Wyrick v. Astrue
Filing
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ORDER and OPINION reversing Commissioner's final decision and remanding for reconsideration. Signed on 07/08/2011 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
RICKIE LEANN WYRICK,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security.
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Case No. 10-5055-CV-SW-ODS
ORDER AND OPINION REVERSING COMMISSIONER’S FINAL DECISION
AND REMANDING FOR RECONSIDERATION
Pending is Plaintiff's request for review of the final decision of the Commissioner
of Social Security denying her applications for disability benefits and supplemental
security income benefits. The Commissioner's decision is reversed, and the case is
remanded for reconsideration.
In rejecting Plaintiff’s claim, the ALJ found Plaintiff retained the residual functional
capacity to lift or carry twenty pounds occasionally and ten pounds frequently, stand or
walk six hours a day, sit for at least six hours a day, and needed to avoid repetitive
tasks with her hands (such as use of keyboards). R. at 32. The ALJ explained this
finding was derived from “the residual functional capacity conclusions reached by the
physicians employed by the State Disability Determination Services” and those
conclusions were “also consistent with the medical evidence of record.” The ALJ also
stated that while the state physicians “were non-examining, and therefore their opinions
do not as a general matter deserve much weight as those of examining or treating
physicians, those opinions do deserve some weight . . . .” R. at 37.
The problem is that the RFC conclusions the ALJ described were not offered by
doctors; they were authored by a non-medical consultant. This point was raised during
the administrative hearing and acknowledged by the ALJ, R. at 3-4; apparently,
between the time of the hearing and the time of the written opinion, the point was lost.
The Commissioner agrees that this non-expert opinion was not entitled to any weight,
but that the ALJ’s error was harmless. Commissioner’s Brief at 16. The Court
disagrees.
In Dewey v. Astrue, the Eighth Circuit reversed similar case in which the ALJ
relied on a non-expert opinion, holding that it is legal error to weigh the opinion of a lay
person under the rules appropriate for weighing medical opinions. 509 F.3d 447, 449
(8th Cir. 2007).1 The Commissioner argues the error in this case is harmless because,
unlike in Dewey, there was not a more restrictive opinion from Plaintiff’s treating
physician. Id. at 449-50. This is an accurate distinction, but it does not render the error
harmless because it raises additional fatal issues. An RFC must be based on medical
evidence, e.g., Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir. 2001), and there is no
basis for concluding the ALJ would have found the exact same RFC on this Record
after ignoring the state agency’s RFC (which is what should have happened). The case
might be different if the non-expert’s opinion was the same as a doctor’s opinion, but the
facts do not support such a conclusion.
The Court is concerned that the issue seems to have been evident at the time of
the hearing. It may seem inappropriate to allow Plaintiff’s counsel to identify a problem
yet do nothing to resolve it (by, for instance, obtaining an RFC from Plaintiff’s treating
physician), then wait until after an unfavorable decision to bring the issue fully into the
open. The undersigned has observed that claimants are prone to emphasize the
Commissioner’s obligation to fully develop the Record when a decision cannot be made
because the evidence is inadequate, vague, or ambiguous, e.g., Jones v. Astrue, 619
F.3d 963, 969 (8th Cir. 2010), yet claimants downplay their own burden to prove their
entitlement to benefits. E.g., Coleman v. Astrue, 498 F.3d 767, 771 (8th Cir. 2007).
Nonetheless, the outcome is required because of the nature of judicial review of an
administrative proceeding. Counsel’s (in)actions may be appropriately considered if and
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Dewey indicates the issue may have arisen because of “the Missouri state
agency’s use of an outdated form that called for a medical consultant’s signature,
despite the state’s use of modified, experimental procedures that do not require a
medical consultant to sign the disability determination forms.” 509 F.3d at 449. Given
that a non-expert’s opinion is of little (if any) value, and given the confusion engendered
(and its source), perhaps the experiment’s success should be evaluated.
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when a request for attorney fees is filed, particularly if Plaintiff is represented by the
same lawyer or firm that represented her in the administrative proceedings.
The only appropriate course is to effectively start from the beginning. The
Commissioner’s final decision is reversed, and the case is remanded for
reconsideration. On remand, the Commissioner shall permit the Record to be
augmented with the inclusion of any additional medical evidence Plaintiff wishes to
submit. The Commissioner is also authorized to arrange for whatever additional
examinations are deemed appropriate. The Commissioner shall also re-evaluate
Plaintiff’s claim, starting at the first step of the five-step sequential process. The Court
is confident that if it becomes necessary to formulate Plaintiff’s RFC, the Commissioner
shall do so based on medical evidence.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: July 8, 2011
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