Martin v. Saul

Filing 19

ORDER denying 12 Motion for Summary Judgment; granting 15 Motion for Summary Judgment; adopting Report and Recommendations re 17 Report and Recommendation.(Written Opinion) Signed by Judge David S. Doty on 2/16/2021. (DLO)

CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 1 of 8

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CIVIL NO. 20-311(DSD/BRT)
Odis W. M.,
Plaintiff,
v.
Andrew Saul,
Commissioner of Social Security,
Defendant.

This
plaintiff

matter

is
W.M. 1

Odis

before
to

the

the

court

upon

November

30,

the
2020,

objection

by

report

and

recommendation of Magistrate Judge Becky R. Thorson (R&R).

The

magistrate judge recommends that the court (1) deny Odis’s motion
for summary judgment, and (2) grant the motion for summary judgment
by

defendant

Andrew

(Commissioner).

Saul,

Commissioner

of

Social

Security

After a de novo review, and for the following

reasons, the court overrules Odis’s objection and adopts the R&R
in its entirety.

BACKGROUND
This action arises out of Odis’s application for social
security income (SSI).

1

The complete background of this action is

The court’s policy is to use only the first name and last
initial of non-governmental parties in social security cases. As
such, the court will refer to plaintiff by his first name.

CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 2 of 8

fully set forth in the R&R and will not be repeated here.

The

court will only briefly summarize the history of the present
action.
On or about October 25, 2016, Odis filed for SSI based on
various mental and physical disabilities.

The Administrative Law

Judge (ALJ) held a hearing on December 11, 2018, in which she
denied Odis’s request to admit additional records because the
request was untimely under the five-day rule.

The five-day rule

requires that the parties provide the ALJ with all evidence “no
later than five business days before the date of the scheduled
hearing.”
not

20 C.F.R. §§ 404.935(a), 416.1435(a).

comply,

the

ALJ

“may

decline

to

If claimants do

consider

evidence, unless [an exception] appl[ies].”

or

obtain

the

Id.

At the beginning of the hearing, Odis’s counsel notified the
ALJ that he was still waiting for certain records from North
Memorial Clinic.
record,

and

The ALJ asked why they were not included in the

Odis’s

counsel

responded

that

he

discovered that certain records were missing.

only

recently

Odis’s counsel

received medical records from North Memorial on November 28, 2018,
and submitted them to the ALJ the same day.

But he failed to

realize that he had not received all of the records.
The ALJ declined to leave the record open for the additional
records, finding that (1) Odis had not timely submitted the records
at issue, (2) the records did not fall under any exception to the
2

CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 3 of 8

five-day rule, and (3) the records would not change her decision
in any event.

ECF No. 17, at 5-6.

On January 23, 2019, the ALJ concluded that Odis was not
disabled with the meaning of the Social Security Act and denied
his application.

Odis appealed, arguing that that the ALJ erred

in precluding him from submitting the additional records.
parties moved for summary judgment.

Both

On November 30, 2020, the

magistrate judge recommended granting summary judgment in Saul’s
favor.

Odis now timely objects.

DISCUSSION
I.

Standard of Review
The court reviews de novo any portion of the R&R to which

specific objections are made.

28 U.S.C. ' 636(b)(1)(c).

As noted

in the R&R, the court reviews ALJ’s determination with deference
to the ALJ.
2004).

See Kelley v. Barnhart, 372 F.3d 958, 960 (8th Cir.

The ALJ’s findings “as to any fact, if supported by

substantial

evidence,

42 U.S.C. § 405(g).

shall

“Substantial

be

conclusive

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).

On

review, the court considers “both evidence that detracts from and

3

CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 4 of 8

evidence that supports the Commissioner’s decision.”

Hartfield v.

Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (citation omitted).
The

court,

however,

may

not

“reverse

the

Commissioner’s

decision simply because there is evidence supporting a different
result.”

Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir. 1997)

(citation omitted).

“If the evidence supports two inconsistent

conclusions, one of which is that reached by the Commissioner=s
conclusion, [the court] must affirm the decision.” Id.

Moreover,

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

remand

if

an

ALJ

fails

to

adequately

The court

support

their

determination.
II.

Analysis
Odis argues that the R&R incorrectly concluded that the

missing clinical records do not fall under one of the exceptions
to the five-day rule.

Specifically, Odis argues that the ALJ

should have allowed the records to be a part of the proceedings
because “unusual, unexpected, or unavoidable circumstances beyond
his control” caused the omission.

He argues that the R&R erred in

relying on Shari Lee Z. v. Saul, No. 5:19-CV-0268 (GTS), 2019 WL
6840134, (N.D.N.Y. Dec. 16, 2019), in deciding otherwise.

He also

maintains that the ALJ would have decided the case differently if
she had included the records at issue.
counts.
4

The court disagrees on all

CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 5 of 8

As set forth in the R&R, the ALJ properly determined that the
records were correctly excluded under the five-day rule. As noted,
the five-day rule requires parties to “make every effort” to submit
all evidence “no later than five business days before the date of
the scheduled hearing.”

20 C.F.R. §§ 404.935(a), 416.1435(a).

The ALJ may decline to admit evidence not complying with the rule
unless an exception applies.

Id.

Relevant here, one exception

allows claimants to submit late evidence if “[s]ome other unusual,
unexpected, or unavoidable circumstance beyond [the claimant’s]
control prevented [the claimant] from informing [the ALJ] or
submitting the evidence earlier.”

20 C.F.R. §§ 404.935(b)(3),

416.1435(b)(3).

serious

Examples

include

illness,

death,

or

serious illness in the claimant’s immediate family, records were
destroyed by accident, or the claimant “actively and diligently
sought evidence from a source and the evidence was not received or
was received less than 5 business days prior to the hearing.”

20

C.F.R.

“A

§§

404.935(b)(3)(i)-(iv),

416.1435(b)(3)(i)-(iv).

claimant must ... show due diligence and that the delay was outside
of her control.”

Wasen A. v. Saul, No. 18-cv-03242 (SRN/LIB),

2020 WL 823095, at *5 (D. Minn. Jan. 31, 2020) (citation omitted),
report and recommendation adopted, No. 18-cv-3242 (SRN/LIB), 2020
WL 818908 (D. Minn. Feb. 19, 2020).

If a plaintiff tries to submit

late evidence, it is plaintiff’s burden to prove that one of the
exceptions to the five day rule applies.
5

See Nino v. Berryhill,

CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 6 of 8

No. 3-18-cv-82-CRW-SBJ, 2019 WL 3491929, at *1-2 (S.D. Iowa Apr.
11, 2019).
Odis has not met this high burden.

Odis’s counsel did not

“make every effort” to ensure the record was complete, nor does
Odis submit evidence that his counsel diligently tried to get the
missing records in a timely manner.

Given the facts in the record,

the ALJ correctly concluded that Odis’s counsel was not diligent
in securing the records at issue.

Specifically, Odis had been a

North Memorial patient eight months before the hearing, Odis
communicated with his counsel regularly for the two months before
the

hearing, and

Odis’s

counsel

received

some

North

Memorial

records on November 28, 2018, before the five-day rule deadline,
but

failed

complete.

to

review

the

records

to

determine

if

they

were

The court agrees with the magistrate judge’s conclusion

that nothing prevented Odis from obtaining and submitting the
records at issue in a timely manner.
Further, the R&R properly relied on Shari Lee Z.

In that

case, the court held that counsel was not diligent because they
represented the claimant for more than six months before the
hearing

and

incomplete.

should

have

been

aware

that

the

Shari Lee Z., 2019 WL 6840134, at *6.

records

were

Likewise, here,

Odis’s counsel represented him for the two years preceding the
hearing and should have realized much sooner that he was missing
records.

Odis’s counsel argues that the blame lies with the
6

CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 7 of 8

medical service that failed to include the records.

But he, like

the counsel in Shari Lee Z., assumed without confirming that he
received all of the records.

See Shari Lee Z., 2019 WL 6840134,

at *6 (finding that counsel’s mistaken belief that medical records
submitted by another party were complete was not an exception to
the five-day rule).

Given the similarities here, the magistrate

judge rightly relied on Shari Lee Z. in assessing this matter.
The court also agrees with the R&R that Odis has not shown
that the records at issue would have changed the outcome of his
application for SSI.

Odis has failed to “provide some indication

that the ALJ would have decided differently if the error had not
occurred.”

Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012).

The R&R correctly notes that, given the record as a whole, the
additional records would not have changed the ALJ’s decision.

See

ECF No. 17, at 6.
The court has carefully reviewed the record and the R&R and
finds that the R&R is well reasoned and correct.

As such, the

court must overrule Odis’s objections, grant the Commissioner’s
motion for summary judgment, and deny Odis’s motion for summary
judgment.

7

CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 8 of 8

CONCLUSION
Accordingly, IT IS HEREBY ORDERED that:
1.

The objection to the R&R [ECF No. 18] is overruled;

2.

The R&R [ECF No. 17] is adopted in its entirety;

3.

Plaintiff’s motion for summary judgment [ECF No. 12] is

denied; and
4.

Defendant’s motion for summary judgment [ECF No. 15] is

granted.
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: February 16, 2021
s/David S. Doty
David S. Doty, Judge
United States District Court

8