Griffin v. Comm'r of Soc. Sec.

CERENNA GRIFFIN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 18-CV-85-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

February 13, 2020

ORDER

I. INTRODUCTION....................................................................................1

II. RELEVANT PROCEDURAL HISTORY......................................................2

III. STANDARD OF REVIEW.........................................................................2

A. Review of Final Decision...................................................................2

B. Review of Report and Recommendation................................................4

IV. OBJECTIONS.........................................................................................6

A. Step-Five Determination....................................................................6

B. Treating Physician Opinions..............................................................9

1. Applicable law........................................................................9

2. Dr. Weldon's opinions...........................................................10

3. Dr. Kopesky's opinions..........................................................11

C. RFC and Period of Disability............................................................13

D. Appointments Clause Challenge........................................................16

V. CONCLUSION.......................................................................................20

I. INTRODUCTION

The matter before the court is Plaintiff Cerenna Griffin's Objections (docket no. 20) to United States Magistrate Judge Mark A. Roberts's Report and Recommendation (docket no. 19), which recommends that the court affirm Defendant Commissioner of Social Security's ("Commissioner") final decision to deny disability benefits to Griffin.

II. RELEVANT PROCEDURAL HISTORY

On August 27, 2018, Griffin filed a Complaint (docket no. 3), seeking judicial review of the Commissioner's final decision denying Griffin's applications for Title II disability insurance benefits and Title XVI supplemental security income ("SSI") benefits. On December 21, 2018, the Commissioner filed an Answer (docket no. 8). On March 26, 2019, Griffin filed the Plaintiff's Brief (docket no. 15). On April 24, 2019, the Commissioner filed the Defendant's Brief (docket no. 16). On May 7, 2019, Griffin filed the Reply Brief (docket no. 18).¹ On May 6, 2019, the matter was referred to Judge Roberts for issuance of a report and recommendation. On November 21, 2019, Judge Roberts issued the Report and Recommendation. On December 5, 2019, Griffin filed the Objections. On January 31, 2020, Griffin filed a "Notice of Supplemental Authority" (docket no. 21). The matter is fully submitted and ready for decision.

III. STANDARD OF REVIEW

A. Review of Final Decision

The Commissioner's final determination not to award disability insurance benefits is subject to judicial review. See 42 U.S.C. § 405(g). The court has the power to "enter . . . a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing." Id. The Commissioner's factual findings shall be conclusive "if supported by substantial evidence." Id. The Commissioner's final determination not to award SSI benefits is subject to judicial review to the same extent as provided in 42 U.S.C. § 405(g). See 42 U.S.C. § 1383(c)(3). "The court 'must affirm the Commissioner's decision if it is supported by substantial evidence on the record as a whole.'" Bernard v. Colvin, 774 F.3d 482, 486 (8th Cir. 2014) (quoting Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006)). "Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision." Fentress v.Berryhill, 854 F.3d 1016, 1019-20 (8th Cir. 2017) (quoting Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).

In determining whether the Commissioner's decision meets this standard, the court considers "all of the evidence that was before the [administrative law judge ("ALJ")], but [it] do[es] not re-weigh the evidence." Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court considers "both evidence that detracts from the Commissioner's decision, as well as evidence that supports it." Fentress, 854 F.3d at 1020; see also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007) (providing that review of the Commissioner's decision "extends beyond examining the record to find substantial evidence in support of the [Commissioner's] decision" and noting that the court must also "consider evidence in the record that fairly detracts from that decision"). The Eighth Circuit Court of Appeals explained this standard as follows:

This standard is "something less than the weight of the evidence and it 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)). The court "will not disturb the denial of benefits so long as the ALJ's decision falls within the available zone of choice." Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008)). "An ALJ's decision is not outside the zone of choice simply because [the court] might have reached a different conclusion had [the court] been the initial finder of fact." Id. (quoting Bradley, 528 F.3d at 1115). Therefore, "even if inconsistent conclusions may be drawn from the evidence, the [Commissioner's] decision will be upheld if it is supported by substantial evidence on the record as a whole." Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); see also Igo v. Colvin, 839 F.3d 724, 728 (8th Cir. 2016) (providing that a court "may not reverse simply because [it] would have reached a different conclusion thanthe [Commissioner] or because substantial evidence supports a contrary conclusion").

B. Review of Report and Recommendation

The standard of review to be applied by the court to a report and recommendation of a magistrate judge is established by statute:

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.

28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b)(3) (providing that, when a party properly objects to a report and recommendation on a dispositive motion, a district court must review de novo the magistrate judge's recommendation). The Eighth Circuit has repeatedly held that it is reversible error for a district court to fail to conduct a de novo review of a magistrate judge's report and recommendation when such review is required. See, e.g., United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003); Hosna v. Groose, 80 F.3d 298, 306 (8th Cir. 1996); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995); Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). The statute governing review provides only for de novo review of "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). When a party fails to object to any portion of a magistrate judge's report and recommendation, he or she waives the right to de novo review. See Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir. 1994). The United States Supreme Court has stated that "[t]here is no indication that Congress, in enacting § 636(b)(1)[ ], intended to require a district judge to review a magistrate's report to which no objections are filed." Thomas v. Arn, 474 U.S. 140, 152 (1985). However, "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 de novo or any other standard." Id. at 154.

The Eighth Circuit has suggested that in order to trigger de novo review, objectionsto a magistrate judge's conclusions must be specific. See Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989); see also Belk, 15 F.3d at 815 (noting that some circuits do not apply de novo review when a party makes only general and conclusory objections to a magistrate judge's report and recommendation and finding that Branch indicates the Eighth Circuit's "approval of such an exception"); Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990) (reminding the parties that "objections must be . . . specific to trigger de novo review by the [d]istrict [c]ourt of any portion of the magistrate's report and recommendation"). The Sixth Circuit Court of Appeals has explained the approach as follows:

A general objection to the entirety of the magistrate's report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the magistrate useless. The functions of the district court are effectively duplicated as both the magistrate and the district court perform identical tasks. This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act. We would hardly countenance an appellant's brief simply objecting to the district court's determination without explaining the source of the error. We should not permit appellants to do the same to the district court reviewing the magistrate's report.

Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991); see also Goney v. Clark, 749 F.2d 5, 6 n.1 (3d Cir. 1984) (finding that "plaintiff's objections lacked the specificity necessary to trigger de...