Richard M. v. Berryhill

          Stephanie M. Balmer, Esq., Falsani, Balmer, Peterson & Balmer, Duluth, MN, on behalf of Plaintiff.

          Tracey Wirmani, Esq., Special Assistant United States Attorney, Assistant Regional Counsel, Social Security Administration, Dallas, TX, on behalf of Defendant.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This 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 is adopted.

         II. BACKGROUND^[1]

         This is 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.

         The 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”).^[2] 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).

         The 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.

         On 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.

         On July 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.

         In 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 ...