James v. Colvin,

Filing 13

ORDER remanding decision of Commissioner re 3 SOCIAL SECURITY COMPLAINT. Signed on 12/1/2017 by District Judge Roseann Ketchmark. (Perry, Madison)

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

LORI ANN JAMES,

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Plaintiff,
v.
CAROLYN A. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION1,
Defendant.

No. 4:16-01026-CV-RK

ORDER
Before the Court is Plaintiff’s appeal seeking judicial review of a final decision of the
Defendant Commissioner of Social Security (“Commissioner”) denying disability benefits. The
decision of the Commissioner is REMANDED.
Standard of Review
The Court’s review of the Commissioner’s decision to deny disability benefits is
limited to determining if the decision “complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole.” KKC v. Colvin, 818 F.3d 364,
374 (8th Cir. 2016) (quoting Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008); see also 42
U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a
reasonable mind would find it adequate to support the [Commissioner’s] conclusion.” Gann v.
Berryhill, 864 F.3d 947, 950 (8th Cir. 2017). In determining whether existing evidence is
substantial, the Court takes into account “evidence that both supports and detracts from the
ALJ’s decision.” Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2016) (quoting Perkins v.
Asture, 648 F.3d 892, 897 (8thCir. 2011). “If the ALJ’s decision is supported by substantial
evidence, [the Court] may not reverse even if substantial evidence would support the opposite
outcome or [the Court] would have decided differently.” Smith v. Colvin, 756 F.3d 621, 625
(8th Cir. 2014) (quoting Davis, 239 F.3d at 966). The Court does not re-weigh the evidence
presented to the ALJ. Reece v. Colvin, 834 F.3d 904, 908 (8th Cir. 2016). The Court should
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Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23, 2017,
however, for consistency purposes, the case style in this legal action remains as originally filed.

“defer heavily to the findings and conclusions of the [Commissioner].” Wright v. Colvin, 789
F.3d 847, 852 (8th Cir. 2015) (quotation and citation omitted).
Discussion
By way of overview, the ALJ determined the Plaintiff suffered from the following severe
impairments: fibromyalgia, bilateral knee osteoarthritis, and obesity. The ALJ also determined
that Plaintiff has the following non-severe impairment: depression. However, the ALJ found that
none of Plaintiff’s impairments, whether considered alone or in combination, meet or medically
equals the criteria of one of the listed impairments in 20 CFR Pt. 404. Subpt. P, App. 1
(“Listing”). Additionally, the ALJ found that despite her limitations, Plaintiff retained the
residual functional capacity (“RFC”) to perform sedentary work with the following limitations:
Plaintiff has the capacity to lift twenty pounds occasionally and ten pounds frequently; Plaintiff
can walk two hours in an eight-hour workday; Plaintiff cannot climb ladders, ropes, or scaffolds;
Plaintiff cannot work at unprotected heights or around hazardous machinery; Plaintiff can
occasionally climb ramps and stairs, balance, stoop, kneel, crouch, or crawl; and Plaintiff
requires the use of a cane to move about the workplace. The ALJ found Plaintiff was able to
perform past relevant work, and therefore was not disabled from August 30, 2009, thru
December 31, 2014.
On appeal, the Plaintiff’s strongest argument in support of reversing the ALJ’s decision is
whether the ALJ failed to develop the record and whether such failure prejudiced the Plaintiff.
The Plaintiff argues the medical opinion of clinical examiner Dr. Palizzi is missing at least one
page; therefore, potentially crucial medical information was not considered by the ALJ in
making the disability determination. Plaintiff argues the ALJ should have sought clarification
from Dr. Palizzi regarding the apparent missing page(s) in Dr. Palizzi’s medical opinion. As a
result Plaintiff argues, and this Court agrees, the ALJ did not fully develop the record and
remand is necessary.
Upon review, the record appears to be missing at least one page.2 It is proper to remand
an ALJ’s decision when the record is not fully developed. See Snead v. Barnhart, 360 F.3d 834,

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In the record, pages 303-304 of Dr. Palizzi’s opinion do not read cohesively. The applicable
sentences on pages 303-304 read as follows: “The claimant denies any specific injury but states she had
worsening knee pain over the years and there are clinic notes [end of page 303] could be expected to
perform these only on occasion this is because of her knee arthritis.” It appears from this inconsistency
that at least one page is missing from the record.

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838-39 (8th Cir. 2004) (the ALJ has a duty to fully develop the record whether the claimant has
retained an attorney or not and independent of the claimant’s burden to prove her case) (the ALJ
failed to fully develop the record when the ALJ did not explicitly examine whether the plaintiff’s
heart condition interfered with the plaintiff’s ability to maintain employment and remand was
required).
While the ALJ has a duty to develop the record, reversal for failure to develop the record
is only required when the failure is unfair or prejudicial to the plaintiff. Ellis v. Barnhart, 392
F.3d 988, 994 (8th Cir. 2005). In general, courts have held that if the missing page(s)’s evidence
is presented for the ALJ to consider when making the disability determination, the plaintiff is not
prejudiced even if the missing evidence was not in the original record. See Perez v. Secretary of
Health, Education, and Welfare, 622 F.2d 1, 3 (1st Cir. 1980) (“it is nevertheless apparent from
the ALJ’s decision that he considered such evidence…counsel supplied missing pages to the
district court….although it might have been preferable for the Secretary to have transmitted such
documents in a supplemental certified transcript, the procedure followed allowed for full and fair
consideration of Perez’s claims”). Unlike in Perez, here the missing evidence was not presented
to the ALJ at any point for consideration in making Plaintiff’s disability determination. The
Defendant argues the ALJ did not fail to develop the record because sufficient evidence existed
in the record for the ALJ to make the disability determination. Further, the Defendant argues
that even if the ALJ did fail to fully develop the record, the Plaintiff was not prejudiced by this
failure, so remand is not warranted. The Defendant relies on Ellis v. Barnhart to show the
missing page(s) in the record did not prejudice the Plaintiff. However, Ellis v. Barnhart is
distinguishable from this case. In Ellis, the plaintiff did not allege the record was missing any
relevant medical records, and additionally, the ALJ left the record open for an additional thirty
days to allow the plaintiff to supplement the record if plaintiff so chose. 392 F.3d at 994.
However, unlike in Ellis, the Plaintiff has alleged the record is missing at least one page and the
ALJ did not allow the Plaintiff to supplement the record with the missing evidence. Because the
contents of the missing page(s) are unknown, the Court cannot determine if the evidence
contained therein would have caused the ALJ to arrive at a different conclusion, thus prejudicing
the Plaintiff. The Court is unable to make this determination, so the matter is remanded to allow
the ALJ to fully develop the record in regard to Dr. Palizzi’s medical opinion.

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Conclusion
Having carefully reviewed the record before the Court and the parties’ submissions on
appeal, the Court REMANDS the Commissioner’s decision.

Accordingly, this matter is

remanded for the ALJ to fully develop the record.
IT IS SO ORDERED.
s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: December 1, 2017

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