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Rathke v. Astrue

March 26, 2010

BOYD A. RATHKE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

REMANDING DECISION OF THE COMMISSIONER ORDER REVERSING AND INTRODUCTION

This matter is before the court pursuant to a complaint filed by plaintiff Boyd Rathke on November 4, 2008, appealing the denial of his application for disability insurance benefits and supplemental security income benefits by the Social Security Administration. (Docket 1). The Commissioner opposes Mr. Rathke's complaint and moves to dismiss it in its entirety. (Docket 10). The court referred this matter to the magistrate judge for a report and recommendation. (Docket 21). On January 27, 2010, the magistrate judge issued her report which recommended affirming the decision of the Commissioner. (Docket 22). Mr. Rathke timely filed objections to the report and recommendation. (Docket 25). The court has jurisdiction over this case pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), and the case is ripe for adjudication.

FACTUAL AND PROCEDURAL HISTORY*fn1

The magistrate judge provided a thorough recitation of the factual and procedural history of this case. (Docket 22). Mr. Rathke did not object to this recitation per se, although he objects to the conclusions drawn therefrom. The court incorporates by reference the factual and procedural history set forth in the report and recommendation.

DISCUSSION

Mr. Rathke timely filed twelve specific objections to the report and recommendation. (Docket 25). The court reviews de novo those portions of the report and recommendation subject to objection. Thompson v. Nix, 897 F.2d 356, 357, 358 (8th Cir. 1990); 28 U.S.C. § 636(b)(1).

A. Objection No. 1, Standard of Review

Mr. Rathke argues the report and recommendation omits three relevant standards and suggests an inappropriate standard. (Docket 25 at pp. 3-4). The court agrees with Mr. Rathke that (1) administrative hearings are non-adversarial and the ALJ "is charged with the duty of fully and fairly developing the facts of the case," Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir. 2002); (2) a reviewing court "must judge the propriety of... [agency] action solely by the grounds invoked by the agency" and not by post hoc rationalizations. Burlington Truck Lines v. United States, 371 U.S. 156, 168- 69 (1962); and (3) a district court may not make findings of fact to supplement the ALJ's findings. Lewis v. Califano, 574 F.2d 452, 456 (8th Cir. 1978). Further, the court agrees with Mr. Rathke that, because an administrative hearing is not an adversarial hearing, the ALJ has a duty to develop the record fully and fairly even if the claimant is represented by counsel. Bowman v. Barnhart, 310 F.3d 1080, 1083 (8th Cir. 2002); Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994). Thus, objection no. 1 is sustained.

B. Objection No. 2, Structure of Sequential Evaluation

Mr. Rathke objects to the magistrate judge's characterization of the five- step sequential analysis conducted by the ALJ. (Docket 25 at pp. 4-5). Specifically, Mr. Rathke argues the magistrate judge omitted the requirement at step three to consider the combined impairments of the claimant. Id. at p. 4. When providing a brief overview of the five-step analysis, the magistrate judge characterized step three as a determination of "whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience)." (RR 53). When discussing step three in more detail, however, the magistrate judge identified and discussed the correct standard, specifically stating "[i]f the claimant presents more than one impairment, the ALJ should consider the combined effect of the impairments." (RR 69). Citing the appropriate regulations, the magistrate judge also noted the ALJ must determine "whether any medically 'severe' impairment, by itself or combined with other impairments, meets or equals any of the listed impairments that are so severe as to presumptively preclude substantial gainful activity." Id. (emphasis added). Mr. Rathke's remaining objection regarding the substance abuse analysis is considered in relation to Mr. Rathke's objection no. 10. Thus, objection no. 2 is overruled subject to further analysis in connection with objection no. 10.

C. Objection No. 3, Not Credible Due to Infrequent Doctor Visits

The magistrate judge affirmed the ALJ's adverse credibility determination as to Mr. Rathke based in part on his infrequent doctor visits. (RR 78-81).

Mr. Rathke objects to the magistrate judge's finding and has provided, as an appendix, a summary of all the visits Mr. Rathke made to Dr. Joy Falkenburg from 2003 to 2006. (Docket 25 at pp. 5-7 and Appendix). The record shows Mr. Rathke visited Dr. Falkeburg sixteen times over a period of approximately 33 months. See Docket 25, Appendix. This record belies the assertion that Mr. Rathke's visits to the doctor were infrequent. The court also is troubled by the lack of information in the record as to Mr. Rathke's indigent status. On a progress note from the Edgemont Memorial Clinic dated July 15, 2005, the notation appears, "No more Medicaid." (AR 700). The ALJ cited to the infrequency of doctor visits and infrequency of treatment as grounds for discrediting Mr. Rathke's subjective complaints. (AR 37). Yet, the ALJ failed to discuss the affect of Mr. Rathke's indigency on his ability to visit the doctor and seek and obtain treatment. "[A] lack of sufficient financial resources to follow prescribed treatment to remedy a disabling impairment may be... an independent basis for finding justifiable cause for noncompliance." Tome v. ...


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