Moline v. Berryhill

Filing 18

MEMORANDUM OPINION AND ORDER ADOPTING 16 REPORT AND RECOMMENDATION; the Commissioner's Objection 17 is Overruled; Defendant's Motion for Summary Judgment 14 filed by Nancy Berryhill is Denied; Plaintiff's Motion for Summary Judgment 10 filed by Lee Richard Moline, Jr. is Granted in Part (Written Opinion). Signed by Judge Ann D. Montgomery on 3/7/2019. (TLU)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Lee Richard M., Jr.,
Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER
Civil No. 17-5125 ADM/BRT

Nancy Berryhill,
Acting Commissioner of
Social Security,
Defendant.
______________________________________________________________________________
Stephanie M. Balmer, Esq., Falsani, Balmer, Peterson & Balmer, Duluth, MN, on behalf of
Plaintiff.
Tracey Wirmani, Esq., Special Assistant United States Attorney, Assistant Regional Counsel,
Social Security Administration, Dallas, TX, on behalf of Defendant.
______________________________________________________________________________
I. INTRODUCTION
This matter is before the undersigned United States District Judge for a ruling on the
Objection [Docket No. 17] of Defendant Nancy Berryhill, Acting Commissioner of Social
Security (“Commissioner”) to Magistrate Judge Becky Thorson’s December 17, 2018 Report
and Recommendation (“R&R”) [Docket No. 16]. In the R&R, Judge Thorson recommends
granting in part Plaintiff Lee Richard M.’s (“Plaintiff”) Motion for Summary Judgment [Docket
No. 10], denying the Commissioner’s Motion for Summary Judgment [Docket No. 14], and
remanding this matter to the Administrative Law Judge (“ALJ”) for further proceedings. For the
reasons set forth below, the Objection is overruled and the R&R is adopted.

II. BACKGROUND1
This is Plaintiff’s second appeal to a United States District Court following a final
decision by the Commissioner on Plaintiff’s December 8, 2010 applications for Disability
Insurance Benefits (“DIB”) and Social Security Income (“SSI”). Plaintiff’s first appeal was filed
in the United States District Court for the Western District of Arkansas in 2013, after an ALJ
denied benefits on May 4, 2012 and the Social Security Administration (“SSA”) Appeals
Counsel denied Plaintiff’s request for review. Tr. [Docket No. 8] 1–4, 8–28, 891–98.
The Arkansas District Court remanded Plaintiff’s case to the SSA to further develop the
record concerning the impact of Plaintiff’s gout and chronic renal insufficiency on Plaintiff’s
residual functional capacity (“RFC”).2 Tr. 895–96. The district court noted:
[N]either of these diagnoses [of gout and chronic renal insufficiency]
were considered in the Physical RFC completed on January 22, 2011, or
in the subsequent requests for medical advice. Nor is there any record of
a medical source statement addressing Plaintiff’s ability to function in the
workplace from his treating rheumatologist or nephrologist. The ALJ did
include these diseases in the Plaintiff’s list of severe impairments.
However, he dismissed the effect of both diseases for lack of objective
evidence and failure to seek treatment when assessing the overall RFC.
Once the ALJ was made aware of a crucial issue that might change the
outcome of a case, he had a duty to conduct further inquiry to fully
develop the record. He did not. Further, because the record was not
developed, the ALJ apparently assessed the effects of Plaintiff’s gout and
chronic renal insufficiency without the benefit of a medical opinion as to
how these diseases might affect Plaintiff’s ability to function in the
workplace.
Tr. 896 (internal citation omitted).

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The full procedural and factual background is described in the R&R and is incorporated
by reference.
2

A claimant’s RFC is defined as what the claimant can do in a work setting despite his
limitations. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010); 20 C.F.R. § 404.1545(a)(1).
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The district court concluded that remand was necessary and ordered the ALJ on remand
to “fully and fairly develop the record as to Plaintiff’s gout and chronic renal insufficiency.” Tr.
897. The remand order instructed that “[a]s part of this development the ALJ must recontact
Plaintiff’s treating nephrologist and rheumatologist for clarification on Plaintiff’s gout and
chronic renal insufficiency” and “obtain an RFC from both specialists.” Id. The district court
further directed that once the information was obtained, the ALJ should reassess Plaintiff’s
overall RFC and present the information to a vocational expert. Id.
On remand, the ALJ attempted to obtain opinions from Plaintiff’s treating physicians by
faxing a form titled “Medical Source Statement of Ability to do Work-Related Activities
(Physical)” to the physicians. Tr. 1545–66. Plaintiff’s rheumatologist returned the form without
completing it, stating “We do not have the ability to do these. McBride rehab can.” Tr. 1549.
Plaintiff’s nephrologist did not respond despite the form being faxed to his office three times.
See Tr. Index [Docket No. 8, Attach. 1] Ex. B30F. The ALJ did not attempt to contact the
physicians through other means and did not seek an RFC assessment from a consulting or
reviewing specialist after the unsuccessful efforts to obtain information from Plaintiff’s treating
physicians.
On July 25, 2017, after another set of hearings on remand, the ALJ issued a partially
favorable decision. Tr. 674–96. The ALJ concluded that Plaintiff was disabled as of February 1,
2014, but was not disabled before that date because he had the RFC to perform sedentary work
until January 31, 2014. Tr. 681. Based on this conclusion, the ALJ held that Plaintiff was
entitled to SSI benefits beginning February 1, 2014. Tr. 696. However, the ALJ held that

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Plaintiff was not entitled to DIB because he was not disabled at any time through December 31,
2012, the date he was last insured. Tr. 696.
In determining that Plaintiff had the ability to function in the workplace before
February 1, 2014, the ALJ cited the same exhibits and made similar comments about Plaintiff’s
chronic renal insufficiency and gout as in the previous decision that led to the Arkansas district
court’s remand. Compare Tr. 22–23, with Tr. 687.
Plaintiff filed this case in November 2017 for judicial review of the July 25, 2017
decision. Plaintiff and the Commissioner each filed motions for summary judgment. The R&R
recommends granting Plaintiff’s motion in part, denying the Commissioner’s motion, and
remanding for further development of the record. The R&R concludes that remand is necessary
because, “as was pointed out by the [Arkansas] district court previously, ‘the ALJ apparently
assessed the effects of Plaintiff’s gout and chronic renal sufficiency without the benefit of a
medical opinion as to how these diseases might affect Plaintiff’s ability to function in the
workplace.’ (Tr. 896) And thus, for the same reasons as the district court found before, remand
is required.” R&R at 13.
The Commissioner objects to the R&R’s remand conclusion and argues that the ALJ’s
decision should be summarily affirmed.
III. DISCUSSION
A.

Standard of Review
A district court must make an independent, de novo review of those portions of an R&R

to which a party objects and “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also D. Minn.
LR 72.2(b).
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The Commissioner’s decision to deny social security benefits must be affirmed if it
conforms to the law and is supported by substantial evidence in the record as a whole. 42 U.S.C.
§ 405(g); Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). “Substantial evidence is less
than a preponderance, but enough that a reasonable mind would find it adequate to support the
ALJ’s determination.” Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). The reviewing
court must consider both evidence that supports the Commissioner’s decision and evidence that
detracts from it, and the reviewing court must uphold the Commissioner’s decision if it is
supported by substantial evidence, even when substantial evidence exists in the record that
would have supported a contrary decision or when the reviewing court would have reached a
different conclusion. Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001).
B. Commissioner’s Objection
The Commissioner specifically objects to the R&R’s conclusion that the ALJ did not
abide by the Arkansas District Court’s remand order. The Commissioner argues that the ALJ
complied with the remand order by contacting Plaintiff’s nephrologist and rheumatologist as
instructed, and that although neither physician provided the requested information, the ALJ
could not force them to do so.
As the R&R recognized, a “district court’s remand order will often include detailed
instructions concerning the scope of the remand, the evidence to be adduced, and the legal or
factual issues to be addressed.” Sullivan v. Hudson, 490 U.S. 877, 885 (1989). “Deviation from
the court’s remand order in the subsequent administrative proceedings is itself legal error,
subject to reversal on further judicial review.” Id. at 886.
The Court agrees with the conclusion in the R&R that the ALJ failed to follow the
directives of the Arkansas Court’s remand order. The order required the ALJ to further develop
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the record concerning how Plaintiff’s gout or chronic renal insufficiency might affect his ability
to function in the workplace. Tr. 896. The ALJ was instructed to obtain an RFC assessment
from the specialists treating these diseases. Tr. 897. The ALJ’s efforts to obtain the information
were by fax communication only and were not successful. No other means of comunication with
the treating physicians was attempted. Additionally, while the ALJ could not force the
specialists to respond, there is no indication that the ALJ sought to obtain a consultative
examination from any other medical expert. Thus, the ALJ did not further develop the record as
required, but instead relied on the same exhibits from his earlier decision to conclude that
Plaintiff’s gout and chronic renal insufficiency were not as limiting as he alleged. Because the
ALJ failed to fulfill the requirements of the remand order, a second remand is necessary.
The Commissioner also argues that the ALJ was not required to obtain a medical opinion
regarding Plaintiff’s gout and renal insufficiency because the record included sufficient evidence
to support the ALJ’s RFC assessment. Specifically, the ALJ observed that the record showed
only rare instances of swelling related to gout, and Plaintiff’s laboratory results relating to
Plaintiff’s chronic renal insufficiency were typically within normal ranges prior to February 1,
2014. Tr. 687. The Commissioner thus contends that the ALJ possessed adequate evidence to
determine Plaintiff’s RFC and that no medical opinion was necessary.
This argument directly contradicts the Arkansas Court’s holding that the medical
evidence was not sufficient to determine Plaintiff’s overall RFC. This Court will not subvert that
holding. As the Arkansas Court explained, once an ALJ becomes aware of a crucial issue that
could affect the outcome of a disability determination, the ALJ has a duty to conduct further
inquiry to fully develop the record. Tr. 895 (citing Snead v. Barnhart, 360 F.3d 834, 838 (8th
Cir. 2004)). “This duty includes the responsibility of ensuring that the record includes evidence
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from a treating physician, or at least an examining physician, addressing the particular
impairments at issue.” Strongson v. Barnhart, 361 F.3d 1066, 1071–72 (8th Cir. 2004).
“Because a claimant’s RFC is a medical question, an ALJ’s assessment of it must be supported
by some medical evidence of the claimant’s ability to function in the workplace.” Perks v.
Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012). “[A]n administrative law judge may not draw upon
his own inferences from medical reports.” Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir.
2003) (quoting Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir.1975)).
Here, the ALJ included gout and chronic renal insufficiency in the list of Plaintiff’s
severe impairments, but did not fully develop the record with medical evidence addressing how
these impairments affect Plaintiff’s ability to function in the workplace, as the Arkansas District
Court ordered. The Court agrees with the conclusion in the R&R that remand is necessary to
fully develop the record.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1.

The Commissioner’s Objection [Docket No. 17] is OVERRULED;

2.

The R&R [Docket No. 16] is ADOPTED;

3.

Plaintiff’s Motion for Summary Judgment [Docket No. 10] is GRANTED IN
PART;

4.

Defendant’s Motion for Summary Judgment [Docket No. 14] is DENIED; and

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5.

The matter is REMANDED under Sentence Four of 42 U.S.C. § 405(g) for
further proceedings consistent with the Report and Recommendation.

LET JUDGMENT BE ENTERED ACCORDINGLY.
BY THE COURT:

s/Ann D. Montgomery
ANN D. MONTGOMERY
U.S. DISTRICT JUDGE
Dated: March 7, 2019.

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