Birge v. Social Security Administration

Filing 10

ORDER reversing the Commissioner's decision and remanding this case for a reconsideration. Signed by Magistrate Judge Beth Deere on 1/6/14. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
GARY L. BIRGE
V.

PLAINTIFF
CASE NO.: 4:13CV00008 BD

CAROLYN W. COLVIN,1 Commissioner,
Social Security Administration

DEFENDANT

ORDER REMANDING TO THE COMMISSIONER
Gary Birge sought judicial review of the denial of his application for supplemental
security income. Mr. Birge based his application on degenerative disk disease, scoliosis,
strokes, anxiety, headaches, and high blood pressure. SSA record at p. 36.
Mr. Birge had attended school through the ninth grade. Id. at p. 633. At the time
of the hearing, he was fifty years old. Id. at p. 633. He was last self-employed as an auto
mechanic but had to quit that job when he couldn’t concentrate and remember how to do
things. Id. at p. 640.
The Commissioner’s Decision
Mr. Birge’s first application was denied initially and upon reconsideration. After
denial of the application, Mr. Birge filed an untimely request for a hearing, which was
also denied. The Appeals Council, however, later remanded his application after Mr.

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On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of
Social Security. She is therefore substituted for Michael J. Astrue pursuant to
Fed.R.Civ.P. 25(d).
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Birge made a showing of good cause for the late filing. In the interim, Mr. Birge filed a
second application for supplemental security income. Id. at 14. The two applications
were consolidated for hearing. Id.
After holding a hearing and considering Mr. Birge’s application, the
Commissioner’s ALJ determined that Mr. Birge had severe impairments – residuals of
stroke, disorder of the back, hypertension, and mood disorder – but that he had the
residual functional capacity (“RFC”) to perform light work, except that he could only
occasionally climb, balance, crawl, kneel, stoop, and crouch. Id. at pp. 18-22. He also
had to avoid hazards, including unprotected heights and moving machinery. Id. The ALJ
additionally limited him to work where interpersonal contact would be incidental to the
work performed; the complexity of tasks would be learned and performed by rote, with
few variables and little judgment; and the supervision required would be simple, direct,
and concrete. Id. The ALJ, relying on the testimony of a vocational expert, concluded
that Mr. Birge was not disabled under the Social Security Act and denied the application.
Id. at pp. 22-23.
After the Commissioner’s Appeals Council denied Mr. Birge’s request for review,
the ALJ’s decision became a final decision for judicial review. Id. at pp. 6-9. Mr. Birge
filed this case to challenge the ALJ’s decision. (Docket entry #1) In reviewing the

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decision, the court must determine whether substantial evidence supported the decision
and whether the ALJ made a legal error.2
Development of the Record
Mr. Birge complains here that the ALJ erred by not including in the record two
treating physicians’ reports that were referenced in his pre-hearing brief: (1) a mental
RFC assessment by Allan Kirkland, M.D., dated November 12, 2008; and (2) a physical
MSS Form-A, also by Dr. Kirkland, dated November 12, 2008. Id. at 228-39. Because
the two applications were consolidated, there was a consolidation of the records. Mr.
Birge’s attorney and the ALJ had the following discussion at the hearing:
ALJ: Okay. We’ll call her in at the appropriate time. And do you want to make an
opening statement or just rely on your memorandum?
ATTY: No, sir. Are the exhibits that you listed, are they going to be the paper file
or the - ALJ: What I listed is the paper file, yes.
ATTY: We’re putting it all there?

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See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Slusser v. Astrue, 557 F.3d 923,
925 (8th Cir. 2009) (stating that the court’s “review of the Commissioner’s denial of
benefits is limited to whether the decision is ‘supported by substantial evidence in the
record as a whole’”); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will uphold
the Commissioner’s decision to deny an applicant disability benefits if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.”).
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ALJ: And it’s all - - I think it’s all there as far as I can tell, but we’ll - - we’ll be
making sure of that. Okay?
ATTY: Okay. Thank you, sir.
ALJ: Mm-hmm.
ATTY: We’d rely on our pre-hearing memorandum.
Id. at p. 636
Mysteriously, neither of Dr. Kirkland’s November 12, 2008 opinions that were
referenced in Mr. Birge’s pre-hearing memorandum appear in the SSA record. Nor were
the opinions referenced in the ALJ’s opinion. While Mr. Birge’s attorney may have
missed an opportunity to correct the record at the Appeals Council stage of the
proceedings, it is ultimately the ALJ’s burden to fully develop the record independent of
Mr. Birge’s burden to press his case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir.
2010)(citation omitted). Here, the ALJ was made aware of Dr. Kirkland’s opinions and
Mr. Birge’s reliance on them to establish disability because of the pre-trial brief. Under
the circumstances, the ALJ erred by not including Dr. Kirkland’s opinions in the record.
Conclusion and Remand
The ALJ erred by failing to include Dr. Kirkland’s opinions in the record. For this
reason, the court reverses the Commissioner's decision and remands this case for a
reconsideration of Mr. Birge’s application based on all of the available evidence.

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It is so ordered this 6th day of January, 2014.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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