Bruegging v. Astrue

Filing 16

ORDER re 5 SOCIAL SECURITY COMPLAINT filed by Margaret L. Bruegging reversing decision of Commissioner and remanding case, pursuant to Sentence 4, for further consideration and development of the record. Signed on 9/9/2011 by Magistrate Judge Matt J. Whitworth. (Bode, Kay)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

MARGARET L. BRUEGGING,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant.

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No. 10-1076-SSA-CV-C-MJW

ORDER
Plaintiff Margaret Bruegging seeks judicial review,1 of a final administrative decision
denying plaintiff disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et
seq., and Supplemental Security Income (SSI) benefits under Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381 et seq. Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for
judicial review of a final decision of the Commissioner of the Security Administration under
Title II. Section 1631(a)(3) of the Act and 42 U.S.C. § 1383(c)(3) provide for judicial review to
the same extent as the Commissioner’s final determination under section 205.
The parties’ briefs are fully submitted, and an oral argument was held on August 4, 2011.
The complete facts and arguments are presented in the parties’ briefs and will not be repeated
here.
Standard of Review
The Eighth Circuit has set forth the standard for the federal courts’ judicial review of
denial of benefits, as follows:
Our role on review is to determine whether the Commissioner’s findings
are supported by substantial evidence on the record as a whole. Substantial
evidence is less than a preponderance, but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion. In determining

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With the consent of the parties, this case was assigned to the United States Magistrate
Judge, pursuant to the provisions of 28 U.S.C. § 636(c).

whether existing evidence is substantial, we consider evidence that detracts from
the Commissioner’s decision as well as evidence that supports it. As long as
substantial evidence in the record supports the Commissioner’s decision, we may
not reverse it because substantial evidence exists in the record that would have
supported a contrary outcome or because we would have decided the case
differently.
Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006).
The claimant has the initial burden of establishing the existence of a disability as defined
by 42 U.S.C. § 423(d)(1). See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). To meet the
statutory definition, "the claimant must show (1) that he has a medically determinable physical or
mental impairment which will either last for at least twelve months or result in death, (2) that he
is unable to engage in any substantial gainful activity, and (3) that this inability is the result of his
impairment." McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983).
When reviewing the record to determine if there is substantial evidence to support the
administrative decision, the court considers the educational background, work history and present
age of the claimant; subjective complaints of pain or other impairments; claimant’s description of
physical activities and capabilities; the medical opinions given by treating and examining
physicians; the corroboration by third parties of claimant’s impairments; and the testimony of
vocational experts when based upon proper hypothetical questions that fairly set forth the
claimant’s impairments. McMillian, 697 F.2d at 221.
Discussion
Plaintiff is a 48-year-old woman with a high school education who has past employment
as an insurance salesperson and a retail sales clerk. Plaintiff claims disability beginning August
31, 2007. Plaintiff alleges disability due to bipolar disorder, nerves, diabetes, depression and
other alleged impairments.
The Administrative Law Judge (ALJ) determined that plaintiff had the severe
impairments of diabetes, asthma and bipolar disorder, but that she had the residual functional
capacity to perform medium work, with noted limitations in sitting or standing/walking no more
than six hours; avoidance of concentrated fumes, odors, dust gases and poor ventilation; social,
stressful or complex environments, and work requiring a lot of socialization or complex detailed

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work responsibilities. The ALJ determined that plaintiff had not been under a disability, as
defined by the Social Security Act, from August 31, 2007, through November 2, 2009.
Plaintiff alleges that the ALJ erred in (1) not giving controlling weight to the opinion of
treating psychiatrist Michael Navato, M.D., and relying on the opinion of nonexamining sources;
and (2) improperly evaluating plaintiff’s credibility.
The Government argues that the ALJ’s credibility determination was proper and notes,
among other things, plaintiff’s poor work history. The Government also argues that the ALJ’s
assessment of medical opinion evidence is supported by substantial evidence.
“[T]he opinions of nonexamining sources are generally given less weight than those of
examining sources.” Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010) (affirming decision to
discredit evaluation of agency psychologist who did not examine the plaintiff). See also 20
C.F.R. § 404.1527(d)(1). A treating physician's opinion is generally given controlling weight if it
is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2).
Here, plaintiff’s treating psychiatrist’s records of Dr. Navato were not available for
review by the Commissioner’s nonexamining medical sources. Rather, such evidence was
available just prior to the hearing before the ALJ. While the Appeals Council’s decision states
that this additional evidence from Dr. Navato didn’t provide a basis for changing the ALJ’s
decision, this court disagrees. “[T]he opinion of a nonexamining consulting physician is afforded
less weight if the consulting physician did not have access to relevant medical records.” McCoy
v. Astrue, __ F.3d __, __ 2011 WL 3330504 *8 (8th Cir. Aug. 4, 2011). This court believes that
proper consideration of plaintiff’s mental health condition could not have been properly
evaluated by medical experts who did not examine her or have the benefit of reviewing her
treating psychiatrist’s notes. Therefore, this case is remanded for further development of the
evidence in this case, specifically that the Commissioner’s medical experts review the medical
records of plaintiff’s treating psychiatrist, Dr. Navato, to determine the extent of plaintiff’s
mental health impairments.
IT IS ORDERED that the decision of the Commissioner is reversed and this case is
remanded, pursuant to Sentence 4, for further consideration and development of the record.
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Dated this 9th day of September, 2011, at Jefferson City, Missouri.

/s/

Matt J. Whitworth

MATT J. WHITWORTH
United States Magistrate Judge

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