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Gilbert v. Saul

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

September 30, 2019

SUSAN A. GILBERT, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.




         This case is before me on a Report and Recommendation (R&R) filed by the Honorable Kelly K.E. Mahoney, Chief United States Magistrate Judge. See Doc. No. 14. Judge Mahoney recommends that I affirm the decision by the Commissioner of Social Security (the Commissioner) denying Susan A. Gilbert's application for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401, et seq. Gilbert has filed timely objections. See Doc. No. 15. 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

         Gilbert applied for DIB in November 2014, alleging disability beginning March 8, 2014, due to bi-polar disorder, depression, anxiety, ADHD and traumatic brain injury. Doc. No. 14 at 3 (citing AR 87-88); AR 226. After a hearing, an Administrative Law Judge (ALJ) applied the familiar five-step evaluation and found that Gilbert was not disabled as defined in the Act. Gilbert argues the ALJ erred by: (1) failing to give a good reason for discounting her treating psychiatrist's RFC opinion; (2) failing to acknowledge her therapist's opinion; and (3) failing to include a limitation in the RFC opinion of work that requires only one- to two-step tasks. Doc. No. 14 at 6. 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 Mahoney addressed each argument separately.

         First, Judge Mahoney noted that Gilbert's treating psychiatrist, Dr. Ann Rathe, opined that Gilbert suffered moderate limitations, defined as “preclud[ing] performance up to 20% of an 8 hour work day or 40 hour work week, ” in her ability to remember locations and work-like procedures; understand, remember, and carry out very short and simple instructions; perform activities within a schedule; and sustain ordinary routine without special supervision. Id. at 7 (citing AR 910-11). Dr. Rathe found Gilbert suffered marked limitations (precluding performance more than 20% of the time) in being punctual within customary tolerances; responding appropriately to changes in the work setting; and setting realistic goals or making plans independently of others. Id. (citing AR 910-12). She found extreme limitations (unable to ‘function in a regular, reliable, and sustained schedule) in maintaining attention and concentration for extended periods of time and in maintaining regular attendance, opining that she would miss work more than three times a month. Id. (citing AR 910-11). She also found extreme limitations in Gilbert's ability to work in coordination with or proximity to others without being distracted by them. Id. (citing AR 911).

         Dr. Rathe found Gilbert had marked limitations in her ability to complete a normal work day and extreme limitations in her ability to complete a normal work week. Id. at 8. She assessed mild limitations in several categories of social interaction, but moderate to extreme limitations (depending on the severity of her depression) in her ability to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. Id. (citing AR 911-12). Overall, Dr. Rathe found Gilbert suffered marked limitations in her activities of daily living and in maintaining social functioning and would frequently to constantly have deficiencies in concentration, persistence, or pace resulting in the failure to complete tasks in a timely manner. Id. (citing AR 912).

         Judge Mahoney noted the ALJ gave Dr. Rathe's opinion little weight, finding it inconsistent with Dr. Rathe's treatment records, the record as a whole, and Gilbert's activities of daily living, among other reasons. Id. (citing AR 20). Judge Mahoney then provided a very thorough discussion of Gilbert's treatment history with Dr. Rathe, see Doc. No. 14 at 8-21, noting that she began treatment in November 2014 to help with her short-term memory loss (suffered as a result of a car accident in 2002) and with managing stress and emotions. Id. (citing AR 268). Gilbert's treatment with Dr. Rathe consisted of objective examinations with mostly normal results, but great variety in Gilbert's reports of symptoms and the effectiveness of her medications. At best, Gilbert reported her medications were helping and she was doing well on them. Id. at 9-21 (citing AR 269, 271, 535, 537, 543-44, 656-69, 671-73, 680, 690, 698, 716-18, 724-32, 737, 739, 740-42, 751-53, 843, 871, 873-74, 904). At worst, Gilbert was admitted to the hospital in December 2014 with racing thoughts and complaints of not being able to tell what was reality and reported suicidal thoughts in October and December 2015 and February 2016. Id. (citing AR 404-10, 720-22, 733-35, 876, 878, 880, 892, 898). She also reported to the emergency room twice in March 2016 with reports of mania. Id. at 16 (citing AR 701, 876).

         Gilbert would also report increased symptoms when she admittedly forgot doses of her medication. Id. at 9-21 (citing AR 535, 701, 705, 707, 714-16, 886, 888-90). Dr. Rathe adjusted Gilbert's medications in response to her complaints of increased symptoms or undesirable side effects. Id. at 9-21 (citing AR 530, 536, 540, 543-44, 545, 547-48, 671-73, 685, 692, 703, 716, 746, 748, 751, 753). Overall, the treatment notes reflect that Gilbert experienced several ups and downs in her mental health treatment from November 2014 through March 2017. At times, Dr. Rathe attributed Gilbert's symptoms to stressors in her life such as fostering two special-needs children (AR 540, 755), being a full-time student (AR 545-46), receiving abnormal lab results indicating diabetes (Id.), losing her part-time job and not being able to afford her daughter's daycare costs (AR 547-48).

         Judge Mahoney concluded that substantial evidence supported the ALJ's conclusion that “[m]edications have been effective in reducing or controlling [Gilbert's] symptoms when used appropriately” and that the overall record and Gilbert's activities of daily living are inconsistent with the extreme limitations opined by Dr. Rathe. Id. at 19-20 (citing AR 20). She also reasoned that while the record reflects some limitations in maintaining attention and concentration, it does not reflect a total inability to concentrate for extended periods of time, as found by Dr. Rathe. Id. at 20. Rather, Judge Mahoney found that substantial evidence supported the ALJ's determination that Gilbert could concentrate for “simple, routine tasks” as she was able to maintain sufficient concentration to study, participate in class, take examinations and successfully graduate from community college. Id. She was also able to work 15 hours a week at an elementary school cafeteria, perform simple chores, make simple recipes, follow the plot of television shows, make scrapbooks and watch her niece's softball games. Id. (citing AR 269, 332, 435, 535, 543, 547, 627, 656, 674, 677, 680, 687, 690, 694, 709, 713, 727, 733, 737, 739-40, 744, 749). Judge Mahoney also agreed with the ALJ's impression that Dr. Rathe's “[t]reatment notes do not indicate missed appointments at a rate proportionate to 3 times per month.” Id. (citing AR 20). While she agreed with Gilbert that the rate Gilbert missed psychiatric appointments did not necessarily correlate to the rate Gilbert would miss work, she did not agree that the amount of times Gilbert missed her field experience hours in spring 2016 supported Dr. Rathe's finding that Gilbert would miss work more than three times a month. Id. Judge Mahoney reasoned that when reviewing the treatment notes as a whole, Gilbert's mental health appeared to have been the worst during the spring of 2016 and appeared to be the result of medication changes, not taking her medication as prescribed, as well as the stress of her final semester of community college. Id. The ALJ limited Gilbert to low-stress work, which Judge Mahoney noted is arguably less stressful than college. For these reasons, she concluded substantial evidence supports the ALJ's conclusion that Dr. Rathe's finding that Gilbert would miss work more than three times a month was inconsistent with the record as a whole. Id. Overall, she concluded the ALJ provided good reasons, supported by substantial evidence for discounting Dr. Rathe's opinion and recommends that I find the ALJ did not err as to this aspect of his opinion. Id. at 21.

         Next, Judge Mahoney addressed Gilbert's argument that the ALJ failed to acknowledge the opinion of Gilbert's therapist, Dr. Adarienne Burrow. Id. She noted that Gilbert attended therapy from April 2014 to May 2016 through the student health center while she attended college. Burrow's treatment notes are not in the record and the ALJ did not address the letter Burrow submitted evaluating Gilbert's limitations. Id. (citing AR 440-42).

         Judge Mahoney noted that Burrow, a licensed mental health counselor by the state of Iowa with a Master's degree in counseling or a related field, is not considered an “acceptable medical source” under the applicable regulations. Id. (citing 20 C.F.R. § 404.1502(a)). These regulations, however, require the ALJ to consider opinions from nonacceptable medical sources “using the same factors” as evaluating a treating source or other medical opinion. Id. (citing 20 C.F.R. § 404.1527(f)(1)).

         Judge Mahoney found the ALJ should have addressed Burrow's opinion but noted that her opinion generally echoed Dr. Rathe's opinion. Id. at 21-22 (citing AR 440-42, 908-13). She reasoned that the ALJ's discussion of Dr. Rathe's opinion (and the reasons he discounted that opinion) suggests that the ALJ would have similarly found Burrow's opinion inconsistent with the overall record and would not have assigned it much weight. Id. at 22. She stated: “Because the ALJ's discussion of the evidence in the opinion as a whole demonstrates the ALJ's reasoning for discounting Therapist Burrow's opinion, remand is not required for the ALJ to evaluate Therapist Burrow's opinion.” Id. (citing Hopper v. Colvin, No. 1:13CV0004 AGF/NAB, 2014 WL 1048556, at *11 (E.D. Mo. Mar. 17, 2014) (holding that although ALJ should have addressed nonacceptable source's second RFC opinion issued two years after the first, any error was harmless because addressing the opinion “would have no practical effect on the outcome of the case, ” since the source's second RFC opinion “was substantially similar to the [first] statement, ” which the ALJ discussed and assigned “no weight”)).

         Judge Mahoney further reasoned that this was not a situation in which Burrow's opinion was the only mental RFC opinion in the record from a provider who treated Gilbert's mental health. Id. at 22-23 (distinguishing cases). She noted the ALJ evaluated and addressed Gilbert's treating psychiatrist's RFC opinion, which was substantially similar to Burrow's opinion. Id. This distinguished Gilbert's case from Fett v. Colvin, No. C 14-3034-MWB, 2015 WL 5999385, at *20 (N.D. Iowa Oct. 15, 2015), in which the only medical opinions discussed by the ALJ were those of nonexamining state agency consultants and the unaddressed opinion from a nonacceptable source was from one of only a few providers who had treated the claimant's physical condition. Id. at 23 (also citing Anderson v. Comm'er of Soc. Sec., No. 18-CV0024-LRR (N.D. Iowa Jan. 25, 2019) (in which the ALJ did not address an opinion from a consultative examiner and there were no other opinions in the record from a treating or examining provider)).

         Judge Mahoney further found that the ALJ's failure to obtain Burrow's treatment notes did not require remand. Id. She noted the record contained substantial psychological evidence from a treating or examining physician, citing Dr. Rathe's treatment notes and the results of neuropsychological testing. Id. (citing Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir. 2004)). She recommends denying Gilbert's request to remand on this basis. Id. at 24.

         Next, Judge Mahoney addressed Gilbert's argument that by including a limitation in the RFC of “simple, routine tasks, with simple work[-]related decisions and few if any changes in work setting” (AR 15), the ALJ meant to limit her to jobs involving “simple one- or two-step instructions” - characterized as “reasoning level 1” jobs by the Dictionary of Occupational Titles (DOT). Id. Judge Mahoney noted that the reasoning levels in the DOT are described as follows:

• LEVEL 1 - Apply commonsense understanding to carry out simple one-or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job.
• LEVEL 2 - Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.
• LEVEL 3 - Apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.

Id. (citing DOT, App. C). She concluded it did not appear the ALJ meant to limit Gilbert to work involving one or two steps, as opposed to simple work generally. Id. at 25. The VE testified that the work he identified (or work that the ALJ ultimately determined Gilbert could perform) involved “simple routine tasks, simple work-related decisions, and few if any changes in work setting, ” but required a reasoning level of two and would require the performance of at least three steps. Id. (citing AR 22, 76-78, 82-84). Judge Mahoney noted the Eighth Circuit has held that there is no inconsistency between a claimant's ability “to handle simple job instructions; . . . to adapt to infrequent work changes; and . . . [to] perform[] basic mental demands of simple, routine, and repetitive work activity at the unskilled task level”' and the claimant's ability to perform jobs identified by the DOT as requiring a reasoning level of two.” Id. (citing Moore v. Astrue, 623 F.3d 599 602, 604-05 (8th Cir. 2010)). The court in Moore stated “the ALJ did not limit ‘simple' job instructions to ‘simple one- or two-step instructions' or otherwise indicate that [claimant] could perform only occupations at a DOT Level 1 reasoning level.” Id. (citing Moore, 623 F.3d at 604).

         In addressing Gilbert's argument that the medical evidence supports a limitation of one- to two-step work, Judge Mahoney discussed the medical opinions in the record. First, she examined the opinions of the nonexamining state agency consultants, Drs. Brandon and Wright, who concluded Gilbert had the RFC to “perform simple, repetitive tasks consisting of 1 to 2 step commands.” Id. at 26 (citing AR 97, 111-12). Judge Mahoney noted the ALJ assigned these opinions “partial weight, ” stating they were “fairly well supported and consistent with other evidence, ” but that the ALJ “also considered evidence not available to the state agency medical consultants.” Id. (citing AR 19-20).

         Dr. Rathe found Gilbert was even more limited in the areas of understanding, remembering and carrying out detailed instructions; maintaining attention and concentration for extended periods; completing a normal workday and workweek without interruptions from psychologically based symptoms; performing work at a consistent pace without an unreasonable number and length of rest periods; and to respond appropriately to changes in the work setting. Id. (citing AR 911-13). The ALJ assigned her opinion little weight. The record also contains an opinion from a one-time consultative examiner, Dr. Roland, who concluded Gilbert's memory and retention and recall were intact such that she would have the ability to remember two and perhaps three step instructions given by supervisory personnel. Id. (citing AR 517-22). The ALJ gave Dr. Roland's opinion “partial weight, ” noting his “findings are consistent [with] some other evidence, but the record as a whole supports a somewhat more restrictive [RFC].” Id. at 27 (citing AR 18). Judge Mahoney found the ALJ was referring to Dr. Roland's comment that Gilbert was “able to relate effectively to employers, supervisors, and residents/customers, ” in making this finding because the RFC limited Gilbert to work requiring only occasional contact with supervisors and coworkers and no contact with the public. Id. (citing AR 15, 522).

         Finally, a one-time neuropsychological examination performed by Dr. Roberts in February 2015 revealed:

Short-term Verbal Memory
Story Memory
Immediate Recall: 63rd percentile, average
Delayed Recall: 5th percentile, mildly defective
Initial Learning: 75th percentile, high average
Delayed Recall: 25th percentile, low average
. . .
Short-term Nonverbal Memory
Benton Visual Retention Test; 96th percentile, superior Delayed
Recall of RBANS figure: 61st percentile, average.

Id. (citing AR 430). Dr. Roberts found that Gilbert's “[p]oor recent memory for newly learned verbal material did not appear to be reasonably attributable to problems with basic attention and concentration” and that she was “likely to do better in employment and learning environments that are highly structured in nature and which have ‘right answers.'” Id. (citing AR 431-32). The ALJ gave Dr. Roberts' conclusion “great weight” finding that it was “supported and consistent with the evidence as a whole and provide[d] the best description of the claimant's ability to function.” Id. at 28 (citing AR 18).

         Judge Mahoney concluded that Dr. Roland's and Dr. Roberts' opinions as well as the ALJ's independent review of the medical evidence supported the ALJ's decision not to limit Gilbert to work involving only one- or two-step tasks. Id. While Dr. Roland commented that the results of his testing indicated the ability to remember two- and perhaps three-step instructions, he ultimately concluded that Gilbert's “[m]emory and intellect are sufficient for employment purposes.” Id. (citing AR 520, 522). Similarly, while Dr. Roberts' testing demonstrated limitations in recalling “newly learned verbal information” (but not nonverbal information), he ultimately concluded Gilbert could succeed in highly structured environments with “right answers, ” without imposing a limitation of one- to two-step tasks. Id. (citing AR 430, 432). Judge Mahoney concluded these opinions, in combination with the treatment notes and Gilbert's activities of daily ...

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