United States District Court, N.D. Iowa, Eastern Division
SUSAN A. GILBERT, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security,  Defendant.
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 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.
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 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.
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).
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).
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).
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).
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.
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).
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. §
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”)).
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
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.
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
• 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).
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).
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).
a one-time neuropsychological examination performed by Dr.
Roberts in February 2015 revealed:
Short-term Verbal 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
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
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 ...