Patton v. Astrue

Filing 32

ORDER granting in part and denying in part 20 Motion to Reverse. The decision of the Commissioner is vacated and the case is remanded for a new hearing. Signed by U. S. District Judge Jeffrey L. Viken on 11/28/11. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MAYDA J. PATTON,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.

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CIV. 10-5016-JLV
ORDER
VACATING THE DECISION
OF THE COMMISSIONER
AND REMANDING FOR
NEW HEARING

INTRODUCTION
On September 5, 2006, plaintiff Mayda J. Patton applied for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”)
pursuant to Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33,
1381-83f (2006), respectively. (Administrative Record, pp. 12, 101-107).1
These filings have a protective date of August 23, 2006. (JSMF ¶ 1). Her
claims were denied initially and upon reconsideration. Id. An
administrative law judge (ALJ) held an evidentiary hearing on February 26,
2009. Id. Ms. Patton appeared pro se. Id. The ALJ issued a written
decision on April 2, 2009, adverse to Ms. Patton, concluding she was not
disabled (the “ALJ Decision”). Id.; see also ALJ Decision, AR, pp. 12-20.
The Appeals Council denied Ms. Patton’s request for review. Id. The

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The court will cite to information in the administrative record by
referencing “AR, p. ____.” The parties filed a Joint Statement of Material Facts
(“JSMF”). (Docket 18).

decision of the ALJ became the final decision of the Commissioner. Id. Ms.
Patton timely filed her complaint in district court. (Docket 1).
The court issued a briefing schedule requiring the parties to file a
JSMF. (Docket 11). If there were any disputed facts, the parties were
required to attach a separate joint statement of disputed facts. Id. The
parties filed their JSMF.2 The parties also filed a joint statement of disputed
material facts. (Docket 19). Ms. Patton then filed a motion for order
reversing the decision of the Commissioner or for remand for new hearing.
(Docket 20). Following briefing, the motion is ripe for resolution.
For the reasons stated below, plaintiff’s motion is granted in part and
denied in part and the matter is remanded to the Commissioner for a new
hearing consistent with this order.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF is incorporated by reference. Further recitation of
salient facts is included in the discussion section of this order.
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006). The court reviews the

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A redacted copy of the JSMF also appears as Docket 26.
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Commissioner’s decision to determine if an error of law was committed.
Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
“Substantial evidence is less than a preponderance, but is enough
that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir.
2006) (internal citation and quotation marks omitted). Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate to
support the Commissioner’s decision. Choate, 457 F.3d at 869 (quoting
Ellis v.Barnhart, 392 F.3d 988, 993 (8th Cir. 2005)). The review of a
decision to deny disability benefits is “more than an examination of the
record for the existence of substantial evidence in support of the
Commissioner’s decision . . . [the court must also] take into account
whatever in the record fairly detracts from that decision.” Reed v. Barnhart,
399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d
742, 747 (8th Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this
court would have decided the case differently, it cannot reverse the
Commissioner’s decision if that decision is supported by good reason and is
based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005). A reviewing court may not reverse the Commissioner’s
decision “ ‘merely because substantial evidence would have supported an

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opposite decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54
F.3d 484, 486 (8th Cir. 1995)).
DISCUSSION
As part of the submission in support of Ms. Patton’s motion to reverse
the decision of the Commissioner, she attached one hundred pages of
medical records which she asserts the ALJ failed to request and, thus, failed
to consider prior to issuing the decision. See Dockets 21, pp. 22-23, and
21-1, pp. 1-100. It is troubling to the court that Ms. Patton did not make
reference to these medical records in the JSMF. Certainly, these medical
records, which Ms. Patton now calls “undeveloped relevant evidence,”
(Docket 21 at p. 22) were available to Ms. Patton and her attorney during
the time the parties were developing the JSMF and joint statement of
disputed facts as contemplated by the briefing schedule. (Docket 11).
Equally troubling is the Commissioner’s memorandum on this issue.
(Docket 28, pp. 22-25).
“Sentence six of 42 U.S.C. § 405(g) authorizes [the court] to remand a
case to the Commissioner where ‘new and material evidence is adduced that
was for good cause not presented during the administrative proceedings.’ ”
Krogmeier v. Barnhart, 294 F.3d 1019, 1024-25 (8th Cir. 2002) (citing
Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000)). “The court . . . may
at any time order additional evidence to be taken before the Commissioner

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. . . , but only upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate such evidence into
the record in a prior proceeding . . . .” 42 U.S.C. § 405(g) (sentence 6).
“Material evidence is non-cumulative, relevant, and probative of the
claimant’s condition for the time period for which benefits were denied, and
there must be a reasonable likelihood that it would have changed the
[Commissioner’s] determination.” Krogmeier, 294 F.3d at 1025 (internal
citation and quotation marks omitted).
The Commissioner acknowledges he has a duty to develop the record
of medical sources for at least the twelve months preceding the month in
which Ms. Patton filed her application. (Docket 28, p. 23) (citing 20 C.F.R.
§§ 404.1512(d), (d)(2), and 416.912(d), (d)(2)). “Our responsibility. Before
we make a determination that you are not disabled, we will develop your
complete medical history for at least the 12 months preceding the month in
which you file your application . . . . We will make every reasonable effort to
help you get medical reports from your own medical sources when you give
us permission to request the reports.” 20 C.F.R. §§ 404.1512(d) and
416.912(d)(2). The Commissioner also acknowledged that medical evidence
up to April 2, 2009, the date of the ALJ’s decision, is pertinent to the
Commissioner’s evaluation of Ms. Patton’s medical condition. (Docket 28, p.
23).

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The ALJ has the duty to “fully and fairly develop the record so that a
just determination of disability may be made. . . .” Clark v. Shalala, 28 F.3d
828, 830 (8th Cir. 1994). The duty included the obligation to “develop a
reasonably complete record.” Id. at 830-31. See also Baker v. Barnhart,
457 F.3d 882, 895 (8th Cir. 2006) (Haney, J., dissenting) (“It is settled law
in this circuit that social security hearings are nonadversarial, and the ALJ
is responsible, independent of the claimant’s burden, for fully and fairly
developing the record.”). Reversal of the ALJ’s decision “due to failure to
develop the record is only warranted where such failure is unfair or
prejudicial.” Haley v. Massanari, 258 F.3d 742, 750 (8th Cir. 2001) (citing
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (internal quotation
marks omitted).
When Ms. Patton completed a disability report on May 28, 2007, she
provided the agency with the following:
When I initially applied to SSI I listed several conditions in which
I am unable to keep a full-time job due to my disabilities. I’ve
noticed that my claim for chronic back pain was never pursued in
my scheduled visits to several doctors which you scheduled. I
have listed back pain in my initial application and since that
initial application have developed new complications and along
with my wanting an appeal; I would like to amend my disability
application to add on this to my pre-existing listed disabilities. I
want to know why my back pain issues were never brought up
and I wasn’t sent to specialists to check further into my 1st claim
as well as asthma/allergies/diabetes, depression . . . back
problems which are now complicating my ability to work full-time.

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(AR, p. 175). In a disability report-appeal, Ms. Patton noted her first visit to
Rapid City Public Health Services of 3200 Canyon Lake Road, Rapid City,
South Dakota [Sioux San Indian Health Services hospital and clinic]
(hereafter “IHS”) was in the 1990s, with her most recent visit being August
23, 2007. Id. at p. 181. This report noted her most recent outpatient visit
to Rapid City Regional Hospital (“RCRH”) was August 21, 2007. Id. The
report also noted her next IHS appointment was scheduled for September
14, 2007. Id.
On February 18, 2008, Ms. Patton again reported concern about her
back pain:
I haven’t seen a specialist for my back. My pain gets worse every
day and I haven’t even seen a spine specialist. All I’m given are
pain pills until next Dr. visit. I need to see a back/spine specialist
because according to the MRI results I have degenerative discs
. . . . I cannot afford to see a spine doctor but, I do know I need to
see one. . . . my chronic and persistent back pain. I have been
working but; only because of the Vicodin and I’m tired of living on
pain pills. I need to know if surgery can help my back.
Id. at p. 188. The next disability report-appeal again noted Ms. Patton’s
visits to IHS and RCRH. Id. at p. 194. This report indicated her last
outpatient visit to IHS was on February 7, 2008, with the next appointment
scheduled for March 5, 2008, while her last visit to RCRH was on January
28, 2008. Id. Despite these updated reports from Ms. Patton, the
administrative records show only the following records were obtained:

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IHS, emergency room records, dated August 28, 2004, to
September 28, 2006; and
RCRH, emergency room records dated August 2, 2005, to April
3, 2006, and August 6, 2006, to August 20, 2007.
Id., Exhibits 4F, 5F, and 6F.
The ALJ commented about Ms. Patton’s allegations of problems with
her back. Id. at p. 15. The ALJ found that “[w]hile [Ms. Patton] does have
degenerative disc disease/sciatica, this impairment is not severe. As
discussed below, the claimant’s medical records contained limited objective
findings with regard to her back.” Id. Despite her complaints that back
problems interfered with her ability to work even part-time, the ALJ found
the “medical evidence . . . does not support the extent of her allegation.” Id.
at p. 18.
Because they were not part of the administrative record, the following
medical records during the relevant time period [August 2, 2005 to April 2,
2009] may shed additional light on the ALJ’s concern about Ms. Patton’s
allegations of back pain:3

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At each of these visits, Ms. Patton was given the following muscle relaxers
and pain medications either individually or in combination: methocarbamol,
acetaminophen, tramadol, hydrocodone, vicoden, oxycodone, lidocaine patches,
and morphine.
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DATE

FACILITY

SYMPTOM

04/30/07

IHS

low back pain with positive straight
leg raise and left-leg radiculopathy
with radiological abnormalities

06/11/07

IHS

constant low back pain with
radiculopathy

06/19/07

IHS

chronic low back pain, with evidence
of disk height loss by earlier x-rays

12/05/07

IHS ER

low back pain

03/24/08

RCRH ER

low back pain

04/03/08

RCRH ER

low back pain

05/03/08

RCRH ER

low back pain

05/23/08

RCRH ER

low back pain

06/03/08

IHS ER

chronic low back pain

07/14/08

IHS

chronic low back pain

10/31/08

RCRH ER

low back pain

11/21/08

IHS ER

chronic back pain in left lower back
which radiates to left lower leg

12/30/08

RCRH ER

low back pain

02/03/09

IHS

pain is isolated to left lumbar scaral
region with radiation of pain down
her posterior interior leg

03/02/09

IHS

low back pain 5/10 radiates half
down left hamstring, worse after
standing for 5 hours at work, better
when lying down

03/31/09

IHS

chronic back pain

(Docket 21-1). In addition to not being available to the ALJ, these medical
records were not available to Dr. Wessel, who conducted a consultative
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examination of Ms. Patton, or Dr. Whittle, who then conducted a medical
records review.4 (AR, Exhibits 1F and 8F).
“[S]ocial security hearings are non-adversarial.” Snead v. Barnhart,
360 F.3d 834, 838 (8th Cir. 2004). “Well-settled precedent confirms that
the ALJ bears a responsibility to develop the record fairly and fully,
independent of the claimant’s burden to press his case.” Id. “The ALJ
possesses no interest in denying benefits and must act neutrally in
developing the record.” Id.
The ALJ gave less credibility to Ms. Patton’s subjective complaints of
back pain because of the incomplete medical records which were in the
administrative record. “The credibility of a claimant’s subjective testimony
is primarily for the ALJ to decide, not the courts.” Vossen v. Astrue, 612
F.3d 1011, 1017 (8th Cir. 2010). “If the ALJ had conducted a further
inquiry, he might have discovered clinical evidence supporting [Ms. Patton’s]
opinion . . . .” Snead, 360 F.3d at 839. “Because this evidence might have
altered the outcome of the disability determination, the ALJ’s failure to elicit
it prejudiced [Ms. Patton] in [her] pursuit of benefits.” Id. Once aware of

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Of separate concern to the court is the fact that Dr. Wessel’s report
recommended an MRI be done, yet neither he nor Dr. Whittle ever considered
the results of the MRI report before arriving at their ultimate conclusions
regarding Ms. Patton’s back and its effect on her mobility. The ALJ mentions
the MRI results, but there is no medical expert who incorporated those findings
into any medical diagnosis.
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the existence of additional medical records, the ALJ should have taken steps
to develop the record sufficiently to allow Ms. Patton a resolution of her case
based upon the complete record.
The Commissioner argues the ALJ would not have considered these
missing records material and would have not changed his decision because
of them. (Docket 28, pp. 23-25). It would be unfair to both Ms. Patton and
the Commissioner for the court to engage in speculation or conjecture as to
how the ALJ would evaluate the extensive, relevant medical records which
the agency failed to incorporate into the administrative record before the
ALJ completed his analysis and decision. The Commissioner offers no
explanation or good reason why these relevant medical records were never
requested. See 20 C.F.R. § 404.1512(d).
The court finds the medical records are “[m]aterial . . . noncumulative . . . and probative of [Ms. Patton’s] condition for the time period
for which benefits were denied . . . .” Krogmeier, 294 F.3d at 1025. There is
a “reasonable likelihood” that these records would have an impact upon and
change the Commissioner’s decision. Id. The court finds good cause exists
and it would be unfair and prejudicial to both parties to ignore the failure of
the Social Security Administration to properly develop the full record.
Haley, 258 F.3d at 750.

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ORDER
Based upon the above analysis, it is hereby
ORDERED that plaintiff's motion (Docket 20) is granted in part and
denied in part.
IT IS FURTHER ORDERED that pursuant to sentence six of 42 U.S.C.
§ 405(g) the decision of the Commissioner is vacated and the case is
remanded for a new hearing.
Dated November 28, 2011.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE

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