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Timothy M. v. Berryhill

United States District Court, D. Minnesota

March 18, 2019

TIMOTHY M., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER ACCEPTING REPORT AND RECOMMENDATION

          NANCY E. BRASEL UNITED STATES DISTRICT JUDGE

         This 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.

         BACKGROUND

         The 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, 2015.

         Plaintiff 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.

         ANALYSIS

         I. Standard of Review

         This 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 explanation.

         II. Requirement of a Full and Fair Hearing

         Plaintiff 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.

         As the 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 ...

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