Turner v. Commissioner of Social Security

Filing 19

ORDER re 5 Complaint filed by Robert Turner. This case is reversed and remanded to the Commissioner for further consideration pursuant to sentence four of 42 USC Section 405(g). See text of Order. Signed by Senior Judge Donald E OBrien on 3/25/14. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
ROBERT TURNER,
Plaintiff,

No. 13-CV-3008-DEO

v.
ORDER

CAROLYN W. COLVIN,
Commissioner of Social
Security,1
Defendant.
____________________
This

matter

is

before

the

Court

pursuant

to

Ismael

Soria’s [hereinafter Mr. Soria] application for disability
insurance benefits under Title II of the Social Security Act
(“Act”), 42 U.S.C. §§ 401 et seq.
hearing on August 29, 2013.

The parties appeared for a

This is an unusual case in that

the Plaintiff has not asked for an award of benefits, but has
only asked his case be remanded so the record can be further
developed.

After considering the parties’ arguments, the

Court took the matter under advisement and now enters the
following.

1

Mr. Turner originally filed this case against Michael
J. Astrue, Comm. of Social Security. On February 14, 2013,
Carolyn W. Colvin became the Commissioner of SSA. The Court,
therefore, substitutes Commissioner Colvin as the defendant in
this action. Fed. R. Civ. P. 25(d)(1).

I.

FACTUAL BACKGROUND
Mr. Turner was born May 22, 1969, and was 43 at the time

of the hearing.

He has a high school education.

He took some

college courses immediately proceeding the alleged onset date,
but has no degree.

He lives with his girlfriend in Rockwell

City, Iowa. He alleges disability based primarily on the loss
of his sight.

Mr. Turner lost most of his vision on July 15,

2010, due to a retinal hemorrhage which left him blind in his
right eye and with very poor vision in his left eye due to
branch retinal vein occlusion and multiple hemorrhages.

Mr.

Turner also recently suffered from a severe gastrointestinal
bleeding issue which developed in 2012. Finally, in September
2008, Mr. Turner was injured in a motorcycle accident wherein
he was traveling approximately sixty-five miles per hour and
struck another vehicle.

He suffered torn right posterior

ligament of his right knee, multiple soft tissue injuries, and
compression

syndrome

required fasciotomy.2

of

his

right

lower

extremity

which

As a result of this injury, Mr. Turner

2

Fasciotomy is a type of surgery done to relieve
pressure to allow better circulation.
2

was prescribed a leg brace and advised to use an ambulatory
device when needed.
II.

PROCEDURAL HISTORY
This

is

a

proceeding

under

Title

II

of

the

Social

Security Act (“Act”), 42 U.S.C. §§ 401 et seq. Section 405(g)
of the Act provides for judicial review of a “final decision
of the Commissioner of the Social Security Administration
[(“SSA”)].”

Mr. Turner filed for disability benefits under

Title II on August 3, 2010, with an alleged onset date of July
15, 2010.

Mr. Turner’s claim was denied initially March 28,

2011, and on reconsideration on July 6, 2011.

A hearing was

held before an administrative law judge on July 6, 2012.
Turner appeared at the hearing pro se.

Mr.

On July 27, 2012,

following the hearing, the administrative law judge (“ALJ”)
found Mr. Turner was not under a “disability” as defined in
the Act.

Following denial by the ALJ, Mr. Turner retained

counsel, appealed his case to the Appeals Council, who denied
it on December 18, 2012.

Mr. Turner filed the present

Complaint on February 8, 2013.

3

The ALJ set out the issue presently before the Court:
[t]he issue is whether the claimant is
disabled under sections 216(i) and 223(d)
of the Social Security Act. Disability is
defined as the inability to engage in any
substantial gainful activity by reason of
any medically determinable physical or
mental
impairment
or
combination
of
impairments that can be expected to result
in death or that has lasted or can be
expected to last for a continuous period of
not less than 12 months.
There is an
additional issue whether the insured status
requirements of sections 216(i) and 223 of
the Social Security Act are met.
The
claimant's earnings record shows that the
claimant has acquired sufficient quarters
of coverage to remain insured through
December 31, 2013. Thus, the claimant must
establish disability on or before that date
in order to be entitled to a period of
disability
and
disability
insurance
benefits.
Docket No. 10, Tr. 22.
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential

evaluation

process

for

determining

individual is disabled and entitled to benefits.
404.1520.

The five successive steps are:

whether

an

20 C.F.R. §

(1) determination

of whether a plaintiff is engaged in “substantial gainful
activity,” (2) determination of whether a plaintiff has a
“severe medically determinable physical or medical impairment”
4

that lasts for at least 12 months, (3) determination of
whether a plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
Capacity

(RFC)

indicates

requirements

incapacity

their

past

relevant

of

determination

an

of

whether,

given

to

perform

the

and

(5)

plaintiff’s

a

work,

RFC,

age,

education and work experience, a plaintiff can “make an
adjustment to other work.”

20 C.F.R. § 404.1520(4)(i-v).

At step one, if a plaintiff is engaged in “substantial
gainful activity” within the claimed period of disability,
there

is

no

disability

404.1520(a)(4)(i).

during

that

time.

20

C.F.R.

§

At step 2, if a plaintiff does not have a

“severe medically determinable physical or mental impairment”
that lasts at least 12 months, there is no disability.
C.F.R. § 404.1520(a)(4)(ii).
impairments

meet

or

20

At step 3, if a plaintiff’s

medically

equal

the

criteria

of

an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1, and lasts at least 12 months, a plaintiff is deemed
disabled. 20 C.F.R. § 404.1520(e). Before proceeding to step
4

and

5,

the

ALJ

must

determine
5

a

plaintiff’s

Residual

Functional Capacity [RFC].
still

do”

despite

404.1545(a)(1).

RFC is the “most” a person “can

their

limitations.

20

C.F.R.

§

The RFC an ALJ assigns a plaintiff has been

referred to as the “most important issue in a disability case
Malloy v. Astrue, 604 F. Supp. 2d 1247, 1250 (S.D.

. . . .”

Iowa 2009) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982)(en banc)). When determining RFC, the ALJ must
consider

all

of

the

relevant

evidence

and

all

of

the

Plaintiff’s impairments, even those which are not deemed
severe, as well as limitations which result from symptoms,
such as pain.

20 C.F.R. § 404.1545(a)(2) and (3).

An ALJ

“may not simply draw his own inferences about a plaintiff’s
functional

ability

from

medical

reports.”

Strongson

v.

Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004).
At step 4, if, given a plaintiff’s RFC, a plaintiff can
still

perform

disability.

their

past

relevant

work,

20 C.F.R. § 404.1520(a)(4)(iv).

there

is

no

At step 5, if,

given a plaintiff’s RFC, age, education, and work experience,
a plaintiff can make an adjustment to other work, there is no
disability.
416.920(a)(4)(v).

20

C.F.R.

§§

404.1520(a)(4)(v)

and

This step requires the ALJ to provide
6

“evidence” that a plaintiff could perform “other work [that]
exists in significant numbers in the national economy.”
C.F.R. § 404.1560(c)(2).

20

In other words, at step 5, the

burden of proof shifts from a plaintiff to the Commissioner of
the S.S.A..

Basinger v. Heckler, 725 F.2d 1166, 1168 (8th

Cir. 1984).

The ALJ generally calls a Vocational Expert (VE)

to aid in determining whether this burden can be met.
In this case, the ALJ applied the appropriate methodology
and found that Mr. Turner has not engaged in substantial
gainful employment since July 15, 2010.

The ALJ found two

severe impairments, hypertensive retinopathy and a history of
posterior ligament tear in his right knee.
other,

non-severe

impairments

pressure, and rectal bleeding.

of

The ALJ noted

diabetes,

high

blood

However, the ALJ found that

Mr. Turner did not suffer from a disability as contemplated by
the Social Security Code.

Specifically, the ALJ stated:

[t]he claimant does not have an impairment
or combination of impairments that meets or
medically equals the severity of one of the
listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).
Although the
claimant has sustained substantial visual
loss in his right eye due to retinal
hemorrhage, the damage in his left eye
would
be
mainly
from
hypertensive
7

retinopathy. In that eye, he may have some
difficulty with depth perception and
especially with trying to do fine, detailed
work but his visual acuity measurements do
not approach listing level severity. His
elevated blood pressure readings have
indicated
adequate
control
with
anti-hypertensive
medications.
The
undersigned believes that his vision on the
left
is
appropriate
for
doing
some
significant work tasks, including those
cited by the vocational expert at the
hearing.
As to his right knee problem, the claimant
does not necessarily have major destruction
of the knee joint. However, he does seem
to have some instability in the knee from
ligament damage that could require a knee
brace.
In any event, the objective
evidence as will be discussed below shows
that
he
continues
to
have
adequate
ambulation without actual inability to bear
weight, and that his ability to stand and
walk is not compromised to the point that
he could not be on his feet for less than
6 hours of the regular 8-hour workday.
Docket No. 10, Tr. 25.
The ALJ went on to consider residual functional capacity
and concluded:
[a]fter careful consideration of the entire
record, the undersigned finds that the
claimant has the residual functional
capacity to perform light work as defined
in 20 C.F.R. § 404.1567(b) except:
he
should avoid concentrated exposure to
hazards, should never climb ropes, ladders
or scaffolds, and should have no jobs
8

requiring fine visual acuity, fine depth
perception, fine far acuity as well as fine
near acuity.
Docket No. 10, Tr. 25.

In making that determination, the ALJ

relied on the state agency medical consultant.

Id.

The ALJ

went on to find that Mr. Turner could not return to past
relevant work.

However, the ALJ determined that there are

jobs that exist in significant number in the national economy
that Mr. Turner can perform.
III.

STANDARD OF REVIEW
This

Court's

role

in

review

of

the

ALJ's

decision

requires a determination of whether the decision of the ALJ is
supported by substantial evidence on the record as a whole.
See 42 U.S.C. § 405(g); Finch v. Astrue, 547 F.3d 933, 935
(8th

Cir.

2008).

Substantial

evidence

is

less

than

a

preponderance but enough that a reasonable mind might find it
adequate to support the conclusion in question.

Juszczyk v.

Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (citing Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).

This Court must

consider both evidence that supports and detracts from the
ALJ's decision.

Karlix v. Barnhart, 457 F.3d 742, 746 (8th

Cir. 2006) (citing Johnson v. Chater, 87 F.3d 1015, 1017 (8th
9

Cir. 1996)).

In applying this standard, this Court will not

reverse the ALJ, even if it would have reached a contrary
decision, as long as substantial evidence on the record as a
whole supports the ALJ's decision.

Eichelberger v. Barnhart,

390 F.3d 584, 589 (8th Cir. 2004).

The ALJ's decision shall

be reversed only if it is outside the reasonable "zone of
choice."

Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.

2006) (citing Culbertson v. Shalala, 30 F.3d 934, 939 (8th
Cir. 1994)).
This Court may also ascertain whether the ALJ's decision
is based on legal error.
(8th Cir. 2001).

Lauer v. Apfel, 245 F.3d 700, 702

If the ALJ applies an improper legal

standard, it is within this Court's discretion to reverse
his/her decision.

Neal v. Barnhart, 405 F.3d 685, 688 (8th

Cir. 2005); 42 U.S.C. 405(g).
IV.

ISSUES
In his brief, Mr. Turner raises two related issues:

ALJ failed to develop the record by not ordering a

10

the

consultative examination, and the ALJ failed develop the
record regarding a listing 2.03 visual limitation.
V.

ANALYSIS
In

order

for

a

plaintiff

to

qualify

for

disability

benefits, they must demonstrate they have a disability as
defined in the Social Security Act [hereinafter the Act]. The
Act defines a disability as an:
inability to engage in any substantial
gainful activity by reason of any 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 12
months . . . .
42 U.S.C. § 423(d)(1)(A).
A. Consultative Examination
The basic issue in this case is that Mr. Turner was not
represented by counsel until after the ALJ hearing.

The

Plaintiff argues that the ALJ failed to develop the record
and, essentially, made a determination without having all the
facts.

This Court agrees.

The Plaintiff argues:
[t]he ALJ failed to develop the record in
this case, no consultative examination had

11

been ordered by DDS prior to hearing, and
the ALJ did not order a post-hearing
consultative examination.
Docket No. 12, p. 16.
The

8th

Circuit

Court

of

Appeals

has

previously

criticized ALJ proceedings where the record is not adequately
developed.
Many of the inadequacies of the ALJ's
decision flow from his failure to develop
the record. The administrative hearing is
not an adversarial proceeding. See Battles
v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994).
The ALJ has a duty to develop facts fully
and fairly, and this duty is enhanced when
the claimant is not represented by counsel.
See Mitchell v. Shalala, 25 F.3d 712, 714
(8th Cir.1994).
Cox v. Apfel, 160 F.3d 1203, 1209 (8th Cir. 1998).

“[I]t is

reversible error for an ALJ not to order a consultative
examination when such an evaluation is necessary for him to
make an informed decision.”

Freeman v. Apfel, 208 F.3d 687,

692 (8th Cir. 2000)(internal citations omitted).
Based on that law, the Plaintiff argues:
[o]ften
DDS
orders
a
consultative
examination during the reconsideration
phase of review, however that was not done
in this case despite Mr. Turner’s assertion
that he has trouble walking and standing.
In his function forms Mr. Turner reported
that he is only able to stand or walk for
12

30 minutes and can walk two blocks before
he needs to stop and rest. (A.R. 220, 223)
In his request for reconsideration, Mr.
Turner disagreed with the denial of
benefits and stated that his “right leg has
gotten worse to stand on.” (A.R. 99) In
addition to DDS, an ALJ is also granted the
authority under the regulations to order a
consultative examination when warranted...
[citing] 20 C.F.R. § 404.1517.
Docket No. 12, p. 17-18.

Moreover,

[i]n this case, there were no assessments
or treatment records for the preceding four
years regarding Mr. Turner’s right leg and
knee
condition
and
his
resulting
impairments. The only treatment records in
the record relate to the time during which
he was hospitalized from the motorcycle
injury in 2008.
The ALJ lacked any
thorough evaluation of Mr. Turner’s current
leg and knee condition. Mr. Turner had no
insurance after 2008, and his only medical
care thereafter was for his eye condition
in
2010-2011,
and
his
emergency
gastrointestinal bleed in 2012.
The ALJ
clearly lacked sufficient medical evidence
on which to assess Mr. Turner’s residual
functional capacity to stand, walk and
lift.
Docket No. 12, p. 18.

The Plaintiff concludes, “[t]he ALJ’s

assessment of these issues was incomplete and without current
medical

support

limitations.”

for

Mr.

Turner’s

Docket No. 12, p. 19.

13

present

condition

and

As Judge Pratt stated, “[t]he burden of proof, therefore,
is on the Commissioner to prove with medical evidence that
Plaintiff has a residual functional capacity to engage in work
activity, and that other jobs exist in significant numbers
that Plaintiff is able to do in his impaired condition.”
Clester v. Apfel, 70 F. Supp. 2d 985, 992 (S.D. Iowa 1999).
In this case, the ALJ improperly reached his own medical
conclusion without reference to sufficient medical evidence.
The ALJ had a duty to develop the record.

Instead, because

Mr. Turner was not represented by counsel, the ALJ chose to
rely

on

absolutely

ophthalmologist’s

perplexing

opinion

medical

about

Mr.

evidence,
Turner’s

such

an

knee,

to

determine that Mr. Turner had the residual functional capacity
to obtain substantial gainful employment.

Accordingly, the

ALJ’s RFC is not supported by substantial evidence.

The

Plaintiff asks this issue be remanded for a consultative
examination.
B.

That request is granted.

2.03 Listing

Next,

the

Plaintiff

argues

that

the

ALJ

failed

to

consider 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 2.00(A)(6),
2.03, which considers contraction of the visual field.

14

In

this case, the ALJ only considered 20 C.F.R. Pt. 404, Subpt.
P, App. 1, §§ 2.00(A)(6), 2.02, which deals with visual
acuity.

The Defendant argues that the ALJ was correct in

determining that Mr. Turner had no vision field limitation.
Docket No. 13, p. 10.

However, that response misses the

substance of the Plaintiff’s argument. The Plaintiff does not
argue that the ALJ’s Listing 2.03 analysis was wrong.

The

Plaintiff argues that the ALJ’s Listing 2.03 analysis never
occurred.

Specifically:
[t]he ALJ’s RFC provided in pertinent part
the following restriction regarding visual
impairments:
“should
have
no
jobs
requiring fine visual acuity, fine depth
perception, fine far acuity as well as fine
near acuity.”
(A.R. 25)
The ALJ’s
decision
provides,
“[t]he
undersigned
believes that his vision on the left is
appropriate for doing some significant work
tasks, including those cited by the
vocational expert at the hearing.” (A.R.
25) However, the only analysis performed
by the ALJ was in relation to visual
acuity.
There
is
no
mention
of
consideration of Listing 2.03, or any
analysis
of
the
contraction
of
Mr.
[Turner’s] visual field.

Docket No. 12, p. 21.
As the Plaintiff points out, the ALJ must apply the
five-step

sequential

analysis

15

to

determine

a

claimant’s

disability status.

20 C.F.R. §§ 416.920(a)-(f) (1999); see

also, Cruze v. Chater, 85 F.3d 1320 (8th Cir. 1996).

At step

three of the required analysis, the ALJ must determine whether
a claimant has a physical or mental “impairment that meets or
equals a presumptively disabling impairment listed in the
regulation.”

Baker v. Apfel, 159 F.3d 1140, 1143 (8th Cir.

1998);

Barry v. Shalala, 885 F. Supp. 1224, 1243 (N.D. Iowa

1995).

The ALJ in this case failed to fully comply with step

three

due

to

the

lack

of

analysis

of

Listing

2.03.

Accordingly, this issue must be remanded. See Rice v. Astrue,
CIV. 11-2208, 2012 WL 5383112 (W.D. Ark. 2012) report and
recommendation adopted, 2:11-CV-02208, 2012 WL 5383108 (W.D.
Ark. 2012), stating: “[t]he ALJ states that he considered
Plaintiff's retinopathy under listing 2.02, which requires a
loss of visual acuity with remaining vision in the better eye
of 20/200 or less after best correction, however, there is no
indication that he also considered listings 2.03 (contraction
of the visual field in the better eye) and 2.04 (loss of
visual efficiency).

The statute clearly states that if

Plaintiff met listing 2.02, 2.03, or 2.04, then he would also
meet the listing for diabetes.

16

Because the ALJ failed to

consider these other two listings, we believe remand is
necessary to allow the ALJ to reevaluate the evidence and
determine whether Plaintiff's impairment met or equaled one of
these listings.”
VI.

CONCLUSION
It is clear the ALJ erred in the two areas set out above.

Accordingly,

this

case

is

reversed

and

remanded

to

the

Commissioner for further consideration pursuant to sentence
four

of

42

U.S.C.

§

405(g),

with

instructions

to

have

completed a consultative examination on Mr. Turner’s knee.
Additionally, the ALJ must consider Mr. Turner’s eyesight
under Listing 2.03.

To help that evaluation, the ALJ shall

order a consultative evaluation on Mr. Turner’s field of
vision.

Additionally, the ALJ shall further develop the

record as necessary to cover any medical developments since
the last hearing.

After those evaluations, the ALJ must

reconsider Mr. Turner’s claim.
Application for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (EAJA), must be filed
within thirty (30) days of the entry of final judgment in this
action.

Thus,

unless

this

17

decision

is

appealed,

if

plaintiff’s attorney wishes to apply for EAJA fees, it must be
done within thirty (30) days of the entry of the final
judgment in this case.
IT IS SO ORDERED this 25th day of March, 2014.
_______________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

18