Meyer v. Social Security Administration

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Daniel L. Hovland - granting in part Lorie Meyer's motion for summary judgment 13 ; denying the Commissioner's motion for summary judgment 18 ; and adopting 22 Report and Recommendations. The Court REMANDS the case for an award of benefits and any additional proceeding consistent with this order.(QF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
NORTHWESTERN DIVISION
Lorie A. Meyer,

)
)
Plaintiff,
)
ORDER ADOPTING REPORT
)
AND RECOMMENDATION
vs.
)
)
Case No. 4:10-cv-038
Michael J. Astrue,
)
Commissioner of Social Security,
)
)
Defendants.
)
______________________________________________________________________________

The plaintiff, Lorie Meyer, sought judicial review of the Social Security Commissioner’s
(“Commissioner”) denial of her application for disability benefits under the Social Security Act.
Meyer and the Commissioner filed cross-motions for summary judgment. See Docket Nos. 13 and
18.
On February 21, 2012, Magistrate Judge Charles S. Miller, Jr., issued a ninety-one page
Report and Recommendation concerning the motions. See Docket No. 22. The Report and
Recommendation provided a thorough summary of the record, including Meyer’s medical and social
history, the May 19, 2008 hearing before the Administrative Law Judge (“ALJ”) in Minot, North
Dakota, and the ALJ’s May 28, 2008, decision denying Meyer’s application for benefits. Judge
Miller concluded that the ALJ’s decision was not supported by substantial evidence. In so
concluding, Judge Miller found that the ALJ erred as follows:
1.

The reasons the ALJ gave for discounting Meyer’s testimony regarding the
extent of her pain and the impacts placed on her functioning by her multiple
impairments are not supported by the record as a whole.

2.

The ALJ failed to follow the Commissioner’s regulations in evaluating the
corroborating testimony of Meyer’s mother and discounted her testimony for
an improper reason.

3.

The ALJ failed to properly consider the opinions of two clinical
psychologists retained by the SSA to provide independent evaluations of the
extent and severity of Meyer’s mental impairments - particularly regarding
the critical point of whether Meyer was capable of being a competitively
reliable employee - and instead improperly gave more weight to the opinions
of non-treating, non-examining consultants.

4.

The ALJ improperly accorded more weight to an RFC assessment made by
non-treating, non-examining physicians over a similar assessment made by
Meyer’s personal physician with respect to several issues critical to the
ALJ’s RFC determination. Also, under the particular circumstances of this
case, if the ALJ was dissatisfied with the level of detail provided by Meyer’s
personal physicians, he should have made further inquiry of the physician
rather than simply relying upon the RFC assessments of the non-examining
physicians. In the alternative, he probably also could have consulted with
Dr. Diri, Meyer’s treating rheumatologist, or he could have obtained an
independent assessment based upon an actual examination and/or testing.

5.

The ALJ failed to properly consider the evidence that Meyer suffered from
fibromyalgia and also the more recently developed urinary urgency and
incontinence problems, and the cumulative impact that they may have had on
her RFC.

6.

The ALJ’s determination of Meyer’s RFC is not supported by substantial
evidence when considering the record as a whole, particularly as it relates to
the critical issues of: (1) Meyer’s ability to sit or stand without changing
positions for the requisite period of time to allow her to perform the limited
sedentary work the vocational expert concluded she could perform based
upon the ALJ’s hypothetical RFC; (2) Meyer’s ability to perform repetitive
movements with her hands and arms on a sustained basis; and (3) Meyer’s
ability to perform at a pace and persistence required in a competitive
environment, including not having to take an unacceptable number fo breaks
and/or not having an unacceptable number of absences. As noted earlier, a
finding in favor of Meyer with respect to any of these points would result in
a determination of disability given the testimony of the vocational expert.

See Docket No. 22, pp. 55-56. Judge Miller recommended as follows:
Based upon the foregoing, the undersigned RECOMMENDS that Meyer’s
Motion for Summary Judgment (Docket No. 13) be GRANTED IN PART and the
Commissioner’s motion for summary judgment (Docket No. 18) be DENIED, and
that this case be remanded for an award of benefits consistent with Meyer being
disabled at least as of January 1, 2006, and for any additional proceedings that may
be necessary.
2

See Docket No. 22, p. 90.
On March 2, 2012, the Commissioner filed an objection to the Report and Recommendation.
See Docket No. 23. The Commissioner contends that Judge Miller should have remanded the case
for further proceedings so the Commissioner could further develop the record rather than remanding
to award disability benefits.
The Court has carefully reviewed the Report and Recommendation, relevant case law, and
the entire record, and finds the Report and Recommendation to be persuasive. As to the
Commissioner’s objection, the Court further finds Judge Miller’s reasoning particularly persuasive
as to the issue of whether a remand for further proceedings is appropriate:
If this case was remanded solely for further proceedings, it is difficult to
understand what would change. Here, the opinions of Drs. Podrygula, Eaton, and
Ree all favor a finding of disability based on the record evidence as a whole. In
order to overcome this evidence, the Commissioner would have to come forward
with opinions from physicians who conducted examinations and/or relied on testing.
The problem with that, however, is that any examination or testing now would be of
questionable probative value with respect to Meyer’s condition during the time
period under consideration. Also, another problem is one of fairness. Here, the SSA
sent Meyer to Dr. Eaton for an evaluation and his opinion favored a finding of
disability. Then the ALJ solicited the opinion of Dr. Podrygula with the result being
that his testimony also favored a finding of disability when considered in its entirety.
Finally, both the SSA and the ALJ had the option of seeking further clarification
from Dr. Ree or obtaining an in-person evaluation or testing, but chose not to. While
the Commissioner always has the opportunity to prove that Meyer is not currently
disabled, the Commissioner should not be allowed yet another opportunity to search
for evidence supporting his denial of benefits. See, e.g., Sisco v. United States Dept.
of Health and Human Services, 10 F.3d 739, 746 (10th Cir. 1993) (stating that the
Commission should not be entitled to adjudicate a case ad infinitum until it applies
the correct legal standard and gathers evidence to support his conclusion).
See Docket No. 22, pp. 89-90 at n. 23.
The Court ADOPTS the Report and Recommendation (Docket No. 22) in its entirety;
GRANTS IN PART Lorie Meyer’s motion for summary judgment (Docket No. 13); DENIES the

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Commissioner’s motion for summary judgment (Docket No. 18); and REMANDS the case for an
award of benefits consistent with the finding that Meyer is disabled as of January 1, 2006, and for
any additional proceedings consistent with this order.
IT IS SO ORDERED.
Dated this 25th day of March, 2012.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court

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