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Frankfurt v. Saul

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

September 30, 2019

JOHN FRANKFURT, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

         I. INTRODUCTION

         This case is before me on a Report & Recommendation (R&R) by the Honorable Kelly K.E. Mahoney, Chief United States Magistrate Judge. Doc. No. 23. Judge Mahoney recommends that I affirm the decision of the Commissioner of Social Security (the Commissioner) denying plaintiff John Frankfurt’s application for disability insurance (DIB) benefits under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401, et. seq., and for supplemental security income (SSI) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381, et. seq. Frankfurt filed a timely objection to the R&R. Doc. No. 24. 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).

         To 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 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)).

         To 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 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

         Frankfurt protectively filed an application for DIB and SSI on February 26, 2015, alleging an onset date of March 26, 2010, due to major depressive disorder, cluster B personality disorder, antisocial personality disorder, chronic migraine headaches, insomnia, restless leg syndrome and high pulse. AR 20, 26, 127, 140. A hearing was held before an Administrative Law Judge (ALJ) on June 27, 2017. AR 70. After the hearing, the ALJ applied the familiar five-step evaluation and found that Frankfurt was not disabled as defined by the Act. AR 20–34. Frankfurt argued the ALJ erred by: (1) not giving good reasons for discounting his subjective complaints; (2) assigning greater weight to the medical opinions of the non-examining state agency consultants than to the medical opinions submitted by his treating neurologist and psychiatrist; and (3) not including several limitations in the assessment of Frankfurt’s residual functional capacity (RFC). Judge Mahoney noted Frankfurt’s last argument depends on the success of his first two arguments, so she did not address it in a separate section. Judge Mahoney addressed Frankfurt’s other two arguments separately.

         First, Judge Mahoney noted the ALJ did not credit Frankfurt’s subjective complaints because he found “discrepancies in information reported by [Frankfurt] to various treating sources.” Doc. No. 23 at 7 (quoting AR 30). The ALJ noted Frankfurt testified at the June 2017 hearing that he “always feel[s] like somebody’s following [him] or there’s somebody that’s watching [him].” Id. (quoting AR 76) (citing AR 26). The ALJ determined these symptoms were inconsistent with Frankfurt’s treatment records. Id. at 7–8 (citing AR 30). Judge Mahoney observed that the treatment records from Frankfurt’s psychologist, Dr. Christine Rogers Cork, consistently reflect no evidence of psychotic symptoms, and that the same is true regarding the treatment records from Frankfurt’s other providers, with one exception. Id. at 8. The exception is Frankfurt’s psychiatrist, Dr. Kija Weldon, who Frankfurt began to see in April 2015 (a few months after the Appeals Council affirmed the denial of his prior disability application) and whose treatment records indicate that Frankfurt occasionally demonstrated paranoid symptoms. Id. at 8–9. Judge Mahoney concluded that although there is some support in the treatment records that Frankfurt complained about feeling that people were watching him, substantial evidence supports the ALJ’s conclusion that the treatment records are inconsistent with Frankfurt’s testimony that he constantly felt this way. Id. at 9.

         Judge Mahoney also noted that Frankfurt testified at the hearing he cannot sit still long enough to watch a full television show and must get up and walk around after 10 to 15 minutes of sitting. Id. (citing AR 26, 81–82). However, Judge Mahoney found Frankfurt reported on other occasions that he watched television, went to the movie theaters with a friend, spent many hours a day gambling online, went to a local eatery to watch sports and spent a considerable amount of time at the library using public computers. Id. at 9–10 (citing AR 317, 320, 332, 335–36, 469, 675, 697, 705, 793). Judge Mahoney recognized that Frankfurt suffers from restless leg syndrome and treatment records indicate agitation, restlessness and fidgeting, but found substantial evidence supports the ALJ’s determination that Frankfurt’s restlessness did not result in an inability to sit for more than 15 minutes. Id. at 10.

         Frankfurt also challenged the ALJ’s characterization of the mental-health treatment records, arguing his four hospitalizations due to suicidal ideation and his providers’ mental status examinations show he is more limited than found by the ALJ. Id. (citing Doc. No. 15 at 11–12). Judge Mahoney found the ALJ recognized each of Frankfurt’s hospitalizations for being suicidal and what triggered those feelings. Id. at 11. Judge Mahoney found the ALJ did not “mischaracterize the evidence” (as Frankfurt argued (Doc. No. 15 at 12–13)) by noting the facts leading to Frankfurt’s May 2016 hospitalization included his ongoing gambling problems and recent break-up and that his March/April 2014 hospitalization was the result of him trying to manipulate his girlfriend into giving him money for gambling. Doc. No. 15 at 11–12 (citing AR 28–30, 415–22, 802–15). Judge Mahoney concluded the ALJ could properly consider these facts when evaluating Frankfurt’s subjective complaints related to his mental health. Id. at 12.

         Frankfurt also argued the ALJ mischaracterized treatment providers’ objective mental health examinations. Id. The ALJ found Dr. Weldon’s examinations consistently showed “depressed mood, restricted affect, and fair insight and judgment, but are otherwise unremarkable.” Id. (quoting AR 29). Judge Mahoney disagreed with Frankfurt’s argument that in making this statement, the ALJ ignored Dr. Weldon’s findings of psychotic symptoms, fidgeting, anxiety and suicidal ideation. Id. (citing Doc. No. 15 at 11). Judge Mahoney found Dr. Weldon’s findings related to paranoia, fidgeting, anxiety and suicidal ideation do not support any greater RFC limitations than found by the ALJ. Id. Judge Mahoney explained that by saying Dr. Weldon’s objective examinations were otherwise unremarkable, the ALJ did not appear to be referring to Dr. Weldon’s mood findings, but rather her findings of alertness, normal orientation, clear and spontaneous speech (as well as slow speech a few times), linear and logical thought process, intact recent and remote memory, cooperation and calmness. Id. Judge Mahoney concluded substantial evidence supports the ALJ’s characterization of Dr. Weldon’s objective examinations as “otherwise unremarkable.” Id. at 13.

         Furthermore, although not specifically mentioned by the ALJ, Judge Mahoney noted Dr. Weldon’s objective examinations were inconsistent with Frankfurt’s subjective complaints related to his inability to maintain his personal hygiene, as well as other treatment records that fail to reflect Frankfurt had poor hygiene. Id. Judge Mahoney also noted Dr. Weldon consistently found intact memory and treatment records from other providers do not support greater limitations in attention and concentration than found by the ALJ. Id. Judge Mahoney concluded the treatment records and Frankfurt’s activities of daily living do not support extreme limitations in maintaining attention and concentration when not suffering a migraine. Id. at 14.

         Finally, Frankfurt challenged the ALJ’s failure to fully credit his statements regarding the frequency and intensity of his migraine headaches. Id. Judge Mahoney noted the ALJ pointed to Frankfurt’s inconsistent statements to providers regarding his headaches. Id. at 14 (citing AR 27). Judge Mahoney found substantial evidence supports the ALJ’s conclusion that Frankfurt’s July 2015 report of four migraines weekly to Dr. Marc Hines, his neurologist, was inconsistent with his statements to his Botox provider in June 2015 that he suffered only three mild headaches a week and four to five migraines a month and in October 2015 of four to five severe migraines a month. Id. at 15 (citing AR 27–28, 592, 714, 772–73). Judge Mahoney further found that although Frankfurt consistently sought treatment for and complained of migraine headaches, not all his migraines would render him unable to work. Id. Judge Mahoney noted the ALJ did not doubt that Frankfurt suffers migraines but found he exaggerated the intensity and frequency with which he suffers severe migraines and ...


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