United States District Court, D. Minnesota
ORDER ACCEPTING REPORT AND RECOMMENDATION
E. BRASEL UNITED STATES DISTRICT JUDGE
matter is before the Court on Plaintiff Timothy M.'s
objection [ECF No. 22 (“Pl. Obj.”)] to the
January 22, 2019 Report and Recommendation [ECF No. 21
(“R&R”)] of Magistrate Judge Leo I. Brisbois.
Magistrate Judge Brisbois recommends granting Defendant's
motion for summary judgment [ECF No. 17] and denying
Plaintiff's motion for summary judgment. [ECF No. 13.]
Defendant Nancy A. Berryhill, Acting Commissioner of Social
Security, submitted a response to the R&R dated February
5, 2019 [ECF No. 23] and, thereafter, filed a response to
Plaintiff's objections dated February 15, 2019 [ECF No.
24]. Once a magistrate judge's report and recommendation
is filed, a party may “serve and file specific written
objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2); D. Minn. LR
72.2(b). The Court has conducted a de novo review of
the record, including a review of the arguments and
submissions of counsel, pursuant to 28 U.S.C. §
636(b)(1), Fed.R.Civ.P. 72(b)(2), and Local Rule 72.2(b).
Having closely examined the record and the R&R, the Court
concludes that the ALJ's decision “falls within the
available zone of choice.” Buckner v. Astrue,
646 F.3d 549, 556 (8th Cir. 2011) (quoting Bradley v.
Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008)). For the
reasons set forth below, the Court overrules the
Plaintiff's objections and accepts the report and
recommendation of the Magistrate Judge.
factual and procedural history of this case is clearly set
forth in the R&R and is incorporated by reference for the
purposes of Plaintiff's present objections. While
Plaintiff argued first that he was denied a full and fair
hearing because his treating psychologist, Dr. Robert N.
Wilson, Ph.D, L.P., did not testify and second that the ALJ
should have given controlling weight to the opinions of his
treating physicians, Dr. Jason Reed, M.D. and Dr. Wilson, the
Magistrate Judge found that substantial evidence supported
the ALJ's decision that Plaintiff was not disabled as of
September 30, 2015, as defined by the Social Security
Administration Act. Specifically, the Magistrate Judge
determined that: (1) the ALJ's determinations regarding
Plaintiff's impairments were supported by substantial
evidence in the record as a whole; (2) the ALJ's decision
to have Dr. Wilson submit written testimony in lieu of live
testimony given the technological difficulties at the hearing
was not error; (3) the ALJ properly concluded that Dr.
Wilson's medical opinion regarding Plaintiff's
limitations was entitled to lesser weight even though he was
a treating physician; (4) the ALJ's hypothetical question
to the Vocational Expert, Mitchell J. Norman, correctly
included all of Plaintiff's limitations and thus, was not
error; and (5) the record as a whole supports the ALJ's
decision that Plaintiff was not disabled as of September 30,
objects to the R&R, arguing that the R&R legally
erred by: failing to find that Plaintiff had the right to
call Dr. Wilson as a witness at the Social Security
Disability Hearing, failing to give deference to
Plaintiff's treating doctors, and concluding that the
ALJ's finding that Plaintiff was not disabled as of
September 15, 2015 was supported by substantial evidence.
Defendant, the Commissioner of Social Security, urges the
Court to adopt the R&R.
Standard of Review
Court's review of the Social Security Administration
Commissioner's decision is:
to determine whether the Commissionerʹs findings are
supported by substantial evidence on the record as a whole.
See Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.
2000). Substantial evidence is less than a preponderance, but
is enough that a reasonable mind would find it adequate to
support the Commissionerʹs conclusion. See Id.
In determining whether existing evidence is substantial, we
consider evidence that detracts from the Commissionerʹs
decision as well as evidence that supports it. See Craig
v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000). As long as
substantial evidence in the record supports the
Commissionerʹs decision, we may not reverse it because
substantial evidence exists in the record that would have
supported a contrary outcome, see id., or because we
would have decided the case differently. See Woolf v.
Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993).
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000). Several of the issues raised in Plaintiff's
objection and motion for summary judgment warrant
Requirement of a Full and Fair Hearing
argues that he was denied a full and fair hearing because his
treating psychologist, Dr. Wilson, was present at the Social
Security Disability Hearing but not allowed to provide live
testimony due to timing issues caused by an office-wide
technical issue with the recording system.
Magistrate Judge recognized, the duty of the ALJ to develop
the record- with or without counsel representing the
claimant-is a widely recognized rule of long standing in
Social Security cases:
Normally in Anglo-American legal practice, courts rely on the
rigors of the adversarial process to reveal the true facts of
the case. However, social security hearings are
non-adversarial. Well-settled precedent confirms that the ALJ
bears a responsibility to develop the record fairly and