United States District Court, D. Minnesota
Stephanie M. Balmer, Esq., Falsani, Balmer, Peterson &
Balmer, Duluth, MN, on behalf of Plaintiff.
Wirmani, Esq., Special Assistant United States Attorney,
Assistant Regional Counsel, Social Security Administration,
Dallas, TX, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on the Objection [Docket No. 17] of Defendant
Nancy Berryhill, Acting Commissioner of Social Security
(“Commissioner”) to Magistrate Judge Becky
Thorson's December 17, 2018 Report and Recommendation
(“R&R”) [Docket No. 16]. In the R&R,
Judge Thorson recommends granting in part Plaintiff Lee
Richard M.'s (“Plaintiff”) Motion for Summary
Judgment [Docket No. 10], denying the Commissioner's
Motion for Summary Judgment [Docket No. 14], and remanding
this matter to the Administrative Law Judge
(“ALJ”) for further proceedings. For the reasons
set forth below, the Objection is overruled and the R&R
Plaintiff's second appeal to a United States District
Court following a final decision by the Commissioner on
Plaintiff's December 8, 2010 applications for Disability
Insurance Benefits (“DIB”) and Social Security
Income (“SSI”). Plaintiff's first appeal was
filed in the United States District Court for the Western
District of Arkansas in 2013, after an ALJ denied benefits on
May 4, 2012 and the Social Security Administration
(“SSA”) Appeals Counsel denied Plaintiff's
request for review. Tr. [Docket No. 8] 1-4, 8-28, 891-98.
Arkansas District Court remanded Plaintiff's case to the
SSA to further develop the record concerning the impact of
Plaintiff's gout and chronic renal insufficiency on
Plaintiff's residual functional capacity
(“RFC”). Tr. 895-96. The district court noted:
[N]either of these diagnoses [of gout and chronic renal
insufficiency] were considered in the Physical RFC completed
on January 22, 2011, or in the subsequent requests for
medical advice. Nor is there any record of a medical source
statement addressing Plaintiff's ability to function in
the workplace from his treating rheumatologist or
nephrologist. The ALJ did include these diseases in the
Plaintiff's list of severe impairments. However, he
dismissed the effect of both diseases for lack of objective
evidence and failure to seek treatment when assessing the
overall RFC. Once the ALJ was made aware of a crucial issue
that might change the outcome of a case, he had a duty to
conduct further inquiry to fully develop the record. He did
not. Further, because the record was not developed, the ALJ
apparently assessed the effects of Plaintiff's gout and
chronic renal insufficiency without the benefit of a medical
opinion as to how these diseases might affect Plaintiff's
ability to function in the workplace.
Tr. 896 (internal citation omitted).
district court concluded that remand was necessary and
ordered the ALJ on remand to “fully and fairly develop
the record as to Plaintiff's gout and chronic renal
insufficiency.” Tr. 897. The remand order instructed
that “[a]s part of this development the ALJ must
recontact Plaintiff's treating nephrologist and
rheumatologist for clarification on Plaintiff's gout and
chronic renal insufficiency” and “obtain an RFC
from both specialists.” Id. The district court
further directed that once the information was obtained, the
ALJ should reassess Plaintiff's overall RFC and present
the information to a vocational expert. Id.
remand, the ALJ attempted to obtain opinions from
Plaintiff's treating physicians by faxing a form titled
“Medical Source Statement of Ability to do Work-Related
Activities (Physical)” to the physicians. Tr. 1545-66.
Plaintiff's rheumatologist returned the form without
completing it, stating “We do not have the ability to
do these. McBride rehab can.” Tr. 1549. Plaintiff's
nephrologist did not respond despite the form being faxed to
his office three times. See Tr. Index [Docket No. 8,
Attach. 1] Ex. B30F. The ALJ did not attempt to contact the
physicians through other means and did not seek an RFC
assessment from a consulting or reviewing specialist after
the unsuccessful efforts to obtain information from
Plaintiff's treating physicians.
25, 2017, after another set of hearings on remand, the ALJ
issued a partially favorable decision. Tr. 674-96. The ALJ
concluded that Plaintiff was disabled as of February 1, 2014,
but was not disabled before that date because he had the RFC
to perform sedentary work until January 31, 2014. Tr. 681.
Based on this conclusion, the ALJ held that Plaintiff was
entitled to SSI benefits beginning February 1, 2014. Tr. 696.
However, the ALJ held that Plaintiff was not entitled to DIB
because he was not disabled at any time through December 31,
2012, the date he was last insured. Tr. 696.
determining that Plaintiff had the ability to function in the
workplace before February 1, 2014, the ALJ cited the same
exhibits and made similar comments about Plaintiff's
chronic renal insufficiency and gout as in the previous
decision that led ...