related to medical
opinion evidence, Judge Roberts considered Olson’s
arguments related to Dr. Kahl’s opinion. Id.
at 11-12. Olson argues Dr. Kahl’s opinion was
consistent with other treatment notes in the record
documenting her various diagnoses and treatment. Id.
at 12 (citing Doc. No. 12 at 4-5). Judge Roberts noted that
because the ALJ did not give Dr. Kahl’s opinion
controlling weight, she was required to consider the
following factors in determining its weight: (1) length of
the treatment relationship and frequency of examination, (2)
nature and extent of the treatment relationship, (3)
supportability, (4) consistency, (5) specialization and (6)
other factors. Id. (citing 20 C.F.R. §
404.1527(c)(2)). As such, he considered the ALJ’s
analysis of Dr. Kahl’s opinion in light of these
the length and frequency of the treatment, Judge Roberts
noted the ALJ cited the short treatment relationship (less
than two months) as one of the reasons for giving her opinion
less weight. Id. at 13 (citing AR 22). Within that
time frame, Dr. Kahl saw Olson only on two occasions for
“recheck of chronic lumbar back pain,”
“recheck of obesity,” and “recheck of
anxiety,” as well as a general physical. Id.
(citing AR 603-07). Judge Roberts considered Olson’s
argument that she was a long-time patient of the Family
Medicine Clinic where Dr. Kahl practices, but he noted Olson
cited no precedent in support of this argument and the record
lacked any references to other Family Medicine Clinic records
or findings by any of Dr. Kahl’s colleagues at the
clinic. Judge Roberts concluded this factor supported the
ALJ’s decision of giving Dr. Kahl’s opinion
little weight. Id. at 13-14.
Judge Roberts examined the nature and extent of the treatment
relationship. Id. at 14. He noted that Dr. Kahl
prescribed and refilled Olson’s medications and that
Olson’s visits typically consisted of Olson describing
her symptoms and a discussion of whether her medications were
providing sufficient relief. Id. (citing AR 597,
600-07). It appeared from the record that Dr. Kahl performed
one physical examination of Olson before writing her opinion.
Id. (citing AR 604-05). Olson reported no joint or
muscle pain or weakness. Objective testing and observations
of her lumbar spine and lower extremities were all normal
except for some pain and tightness in her paraspinal muscle.
Id. Olson was also stable on her then-current
anxiety medications. Id. She noted Olson’s
degenerative lumbar disc caused her chronic pain resulting in
“chronic narcotic use x years, impairs ability to work
[secondary] to difficulty standing and pain meds interfere
with concentration, no work x 3 years now. Disability forms
completed please see attached.” Id. Dr. Kahl
stated that she relied on a previous MRI and the lifting
restriction from Olson’s orthopedist in reaching her
conclusions. Id. Judge Roberts noted “[t]o the
extent Dr. Kahl’s treatment notes support the limits
she puts on Claimant’s ability to work, those limits
appear to be the result of Claimant’s self-reports, and
not any clinical assessments.” Id. He pointed
out that the ALJ determined Olson’s subjective
complaints were not credible and that this factor weighed in
favor of affording Dr. Kahl’s opinion little weight.
supportability, Judge Roberts noted that Dr. Kahl’s
opinion consisted of a check box form. Id. at 16.
She provided no reasons or support for the limitations
identified in her opinion, but simply checked boxes for all
limitations, including that working would cause an
“extreme” increase in the severity of
Olson’s symptoms. Id. at 17. Judge Roberts
noted that it also did not appear from Dr. Kahl’s
records that she had ever tested Olson’s lifting
capabilities. Id. The ALJ gave Dr. Kahl’s
opinion little weight based, in part, on the fact that her
opinion appeared “to be the product of pre-printed
questionnaires, submitted to Dr. Kahl by the claimant’s
attorney, that includes a number of leading questions and
similar inducements which are not designed for objective
responses, but rather for verification of legal conclusions
about the claimant’s alleged impairments.”
Id. at 18 (quoting AR 22). The ALJ also noted that
while the form provides for both negative and positive
“check-off responses,” the form “appears to
be intended to further the claimant’s litigation
interests rather than provide an objective medical evaluation
of the functional limitations because the opinions related to
functional limitations are not supported with objective
medical findings and are inconsistent with the substantial
evidence of record.” Id.
extent the ALJ found the checklist form was biased in
Olson’s favor, Judge Roberts disagreed. He noted it
demonstrated an effort to be complete and obtain information
about many relevant issues that may reflect on a
claimant’s health and ability to work. Nonetheless, he
noted that as a form, it suffers from many of the
deficiencies the Eighth Circuit cautions against – no
room for narrative or opinion, the result of a series of
conclusory statements, checked blanks “circled answers,
and brief fill-in-the-blank responses.” Id.
(quoting Thomas v. Berryhill, 881 F.3d 672, 675 (8th
Cir. 2018)). The only narrative Dr. Kahl provided was that
her opinions related to Olson’s “fair to poor
ability” to understand and carry out any type of job
instructions is “secondary to [her] anxiety and [due
to] pain medication side effects.” Id.
(quoting AR 594). She also stated that her opinions related
to Olson’s abilities to function in the workplace would
be fair to poor because of anxiety and medication side
effects. Id. (citing AR 594-95).
Roberts found these two narrative pieces did not help bolster
Dr. Kahl’s opinion. Her treatment notes indicate that
medication side effects and how anxiety affects Olson come
from Olson’s self-reports. Id. at 19 (citing
AR 603, 605). Dr. Kahl did not document these side effects
anywhere else in her treatment notes. Dr. Kahl’s
treatment notes also did not contain any mental health
assessments or tests. Dr. Kahl’s treatment notes even
state that Olson’s anxiety does not cause
Olson difficulty concentrating. Id. Judge Roberts
also noted that the sitting and standing limitations also
appeared to stem from Olson’s self-reports because
there were no assessments in Dr. Kahl’s treatment
notes. Id. (citing AR 603). Indeed, Dr. Kahl’s
physical examination on the date she wrote the opinion
yielded normal results except for pain and tightness of the
paraspinal muscles lumbar. Id. at 20. None of Dr.
Kahl’s treatment notes indicated Olson had hand or
finger problems and there was no documentation of any
episodes of decompensation in her treatment notes.
Id. The treatment notes also did not contain any
discussion of Olson’s need to take several breaks a
day. Overall, Judge Roberts concluded Dr. Kahl’s
treatment notes did not support her opinion that Olson was
incapable of performing a full-time job and that the
supportability factor weighed in favor of the ALJ’s
decision to give her opinion little weight.
Judge Roberts examined the consistency of Dr. Kahl’s
opinion with the record as a whole. Id. He noted
that Dr. Kahl wrote her opinion on May 28, 2015. The ALJ
observed that two months prior, on March 18, 2015, Olson
reported to the Social Security Administration that her
pain/fatigue did not affect her ability to concentrate or
think. Id. (citing AR 217). She also reported she
could pay attention “all the time” and that her
ability to follow spoken instructions was “good.”
Id. (citing AR 224). Olson further represented she
got along with authority figures “very well” and
her ability to handle stress with changes in routine was
“good.” Id. at 21 (citing AR 225). The
only side effect she identified from her medications (which
at that time included morphine and hydrocodone) was
“tiredness.” Id. (citing AR 216). Olson
then stopped taking morphine and since that time reported no
side effects from her pain medications. Id. (citing
AR 249, 259). She indicated in a function report dated July
22, 2015, that she could pay attention, finish what she
starts and follow written and spoken instructions
“ok.” Id. (citing AR 257).
argues that Dr. Kahl’s opinion was consistent with the
“opinion” of Dr. Wisco, who found Olson’s
body pain complaints consistent with fibromyalgia.
Id. (citing Doc. No. 12 at 4). Judge Roberts noted
the ALJ found that fibromyalgia was one of Olson’s
severe impairments. Id. He stated that aside from
Olson’s diagnoses, Dr. Wisco’s treatment note
(not an opinion) did not support the limitations identified
in Dr. Kahl’s opinion as it did not identify any
medication side effects and how they might contribute to
Olson’s ability to work eight hours a day, whether she
could lift certain weights, use her hands, sit or stand for
certain lengths of time, or walk certain distances.
further argues that Dr. Kahl’s opinion was consistent
with the treatment she received under Dr. Michael Espiritu
for fibromyalgia and back pain. Id. at 22. Judge
Roberts noted the ALJ acknowledged she had fibromyalgia and
back pain. He then considered the treatment notes from
Olson’s seven visits with Dr. Espiritu. Id.
During the first three visits in August 2011, he was trying
to diagnose the source of Olson’s back pain.
Id. The next time Olson saw Dr. Espiritu was in July
2012 for treatment of her carpal tunnel syndrome, which was
diagnosed by Dr. Wisco. Id. Dr. Espiritu
acknowledged Olson had fibromyalgia and his physical
examination was focused on her wrists, hands and knee.
Id. (citing AR 319). All further records from Dr.
Espiritu relate to Olson’s carpal tunnel and carpal
tunnel release surgeries performed by Dr. Espiritu.
Id. (citing AR 325, 327-31). Judge Roberts noted
there were no treatment notes from Dr. Espiritu providing
fibromyalgia management or treatment. Id. at
Judge Roberts concluded that aside from Dr. Espiritu’s
acknowledgment of Olson’s carpal tunnel syndrome,
fibromyalgia and the carpal tunnel surgery he performed, his
treatment notes do not support the limitations identified in
Dr. Kahl’s opinion. Id.
Judge Roberts addressed Olson’s argument that the ALJ
rejected Dr. Todd C. Johnson’s findings in favor of the
state agency physicians. Id. He noted that the
record contains six treatment notes from Dr. Johnson. Two
were for injections and contained no information regarding
his impressions of Olson’s impairments. The others
documented medication checks. Id. At these
appointments, Dr. Johnson noted Olson’s complaints of
pain, although she indicated that her medications were
generally helping control her pain. Id. at 23-24.
After observing the treatment notes, Judge Roberts concluded
they were not at odds with the ALJ’s conclusions. They
indicated Olson had mostly normal examination results and
experienced symptom relief with her medications. He never
mentioned confusion as a side effect as Dr. Kahl had.
Id. at 24. Judge Roberts concluded Dr.
Johnson’s treatment notes were not consistent with Dr.
also argues the ALJ rejected Dr. Kovar’s diagnosis
without giving good reasons. Judge Roberts disagreed, noting
the ALJ stated the following with respect to Dr. Kovar:
The claimant was seen by Allison Kovar, M.D. January 9, 2015
complaining of worry, fatigue, irritability, and panic
attacks. On exam, she was cooperative, alert, and in no acute
distress. Her gait was normal, and she was able to articulate
well with normal speech and coherence. She was assessed with
anxiety, generalized osteoarthritis, obesity, depressive
disorder, and fibromyalgia. She was started on Vibryd.
Id. at 24-25 (citing AR 19). Judge Roberts found
this did not represent a “rejection” of Dr.
Kovar’s diagnosis, but was a fair recitation of what
occurred during Olson’s one visit with Dr. Kovar.
Id. at 25. Indeed, the ALJ agreed in part with Dr.
Kovar’s assessment by finding Olson’s obesity and
fibromyalgia were severe impairments and considered their
effects in crafting the RFC. Id. Moreover, Judge
Roberts reasoned that the ALJ is required only to weigh