Rathke v. Colvin
Filing
27
ORDER granting in part and denying in part 21 Motion to Reverse; granting 24 Motion to Remand. Signed by Chief Judge Jeffrey L. Viken on 9/4/15. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 13-5076-JLV
TERRY RATHKE, for BOYD RATHKE,
deceased,
ORDER REVERSING AND
REMANDING DECISION OF THE
COMMISSIONER
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
INTRODUCTION
Before the court is defendant’s motion for the court to enter a judgment
with an order of reversal and remand of the cause to the Commissioner of the
Social Security Administration (“Commissioner”) for further administrative
proceedings. (Docket 24). Plaintiff opposes the motion and requests an
order granting benefits immediately or, in the alternative, a substantive
review of the decision of the Administrative Law Judge (“ALJ”). (Docket 26).
PROCEDURAL HISTORY
The parties agreed on the procedural history of the case outlined by
Magistrate Judge Duffy in her report and recommendation.1 (Docket 18 at
pp. 1-2); see also Rathke v. Astrue, Commissioner of Social Security
Administration, CIV. 08-5084-JLV, Docket 22 at pp. 3-5 (hereinafter Rathke
1The
court sites to information in the administrative record by referencing
“AR, p. ___.” The parties filed a Joint Statement of Material Facts (“JSMF”).
(Docket 18).
I). The court adopts and incorporates the procedural history in this case as
described by Judge Duffy. The court only notes procedural matters
occurring after the issuance of the magistrate judge’s report and
recommendation. Judge Duffy recommended the district court affirm the
decision of the Social Security Administration (“SSA”) denying benefits to Mr.
Rathke. Rathke I at 92, Docket 22 at p. 92.
On March 26, 2010, this court adopted in part and rejected in part the
magistrate judge’s report and recommendation. Rathke I, Docket 27 at p. 12.
The court sustained in part, overruled in part and reserved ruling in part on Mr.
Rathke’s objections to the ALJ’s decision. Id. The court reversed the decision
of the Commissioner and remanded the case to the Commissioner for further
administrative action under sentence four of 42 U.S.C. § 405(g). Id. The court
instructed the ALJ to “further develop the record and issue a new decision.” Id.
The court overruled Mr. Rathke’s objections to the magistrate judge’s
recommended denial of his claim for Title II benefits. Id. at 11. Mr. Rathke did
not timely appeal the court’s decision. (Docket 21 at p. 3).2 Mr. Rathke’s only
remaining claim is for supplemental security income (“SSI”) benefits under Title
XVI.3 See Rathke I, Docket 27 at pp. 11-12; see also Docket 21 at p. 3.
2The
court’s citations to “Docket” refer to the court’s online docket for Mr.
Rathke’s current case, CIV. 13-5076-JLV.
3Mr.
Rathke’s Title XVI claim for SSI benefits was made on February 24,
2003, and alleged a disability onset date of March 15, 1993. Rathke I, Docket
22 at p. 4.
2
During the pendency of Mr. Rathke’s 2008 appeal to the district court,
he applied for disability benefits for a fourth time on December 24, 2008.
(Docket 18 at p. 2). His claim was denied on application on July 28, 2009,
and on reconsideration on October 16, 2009. Id. Mr. Rathke subsequently
requested a hearing. Id. Following this court’s March 26, 2010, remand of
Mr. Rathke’s appeal, the cases were consolidated by order of the Appeals
Council. Id. A second administrative hearing was held before ALJ James
Olson and a decision denying Mr. Rathke’s February 24, 2003, application for
SSI benefits issued. Id.; see also AR, p. 894.
Mr. Rathke timely filed a request for review and written exceptions, and
he submitted additional evidence to the Appeals Council. (Docket 18 at p. 2).
The Appeals Council declined review. Mr. Rathke appealed his claim to this
court for a second time. Id.; see also Docket 1. During the pendency of the
Appeals Council review, Mr. Rathke passed away, and his widow, Terry
Rathke, brings the current action on behalf of her deceased husband as a
substituted party. (Docket 18 at p. 2).
The Commissioner filed a motion for the court to enter a judgment with
an order of reversal and remand of the claim to the Commissioner for further
administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
(Docket 24). Ms. Rathke resists the motion and filed her own motion seeking
to reverse the Commissioner’s decision and requesting an award of benefits.
(Dockets 21 & 26). Ms. Rathke contends the court lacks authority to remand
3
the case under sentence four of 42 U.S.C. § 405(g) without a substantive
ruling in the case and, in the alternative, requests that the court enter a
judgment reversing the Commissioner with a substantive ruling regarding the
correctness of the ALJ’s decision. (Docket 26 at p. 4).
For the reasons set out below, Ms. Rathke’s motion is granted in part
and denied in part and the Commissioner’s motion is granted.
FACTUAL HISTORY
The parties’ JSMF (Docket 18) is incorporated by reference, as is Judge
Duffy’s prior iteration of the facts. Id. at pp. 3-4; see also Rathke I, Docket 22 at
pp. 6-51. Further recitation of salient facts is included in the discussion section
of this order.
DISCUSSION
Under sentence four of 42 U.S.C. § 405(g), the court has the power “to
enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
After reviewing the administrative record in Mr. Rathke’s case, the
Commissioner concedes further administrative action is warranted. (Docket
25). The Commissioner informs the court that, on remand, “the ALJ will be
instructed to further evaluate Mr. Rathke’s subjective complaints and the
opinion evidence, reassess Mr. Rathke’s residual functional capacity, and
take the actions set forth in the March 26, 2010 Order from the United States
4
District Court, District of South Dakota.” Id. at 1-2. Because of the specific
nature of the Commissioner’s motion for remand, the court limits its analysis
to those matters necessary to justify remanding the case for a second time.
Each of the Commissioner’s asserted grounds for the remand is addressed in
turn.
1.
ALJ Olson’s August 18, 2011, Decision
a.
Mr. Rathke’s Subjective Complaints
In the court’s March 26, 2010, order in Rathke I reversing and
remanding the decision of the Commissioner, the court noted several areas in
which the first ALJ’s determination regarding Mr. Rathke’s credibility was
either not supported by substantial evidence or required a subsequent
administrative proceeding to fully develop the record before a proper
determination could be made. Rathke I, Docket 27 at pp. 4-8. These areas
were: the ALJ’s determination that Mr. Rathke was not credible due to
infrequent doctor visits; the ALJ’s determination that Mr. Rathke was not
credible due to his use of marijuana to maintain his weight; the ALJ’s failure
to consider Mr. Rathke’s indigency when discrediting his credibility;4 and the
ALJ’s determination that Mr. Rathke failed to follow prescribed treatment for
his Hepatitis C without good cause. Id.
The court’s analysis in this regard encompasses both Mr. Rathke’s third
and fifth objections to the magistrate judge’s report and recommendation. See
Rathke I, Docket 27 at pp. 4-5.
4
5
ALJ Olson’s August 18, 2011, assessment of Mr. Rathke’s credibility is
best understood in his own words:
[Mr. Rathke] is not participating in any therapy or counseling. He
takes psychotropic medications from his treating doctor (not a
psychiatrist or psychologist).
His treating physician [Dr.
Falkenburg] has indicated that she is frustrated with the claimant
when he stops taking medications on his own. . . . The claimant has
refused treatment for depression. There are references that he
cannot take Interferon because of his depression. That is
self-serving. She [Dr. Falkenburg] does not address his marijuana
usage or the effect of this depressant on his overall treatment.
Contrary to the opinion of the District Court Judge, the undersigned
does not believe [Mr. Rathke] when he states that he uses it for his
weight control. He has responded to other medications and his
appetite has improved . . . . [Mr. Rathke’s] poor dentition is as
relevant to his eating as his marijuana use. [Mr. Rathke] has
moved several times since he filed this claim. He has a very poor
work history with no reported earnings since 2001. [Mr. Rathke]
has chosen to isolate himself and to not work. He refuses to follow
through on treatment and medication. He is not credible on his
allegations.
(AR, p. 892).
ALJ Olson’s assessment of Mr. Rathke’s credibility on remand leaves
the court in the same position it was in prior to its March 26, 2010, order
when it remanded Mr. Rathke’s case the first time.
With regard to Mr. Rathke’s marijuana use, ALJ Olson determined
“[c]ontrary to the opinion of the District Court Judge, the undersigned does
not believe the claimant when he states that he uses it for his weight control.”
Id. This determination is contrary to the law-of-the-case doctrine. See
Hulsey v. Astrue, 622 F.3d 917, 924 (8th Cir. 2010); see also Brubaker v.
6
Carolyn W. Colvin, Acting Commissioner, Social Security Administration,
CIV. 13-5031-JLV, Docket 28 at pp. 8-11.
“The law-of-the-case doctrine generally prevents relitigation of an issue
previously resolved, and requires courts to adhere to decisions rendered in
earlier proceedings. This doctrine applies to administrative agencies on
remand.” Hulsey, 622 F.3d at 924 (citing Brachtel v. Apfel, 132 F.3d 417,
419 (8th Cir. 1997)). The law-of-the-case doctrine “applies to decisions made
by appellate courts and final decisions made by district courts that have not
been appealed.” Gander Mountain Co. v. Cabela’s, Inc., 540 F.3d 827, 830
(8th Cir. 2008).
The court sustained Mr. Rathke’s objection to the magistrate judge’s
report and recommendation and found “Mr. Rathke’s assertion that
marijuana helps maintain his weight is no less credible than the ALJ’s implied
assertion that Mr. Rathke can maintain his weight without marijuana.”
Rathke I, Docket 27 at p. 5. No appeal was filed in the case following the
court’s March 26, 2010, order. No new or additional evidence concerning a
material improvement in Mr. Rathke’s physical or mental condition was
uncovered. Mr. Rathke’s condition appears to have worsened as he passed
away on April 15, 2013. (Docket 21-1). ALJ Olson’s disbelief of Mr.
Rathke’s asserted reasons for ingesting marijuana was an improper basis on
which to assess Mr. Rathke’s credibility as the issue was already resolved by
this court.
7
With regard to the frequency with which Mr. Rathke sought medical
treatment, ALJ Olson determined Mr. Rathke “refuse[d] to follow through on
treatment and medication.” (AR, p. 892). In its March 26, 2010, order, the
court instructed the Commissioner to further develop the record on what affect
Mr. Rathke’s indigency had on his ability to visit the doctor and to seek and
obtain treatment. (Docket 27 at pp. 4-5); see also Tome v. Schweiker, 724 F.2d
711, 714 (8th Cir. 1984) (“[A] lack of sufficient financial resources to follow
prescribed treatment to remedy a disabling impairment may be . . . an
independent basis for finding justifiable cause for noncompliance.”). Nowhere
in the decision did the ALJ discuss the effect of Mr. Rathke’s indigency on his
ability to seek medical treatment as instructed by the court.
The court finds the ALJ failed to fully develop the record on this issue.
See Rathke I, Docket 27 at p. 5 (“The record is inadequate to determine if
justifiable cause exists for any alleged noncompliance with treatment.”).
Therefore, the ALJ’s consideration of Mr. Rathke’s alleged failure to follow
through on treatment and medication, without more, was an improper basis on
which to assess Mr. Rathke’s credibility.
With regard to Mr. Rathke’s position that he could not use the medication
Interferon to treat his Hepatitis C because of his depression, the ALJ found the
representation to be self-serving. (AR, p. 892). In its March 26, 2010, order,
the court instructed the Commissioner to further develop the record to determine
whether Mr. Rathke’s failure to treat his Hepatitis C was supported by good
8
reason. Rathke I, Docket 27 at p. 8; see also 20 C.F.R. § 416.930. No further
record was developed in the ALJ’s August 18, 2011, decision. The ALJ provided
no support for his finding that Mr. Rathke’s asserted inability to take Interferon
to treat his Hepatitis C was self-serving. Indeed, the opposite appears to be true
as the ALJ determined that among other severe impairments, Mr. Rathke
suffered from depression. (AR, p. 881). On August 25, 2009, Dr. Falkenburg
opined, “[i]n regard to his hepatitis C, his last viral load was in 2006 because he
cannot afford to have the testing done. His weight has gone done steadily from
about 150 in 2003 to 129 pounds.” (Docket 18 at ¶ 57).
Mr. Rathke’s progress notes dated December 17, 2004, include
the notation, “[h]e comes in for a follow up of some chronic medical conditions
including Hep C, which he is not receiving any therapy for. He has had major
depression in the past and therefore is not a good candidate for Interferon. He
also does not want chronic treatment for Hep C.” (AR, p. 705); see also Rathke I,
Docket 27 at pp. 6-8 (identifying additional medical records indicating that Mr.
Rathke not a good candidate to take Interferon to treat his Hepatitis C because of
his depression).
The ALJ failed to fully develop the record on this issue as instructed by the
court. See Rathke I, Docket 27 at p. 8 (“[T]he record must be developed further
to determine if Mr. Rathke has such ‘good reason’ ” for failing to follow the
prescribed treatment for his Hepatitis C.). Without more, the ALJ’s assessment
of Mr. Rathke’s credibility based on his failure to treat his Hepatitis C was
improper.
9
The ALJ determined “the claimant’s statements concerning the intensity,
persistence and limiting effects of [his] symptoms not credible to the extent they
are inconsistent with the . . . residual functional capacity assessment”
promulgated by the ALJ. (AR, p. 889). Based on the previously identified
deficiencies in the record, the court questions how the ALJ was able to reach this
conclusion. The ALJ made no attempt to explain how Mr. Rathke’s “medically
determinable impairments could reasonably be expected to cause the alleged
symptoms,” while his statements describing his symptoms “are not credible to
the extent they are inconsistent” with the residual functional capacity (“RFC”) as
determined by the ALJ. Id. The ALJ’s lack of analysis on this issue is
disconcerting in light of the similarities between Mr. Rathke’s statements and
those of his treating physician, Dr. Falkenburg, which the ALJ accorded no
weight, see id., while he accorded substantial weight to the opinions of Dr.
Enright, a non-examining psychologist. (AR, p. 887).
The ALJ further assessed Mr. Rathke’s credibility based on the fact that
Mr. Rathke “moved several times since he filed this claim. [Mr. Rathke] has a
very poor work history with no reported earnings since 2001. [Mr. Rathke] has
chosen to isolate himself and to not work.” (AR, p. 892). The ALJ’s inclusion of
these factors does not cure his failure to consider the other circumstances
bearing on Mr. Rathke’s credibility, especially after the court instructed the ALJ
to more fully develop the record on those matters.
10
With regard to Mr. Rathke’s work history and isolation, the ALJ gave no
indication whether Mr. Rathke’s diagnosed inability to interact with others or
with the public in general was considered. (Docket 18 at ¶¶ 14, 40 (Dr.
Dickerson), 96 (Dr. Falkenburg), 102 (Dr. Falkenberg), 106 (Dr. R. Hilston), 122
(Dr. Pelc) & 133 (Dr. Pelc)). These sources lend support to Mr. Rathke’s
statements regarding the intensity, persistence and limiting effects of his
symptoms. Before the court can properly assess Mr. Rathke’s credibility on the
basis of his work history and isolation, the Commissioner must more fully
develop the administrative record clarifying the cause of these issues.
The court finds the ALJ’s assessment of Mr. Rathke’s credibility is not
supported by substantial evidence in the record. The court remands the case to
the Commissioner to further develop the record in accord with the foregoing
analysis in this opinion and in its March 26, 2010, opinion.5
b.
Opinion Evidence
The court interprets the “opinion evidence” addressed in the
Commissioner’s memorandum as a reference to the opinions of various doctors,
5Because
the court remands the case to the Commissioner to further
develop the record and reassess Mr. Rathke’s credibility in light of the
aforementioned considerations, the court reserves ruling on the issue of
whether the ALJ failed to consider Mr. Rathke’s combined pain and mental
impairments. This analysis requires the court to consider whether the ALJ
improperly discounted Mr. Rathke’s subjective complaints of disabling pain,
an analysis which the court already determined requires information not yet
supplied by the ALJ. Rathke I, Docket 27 at pp. 8-9. Having been twice
informed of the information required to resolve this issue, the court expects
the Commissioner will develop the record as instructed.
11
healthcare professionals and vocational experts mentioned in the ALJ’s decision.
(Docket 25). Although the court reserves ruling on Mr. Rathke’s objections to
the ALJ’s consideration of the opinions of certain healthcare professionals and
vocational experts, see infra, the court addresses the ALJ’s decision to accord the
opinions of Mr. Rathke’s treating physician, Dr. Falkenburg, no weight. (AR,
pp. 887, 889). With regard to Mr. Rathke’s mental disabilities, the ALJ rejected
Dr. Falkenburg’s opinions because:
1. Her opinions are not well supported by objective psychological
medical evidence.
2. Dr. Falkenburg’s opinions conflicted with the medical assessment
form which she also completed.
3. The ALJ gave more weight to Dr. Falkenburg’s medical narratives
than the SSA stock medical assessment she completed.
4. Dr. Falkenburg’s failure to note Mr. Rathke’s narcotic withdrawal
when completing Mr. Rathke’s mental assessment.
See Docket 18 ¶ 227-28; see also Docket 21 at p. 15 (The court notes the
Commissioner did not object to Mr. Rathke’s characterization of the ALJ’s
rationale for rejecting Dr. Falkenburg’s opinions.).
The court’s analysis begins with the oft-cited principle that a treating
physician’s opinions are to be afforded special deference. See, e.g., Gillette v.
Barnhart, 291 F. Supp. 2d 1071, 1077 (D.N.D. 2003), aff'd, 106 F. App’x 515 (8th
Cir. 2004). “As a general matter, the report of a consulting physician who
examined a claimant once does not constitute substantial evidence upon the
record as a whole, especially when contradicted by the evaluation of the
12
claimant’s treating physician.” Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir.
2007) (internal quotations and citations omitted). However, “[a]n ALJ may
discount or even disregard the opinion of a treating physician where other
medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that
undermine the credibility of such opinions.” Renstrom v. Astrue, 680 F.3d
1057, 1064 (8th Cir. 2012) (internal quotation marks and citations omitted).
Here, the ALJ entirely disregarded Dr. Falkenburg’s opinions. (AR, pp.
887, 889). He did so in part based on his rationale that “Dr. Falkenburg’s
characterization of the claimant’s limitations in mental work-related activities to
in the extreme categories [sic] is not supported by any evidence. If accurate, it
would necessitate institutionalization.” Id. at 892 (emphasis added). No
doctor, medical professional, or relevant expert offered such testimony. This
statement is entirely the ALJ’s opinion and is not a proper basis to discredit the
opinion of the treating physician. See Pate-Fires v. Astrue, 564 F.3d 935, 947
(8th Cir. 2009) (An “ALJ playing doctor [is] a practice forbidden by law.”) (internal
quotation marks and citations omitted).
The court is troubled by the ALJ’s cavalier attitude toward mental illnesses
where symptom-free periods, or periods of remission, are common and are
characteristic of a mental illness. Andler v. Chater, 100 F.3d 1389, 1393 (8th
Cir. 1996). “Unlike many physical impairments, it is extremely difficult to
predict the course of mental illness. Symptom-free intervals and brief
13
remissions are generally of uncertain duration and marked by the impending
possibility of relapse.” Id. (citations omitted). This is why with “mental
disorders, the Commissioner’s decision ‘must take into account evidence
indicating that the claimant’s true functional ability may be substantially less
than the claimant asserts or wishes.’ ” Hutsell v. Massanari, 259 F.3d 707, 711
(8th Cir. 2001) (quoting Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir.
1984)).
Although Dr. Falkenberg’s primary specialty is family medicine, she
treated Mr. Rathke for nearly fourteen years (Docket 18 at ¶¶ 46-55, 57, 63-67)
including sixteen visits during a 33-month period from 2003 to 2006. Rathke I,
Docket 27 at p. 4. Contrary to the ALJ’s finding that “no medical records
[documenting Mr. Rathke’s contact with Dr. Falkenburg] appear from January
2004 through . . . February 2005, the date of [Mr. Rathke’s] mental assessment,”
(AR, p. 887), such records do exist. Mr. Rathke presented to Dr. Falkenburg on
at least two separate occasions from January 2004 to February 2005. (AR, pp.
705, 708).
While the ALJ was free to discount or even disregard Dr. Falkenburg’s
opinions regarding Mr. Rathke’s mental disability where “other medical
assessments are supported by better or more thorough medical evidence, or
where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions,” Renstrom, 680 F.3d at 1064 (8th Cir. 2012), the
ALJ provided little, if any, analysis demonstrating that this was the case here.
14
For example, in the ALJ’s determination to accord substantial weight to the
opinions of Dr. Enright, a non-examining psychologist, the ALJ stated only that
Dr. Enright “considered all of the pertinent evidence in this claim, including
opinions of treating and other examining sources and the claimant’s testimony
and reports through the date of the hearing. Dr. Enright provided testimony
and explanations for his opinions.” (AR, p. 887).
Based on this explanation, the court fails to see how Dr. Enright’s
assessment is supported by better or more thorough evidence, especially where
the “weight given to a treating physician’s opinions is directly proportional to the
length of the relationship between the claimant and the physician and the
frequency of visits.” (AR, p. 887). In light of the on again–off again nature of
mental illness and the short explanation of the purported inconsistencies with
Dr. Falkenburg’s opinions (AR, pp. 887, 889), the court is unable to determine
whether Dr. Falkenburg’s opinions are inconsistent with her progress notes or
are merely reflections of Mr. Rathke’s mental illness. See Docket 18 at ¶¶ 51,
53, 58, 60, 63. The ALJ must provide more than general assertions that Dr.
Falkenburg’s opinions and notes are inconsistent before entirely disregarding
her opinions as Mr. Rathke’s treating physician.
The court finds the ALJ’s decision to accord Dr. Falkenburg’s opinions no
weight is not supported by substantial evidence in the record. The court
remands for resolution of this issue by the Commissioner through further
administrative proceedings consistent with the above analysis.
15
c.
Mr. Rathke’s Residual Functional Capacity
Because the court found the ALJ’s evaluation of Mr. Rathke’s credibility
was not supported by substantial evidence, that the record required further
development, and the ALJ’s determination that Dr. Falkenburg’s opinions
regarding Mr. Rathke’s mental disability should be given no weight as not
supported by substantial evidence, the court finds the ALJ’s assessment of Mr.
Rathke’s RFC is not supported by substantial evidence. See Goff v. Barnhart,
421 F.3d 785, 793 (8th Cir. 2005) (“The ALJ must assess a claimant’s RFC based
on all relevant, credible evidence in the record, including the medical records,
observations of treating physicians and others, and an individual’s own
description of his limitations.”) (citations and internal quotation marks omitted).
The matter is remanded to the Commissioner to reassess Mr. Rathke’s RFC
consistent with this opinion and the court’s March 26, 2010, opinion.
d.
Take the Actions Set Forth in this Court’s March 26, 2010,
Order
As has been shown in the preceding sections, the ALJ failed to perform
many of the actions required by this court’s March 26, 2010, order. In addition
to the areas identified, the court reminds the next ALJ that an administrative
hearing is not an adversarial proceeding and the ALJ has a duty to fully and
fairly develop the facts of the case. See Hildebrand v. Barnhart, 302 F.3d 836,
838 (8th Cir. 2002); Compare AR, p. 890 (Mr. Rathke was “helping build a cabin,
performing such tasks as insulating and installing drywall.”) with AR, p. 775,
16
(Mr. Rathke described his actions as giving his neighbor, who is building a cabin
for Mr. Rathke’s mother, “a hand for a little bit until I feel like I can’t take
anymore.”) and AR, pp. 792-93 (describing Mr. Rathke’s participation in the
construction of the cabin as limited to a discrete occasion where he held one end
of a piece of drywall while someone else placed screws into it). The court
remands the case to the Commissioner to take all actions set forth in the court’s
March 26, 2010, order including further developing the record where
appropriate. See Hildebrand, 302 F.3d at 838.
2.
Issues on which the Court Reserves Ruling
As was previously noted, the court finds itself in the same position it was in
on March 26, 2010, namely that further administrative action is necessary to
sufficiently develop the record to a point at which the court can properly analyze
Mr. Rathke’s claims. The court sympathizes with the position Ms. Rathke has
been placed in, however, the court is in no better circumstances to adjudicate his
claim than it was on March 26, 2010. See Docket 27 at pp. 8-9, 11 (The court
explicitly reserved ruling on whether: the ALJ failed to consider the combined
effect of Mr. Rathke’s pain and mental impairment at step three of the five-step
sequential process; the weight the ALJ assigned to medical evidence; the
appropriateness of the ALJ’s rationale in discrediting Dr. Dang’s opinion; and
items noted but not discussed by the ALJ).
In light of the court’s determination that a remand is necessary, the court
also reserves ruling on any issues raised in Ms. Rathke’s motion to reverse the
17
decision of the Commissioner but not considered in this opinion. (Docket 21).
Specifically, the court reserves ruling on whether the ALJ’s determination that
Mr. Rathke “does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments” (AR, p.
882) is supported by substantial evidence in the record in light of the opinions of
Dr. Dickerson and Dr. Gilbertson. See Docket 21 at pp. 22-27 (Ms. Rathke
argues that the opinions of Doctors Dickerson and Gilbertson support a finding
that Mr. Rathke suffered from a listed impairment, specifically, the A and B
criteria of Listing 12:02 – organic brain injury.
The court reserves ruling on whether Dr. Pelc’s opinions are supported by
substantial evidence until the ALJ provides a new opinion. Id. at 27-30.
Having determined that a remand is required, the court finds the concerns raised
by Ms. Rathke in this regard are best taken up by the ALJ at the administrative
hearing.
3.
Ms. Rathke’s Opposition to the Commissioner’s Motion
Ms. Rathke asks the court to reverse the decision of the Commissioner
with an instruction to grant Mr. Rathke benefits. Id. at 31. However, the
court reserved ruling on many issues in its March 26, 2010, order which went
unanswered in the ALJ’s August 18, 2011, decision. In this order, the court
was again forced to reserve ruling on substantive issues pending an ALJ’s
further development of the record. The ALJ failed to develop the record as
instructed by the court in its March 26, 2010, order. The court concludes
18
the ALJ’s assessment of Mr. Rathke’s credibility, the decision not to afford Dr.
Falkenburg’s opinions any weight, and the RFC assessment were not
supported by substantial evidence.
An immediate award of benefits is not appropriate at this juncture.
See Reed v. Barnhart, 399 F.3d 917, 924 (8th Cir. 2005) (Case remanded to
Commissioner when improper weight was given to claimant's treating
physician by ALJ); Chitwood v. Bowen, 788 F.2d 1376, 1378 (8th Cir. 1986)
(case remanded so ALJ could give appropriate weight to the medical evidence
and determine applicant’s RFC); Brubaker, CIV. 13-5031-JLV, Docket 28
(remanding the case where the court found the administrative record was
incomplete after the ALJ failed to follow the court’s instructions in a prior
remand); Allen v. Astrue, No. CIV. 08-5034-KES, 2009 WL 44207, at *1
(D.S.D. Jan. 6, 2009) (case remanded after the ALJ failed to “give good
reasons for the weight given to the treating physician’s evaluation.” (internal
quotation marks and citations omitted)).
Ms. Rathke asserts Brown v. Barnhart, 282 F.3d 580 (8th Cir. 2002)
leaves the court without authority to enter a summary order remanding the
case under sentence four of 42 U.S.C. § 405(g). (Docket 26). However,
unlike the court in Brown, this court will not enter a summary order, but
rather a substantive ruling reversing the decision of the Commissioner and
remanding the case for further administrative proceedings consistent with
this opinion and the court’s March 26, 2011, opinion. See Allen, 2009 WL
19
44207, at *1. The court’s action is consistent with its authority under
sentence four.
CONCLUSION
The court finds the administrative record is not yet complete in this case.
The court finds the Commissioner must further develop the administrative
record in accord with the court’s findings, reassess Mr. Rathke’s credibility,
reassess the weight given to Dr. Falkenburg’s opinions, reassess Mr. Rathke’s
RFC, and follow the court’s instructions as identified in this order and the court’s
March 26, 2010, order.
For these reasons, the court finds the ALJ’s decision dated August 18,
2011, that Mr. Rathke was not disabled is not supported by substantial
evidence. 42 U.S.C. § 405(g); Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir.
2006) (“Substantial evidence is evidence that a reasonable mind would find
adequate to support the decision of the Commissioner.”). As a result, the court
finds the matter must be remanded for further administrative proceedings in
accord with this decision and the court’s order dated March 26, 2010.
ORDER
Based on the above discussion, it is
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 21) is granted in part and denied in part.
IT IS FURTHER ORDERED that the Commissioner’s motion for
remand (Docket 24) is granted.
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IT IS FURTHER ORDERED that, pursuant to sentence four of
42 U.S.C. § 405(g), the case is remanded to the Commissioner for rehearing
consistent with this order and the court’s order of March 26, 2010.
Dated September 4, 2015.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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