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Schulz v. Colvin

United States District Court, D. South Dakota, Western Division

November 13, 2014

CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


JEFFREY L. VIKEN, Chief Judge.


Plaintiff Charles Schulz appeals from a decision by the Acting Commissioner ("Commissioner") denying plaintiff's application for social security disability insurance and supplemental security income, as well as other associated benefits. (Docket 1). Mr. Schulz seeks an order awarding benefits, or in the alternative, remanding his case for a new hearing. (Docket 14). The Commissioner moves to affirm the decision of the administrative law judge ("ALJ"). (Docket 16).

The parties acknowledge the court has jurisdiction pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). (Dockets 1 at ¶ 1; 9 at ¶ 1). The court entered a briefing schedule requiring the parties to file a joint statement of material facts ("JSMF"). (Docket 11). The parties filed their JSMF. (Docket 13).

For the reasons stated below, plaintiff's motion is granted in part and denied in part and defendant's motion is denied.


The parties JSMF (Docket 13) is incorporated by reference. Further recitation of salient facts is included in the discussion section of this order.

On February 1, 2010, Mr. Schulz filed an application for disability insurance benefits asserting an onset of disability date of November 15, 2009. Id. at ¶ 3. On December 13, 2011, the ALJ issued a decision finding Mr. Schulz was not disabled. (Administrative Record at pp. 11-20, hereinafter "AR, p. ____"; see also Docket 13 at ¶ 12). On December 5, 2012, the Appeals Council denied Mr. Schulz's review request. (Docket 13 at ¶ 12). The ALJ's decision of December 13, 2011, constitutes the final decision of the Commissioner of the Social Security Administration. (AR, p. 1). Mr. Schulz timely appeals from that decision.

The issue before the court is whether the ALJ's decision of December 13, 2011, that Mr. Schulz "has not been under a disability... from November 15, 2009, ... through [December 13, 2011]..." is supported by substantial evidence on the record as a whole. (AR, p. 20). See also Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) ("By statute, the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.") (internal quotation marks and brackets omitted) (citing 42 U.S.C. § 405(g)).


The Commissioner's findings must be upheld if they are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. The court reviews the Commissioner's decision to determine if an error of law was committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation marks omitted).

The review of a decision to deny disability benefits is "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision... [the court must also] take into account whatever in the record fairly detracts from that decision." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)).

It is not the role of the court to re-weigh the evidence and, even if this court would decide the case differently, it cannot reverse the Commissioner's decision if that decision is supported by good reason and is based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). A reviewing court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision.'" Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)). Issues of law are reviewed de novo with deference given to the Commissioner's construction of the Social Security Act. See Smith, 982 F.2d at 311.


Plaintiff challenges the ALJ's decision on a number of grounds. Plaintiff claims the ALJ failed to:

1. Properly develop the record;
2. Make proper credibility determinations;
3. Make a proper residual functional capacity determination; and
4. Make a proper step four determination.

(Docket 15 at pp. 20-21). Because of the court's analysis and conclusions regarding issues 1 and 2, the other issues are not addressed.


Plaintiff objects to the failure of the ALJ to adequately develop the record. (Dockets 15 at pp. 21-22 & 25; 18 at pp. 2-3 & 7). Plaintiff argues "[t]he ALJ's failure to develop the record was prejudicial because it infected his credibility and [residual functional capacity ["RFC"] findings... and ultimately the decision against the claimant." (Docket 15 at p. 21). Plaintiff challenges the ALJ's development of the record in two principal areas: (1) failing to obtain the medical records of Dr. Wayne Anderson; and (2) failing to obtain the records of the South Dakota Retirement System ("SDRS"), which found Mr. Schulz disabled. (Docket 15 at pp. 21 & 25).

"The differences between courts and agencies are nowhere more pronounced than in Social Security proceedings.... Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits...." Sims v. Apfel, 530 U.S. 103, 110-11 (2000). "The regulations make this nature of SSA proceedings quite clear. They expressly provide that the SSA conduct[s] the administrative review process in an informal, nonadversary manner.'" Id. at p. 111 (citing 20 CFR § 404.900(b)). "The regulations further make clear that the [Appeals] Council will evaluate the entire record, ' including new and material evidence, ' in determining whether to grant review." Id . (citing 20 CFR § 404.970(b)).

"[S]ocial security hearings are non-adversarial.... the ALJ bears a responsibility to develop the record fairly and fully, independent of the claimant's burden to press his case." Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). "The ALJ possesses no interest in denying benefits and must act neutrally in developing the record." Id . (referencing Richardson v. Perales, 402 U.S. 389, 410 (1971) ("The social security hearing examiner, furthermore, does not act as counsel. He acts as an examiner charged with developing the facts.") (other reference omitted). "[T]he ALJ is not required to function as the claimant's substitute counsel, but only to develop a reasonably complete record." Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994). "There is no bright line rule indicating when the Commissioner has or has not adequately developed the record; rather, such an assessment is made on a case-by-case basis." Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008).

During the administrative hearing, the ALJ and Mr. Schulz discussed other documentation which may exist. When Mr. Schulz indicated having seen Rick Ostrander, a vocational disability expert, but not having his report for the hearing, the ALJ responded "[w]ell the law is not self-effectuating so... if you want I'll hold the record open if you want to submit it.... Let me put it another way. I'm not going to chase around looking for your records. If you give me a list of where they are I will get them or you can get them, it'll take me a while to get them because I've got to go through the state of South Dakota's [Disability Determination Services] to get them." (Docket 13 at ¶ 29). Because of that statement, Mr. Schulz volunteered that he would "be more than happy to get them for you." Id . The ALJ then announced he would hold the record open for ten days, but after that he was leaving for Christmas vacation and wanted to have a decision entered before the end of the year.[1] Id. at ¶ 30.

Dr. Wayne Anderson Records

Mr. Ostrander's vocational evaluation of Mr. Schulz resulted in a written report dated October 27, 2010. Id. at ¶ 127. Mr. Ostrander's report referenced the medical reports and opinions of Drs. Watt, Lawlor and the findings of Dr. Wayne Anderson of March 31, 2010. Id. at ¶¶ 130 & 131. Dr. Anderson concluded Mr. Schulz's diagnosis included "chronic low back pain with disc herniation at L5-S1, cervical pain, and left upper extremity radicular symptoms...." Id . After receiving the vocational evaluation of Mr. Ostrander, the ALJ did not make a request for Dr. Anderson's medical records.

The Commissioner argues Dr. Anderson's records would have been repetitive, because "similar reports were contained in the record ( see, e.g., JSMF ¶112-14 (January 2010 EMG showing chronic bilateral L5 radiculopathy'), JSMF ¶114 (December 2009 lumbar MRI showing herniation at L5-S1), JSMF ¶116 (Schulz reported 50 percent' of his pain was in his lumbar spine))." (Docket 17 at p. 6). Furthermore, the Commissioner argues the ALJ considered Mr. Ostrander's report and plaintiff "fails to identify how the lack of this cumulative report prejudiced his claim." Id . The Commissioner's argument is a less than candid acknowledgment of the record.

One of Mr. Schulz's treating physicians, Dr. Watt, reported an EMG provided electrophysiologic evidence of chronic bilateral L5 radiculopathy. (Docket 13 at ¶ 114). A lumbar MRI confirmed an L4-L5 disc herniation without nerve root compression and a larger left L5-S1 herniated disc with a floating fragment compressing the S1 nerve root. Id. at ¶ 103. These studies are objective evidence of low back pain. As Mr. Schulz's pain management physician, Dr. Lawlor reported Mr. Schulz suffered low back and leg pain. Id. at ¶ 118.

Left arm radicular symptoms observed by Dr. Anderson are neither low back nor leg conditions. Dr. Anderson's records focusing on Mr. Schulz's mid-back and arm pain issues are not duplicative of the reports of the treating physicians. Left arm pain is consistent with Mr. Schulz's testimony that he had pain in his low back and between his shoulder blades, which hurt "24/7, all the time... a constant, constant pain and then depending on what I do I can get like a really sharp, piercing pain." Id. at ¶ 17. Mr. Schultz testified the pain between his shoulder blades was on and off and not dependant on any activity. Id . Mr. Schulz stated his mid-back hurt about 45 percent of the time. Id. at ¶ 18. Arm pain ...

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