O'Byrne v. Colvin

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Denying 17 Motion for Summary Judgment filed by Jean S. O'Byrne; Adopting 26 Report and Recommendation; Granting 22 Motion for Summary Judgment filed by Carolyn W. Colvin (Written Opinion). Signed by Senior Judge David S. Doty on 6/25/2014. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 13-284(DSD/SER)
Jean S. O’Byrne,
Plaintiff,
ORDER

v.
Carolyn W. Colvin, Acting
Commissioner of Social Security,
Defendant.

Edward C. Olson, Esq., 331 Second Avenue South, Suite
420, Minneapolis, MN 55401, counsel for plaintiff.
Ann M. Bildtsen, Assistant U.S. Attorney, 300 South
Fourth Street, Suite 600, Minneapolis, MN 55415, counsel
for defendant.

This

matter is

before

the

court

upon

plaintiff

Jean

S.

O’Byrne’s objection to the May 8, 2014, report and recommendation
of Magistrate Judge Steven E. Rau.

In his report, the magistrate

judge recommends that O’Byrne’s motion for summary judgment be
denied and the motion for summary judgment by defendant Carolyn W.
Colvin, Acting Commissioner of Social Security (Commissioner), be
granted.

For the following reasons, the court overrules the

objection and adopts the report and recommendation in its entirety.

BACKGROUND
The background of this matter is fully set forth in the report
and recommendation, and the court briefly summarizes the history of
the present action.

O’Byrne seeks judicial review of the decision

by the Commissioner to deny her application for social security
disability benefits.
initially

and

upon

The Commissioner denied the application
reconsideration.

O’Byrne

requested

an

administrative hearing and, on November 23, 2010, the ALJ affirmed
the denial of her application.

R. 77.

The Social Security

Administration Appeals Council denied a request for review, thus
making

the

ALJ’s

determination

the

final

decision

of

the

Commissioner.
On February 4, 2013, O’Byrne filed this action, seeking
judicial review of the decision denying benefits.
moved for summary judgment.

Both parties

On May 8, 2014, the magistrate judge

recommended granting the Commissioner’s motion.

O’Byrne objects.

DISCUSSION
The

court

reviews

the

report

and

recommendation

of

the

magistrate judge de novo, and the findings and decisions of the
Commissioner

for

substantial

evidence.

§ 636(b)(1)(c); 42 U.S.C. § 405(g).

See

28

U.S.C.

“Substantial evidence is less

than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s conclusion.”

Byes v.

Astrue, 687 F.3d 913, 915 (8th Cir. 2012) (citation omitted).

The

substantial evidence test requires analysis of the record as a
whole and consideration of evidence that both supports and detracts
from the Commissioner’s decision. Id. The court, however, may not

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“reverse

the

Commissioner’s

decision

evidence supporting a different result.”

simply

because

there

is

Hall v. Chater, 109 F.3d

1255, 1258 (8th Cir. 1997) (citation omitted).

Moreover, a court

may not substitute its judgment for that of the ALJ.
Barnhart, 324 F.3d 981, 983 (8th Cir. 2003).

Fastner v.

Rather, the court

will disturb the ALJ’s decision to deny benefits only if “the
record contains insufficient evidence to support the outcome.”
Nicola v. Astrue, 480 F.3d 885, 886-87 (8th Cir. 2007) (citation
omitted).
whether,

In other words, the question before the court is
considering

the

entire

record,

a

jury

reasonably come to the same conclusion as the ALJ.

could

have

See Allentown

Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67 (1998).
The Commissioner employs a five-step sequential analysis in
making a disability determination. See 20 C.F.R. § 404.1520(a)(4).
The ALJ must consider (1) whether the claimant has engaged in
substantial gainful activity during the alleged disability period,
(2) the medical severity of the impairments, (3) whether the
impairments

meet

the

criteria

of

any

Social

Security

Income

listings, (4) the claimant’s residual functional capacity and past
relevant work and (5) whether the impairments preclude the claimant
from engaging in other work.

See Goff v. Barnhart, 421 F.3d 785,

790 (8th Cir. 2005).
At step one, the ALJ found that O’Byrne had not engaged in
substantial gainful activity during the alleged disability period.

3

R. 82.

The ALJ then determined that O’Byrne had impairments

including chronic pain disorder, fibromyalgia, chronic fatigue
disorder, degenerative disc disease, osteoarthritis and partial
bilateral hearing loss.

Id.

The ALJ concluded that O’Byrne did

not have any medically-determinable mental impairments. Id. at 83.
At step three, the ALJ determined that the identified impairments,
though severe, did not meet or medically equal the enumerated
impairments.

Id.

The ALJ next found that O’Byrne had the residual

functional capacity to perform sedentary work, though she was
unable to perform tasks requiring unimpaired bilateral hearing, and
that she required a cane to ambulate.

Id.

Finally, the ALJ found

that O’Byrne could perform her past relevant work and concluded
that O’Byrne was not disabled.

Id. at 86.

Upon review, the magistrate judge found that the ALJ properly
concluded that O’Byrne did not have a mental disability.
No. 26, at 15-20.

See ECF

O’Byrne objects to such a conclusion and argues

that “[t]he limitations outlined in the report of ... Dr. Sarff[]
should have alerted the ALJ to the possible existence of a severe
mental impairment.”

ECF No. 28, at 2.

Specifically, O’Byrne

argues that the ALJ should have developed the record on the issue
of a severe mental impairment because Dr. Phillip Sarff observed
certain mental limitations and acknowledged the potential utility
of

an

Minnesota

Multiphasic

Personality

Inventory

assessment, but did not conduct such an assessment.

4

(MMPI)

An ALJ has the duty to fully and fairly develop the record.
See Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000).

“There is

no bright line test for determining when the [Commissioner] has ...
failed to develop the record.

The determination in each case must

be made on a case by case basis.”

Smith v. Astrue, 232 F. App’x

617, 619 (8th Cir. 2007) (per curiam) (alterations in original)
(citation and internal quotation marks omitted).

An ALJ’s duty to

develop the record may include re-contacting a medical provider for
clarification of an opinion, but “only if a crucial issue is
undeveloped.” Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005)
(citation omitted).
record

is

only

prejudicial.”

“[R]eversal due to failure to develop the

warranted

where

such

failure

is

unfair

or

Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995)

(citation omitted).
Here, Dr. Sarff conducted a thorough mental status evaluation
during which O’Byrne expressly denied suffering from symptoms of
depression or anxiety.

See R. 866.

Dr. Sarff’s report indicates

that O’Byrne exhibited normal affect and did not disclose any prior
mental health treatment.

Id. at 867, 869.

Notably, Dr. Sarff did

not diagnose

any

psychological disorders

evaluation.

Dr.

Sarff

observed

that

as

a result

O’Byrne

of

struggled

his
with

reciting numerical sequences in reverse, executing certain mental
tasks quickly and completing serial seven subtractions, and noted
that she commented on experiencing problems with concentration.

5

See id. at 867.

Dr. Sarff unambiguously concluded, however, that

O’Byrne’s performance on the assessment was likely “average for her
age”

and

suggested

concentration.”

Id.

only

“mild

Further,

weaknesses

although

Dr.

for
Sarff

sustained
noted

the

potential utility of an MMPI assessment, “[t]he ALJ is required to
order medical examinations and tests only if the medical records
presented

to him

do not

give

sufficient medical

determine whether a claimant is disabled.”

evidence

to

Halverson v. Astrue,

600 F.3d 922, 933 (8th Cir. 2010) (citation and internal quotation
marks omitted).

Thus, given Dr. Sarff’s articulated observations

and conclusions, the ALJ was not obligated to seek additional
clarifying information or order an MMPI assessment.
Astrue, 619 F.3d 963, 970-71 (8th Cir. 2010).

See Jones v.

In sum, the ALJ did

not fail in his duty to fully and fairly develop the record and,
because the record contains sufficient evidence to support the
outcome, the court will not disturb the ALJ’s decision to deny
benefits.
2007).

See Nicola v. Astrue, 480 F.3d 885, 886-87 (8th Cir.

Accordingly, the court overrules the objection and adopts

the report and recommendation of the magistrate judge in its
entirety.

6

CONCLUSION
Therefore, IT IS HEREBY ORDERED that:
1.

The objection to the report and recommendation [ECF No.

28] is overruled;
2.

Plaintiff’s motion for summary judgment [ECF No. 17] is

denied;
3.

Defendant’s motion for summary judgment [ECF No. 22] is

granted;
4.

The report and recommendation [ECF No. 26] is adopted in

its entirety.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

June 25, 2014
s/David S. Doty
David S. Doty, Judge
United States District Court

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