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Hall v. Saul

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

October 10, 2019

JAIME E. HALL, 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 & Recommendation (R&R) by the Honorable Kelly K.E. Mahoney, Chief United States Magistrate Judge. Doc. No. 19. Judge Mahoney recommends that I affirm the decision of the Commissioner of Social Security (the Commissioner) denying plaintiff Jaime Hall's application for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401, et. seq. Id. Hall filed timely objections to the R&R. Doc. No. 20. The Commissioner has not responded.

         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 . . . 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) (quoting Kelley v. Callahan, 133 F.3d 583, 587 (8th Cir. 1998)). The Eighth Circuit has explained that the standard “is something less than the weight of the evidence and 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) (quoting Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir. 1991)).

         To determine whether the Commissioner's decision meets this standard, the court considers “all of the evidence that was before the ALJ.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers both evidence which 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). However, the court does not “reweigh the evidence presented to the ALJ, ” id. at 555, or “review the factual record de novo.” Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citation omitted).

         If, after reviewing the evidence, the court “find[s] 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 if the court “might have weighed the evidence differently.” Culbertson, 30 F.3d at 939 (citation omitted). 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 also 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 (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

         Hall filed for DIB on August 25, 2014, alleging an onset date of May 27, 2013. AR 61-62, 168-71. She claimed disability due to fibromyalgia, reflex sympathetic dystrophy/complex regional pain syndrome (RSD/CRPS), migraines, arthritis, depression, anxiety, multiple sclerosis and knee problems. Id. at 61, 69, 73. The Social Security Administration (SSA) denied Hall's application initially on January 12, 2015, and on reconsideration on April 28, 2015. Id. at 61-92, 94, 99. After a hearing, an Administrative Law Judge (ALJ) found that Hall suffered from the following severe impairments: migraines, fibromyalgia, RSD/CRPS, cerebral microvascular disease, diabetes mellitus, degenerative joint disease of the right shoulder, gout, depression, anxiety, carpal tunnel syndrome, degenerative disc disease of the cervical, thoracic and lumbar spine and obesity. Id. at 15. The ALJ found that none of these impairments, individually or in combination, “met or medically equaled the severity of” a listed impairment. Id. at 16. The ALJ specifically considered Listings 1.04, 12.04 and 12.06. Id.

         Although the ALJ determined that Hall's residual functional capacity (RFC) prevents her from performing any past relevant work, the ALJ ultimately found that other work existed in significant numbers that Hall could perform, such as addresser, eye glass frames polisher and surveillance systems monitor. Id. at 21-22. Thus, the ALJ concluded that Hall was not disabled at any time from May 27, 2013, to March 31, 2017, the date last insured. Id. at 22. The Appeals Council denied Hall's request for review on March 12, 2018. Id. at 1-3. Hall then filed a timely complaint requesting judicial review by this court. See Doc. Nos. 1, 3; see also 20 C.F.R. § 422.210(c).

         Hall argues that the ALJ erred in determining she was not disabled because (1) the ALJ's step-five conclusions were not supported by substantial evidence due to an alleged conflict between the Dictionary of Occupational Titles (DOT) and the VE testimony relied upon, (2) the ALJ improperly discounted the testimony of Hall's treating physician, (3) the ALJ failed to properly address whether Hall's unlisted impairments are medically equivalent to any listings at step three and (4) the ALJ who decided Hall's claim was not properly appointed as required by the Supreme Court's recent interpretation of the Appointments Clause in Lucia v. SEC, 138 S.Ct. 2044 (2018). Judge Mahoney issued her R&R on August 16, 2019. Doc. No. 19.

         Judge Mahoney first addressed Hall's argument that the ALJ erred by failing to consider certain listings. Judge Mahoney found that any error in failing to consider the listings specified by Hall was harmless. Id. at 8, 14. Judge Mahoney first addressed Listing 14.09D, a listing for inflammatory arthritis, which the SSA has stated an ALJ may consider in determining whether a claimant's fibromyalgia medically equals a listing. Id. at 6 (citing and discussing SSR 12-2p, 2012 WL 3104869 (July 25, 2012)). After noting that Listing 14.09D requires evidence that the claimant's impairment limits activities of daily life, maintaining social functioning, or the ability to complete tasks in a timely manner due to deficiencies in concentration, persistence or pace, Judge Mahoney found that “[s]ubstantial evidence supports the ALJ's conclusion that Hall did not suffer” such limitations. Id. at 7. Judge Mahoney noted that Hall did not challenge the ALJ's RFC findings or provide “argument[s] regarding how her impairments medically equal the severity of Listing 14.09D.” Id. Judge Mahoney then found that the extensive evidence of Hall's daily activities and interactions with others “demonstrate[d] the ability to go out in public places and interact with people” with “only moderate limitations in concentration, persistence, and maintaining pace.” Id. at 7-8.

         Judge Mahoney then addressed whether the ALJ erred by failing to consider whether Hall's migraines medically equaled the severity of Listing 11.02 regarding seizures.[2] Id. at 8-15. Judge Mahoney found that substantial evidence supports the ALJ's conclusions that Hall was able to control her migraines with treatment and that the record contained little evidence of severe migraines or headaches since January 2015. Id. at 10-11. Judge Mahoney found this dispositive because “Listing 11.02 equivalency requires experiencing these kinds of symptoms with treatment.” Id. at 10. Ultimately, Judge Mahoney concluded that “[a]ny error by the ALJ in failing to explicitly consider and analyze Listing 11.02 was harmless given the ALJ's findings regarding Hall's migraines in his discussion of her RFC, which was supported by substantial evidence.”[3]Id. at 14.

         Next Judge Mahoney addressed Hall's argument regarding the weight the ALJ gave her treating physician's medical opinion. See Id. at 15-20. Judge Mahoney found that the ALJ did not err in giving only partial weight to the opinion of Hall's treating physician, Daniel Glascock, M.D. Id. at 20. Judge Mahoney stated that the ALJ could properly find that the evidence in the record was inconsistent with “the extreme limitations found by Dr. Glascock, ” particularly regarding Hall's ability to sit for extended periods of time and use her fingers, hands and arms. Id. at 16-19. Judge Mahoney concluded that the ALJ's summary of Hall's treatment history and daily activities in the RFC analysis provided “good reasons” for discounting Dr. Glascock's opinion and were supported by substantial evidence. Id. at 20.

         Next Judge Mahoney addressed Hall's arguments regarding a potential conflict between the ALJ's mental RFC determinations, the Vocational Expert (VE) testimony and the DOT. Id. at 20-29. “Hall argues that the DOT description of the surveillance system monitor position conflicts with the VE's testimony, ” and thus it should not have been included by the ALJ when determining whether a significant number of jobs exist in the national economy which a person with Hall's RFC could perform. Id. at 21; see also Doc. No. 13 at 3. Specifically, Hall argues that the RFC's statement limiting Hall to only “work involving simple, routine instructions and tasks” is fundamentally inconsistent with the reasoning level of three required by the position of surveillance system monitor. Doc. No. 19 at 22.

         Judge Mahoney ultimately concluded that no “apparent conflict existed between the VE's testimony and the DOT.” Id. at 29. After defining and distinguishing Specific Vocational Preparation ratings (SVP) from Reasoning Levels and discussing the cases cited by Hall and the Commissioner, Judge Mahoney stated:

The ALJ's limitation to simple and routine instructions must be read in context: the ALJ limited Hall to “remember[ing], understand[ing], and carry[ing] out simple, routine instructions and tasks consistent with SVP levels 1 or 2 type jobs.” By stating that Hall's simple-work limitation was consistent with jobs with an SVP level of one or two, the ALJ found Hall's SVP level limited, but not her reasoning level.

Id. (alterations in original). Judge Mahoney expressly “decline[d] to decide whether a reasoning level of three is an ‘apparent conflict' with an RFC limitation to simple and routine instructions and tasks.” Id. Judge Mahoney also declined to decide whether it was harmless error to use the surveillance system monitor position in making step five decisions because it “is a close issue” whether the remaining 9, 600 jobs in the national economy identified by the VE would have been a significant number had the surveillance position been excluded due to conflicts between the VE testimony and the DOT. Id. at 29 n.8.

         Finally, Judge Mahoney addressed Hall's Appointments Clause challenge. Id. at 30-34. Judge Mahoney noted that “[e]very district court in the Eighth Circuit to address the issue (including the Northern District of Iowa) has found a Social Security claimant's Appointments Clause challenge raised for the first time on judicial review to be forfeited.” Id. at 33. Judge Mahoney adopted the reasoning of these cases and recommends rejecting Hall's Appointments Clause challenge. Id. at 11.

         IV. ANALYSIS

         A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505. An individual has a disability when, due to his physical or mental impairments, he “is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists . . . . in significant numbers either in the region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant has a disability within the meaning of the Act, the Commissioner follows the five-step sequential evaluation process outlined in the regulations. 20 C.F.R. § 404.1520; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). Each of these steps may be dispositive in a claimant's case. See 20 C.F.R. § 1520(a)(4) (“If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step. If we cannot find that you are disabled or not disabled at a step, we go on to the next step.”). Because Hall argues that the ALJ erred at multiple steps of the five-step process and each step may be dispositive, I will address each argument according to its place in the five-step evaluation process.

         Hall's objections largely echo the arguments raised in her principal brief. She faults the ALJ's analysis at step three. She argues that the ALJ erred by not evaluating whether migraines, headaches, fibromyalgia and RSD/CRPS are medically equivalent to listings such as 11.02 and 14.09D. Doc. No. 13 at 10-12. She further argues that “the R&R erred by splitting the record in two” to analyze her headaches and migraines pre- and post-treatment. Doc. No. 20 at 5. Hall argues that treatment for migraines and headaches proceeded throughout the entire relevant period, and even if the ALJ correctly disregarded her headaches and migraines due to her improved condition beginning January 2015, “the ALJ still had to evaluate whether [she] medically equaled Listing 11.02 for the period from her alleged onset date . . . through December 31, 2014.” Id.

         Hall also argues that the ALJ erred by discounting the opinion of her treating physician. Doc. No. 13 at 8-10. She contends that the ALJ did not provide sufficient reasons to discount Dr. Glascock's opinion. Doc. No. 20 at 4. In addition, Hall argues that Judge Mahoney should have applied a harmless-error review rather than a substantial-evidence review when determining whether the record supported the ALJ's decision to discount the treating source opinion. Doc. No. 20 at 4-5.

         Hall argues that the ALJ erred in his step-five conclusions. She contends that the ALJ's step-five denial of benefits is not supported by substantial evidence because the ALJ failed to fully develop the record regarding an apparent conflict between the VE's testimony and the DOT. Doc. No. 13 at 3-7. According to Hall, without further developing the record regarding the apparent conflict, the ALJ's step-five determinations were unsupported by substantial evidence and warrant remand. Doc. No. 20 at 2-3.

         Finally, Hall argues that the ALJ who decided her claim was not properly appointed as required by the Supreme Court's recent interpretation of the Appointments Clause in Lucia v. SEC, 138 S.Ct. 2044 (2018). Id. at 6-12. I will address each of Hall's arguments separately.

         A. Failure to Expressly Address Listings

         The purpose of the listings is to streamline the decision-making process by identifying claimants whose medical impairments are so severe that it is likely they would be found disabled regardless of their vocational backgrounds. Bowen v. Yuckert, 482 U.S. 137, 153 (1987). The Supreme Court has explained:

The listings . . . are descriptions of various physical and mental illnesses and abnormalities, most of which are categorized by the body system they affect. Each impairment is defined in terms of several specific medical signs, symptoms, or laboratory test results. For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify . . . .
For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is “equivalent” to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment. . . . A claimant cannot qualify for benefits under the “equivalence” step by showing that the overall functional ...

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