United States District Court, D. South Dakota, Western Division
ORDER REVERSING AND REMANDING DECISION OF THE COMMISSIONER
JEFFREY L. VIKEN, Chief Judge.
Before the court is defendant's motion for the court to enter a judgment with an order of reversal and remand of the cause to the Commissioner of the Social Security Administration ("Commissioner") for further administrative proceedings. (Docket 24). Plaintiff opposes the motion and requests an order granting benefits immediately or, in the alternative, a substantive review of the decision of the Administrative Law Judge ("ALJ"). (Docket 26).
The parties agreed on the procedural history of the case outlined by Magistrate Judge Duffy in her report and recommendation. (Docket 18 at pp. 1-2); see also Rathke v. Astrue, Commissioner of Social Security Administration, CIV. 08-5084-JLV, Docket 22 at pp. 3-5 (hereinafter Rathke I). The court adopts and incorporates the procedural history in this case as described by Judge Duffy. The court only notes procedural matters occurring after the issuance of the magistrate judge's report and recommendation. Judge Duffy recommended the district court affirm the decision of the Social Security Administration ("SSA") denying benefits to Mr. Rathke. Rathke I at 92, Docket 22 at p. 92.
On March 26, 2010, this court adopted in part and rejected in part the magistrate judge's report and recommendation. Rathke I, Docket 27 at p. 12. The court sustained in part, overruled in part and reserved ruling in part on Mr. Rathke's objections to the ALJ's decision. Id . The court reversed the decision of the Commissioner and remanded the case to the Commissioner for further administrative action under sentence four of 42 U.S.C. § 405(g). Id . The court instructed the ALJ to "further develop the record and issue a new decision." Id . The court overruled Mr. Rathke's objections to the magistrate judge's recommended denial of his claim for Title II benefits. Id. at 11. Mr. Rathke did not timely appeal the court's decision. (Docket 21 at p. 3). Mr. Rathke's only remaining claim is for supplemental security income ("SSI") benefits under Title XVI. See Rathke I, Docket 27 at pp. 11-12; see also Docket 21 at p. 3.
During the pendency of Mr. Rathke's 2008 appeal to the district court, he applied for disability benefits for a fourth time on December 24, 2008. (Docket 18 at p. 2). His claim was denied on application on July 28, 2009, and on reconsideration on October 16, 2009. Id . Mr. Rathke subsequently requested a hearing. Id . Following this court's March 26, 2010, remand of Mr. Rathke's appeal, the cases were consolidated by order of the Appeals Council. Id . A second administrative hearing was held before ALJ James Olson and a decision denying Mr. Rathke's February 24, 2003, application for SSI benefits issued. Id .; see also AR, p. 894.
Mr. Rathke timely filed a request for review and written exceptions, and he submitted additional evidence to the Appeals Council. (Docket 18 at p. 2). The Appeals Council declined review. Mr. Rathke appealed his claim to this court for a second time. Id .; see also Docket 1. During the pendency of the Appeals Council review, Mr. Rathke passed away, and his widow, Terry Rathke, brings the current action on behalf of her deceased husband as a substituted party. (Docket 18 at p. 2).
The Commissioner filed a motion for the court to enter a judgment with an order of reversal and remand of the claim to the Commissioner for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Docket 24). Ms. Rathke resists the motion and filed her own motion seeking to reverse the Commissioner's decision and requesting an award of benefits. (Dockets 21 & 26). Ms. Rathke contends the court lacks authority to remand the case under sentence four of 42 U.S.C. § 405(g) without a substantive ruling in the case and, in the alternative, requests that the court enter a judgment reversing the Commissioner with a substantive ruling regarding the correctness of the ALJ's decision. (Docket 26 at p. 4).
For the reasons set out below, Ms. Rathke's motion is granted in part and denied in part and the Commissioner's motion is granted.
The parties' JSMF (Docket 18) is incorporated by reference, as is Judge Duffy's prior iteration of the facts. Id. at pp. 3-4; see also Rathke I, Docket 22 at pp. 6-51. Further recitation of salient facts is included in the discussion section of this order.
Under sentence four of 42 U.S.C. § 405(g), the court has the power "to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
After reviewing the administrative record in Mr. Rathke's case, the Commissioner concedes further administrative action is warranted. (Docket 25). The Commissioner informs the court that, on remand, "the ALJ will be instructed to further evaluate Mr. Rathke's subjective complaints and the opinion evidence, reassess Mr. Rathke's residual functional capacity, and take the actions set forth in the March 26, 2010 Order from the United States District Court, District of South Dakota." Id. at 1-2. Because of the specific nature of the Commissioner's motion for remand, the court limits its analysis to those matters necessary to justify remanding the case for a second time. Each of the Commissioner's asserted grounds for the remand is addressed in turn.
1. ALJ Olson's August 18, 2011, Decision
a. Mr. Rathke's Subjective Complaints
In the court's March 26, 2010, order in Rathke I reversing and remanding the decision of the Commissioner, the court noted several areas in which the first ALJ's determination regarding Mr. Rathke's credibility was either not supported by substantial evidence or required a subsequent administrative proceeding to fully develop the record before a proper determination could be made. Rathke I, Docket 27 at pp. 4-8. These areas were: the ALJ's determination that Mr. Rathke was not credible due to infrequent doctor visits; the ALJ's determination that Mr. Rathke was not credible due to his use of marijuana to maintain his weight; the ALJ's failure to consider Mr. Rathke's indigency when discrediting his credibility; and the ALJ's determination that Mr. Rathke failed to follow prescribed treatment for his Hepatitis C without good cause. Id.
ALJ Olson's August 18, 2011, assessment of Mr. Rathke's credibility is best understood in his own words:
[Mr. Rathke] is not participating in any therapy or counseling. He takes psychotropic medications from his treating doctor (not a psychiatrist or psychologist). His treating physician [Dr. Falkenburg] has indicated that she is frustrated with the claimant when he stops taking medications on his own.... The claimant has refused treatment for depression. There are references that he cannot take Interferon because of his depression. That is self-serving. She [Dr. Falkenburg] does not address his marijuana usage or the effect of this depressant on his overall treatment. Contrary to the opinion of the District Court Judge, the undersigned does not believe [Mr. Rathke] when he states that he uses it for his weight control. He has responded to other medications and his appetite has improved.... [Mr. Rathke's] poor dentition is as relevant to his eating as his marijuana use. [Mr. Rathke] has moved several times since he filed ...