United States District Court, N.D. Iowa, Eastern Division
JAIME E. HALL, 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 & 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
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 . . . 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)).
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).
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.”).
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 (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
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
Thomas v. Arn, 474 U.S. 140, 150 (1985).
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.
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.
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.
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.
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. 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.”Id. at 14.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Failure to Expressly Address Listings
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
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