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Folkers v. Saul

United States District Court, N.D. Iowa, Cedar Rapids Division

September 27, 2019

CATHY A. FOLKERS, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

          LEONARD T. STRAND, CHIEF JUDGE

         I. INTRODUCTION

         This 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. 21. Judge Roberts recommends that I affirm in part and reverse and remand in part the decision by the Commissioner of Social Security (the Commissioner) denying Cathy A. Folkers’ applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401, et seq., and supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. The Commissioner and Folkers filed timely objections. See Doc. Nos. 22, 23. The background is set forth in the R&R and is repeated herein only to the extent necessary.

         II. APPLICABLE STANDARDS

         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

         Folkers applied for DIB and SSI on September 8, 2014, alleging disability beginning February 1, 2009, due to crushed vertebrae, severe depression, disc degeneration, “no cartilage in knees, ” TMJ, arthritis in her hips and neck and suspected fibromyalgia. Doc. No. 21 at 2 (citing AR 316, 318, 350). After a hearing, an Administrative Law Judge (ALJ) applied the familiar five-step evaluation and found that Folkers was not disabled as defined in the Act. Folkers argues the ALJ erred by failing to fully and fairly develop the record related to the opinion of her treating psychiatrist and her physical RFC. Id. at 8 (citing Doc. No. 14 at 1). She also challenges the validity of the ALJ’s decision because she contends the ALJ was not properly appointed under Lucia v. SEC, 138 S.Ct. 2044 (2018). Id. Judge Roberts addressed each argument separately.

         With regard to Folkers’ treating psychiatrist, Dr. Roger Safdar, Folkers argues the ALJ weighed an incomplete opinion. Dr. Safdar wrote an opinion dated May 30, 2011 (the 2011 opinion) that was part of Folkers’ previous Social Security case. Doc. No. 21 at 8 (citing Doc. No. 14-2). Dr. Safdar wrote another opinion for this case (the 2017 opinion). It provides in relevant part:

         To Whom It May Concern:

I have been following Ms. Folkers for several years, she continues to be impaired by her mental health condition. Her functional condition has, in my opinion declined since my attached Report of March 30, 2011. Her conditions presently include [Major Depressive Disorder], Anxiety, and PTSD.
While GAF is no longer considered as a criteria, most of my March 30 2011 Report remains true and correct with the following exceptions:
1. Lorazepam has been added to her med list;
2. She had demonstrated increased ability to keep track, forgetfulness and memory impairment since 2/15/2012;
3. She has shown a marked decline in Mental Abilities (Section I. C, D and E; and Section II. A, B and C) to be unable to meet competitive standards;
4. Her Social Functioning (C.) has declined.[2]
She is suffering from a mental disorder which affects her ability to work competitively.

AR 1108 (emphasis added). The ALJ gave this opinion partial weight. Id. at 23-24.

         Folkers argues the ALJ made his decision based on an incomplete record because the 2011 opinion from Dr. Safdar was never made a part of the record. Doc. No. 21 at 10 (citing Doc. No. 14 at 5). The Commissioner argues that it is the claimant’s burden to prove her disability and ensure the administrative record is complete. Id. (citing Doc. No. 18 at 9). The Commissioner also argues that remand is only required when ‚Äúthere is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior ...


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