Purvis v. Saul

ALLEN WILLIAM PURVIS, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.

No. C19-4036-LTS

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

August 13, 2020

MEMORANDUM OPINION AND ORDER ON REPORT AND RECOMMENDATION

I. INTRODUCTION

This case is before me on a Report & Recommendation (R&R) entered by United States Magistrate Judge Mark A. Roberts. Doc. No. 23. Judge Roberts recommends that I affirm the Commissioner of Social Security's partial denial of plaintiff Allen Purvis' applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401, et seq., and supplement security income (SSI) benefits under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. Purvis has filed objections (Doc. No. 24) to the R&R. 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

In August 2010, Purvis suffered a severe back injury while working as a heavy equipment operator. AR 34, 38-39. The injury required surgery and Purvis has not worked since. Id. In October 2012, he filed an application for DIB. AR 60. After being denied initially and upon reconsideration, his application was again denied after a hearing on February 12, 2014. Id. The Appeals Council declined to review the decision on June 25, 2015. AR 75.

On September 22, 2016, Purvis protectively filed another application for DIB and SSI alleging an onset date of February 20, 2014. AR 10. The application was denied initially and upon reconsideration. AR 10, 83-126. After a hearing, an Administrative Law Judge (ALJ) applied the familiar five-step evaluation process and issued a decision that was partially favorable to Purvis. AR 7-26. The ALJ found that Purvis became disabled on October 4, 2017, due to a spine disorder, obesity and congestive heart failure. AR 14, 19-20. However, because Purvis' insured status for DIB expired December 31, 2015, he was eligible only for SSI after that date. AR 20. As for the period from the alleged onset date, February 20, 2014, until his congestive heart condition was discovered on October 4, 2017, the ALJ found Purvis was not disabled because there was a significant number of jobs Purvis could have performed. AR 18-19. The Appeals Council denied Purvis' request for review on June 13, 2019. AR 1. Purvis then timely filed a complaint requesting judicial review in this court. He alleges three errors that warrant reversing the Commissioner's disability determination for the time period between February 20, 2014, and October 4, 2017. Doc. Nos. 1, 3, 19. The Commissioner resists Purvis on all three grounds. Doc. No. 21.

Purvis first argues that the ALJ erred at Step Three by failing to properly evaluate whether his impairments met or equaled Listing 1.04 (disorders of the spine). Doc. No. 19 at 5. Though the listing was mentioned by name, Purvis contends the ALJ failed to sufficiently explain why his impairments did not meet or equal it. Id. at 8. The Commissioner argues that Purvis' argument should be deemed waived because hisattorney admitted during the hearing that he could not meet the listing. Doc. No. 21 at 6-7. The Commissioner also argues the ALJ did not err because Purvis failed to show that his symptoms met Listing 1.04's severity and duration requirements. Id. at 7.

Purvis next contends that the ALJ erred when determining his Residual Functional Capacity (RFC) by failing to give controlling weight to an opinion from one of his treating physicians, Dr. Leszek J. Marczewski. Doc. No. 19 at 9. He argues that this error led to an inaccurate RFC and, therefore, an incorrect disability determination at Step Five. Id. at 9, 12-13. The Commissioner argues that the ALJ did not err because Dr. Marczewski's opinion for the time period at issue is supported by only a single conclusory treatment note. Doc. No. 21 at 10-11. The Commissioner also contends that the opinion is not supported by the record as a whole and was properly given little weight. Id.

Finally, Purvis argues that the ALJ failed to give proper weight to his subjective complaints of pain. Doc. No. 19 at 10. This created additional errors in his RFC. Id. at 12-13. The Commissioner argues that the ALJ properly considered Purvis' complaints and accurately weighed them in light of the rest of the record. Doc. No. 21 at 13-14.

With regard to the ALJ's analysis at Step Three, Judge Roberts noted that Purvis' attorney's statements at the hearing could have preclusive effects on judicial review but decided to evaluate the merits of Purvis' argument. Doc. No. 23 at 9. After reviewing Purvis' extensive medical record, Judge Roberts found that "while there is evidence that [he] experienced each of the individual symptoms [in Listing 1.04] at various medical appointments" there is no evidence "that [he] experienced the symptoms at the same time or consistently over a 12-month period." Id. at 14. Most notable was evidence that Purvis saw significant improvement in some symptoms over the course of physical therapy and lacked consistent positive straight-leg raise tests. Id. at 14. Judge Roberts also noted that the record indicated Purvis had ...