Hardie v. Social Security Administration
ORDER DENYING 17 Motion for Summary Judgment and GRANTING 20 Motion for Summary Judgment. Signed by Magistrate Carolyn S Ostby on 11/3/2011. (Hard copy to pro se plaintiff D. Hardie) (JDH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
DANIEL R. HARDIE,
DEFENDANT’S MOTION FOR
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Plaintiff Daniel R. Hardie [Hardie] initiated this action pro se
seeking judicial review of the decision by the Defendant, Commissioner
of Social Security [Commissioner], to deny his application for
supplemental security income [SSI] under Title XVI of the Social
Security Act, 42 U.S.C. ' 1381-1383(c). Court Doc. 4. Pursuant to the
parties’ consent, this case was assigned to the undersigned judge for all
further proceedings, including entry of judgment. Court Doc. 11.
Now pending are the parties’ cross-motions for summary
judgment. Court Docs. 17 (Hardie=s motion) and 20 (Commissioner=s
motion). For the reasons stated below, Hardie=s motion for summary
judgment is denied, the Commissioner=s motion for summary judgment
is granted, and the decision by the Administrative Law Judge [ALJ]
denying Hardie’s SSI is affirmed.
Hardie received SSI benefits until he reached the age of 18, based
on a childhood diagnosis of congenital adrenal hyperplasia. Tr. at 866.
After Hardie turned 18, his eligibility for SSI was redetermined under
the rules for determining disability in adults. Tr. at 19; see 20 C.F.R. §§
46.920(c)-(g). On January 17, 2008, the Social Security Administration
determined that Hardie was no longer disabled, based on the adult
That determination was upheld on reconsideration, after a
disability hearing by a state agency Disability Hearing Officer. Id.
Thereafter, Hardie was granted a hearing by an ALJ, who found that
Hardie’s disability, and consequently his eligibility for SSI, ended on
January 1, 2008. Tr. at 26.
Hardie appealed to the Appeals Council [Council]. On October 19,
2009, the Council denied Hardie’s request for review. Tr. at 11. Hardie
now seeks the Court’s review. Court Doc. 4, 17.
STANDARD OF REVIEW
This Court=s review is limited. The Court may set aside the
Commissioner=s decision only where the decision is not supported by
substantial evidence or where the decision is based on legal error. Ryan
v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); 42 U.S.C. '
405(g). ASubstantial evidence is more than a mere scintilla, but less
than a preponderance.@ Id. (citing Bayliss v. Barnhart, 427 F.3d 1211,
1214 n. 1 (9th Cir. 2005) (internal quotations omitted)). AIt is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.@ Id. (internal quotation marks and citation
This Court must consider the record as a whole, weighing both the
evidence that supports and detracts from the Commissioner=s
conclusion, and cannot affirm the ALJ Aby isolating a specific quantum
of supporting evidence.@ Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
(9th Cir. 2006) (internal quotation marks and citation omitted). The
ALJ is responsible for determining credibility, resolving conflicts in
medical testimony, and resolving ambiguities. Hegel v. Astrue, 325
Fed.Appx. 580 (9th Cir. 2009)(citing Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir.1995)).
AWhere the evidence is susceptible to more than one rational
interpretation, one of which supports the ALJ=s decision, the ALJ=s
conclusion must be upheld.@ Thomas v. Barnhart, 278 F.3d 947, 954 (9th
Cir. 2002) (internal citation omitted).
BURDEN OF PROOF
A claimant is disabled for purposes of the Act if: (1) the claimant
has a 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 twelve months, and (2) the
impairment or impairments are of such severity that, considering the
claimant=s age, education, and work experience, the claimant is not only
unable to perform previous work, but the claimant cannot Aengage in
any other kind of substantial gainful work which exists in the national
economy.@ Schneider v. Commr., 223 F.3d 968, 974 (9th Cir. 2000)
(citing 42 U.S.C. ' 1382c(a)(3)(A)-(B)); 20 C.F.R. ' 416.905(a).
In determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. '' 404.1520(a)(4)(I)-(v),
The claimant must show that he or she is not currently
engaged in substantial gainful activity. Tackett, 180 F.3d at
If not so engaged, the claimant must show that he or she has
a severe impairment. Id.
The claimant is conclusively presumed disabled if his or her
impairments meet or medically equal one contained in the
Listing of Impairments described in 20 C.F.R. Pt. 404,
Subpt. P, App. 1 (hereafter AListing of Impairments@). Id. If
the claimant=s impairments do not meet or medically equal
one listed in the regulations, the analysis must proceed to
the fourth step.
If the claimant is still able to perform his or her past
relevant work, he or she is not disabled and the analysis
ends here. Id. AIf the claimant cannot do any work he or she
did in the past, then the claimant=s case cannot be resolved
at [this step] and the evaluation proceeds to the fifth and
final step.@ Id. at 1098-99.
If the claimant is unable to perform his or her past relevant
work due to a Asevere impairment (or because [he or she
does] not have any past relevant work)@ the court will
determine if the claimant is able to make an adjustment to
perform other work, in light of his or her residual functional
capacity, age, education, and work experience. 20 C.F.R. ''
404.1520(g), 416.920(g). If an adjustment to other work is
possible then the claimant is not disabled. Tackett, 180 F.3d
The claimant bears the burden of proof at steps one through four,
but at the fifth step the Commissioner bears the burden of establishing
that there is other work in significant numbers in the national economy
that the claimant can perform. Tackett, 180 F.3d at 1099. The
Commissioner can meet this burden via the testimony of a vocational
expert or reference to the Medical-Vocational Guidelines at 20 C.F.R.
Pt. 404, Subpt. P, App. 2.; Tackett, 180 F.3d at 1099. If the
Commissioner is unable to meet this burden, then the claimant is
disabled and entitled to benefits. Tackett, 180 F.3d at1099.
THE ALJ=s OPINION
The ALJ began by noting that Hardie was eligible for SSI as a
child. Tr. at 21. In determining that Hardie was no longer eligible for
SSI as an adult, the ALJ followed the applicable sequential evaluation
process for redetermination. Tr. at 21-25; Tackett, 180 F.3d at1098-99.
First, the ALJ found that Hardie had one severe impairment and two
non-severe impairments. Tr. at 21-22. The severe impairment was
congenital adrenal hyperplasty and hypothyroidism. Tr. at 21. The
ALJ found that Hardie’s fibromyalgia was either not medically
determinable or non-severe. Tr. at 22. The ALJ also found that
Hardie’s asthma was non-severe. Tr. at 21. The ALJ found that none of
these impairments, nor a combination thereof, meets or medically
equals the listed impairments in 10 C.F.R. Part 404, Subpart P,
Appendix 1. Tr. at 22.
Next, the ALJ found that Hardie has the residual functional
capacity to perform light work, as defined in 20 C.F.R. § 416.967(b). Id.
The ALJ qualified this by finding that “stairs and ladders can be
climbed on an occasional basis,” and that Hardie must “avoid
concentrated exposure to extreme cold and unprotected heights or
hazards due to occasional fatigue and dizziness.” Id. The ALJ then
concluded that these additional limitations have “little or no effect on
the occupational base of unskilled light work” so a finding of “not
disabled” is appropriate under the framework of the Medical-Vocational
Guidelines, Rule 202.17. Tr. at 25.
THE PARTIES= ARGUMENTS
Hardie makes five arguments.1 First, he maintains that, since he
These are made in Court Document 17, which Hardie titled “Brief of
Plainfiff’s [sic] Complaint,” but which he filed as a motion for summary
was found disabled as a child, his disability should continue now that he
is an adult. Court Doc. 17 at 2-3. Second, he argues that the ALJ did
not “consider all relevant evidence,” effectively asserting that the ALJ=s
decision is not supported by substantial evidence. Id. at 3. Third,
Hardie makes essentially a due process argument by claiming that the
“appeals council denied my right to an appeal” and that “I am denied
disability… for a [sic] order I could not attain and was not allowed to
remady [sic].”2 Id. at 3-4. Fourth, Hardie claims that the ALJ’s
decision was based on misrepresentations and facts in the record that
are not true, specifically concerning his arrest and incarceration record.
Id. at 5-6. Hardie asserts that the ALJ erred in negatively assessing
his credibility based on these mistakes of fact. Id. at 7.
Finally, Hardie states that “there was no accommodation in [sic]
my indigent situation,” because the ALJ “did not follow through” on the
“medical assessment” that the ALJ allegedly requested. Id. at 8. This
judgment. The Court takes the arguments in this document as Hardie’s
support for his request for summary judgment.
2 Hardie also asserts that he is entitled to “redress” under 42 U.S.C. §
1983 for “deprivation of rights.” Court Doc. 17 at 9. Hardies has not,
however, plead a 1983 action in his complaint. Court Doc 4. For this
is essentially an argument that the ALJ did not meet his duty to assist
in developing the medical evidence. Tonapetyan v. Halter, 242 F.3d
1144, 1150 (9th Cir. 2001). Based on these arguments, Hardie asks “to
be reinstated as the disabled person,” which this Court interprets as a
request that summary judgment be granted in his favor. Court Doc. 17
The Commissioner=s Arguments
The Commissioner responds to Hardie by arguing generally that
there is sufficient evidence in the record to support the ALJ’s decision,
and that the ALJ made no legal error. Court Doc. 21 at 4. The
Commissioner also responds to each Hardie’s five specific arguments.
First, the Commissioner asserts that disabled status as a child
does not guarantee continuing disability as an adult, and that the ALJ
correctly determined that Hardie was ineligible for benefits under the
different adult standard. Court Doc. 21 at 4; see also 42 U.S.C. §
1382c(a)(3)(H)(iii); 20 C.F.R. § 416.987. Second, the Commissioner
maintains that substantial evidence in the record supports the ALJ’s
reason, the Court will interpret the 1983 claim as part of Hardie’s due
determination. Court Doc. 21 at 4. Third, the Commissioner agrees
with the Appeals Council that Hardie established no bases for granting
appellate review, and therefore impugns Hardie’s due process claim. Id.
Fourth, the Commissioner argues that the ALJ reasonably made a
credibility determination based upon inconsistencies in the record
concerning Hardie’s incarceration and criminal background. Id. at 18.
Based on those inconsistencies in the record, the Commissioner
contends that the ALJ was correctly assessed Hardie’s credibility with
respect to his symptoms and his ability to work. Id. at 18-21.
Finally, the Commissioner disagrees with Hardie’s claim that the
ALJ ordered an additional medical evaluation, and failed to take
Hardie’s indigent status into account. Id. at 11. Instead, the
Commissioner argues that the ALJ correctly determined the record was
sufficient, and did not order any additional medical testing. Id. The
Commissioner asserts that the ALJ left the record open only to give
Hardie the opportunity to file objections or additional medical records
that Hardie might believe necessary – not the ALJ. Id. The
Commissioner thus argues that the ALJ met his independent duty to
fully and fairly develop the medical evidence, and was not indifferent to
Hardie’s indigent status. Id.
The primary issues before the Court are whether substantial
evidence supports the ALJ=s decision, and whether the ALJ=s decision is
free of legal error. Applying controlling Ninth Circuit authority, the
Court concludes that the ALJ=s decision is based on substantial
evidence and contains no legal error. For the reasons set forth below,
the Court finds Hardie’s five arguments unpersuasive.
Disability as a child does not indicate disability as an
Hardie maintains that, since he was found disabled as a child,
his disability should continue now that he is an adult. Court Doc. 17 at
2-3. The Social Security Act and its accompanying regulations require
that all individuals receiving SSI as children have their eligibility
redetermined when they reach age 18. 42 U.S.C. § 1382c(a)(3)(H)(iii);
20 C.F.R. § 416.987.
Disabled status as a child does not guarantee continuing disability
as an adult. 42 U.S.C. § 1382c(a)(4); 20 C.F.R. § 416.987. Benefits may
be denied to an adult who was formerly determined a disabled child if
the physical or mental impairment for which such benefits were
provided has ceased, does not exist, or is no longer disabling. 42 U.S.C.
§ 1382c(a)(4); 20 C.F.R. § 416.987. The regulations clarify this by
stating plainly that “we may find that you are not now disabled even
though we previously found that you were disabled.” 20 C.F.R. §
The regulations explain that “[w]hen we redetermine your
eligibility,” as required by § 1382c(a)(3)(H)(iii), “we will use the rules for
adults (individuals age 18 or older) who file new applications explained
in §§ 416.920(c) through (g). …we will not use the rules in § 416.994 for
determining whether disability continues.” 20 C.F.R. § 416.987(b).
The ALJ correctly used the eligibility requirements in 20 C.F.R. §§
416.920(c)-(g), as part of his analysis to evaluate Hardie’s disability
status as an adult. Tr. at 19-21. There was, therefore, no error in the
ALJ’s review of Hardie’s redetermination. Hardie’s argument that he
should be found disabled as an adult because he was disabled as a child
is legally incorrect.
The ALJ’s decision is supported by substantial
Hardie argues that the ALJ did not “consider all relevant
evidence,” which this Court interprets to be an assertion that the ALJ=s
decision is not supported by substantial evidence. Court Doc. 17 at 3.
The Court finds, however, that the ALJ’s decision is supported by
substantial evidence from the record.
The ALJ issued a thoughtful, detailed decision that includes a
thorough discussion of relevant medical evidence, opinions, and
testimony. Tr. at 19-25. The ALJ prefaced this discussion by noting his
Acareful consideration of the entire record.@ Tr. at 21. While this
declaration is not, by itself, definitive proof that the ALJ considered all
the available evidence, it does demonstrate his awareness of his
obligation to do so.
In evaluating Hardie=s claims, the ALJ was required to Amake
fairly detailed findings in support@ of his decision that would Apermit
courts to review those decisions intelligently.@ Vincent v. Heckler, 739
F.2d 1393, 1394 (9th Cir. 1984) (citation omitted). In doing so, an AALJ
does not need to discuss every piece of evidence@ and Ais not required to
discuss evidence that is neither significant nor probative[.]@ Howard ex
rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)(internal
quotations and citations omitted).
A reviewing court “must consider the entire record as a whole and
may not affirm simply by isolating a ‘specific quantum of supporting
evidence.’” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing
Robins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). But a
court reviews “only the reasons provided by the ALJ in the disability
determination and may not affirm the ALJ on a ground upon which he
did not rely.” Id. (citing Connett v. Barnhart, 340 F.3d 871,874 (9th Cir.
The ALJ reviewed the record and explained his rationale for
assessing Hardie=s functional capacity and credibility. Tr. at 19-25.
The ALJ’s decision reviewed the substantial evidence that informed and
supported his conclusion with respect to Hardie=s disability claim. Id.
The ALJ referenced the records of six doctors, who examined and/or
treated Hardie: Dr. Oliveira (Tr. at 21, 1074-1078), Dr. Peterson (Tr. at
23, 1019-21), Dr. Johnson (Tr. at 24, 1080-81), Dr. Ruth (Tr. at 23,
1060), Dr. Hanna (Tr. at 23, 1072), and Dr. Schofield (Tr. at 24, 992).
The ALJ also cited specific sixteen medical records supporting his
decision. Tr. at 21-25 (citing Tr. at 886, 949, 992, 1019-21, 1058, 107279, 1080-1133). Relying on this substantial evidence from the record,
the ALJ found that Hardie is capable of light, unskilled work, and
therefore ineligible for adult SSI benefits. Tr. at 22-25. The Court has
reviewed these medical records cited by the ALJ. The Court finds that
they support the ALJ’s conclusion that Hardie is not disabled. This
Court finds, therefore, that the ALJ’s decision is supported by
Hardie was afforded due process.
Hardie makes a vague due process argument by claiming that the
“appeals council denied my right to an appeal” and that “I am denied
disability… for a [sic] order I could not attain and was not allowed to
remady [sic].”3 Court Doc. 17. at 3-4. This Court agrees with the
Commissioner and the Appeals Council that Hardie establishes no
bases for the Appeals Council to grant review. Tr. at 11-12; Court Doc.
21 at 25. The only additional information Hardie provided to the
Appeals Council, in the nine months between the ALJ’s decision and the
date of the Council’s decision, was a one-page report by a physician’s
is not clear the “order” to which Hardie is referring, so this Court
will assume it was the determination of the Appeals Council, which
assistant. Tr. at 12. That report is not inconsistent with the
determination made by the ALJ. Tr. at 14, 19-25. Hardie had ample
chance to develop the record further and did not do so. Hardie was,
therefore, afforded due process.
The ALJ properly considered inconsistencies in the
record to assess Hardie’s credibility.
The ALJ also used inconsistencies in the record to determine that
Hardie was not credible, and provided clear and convincing evidence for
rejecting Hardie’s subjective assertions about his symptoms and his
inability to work. Hardie, however, claims that he is credible, and that
the ALJ’s decision was based on two misrepresentations of fact. Court
Doc. 17 at 6-7. Both of the alleged misrepresentations involve Hardie’s
arrest and incarceration record – first regarding marijuana, and second
concerning burglary. Id. at 5-6. Hardie essentially argues that the ALJ
erred when he misrepresented Hardie’s arrest and incarceration record
to conclude that Hardie is not credible. Court Doc. 17 at 7.
As to the marijuana charge, Hardie argues that “I have never
seems to be the focus of the surrounding discussion. See Court Doc. 17
stated to any person that I was incarcerated due to marijuana.” Tr. at
6. Dr. Oliveira's records, however, reflect that Hardie was
"Encarcerated [sic] in 2008 for Marijuana use." Tr. at 1074, 1078.
Hardie’s argument about his incarceration for burglary is similar. He
I was never put in prison (incarcerated) for burglary and weapons
offense, I was a [sic] accessory, because I was hanging out with so
called friends who did the crime, and was given probation, and put
in pre-release center because of a violation of probation over a
beer bottle collection that the probation officer said had alcohol in
it. I get so tired of being misrepresented.
Tr. at 6. Thus, Hardie argues that he was never incarcerated, and
never charged with anything relating to marijuana.
The ALJ, however, relied on specific inconsistencies in the record
to assess Hardie's credibility – not on whether Hardie was actually
“incarcerated,” or what Hardie might have been incarcerated for. Tr. at
21. The ALJ found that:
the claimant was not fully forthcoming with Dr. Olivera [sic]
during the examination. The claimant told Dr. Olivera [sic] that
he had been incarcerated due to marijuana offenses, but prior
records indicate that the claimant was incarcerated for burglary
and weapons offenses. (Exs. B19F, B20F/11). Although the
claimant’s crimes were not necessarily related to his medical
condition, it does suggest that the claimant’s credibility is in
Tr. at 21 (emphasis added). Regardless of whether Hardie was ever
incarcerated for marijuana violations, the ALJ was permitted to rely on
Dr. Oliveira’s records as to what Hardie told the doctor. See Tr. at
1074. Therefore, Hardie’s current arguments that he was never
incarcerated or charged with a marijuana offense are not determinative.
The ALJ did not misrepresent the facts in the record and properly based
his credibility determination on that record. See Tr. at 1074.
The ALJ may, after engaging in the appropriate analysis, reject a
claimant=s subjective testimony about the severity of symptoms, but he
must cite specific, clear, and convincing reasons for doing so. Lockwood
v. Comm’r Soc. Sec.,397 Fed. Appx. 288 (9th Cir. 2010). To assess
credibility in this manner, the ALJ may consider ordinary evaluation
techniques, including any unexplained or inadequately explained
failure to seek or follow treatment, and the claimant=s daily activities.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). However,
A[g]eneral findings are insufficient; rather, the ALJ must identify what
testimony is not credible and what evidence undermines the claimant=s
complaint.@ Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting
Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). The ALJ may take
the lack of objective medical evidence into consideration when assessing
credibility. Batson v. Commissioner of Social Security Administration,
359 F.3d 1190, 1196 (9th Cir. 2004). Inconsistencies in testimony may
also be factored in such an assessment. Orn v. Astrue, 495 F.3d 625,
636 (9th Cir. 2007) (citing Fair, 885 F.2d at 603).
The ALJ must also consider the following factors: the location,
duration, and intensity of pain; precipitating and aggravating factors;
type, dosage, effectiveness, and side effects of any medication;
treatment, other than medication, for relief of pain; functional
restrictions; and the claimant=s daily activities. 20 C.F.R. '
Here, the ALJ gave specific, clear, and convincing reasons for
finding that Hardie is not entirely credible in asserting that he is
incapable of all work activity. Tr. at 21-24. The ALJ highlighted
Hardie’s inconsistent statements as well as inconsistencies between the
medical evidence and Hardie’s testimony. Id.
In addition to the inconsistencies discussed above, the ALJ cited
inconsistencies between the medical findings and the symptoms that
Hardie alleged. First, the ALJ noted Hardie’s complaint of “joint pain
in ‘all’ joints,” but found that Hardie’s “fibromyalgia is not medically
determinable because the diagnosis was merely differential,” and came
“after all objective testing for any other rheumatologic disorder was
ruled out.” Tr. at 21. The ALJ also explained that “no follow-up testing
was performed… suggest[ing] that the symptoms were not as severe as
alleged.” Id. This opinion was further supported by Hardie’s treating
endocrinologist, Dr. Johnson, to whom “no complaints of joint pain were
alleged.” Tr. at 22.
Second, the ALJ noted that “non-compliance with [Hardie’s]
medication regimen was common” and that “missed doses… occurred on
average one day per week, indicating that the frequency and persistence
of the claimant’s symptoms was [sic] not only preventable, but
intermittent as well.” Tr. at 24. The ALJ also pointed to several
instances of missed appointments, “indicating that his symptoms were
not severe enough to require medical treatment.” Id.
Third, the ALJ pointed out that, after Dr. Johnson had found that
Hardie was doing well with essentially no symptoms, the doctor noted
that Hardie asked for a “statement of disability.” Tr. at 24, 1080. The
Dr. explained that “[w]e did send our records for his disability, but I was
reluctant to say he was disabled from his hormone abnormalities, which
are treated with medication.” Tr. at 1080. The ALJ correctly
considered the inconsistencies to determine that Hardie was not
Fourth, the ALJ correctly highlighted the inconsistencies in
Hardie’s own statements of his abilities. Tr. at 24. Despite claiming
complete disability, the ALJ noted that Hardie “admitted abilities to
perform all of the tasks required in the residual functional capacity.”
Tr. at 24, 949. That included walking for 6-7 hours, lifting 80-100
pounds, and sitting. Id. Hardie also described during the hearing a
number of activities in which he already engages, and which could
translate into employment. Tr. at 24, 1215-1222. All of this testimony,
from Hardie himself, directly contradicts his claim of complete
disability. The ALJ properly used these inconsistencies to assess
All of the foregoing observations, which the Court finds to be
supported by evidence in the record, indicate that the ALJ properly
applied credibility evaluation techniques in assessing Hardie=s
credibility. Smolen, at 1283-84 (citing Dodrill v. Shalala, 12 F.3d 915,
918 (9th Cir. 1993)). The Court cannot substitute its own interpretation
of the evidence for the ALJ=s interpretation. Orn, 495 F.3d at 629.
AWhere the evidence is susceptible to more than one rational
interpretation, one of which supports the ALJ=s decision, the ALJ=s
conclusion must be upheld.@ Thomas, 278 F.3d at 954 (citation
omitted). The ALJ’s interpretations and determinations of credibility
are supported by evidence available in the record. This Court must,
therefore, affirm the ALJ’s determination.
The ALJ met his independent duty to develop the
Finally, Hardie states that “there was no accommodation in my
indigent situation,” because the ALJ “did not follow through,” regarding
a “medical assessment” that Hardie claims the ALJ ordered. Id. at 8.
This Court interprets these statements as Hardie’s argument that the
ALJ did not meet his independent duty to fully and fairly develop the
medical evidence. See Reed, 270 F.3d at 841; Tonapetyan, 242 F.3d at
The Commissioner asserts that the ALJ only left the record open
to give Hardie the opportunity to file objections or to submit additional
medical records that Hardie might believe necessary, but that the ALJ
correctly determined that no more medical evidence was needed for the
ALJ to make his determination. Court Doc. 21 at 11. This Court agrees
with the Commissioner.
The ALJ explained to Hardie at the hearing:
At the conclusion of the hearing, I’ll leave this file with you. You
can take it out there to the room and you can sit there and go
through this file, and look to see if we have all your medical
records, look to see if there’s any documents here that you object
to; and then, you can have 10 days after this hearing to put in
written form the objections to any of these medical records. And…
if you have any additional medical records that you want to
submit that are not in the file, you can get those records and
submit them within the 10-day period.
Tr. at 1239.
After this statement, the ALJ repeated his intention to find that
Hardie was not disabled, based on the medical information that the ALJ
had in the file. Tr. 1239-1255. The ALJ indicated to both Hardie and
Hardie’s mother that he had sufficient medical information to make his
determination that Hardie was not disabled. See e.g. Tr. at 1243. The
ALJ did not state that a new functional capacity exam was needed, nor
did he order Hardie to have any additional medical examinations. For
these reasons, the Court finds that the ALJ not order additional
medical evidence, or ignore Hardie’s indigence, as Hardie suggests. The
Court finds that the ALJ correctly relied on the extensive record and
properly considered his burden to develop that record.
The ALJ’s decision was based on substantial evidence from the
record and contained no legal error. For these reasons,
IT IS ORDERED that:
the Commissioner=s motion for summary judgment (Court
Doc. 20) is GRANTED; and
Hardie=s motion for summary judgment (Court Doc. 17) is
The Clerk of Court is directed to enter judgment accordingly.
DATED this 3rd day of November, 2011.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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