McPherson v. Apfel
| Citation | 110 F.Supp.2d 1162 |
| Decision Date | 31 August 2000 |
| Docket Number | No. C99-3049-MWB.,No. C99-4059-MWB.,No. C99-3058-MWB.,No. C99-3057-MWB.,No. C99-3056-MWB.,C99-3049-MWB.,C99-3056-MWB.,C99-3057-MWB.,C99-3058-MWB.,C99-4059-MWB. |
| Parties | Arlan E. MCPHERSON, Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant. Stephen C. Flugum, Plaintiff, v. Kenneth S. Apfel, Commissioner of Social Security, Defendant. Terry L. Hall, Plaintiff, v. Kenneth S. Apfel, Commissioner of Social Security, Defendant. Leica Nolte, n/k/a Leica Castellaw, Plaintiff, v. Kenneth S. Apfel, Commissioner of Social Security, Defendant. Robyn L. Hughes, Plaintiff, v. Kenneth S. Apfel, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Ronald J. Wagenaar, Legal Services Corp. of Iowa, Mason City, IA, for Arlan E. McPherson and Stephen C. Flugum.
Danny C. Wilmouth, Legal Services Corp. of Des Moines, IA, Thomas A. Krause, Schott & Associates, Des Moines, IA, for Terry L. Hall.
Blake Parker, Blake Parker Law Office, Fort Dodge, IA, for Leica Nolte.
David A. Scott, Cornawall, Avery, Bjornstad & Scott, Spencer, IA, for Robyn L. Hughes.
Martha A. Fagg, Asst. U.S. Atty., Sioux City, IA, Lawrence D. Kudej, Asst. U.S. Atty., Cedar Rapids, IA, for Apfel.
TABLE OF CONTENTS
I. INTRODUCTION ..............................................................1164
A. Background To The Five Cases ...........................................1164
B. The Commissioner's Objections ..........................................1166
II. LEGAL ANALYSIS ............................................................1167
A. Review Of A Report And Recommendation ..................................1167
B. The Commissioner's Burden At Step Five .................................1168
1. Burden of "proof" or "production"? ..................................1168
2. Nature of the burden ................................................1169
a. The Commissioner's failure to acknowledge controlling
authority ........................................................1170
b. The controlling authority ........................................1172
3. Is the statement of the Commissioner's burden in Nevland
"misleading" and "confusing"? .......................................1173
4. Do the decisions in Young and Dykes change the burden? ..............1174
III. CONCLUSION ................................................................1176
Identical objections warrant identical responses, at least where the Commissioner of Social Security asserts identical legal objections to a magistrate judge's recommendations for disposition of these five actions for judicial review of administrative denials of disability benefits. The bone of contention in each case is the magistrate judge's characterization of the Commissioner's burden at step five of the disability analysis. However, the Commissioner does not contest the magistrate judge's conclusion in each case about the outcome of the disability analysis as a whole, even though the magistrate judge's conclusion, in each case, is contrary to the Commissioner's finding of no disability and denial of benefits. Thus, the Commissioner apparently seeks to remedy what he perceives to be a systemic flaw in the disability analysis, while conceding that his disability determination should be reversed in each of these cases. Indeed, the Commissioner has previously pressed a similar point before in this court, albeit unsuccessfully, see Scott v. Apfel, 89 F.Supp.2d 1066 (N.D.Iowa 2000), but he now contends that recent decisions of the Eighth Circuit Court of Appeals favor his characterization of his fifth-stage burden over the magistrate judge's.
These five cases for judicial review of administrative denial of disability benefits under the Social Security Act have not been, and are not now, consolidated in any way. Rather, the court has found it convenient to address the Commissioner's identical or nearly identical objections in each of these cases in a single ruling. Thus, these five cases retain their separate identities.
In McPherson v. Apfel, No. C 99-3049-MWB (N.D.Iowa), plaintiff Arlan E. McPherson seeks review of denial of his application for Title XVI supplemental security income (SSI) and Title II disability insurance (DI) benefits for a disability beginning on November 25, 1989. McPherson asserts that he has a disability caused by chronic pain in his back, shoulders, and neck, and radiating into his legs, as well as numbness and grip problems with his fingers, headaches, poor concentration, and depression. The administrative law judge (ALJ) determined that McPherson was not disabled, because he has the residual functional capacity to perform a significant number of jobs that are present in the regional and national economies. However, in a Report and Recommendation filed on August 10, 2000, Magistrate Judge Paul A. Zoss concluded that the Commissioner has failed to meet his burden of proving that McPherson could perform substantial gainful activity despite his impairments. Judge Zoss instead found that the record is clear that McPherson was disabled during the period for which he seeks benefits. Therefore, Judge Zoss recommended that the ALJ's decision be reversed and remanded to the Commissioner for the purpose of calculating and awarding benefits.
In Flugum v. Apfel, No. C 99-3056-MWB (N.D.Iowa), plaintiff Stephen C. Flugum seeks review of denial of his application for SSI and DI benefits for a disability beginning on December 31, 1991. Flugum contends that he has a disability caused by mental health problems that, among other things, involve suicidal tendencies and make it difficult for him to deal with people. The ALJ concluded that Flugum's statements concerning his impairments and their impact on his ability to work were not credible. Therefore, the ALJ concluded that Flugum was capable of performing "medium work" in jobs available in significant numbers in the economy, and thus was not disabled. However, in his Report and Recommendation, filed on August 14, 2000, and amended on August 16, 2000, Judge Zoss found that the ALJ disregarded the conclusions of a consulting psychologist and Flugum's supporting testimony without any reasonable basis, simply substituting her judgment for the judgment of the psychologist and ignoring evidence that Flugum has been unable to maintain personal relationships. Judge Zoss concluded that Flugum has suffered from a disability, since December 31, 1991, that is caused by mental problems, which prevent him from accepting instructions and responding appropriately to criticism from supervisors, and thus Flugum is entitled to benefits beginning on December 31, 1991. Judge Zoss therefore recommended that judgment be entered in favor of Flugum and against the Commissioner.
In Hall v. Apfel, No. C 99-3057-MWB (N.D.Iowa), plaintiff Terry L. Hall seeks review of denial of his application for SSI and DI benefits for a disability beginning on September 6, 1995. Hall contends that he has a disability caused by mental health problems, mood disorders, and chronic obstructive pulmonary disease. The ALJ concluded that Hall's statements concerning his impairments and their impact on his ability to work and statements by Hall's witness, his therapist, were not credible. The ALJ concluded further that Hall does not have an impairment or combination of impairments specifically meeting or equaling the criteria of any impairment listed in the Social Security regulations, that Hall is able to perform the work-related activities of his past relevant work, and that Hall retains the residual functional capacity to perform a full range of medium work. Therefore, the ALJ concluded that Hall is not under a disability as defined in the Social Security Act. However, in his Report and Recommendation, filed on August 23, 2000, Judge Zoss found various records of mental health treatment were missing from the record rendering the record incomplete for purposes of justifying the ALJ's decision. Therefore, Judge Zoss concluded that the ALJ failed to develop the record properly to allow a fully-informed decision in this case. Judge Zoss recommended that this case be remanded to the Commissioner with instructions to obtain the missing medical records, resolve the conflicting evidence, with a consultative examination if necessary, and reconsider Hall's disability claim based on the complete record.
In Nolte n/k/a Castellaw v. Apfel, No. C 99-3058-MWB (N.D.Iowa), plaintiff Leica Castellaw seeks review of denial of her application for DI benefits for a disability beginning on March 4, 1996. Castellaw asserts that her disability is caused by a number of ailments, including asthma, irritable bowel syndrome, high blood pressure, and problems with her shoulders, neck, back, and knees. However, the ALJ found Castellaw "less than fully credible." He found that Castellaw could perform a significant number of sedentary jobs that exist in the national economy, and therefore concluded that Castellaw was not under a disability as defined in the Social Security Act. However, in a Report and Recommendation filed on August 15, 2000, and amended on August 16, 2000, Judge Zoss concluded that the ALJ had failed to provide a reasoned analysis of his failure to credit some of Castellaw's testimony about the impact of her impairments. Instead, Judge Zoss found that the ALJ had discredited Castellaw's testimony solely on the basis that Castellaw had not sought regular medical treatment for her complaints of colon pain and irritable bowel syndrome. Judge Zoss found that the ALJ's decision does not reveal that Castellaw's credibility was evaluated according to the Polaski factors. Thus, Judge Zoss concluded that the ALJ's determination...
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