Baxter v. Astrue
ORDER AND OPINION AFFIRMING COMMISSIONERS FINAL DECISION DENYING BENEFITS. Signed on 5/9/14 by District Judge Ortrie D. Smith. (Matthes, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
LAROSS L. BAXTER,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
Case No. 13-5021-CV-SW-ODS
ORDER AND OPINION AFFIRMING
COMMISSIONER’S FINAL DECISION DENYING BENEFITS
Pending is Plaintiff’s appeal of the Commissioner of Social Security=s final
decision denying his application for disability and supplemental security income
benefits. The Commissioner’s decision is affirmed.
This case has a long history. As Plaintiff’s primary argument is procedural in
nature, the history must be summarized.
Plaintiff filed his application for disability benefits in February 2001. In May,
Plaintiff was referred for a consultative examination performed by Dr. Chi-His Lin, who
issued a report that was included in the Record. In November 2002, the ALJ
determined Plaintiff could not perform his past work but retained the capacity to perform
sedentary work subject to certain non-exertional limitations. Based on testimony from a
vocational expert (“VE”), the ALJ then identified certain jobs Plaintiff could perform.
This first ALJ decision was remanded by the Appeals Council in March 2003
because the jobs the ALJ identified were (1) light or medium and not sedentary and (2)
beyond Plaintiff’s skill level. The ALJ was directed to obtain updated information from
treating physicians “[a]s appropriate” and was further directed that “[i]f the additional
evidence does not clearly depict the claimant’s limitations, the [ALJ] will obtain a
consultative internal medicine examination, including a medical source statement about
what the claimant can do despite the impairment(s).” R. at 247.
In December 2003 Plaintiff filed a subsequent application for benefits. The two
applications were combined into a single proceeding. In April 2004, the ALJ arranged
for Dr. D.F. Engelking to examine Plaintiff. Another hearing was held, and the ALJ
issued his second decision, which again denied benefits. The Appeals Council affirmed
This led to the first suit seeking judicial review: No. 07-5011-CV-SW-ODS. The
undersigned reversed the denial of benefits and remanded for further proceedings. The
Court noted that the ALJ’s second decision determined Plaintiff could perform light
work, and held this was not supported by substantial evidence in the Record as a
whole. In particular, the Court noted that the ALJ’s first decision found Plaintiff was
limited to sedentary work, no evidence bearing on his condition during that time period
was presented thereafter, and there was no evidence that Plaintiff’s condition had
improved. Thus, the Record did not justify the second decision’s finding that Plaintiff
was less limited than was described in the first decision.
In September 2009, the ALJ issued a third decision denying Plaintiff’s claims for
benefits. The Appeals Council remanded the case again, resulting in a new decision
issued in March 2012. The Appeals Council declined to assume jurisdiction, so the
ALJ’s March 2012 decision is the Commissioner’s final decision.
Plaintiff’s first argument contends the Commissioner’s final decision is legally
infirm because it relies in part on medical evidence submitted before the first ALJ
decision (primarily the report from Dr. Lin). The Court disagrees.
To clarify: Plaintiff’s argument is not about the weight to be assigned to various
pieces of evidence, and it is not a challenge about the sufficiency of the evidence.
Plaintiff’s argument does not contend that the weight of the evidence dictates a different
outcome. Instead, Plaintiff contends the very act of eliciting an opinion from Dr.
Engelking meant that, as a matter of law, all evidence previously admitted – including
particularly Dr. Lin’s – could not be relied upon. Plaintiff points to the Appeals Council’s
statement in its March 2003 decision that “[i]f the additional evidence does not clearly
depict the claimant’s limitations, the [ALJ] will obtain a consultative internal medicine
examination, including a medical source statement about what the claimant can do
despite the impairment(s).” R. at 247. Plaintiff then reasons: the ALJ’s act of arranging
for Dr. Engelking’s examination means the ALJ must have concluded the evidence
submitted before that date did not clearly depict the claimant’s limitations – so none of
the prior evidence could form the basis for any subsequent decisions.
There are numerous flaws in this argument. The Appeals Council did not say the
ALJ could obtain a consultative internal examination only if the medical evidence did not
clearly depict the claimant’s limitations. The directive described a circumstance in
which the ALJ was required to augment the Record, but did not purport to describe (or
eliminate) the only circumstance in which the ALJ might elect to do so. There are
numerous other reasons why the ALJ might have deemed it necessary to seek Dr.
Engelking’s opinion, the most obvious of which is that the scope of Plaintiff’s claim had
expanded with the addition of his new claim filed after the Appeals Council’s decision.
Regardless of the reason, the ALJ was empowered to augment the Record even
without the Appeals Council’s directive, and doing so did not render all of the other
evidence in the Record a nullity.
Second, no decisionmaker has ruled there was any legal infirmity in any of the
medical evidence at issue. To the extent Plaintiff relies upon the “law of the case”
doctrine for support, the absence of a ruling explicitly holding that Dr. Lin’s opinion could
not be considered is fatal.
Third (and relatedly) the Appeals Counsel’s March 2003 decision does not
suggest that all prior medical evidence should be disregarded if a consultative internal
examination was elicited. Such a command violates the well-established concept that a
decision should be based on the Record as a whole.
As noted in Part I, the March 2012 ALJ opinion stands as the Commissioner’s
final decision. In that opinion, the ALJ found Plaintiff could perform a limited range of
sedentary work “in that he is able to stand or walk up to 30 minutes at any one time
without the use of a cane for a total of two hours per day. After 30 minutes walking or
standing, if he continued to walk or stand he would require a cane . . . .” Using a cane
would not limit Plaintiff’s ability to “carry up to 10 pounds in a bag or some similar item,
and it would not limit his ability to carry weight in the unencumbered hand.” Plaintiff
could sit for thirty minutes at a time before needing the opportunity to stand for two to
five minutes. The ALJ’s finding does not include a daily limitation on Plaintiff’s ability to
sit. The ALJ also found other nonexertional limitations that need not be detailed here.
R. at 390.
In challenging the ALJ’s residual functional capacity (“RFC”) finding, Plaintiff
reiterates his argument that the ALJ was obligated to disregard testimony from Dr. Lin.
For the reasons stated in Part II.A, this argument is rejected.
Plaintiff next insinuates that the fourth ALJ opinion found Plaintiff’s RFC was less
restrictive than was originally found in the first ALJ opinion in November 2002. The
Record reveals the opposite: the original decision found Plaintiff could perform
sedentary work subject to certain non-exertional limitations; it did not include any
limitations related to the use of a cane or the need for a sit/stand option after thirty
minutes of sitting. R. at 238.
Finally, Plaintiff correctly argues the RFC must be based on a realistic
assessment of the claimant’s abilities. However, Plaintiff does not identify any evidence
that compels a different result. Plaintiff does not present an argument marshaling the
evidence and suggesting that the RFC finding was not supported by substantial
evidence in the Record as a whole; instead, he argues certain evidence was unworthy
of consideration on that issue. This argument has been rejected.
It has taken far too long to reach a final decision in this matter. This is
unfortunate, to say the least. However, Plaintiff presents no argument suggesting the
Commissioner’s final decision is not supported by substantial evidence in the Record as
a whole, and the legal arguments presented are rejected. The Commissioner’s final
decision is affirmed.
IT IS SO ORDERED.
DATE: May 9, 2014
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
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