Dean v. Astrue
| Decision Date | 09 September 2011 |
| Docket Number | Case no. 1:10CV00086 ERW |
| Parties | TIMOTHY DEAN, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration Defendant. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the court upon the Report and Recommendation of United States Magistrate Judge Thomas C. Mummert, III [ECF No. 30] pursuant to 28 U.S.C. § 636(b). The Magistrate Judge recommended this Court affirm the ALJ's decision, and the Court notes that the Plaintiff has filed timely Objections to the Magistrate's Report and Recommendation [ECF No. 31].
"[W]hen a party objects to the Report and Recommendation of a magistrate judge concerning a dispositive matter, 'a judge of the court shall make a de novo review determination of those portions of the report, or specified proposed findings, or recommendations to which objection is made.'" United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)). The Court will therefore conduct a de novo review of those portions of the Report and Recommendations ("R&R") to which Plaintiff has objected on review. In conducting its review, the Court is bound by the zone of choice doctrine and must affirm the Commissioner's decision to deny disability benefits "'as long as it is supported by substantial evidence on therecord as a whole.'" Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (quoting Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir.2010)); see Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (), Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988) (). The Eighth Circuit has long held "Substantial evidence is 'less than a preponderance but . . . enough that a reasonable mind would find it adequate to support' the conclusion." Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir.2004)). In conducting its review, the Court must "'consider the evidence that supports the Commissioner's decision as well as the evidence that detracts from it.'" Id. (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.2008)). Moreover, "when, as here, 'the Appeals Council has considered new and material evidence and declined review, we must decide whether the ALJ's decision is supported by substantial evidence in the whole record, including the new evidence.'" O'Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003) (quoting Gartman v. Apfel, 220 F.3d 918, 922 (8th Cir.2000)). However, "'[i]t is not the role of this [C]ourt to reweigh the evidence presented to the ALJ or to try the issue in this case de novo.'" Wiese, 552 F.3d at 730 (quoting Loving v. Dep't of Health & Human Servs., Sec'y, 16 F.3d 967, 969 (8th Cir.1994)). In fact, whether or not this Court would have come to a different conclusion than that reached by the ALJ is irrelevant and "is not a sufficient basis for reversal." Id. Thus, after reviewing the evidence, if the Court finds it possible to reach two different and inconsistent conclusions one of which "represents the Commissioner's findings, [the court] must affirm the denial of benefits." Id. (quoting Mapes v. Chater, 82 F.3d 259, 262 (8thCir.1996)). For the reasons set forth below, the Court concludes that the decision of the Commissioner should be affirmed.
Plaintiff claims disability beginning March 17, 2004 and running to the present date. Accordingly, the Magistrate set forth in detail Plaintiff's medical history. After a thorough and independent review of the record in this case, this Court finds the Magistrate's account to be complete and well-developed. The R&R thoroughly details Plaintiff's medical history. The Court will not repeat this discussion, and instead incorporates the following sections by reference:1 "Procedural History", "Testimony Before the ALJ", "Medical and Other Records Before the ALJ", "The ALJ's Decision"2 , and "Additional Medical Records Before the Appeals Council".
Plaintiff asserts that the Magistrate erred in its findings and lists five specific objections: 1) the R&R incorrectly relied on the RFC by Aaron Spratt; 2) the R&R fails to properly consider the additional medical records of Dr. Kurt Zimmer and Dr. Yuri Soeter; 3) the R&R failed to properly consider the RFC of Dr. Kurt Zimmer; 4) the R&R incorrectly found that the ALJ's determination was supported by substantial evidence on the record as a whole; and 5) the R&R incorrectly failed to address the ALJ's credibility determination. Based on these objections, Plaintiff seeks a determination from this Court that he is disabled under the Social Security Act and is entitled to benefits beginning March 17, 2004 through the present. In the alternative, Plaintiff requests this Court remand the matter to the ALJ for further development of the record. The Court will consider each of Plaintiff's objections, in turn, but rather than addressing them inthe order in which they appear in Plaintiff's Objections to the R&R, the Court will consider them as they relate to Plaintiff's overall argument.
Much of the Plaintiff's objection in this case seems couched on the belief that the ALJ failed in his duty to fully and completely develop the record. Other aspects of this issue will receive additional development in other sections below. This division is intended to maintain focus on Plaintiff's assertion, that the ALJ's opinion is erroneous insomuch as it was rendered without an RFC from Dr. Zimmer in the record and insomuch as "nothing in the record indicates that the ALJ even reviewed the opinion of Dr. Zimmer" [ECF No. 26 at 3-4].
In general, the claimant is responsible for providing the Commissioner with the evidence used to make findings about the claimant's RFC. 20 C.F.R. § 404.1545(a)(3). However, prior to a determination, the Commissioner is responsible for developing a complete medical history which includes "making every reasonable effort to help [the claimant] get medical reports from [his or her] own medical sources." Id. In other words, the ALJ must develop the "record fairly and fully" and must do so "independent of the claimant's burden to press his case." Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010). This burden includes requests for medical records and a followup request to those medical sources which fail to respond. See 20 C.F.R. § 404.1512(d)(1). The Commissioner must also recontact the treating physician and request "additional evidence or clarification . . . when the report from [the] medical source contains a conflict or ambiguity that must be resolved, the report does not contain all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques." Id. at (e)(1). However, the ALJ need not "seek additional clarifyingstatements from a treating physician unless a crucial issue is undeveloped." Vossen, 612 F.3d at 1016 (emphasis in original); see also Cowan v. Astrue, 552 F.3d 1182, 1187 (10th Cir. 2008) (). Nor is the ALJ required to "rely entirely on a particular physician's opinion or choose between the opinions [of] any of the claimant's physicians." Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011). Ultimately, regardless of the ALJ's duty, "the burden of persuasion to prove disability and demonstrate RFC remains on the claimant." Vossen, 612 F.3d at 1016; see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010).
This Court will first address Plaintiff's assertion that the ALJ's violated 20 C.F.R. § 404.1512(e) in that the ALJ did not ask Dr. Zimmer to complete an RFC or give his opinion. Having reviewed the regulation in question, as well as the pertinent case law, this Court is unable to find any language requiring that the ALJ request an RFC assessment from a treating physician or any doctor for that matter. In fact, even when the regulations mandate the ALJ request additional information because of conflicting, ambiguous, or incomplete information or because a critical issue is undeveloped, there is no language specifying that the request must be that the physician complete an RFC assessment. Moreover, given that an RFC determination is a legal question reserved for the commissioner, see Vossen, 612 F.3d at 1015, and in light of the fact that an RFC assessment form consists almost entirely of check boxes and provides little room for explanation, reasoning, or support for the assessment contained thereon, see Walton v. Astrue, 664 F. Supp. 2d 1000, 1032 (E.D. Mo. 2009) (), such a requirement would serve little purpose. Therefore, Plaintiff's assertion that the ALJ erred in making his ruling without an RFC from Dr. Zimmer, is without merit.
Further, while it is true that the ALJ must develop the record fairly and fully, the record before the ALJ in this case consisted of over 400 pages of medical records including a complete set of records from Dr. Zimmer's interaction with the Plaintiff starting with his first visit on January 30, 2008 through June 4, 2009. (R.3 340-343, 399-409, 420-427). Reviewing those records reveals that Dr. Zimmer diagnosed the Plaintiff with spondylosis and moderate degenerative disc space narrowing, assessed his pain as mild, and referred him to a neurosurgeon for further evaluation. (Id.) The record also contains the neurosurgeon's assessment in which the surgeon concluded, after...
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