Cordes v. Berryhill

• Decision Date: 08 September 2017
• Docket Number: No. 16-CV-2104-LTS,16-CV-2104-LTS
• Parties: BRADLEY W. CORDES, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Iowa

BRADLEY W. CORDES, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

No. 16-CV-2104-LTS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

September 8, 2017

MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

I. INTRODUCTION

This case is before me on a Report and Recommendation (R&R) by the Honorable C.J. Williams, Chief United States Magistrate Judge. See Doc. No. 18. Judge Williams recommends that I affirm the decision of the Commissioner of Social Security (the Commissioner) denying plaintiff Bradley W. Cordes' application for Social Security disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act).

Cordes filed timely objections to the R&R. Doc. No. 19. The procedural history and relevant facts are set forth in the R&R and are 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 also 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 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) (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, "do[es] 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 "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 (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 also Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005).

B. Review of Report and Recommendation

A district judge reviews 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). Thus, a district court may review de novo any issue in a magistrate judge's report and recommendation. Id. The Eighth Circuit Court of Appeals has "emphasized the necessity . . . of retention by the district court of substantial control over the ultimate disposition of matters referred to a magistrate." Belk v. Purkett, 15 F.3D 803, 815 (8th Cir. 1994). As this court has previously stated, "[e]ven if the reviewing court must construe objections liberally to require de novo review, it is clear to this court that there is a distinction between making an objection and making no objection at all . . . ." Lynch v. Astrue, 687 F. Supp. 2d 841 (2010) (citing Coop. Fin. Assoc. v. Garst, 917 F. Supp. 1356, 1373 (N.D. Iowa 1996)). This court will provide de novo review of all issues that might be addressed by any objection. Id.

III. THE R&R

Cordes alleged disability due to degenerative disc disease, depressive disorder and generalized anxiety disorder. AR 14. In support of his claim, Cordes submitted a physical residual functional capacity (RFC) opinion drafted by his treating physician, Dr. Meredith Christ, M.D., along with a mental RFC opinion by Dr. Muhammad Chowdhry, M.D., and Vicki Boling, ARNP (the Chowdhry-Boling opinion). At issue are the ALJ's evaluation of these medical opinions, as well as whether there was substantial evidence in the record as a whole in support of the ALJ's RFC determination.

After setting forth the relevant facts, Judge Williams summarized the ALJ's assessment of Dr. Christ's opinion as follows:

Dr. Christ treated claimant from April 24, 2014, through the time she rendered her opinion on January 23, 2015. (AR 616-20). Dr. Christ stated that she saw claimant every two or three months during that time period for low back pain. (AR 616). In a January 2015 Medical Source Statement, Dr. Christ described claimant's symptoms as:

Continuous pain, inability to independently tie shoes, depression & anxiety secondary to pain; inability to maintain one position due to pain. Pain & numbness right leg & foot. Fatigue.

(AR 616). Dr. Christ described claimant's pain thus:

Main area of pain is low back & down right leg. Leg will give out randomly causing difficulty w/ ambulation. Pain rates 9-10/10 majority of the time. Sitting, standing, & walking increases pain.

(Id.). Dr. Christ also indicated that claimant had neuro-anatomic distribution of pain. (Id.). Dr. Christ identified reduced range of motion (indicating claimant could not flex his low back far enough to reach his feet, even from a sitting position), positive supine straight leg raising on his right leg at 30°and left leg at 45°, positive seated straight leg raising test, abnormal gait, mild sensory loss on the right side, reflex loss on the right side, and motor loss. (AR 617). Dr. Christ indicated that claimant's medication caused claimant fatigue, impaired his mental clarity, and caused mild urinary retention issues. (Id.).

With regard to work-related limitations, Dr. Christ opined that claimant could only walk ½ city block without rest or severe pain, could sit for only 15 minutes and stand for only 20 minutes at one time. (AR 617). Dr. Christ opined that claimant could stand or walk less than 2 hours and sit for about 2 hours in an eight-hour workday. (Id.). Dr. Christ further opined that claimant needed a job that permitted him to shift positions at will, needed periods where he could walk around during work, and would need a cane when standing or walking. (AR 618). Dr. Christ also opined that claimant would be "off task" more than 25% of the time, is incapable of even "low stress" work, and would need to be absent from work more than four days per month as the result of impairments or treatment. (AR 619).

The ALJ noted that Dr. Christ treated claimant for less than a year before rendering her opinion. (AR 21). The ALJ accurately summarized Dr. Christ's opinion as set forth above. (Id.). The ALJ gave

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