Martin v. Saul
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.,
Commissioner of Social Security,
recommendation of Magistrate Judge Becky R. Thorson (R&R).
magistrate judge recommends that the court (1) deny Odis’s motion
for summary judgment, and (2) grant the motion for summary judgment
After a de novo review, and for the following
reasons, the court overrules Odis’s objection and adopts the R&R
in its entirety.
This action arises out of Odis’s application for social
security income (SSI).
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.
court will only briefly summarize the history of the present
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
20 C.F.R. §§ 404.935(a), 416.1435(a).
If claimants do
evidence, unless [an exception] appl[ies].”
At the beginning of the hearing, Odis’s counsel notified the
ALJ that he was still waiting for certain records from North
The ALJ asked why they were not included in the
discovered that certain records were missing.
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
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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
Odis appealed, arguing that that the ALJ erred
in precluding him from submitting the additional records.
parties moved for summary judgment.
On November 30, 2020, the
magistrate judge recommended granting summary judgment in Saul’s
Odis now timely objects.
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).
in the R&R, the court reviews ALJ’s determination with deference
to the ALJ.
See Kelley v. Barnhart, 372 F.3d 958, 960 (8th Cir.
The ALJ’s findings “as to any fact, if supported by
42 U.S.C. § 405(g).
preponderance, but enough that a reasonable mind would find it
adequate to support the Commissioner’s conclusion.”
Astrue, 687 F.3d 913, 915 (8th Cir. 2012) (citation omitted).
review, the court considers “both evidence that detracts from and
CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 4 of 8
evidence that supports the Commissioner’s decision.”
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (citation omitted).
decision simply because there is evidence supporting a different
Hall v. Chater, 109 F.3d 1255, 1258 (8th Cir. 1997)
“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.
a court may not substitute its judgment for that of the ALJ.
Fastner v. Barnhart, 324 F.3d 981, 983 (8th Cir. 2003).
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.
maintains that the ALJ would have decided the case differently if
she had included the records at issue.
The court disagrees on all
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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.
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),
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.”
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.
See Nino v. Berryhill,
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No. 3-18-cv-82-CRW-SBJ, 2019 WL 3491929, at *1-2 (S.D. Iowa Apr.
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
records on November 28, 2018, before the five-day rule deadline,
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.
case, the court held that counsel was not diligent because they
represented the claimant for more than six months before the
Shari Lee Z., 2019 WL 6840134, at *6.
Odis’s counsel represented him for the two years preceding the
hearing and should have realized much sooner that he was missing
Odis’s counsel argues that the blame lies with the
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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
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.
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
CASE 0:20-cv-00311-DSD-BRT Doc. 19 Filed 02/16/21 Page 8 of 8
Accordingly, IT IS HEREBY ORDERED that:
The objection to the R&R [ECF No. 18] is overruled;
The R&R [ECF No. 17] is adopted in its entirety;
Plaintiff’s motion for summary judgment [ECF No. 12] is
Defendant’s motion for summary judgment [ECF No. 15] is
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 16, 2021
s/David S. Doty
David S. Doty, Judge
United States District Court
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