United States District Court, E.D. Arkansas, Little Rock Division
BETTY J. DUNKWU PLAINTIFF
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security Administration DEFENDANT
Procedures for Filing Objections:
following Recommended Disposition
(“Recommendation”) has been sent to United States
District Judge Kristine Baker. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
Dunkwu (“Dunkwu”) applied for social security
disability benefits with an amended alleged disability onset
date of July 12, 2014. (R. at 33). The administrative law
judge (“ALJ”) held a hearing and denied her
applications. (R. at 24). The Appeals Council denied review.
(R. at 1). Dunkwu has requested judicial review.
reasons stated below, the magistrate judge recommends
reversing and remanding the Commissioner's decision.
The Commissioner's Decision:
found that Dunkwu had the severe impairments of diabetes
mellitus, arthropathy, degenerative disk disease, obesity,
and a broken shoulder. (R. at 18). According to the ALJ,
these impairments left Dunkwu with the residual functional
capacity (“RFC”) to perform medium work, except
that she could only occasionally stoop, crouch, and perform
work overhead bilaterally and frequently handle and finger
bilaterally. (R. at 20).
hearing testimony from a vocational expert
(“VE”), the ALJ found that Dunkwu could return to
her past relevant work as a mental retardation aide or a
nurse assistant. (R. at 23). Thus, the ALJ held that Murray
was not disabled. (R. at 23-24).
argues that the ALJ failed to fully and fairly develop the
record, erred in assessing her credibility, erred in
determining her RFC, and failed to resolve conflicts in the
VE's testimony. Because the Court concludes that the ALJ
failed to fully and fairly develop the record, it is not
necessary to reach and discuss the other alleged errors
committed by the ALJ.
has a duty to fully and fairly develop the record independent
of the claimant's burden to present her case. Combs
v. Berryhill, 878 F.3d 642, 646 (8th Cir. 2017). If a
critical issue is under-developed, the ALJ must seek
additional evidence. Martise v. Astrue, 641 F.3d
909, 926-27 (8th Cir. 2011). Dunkwu argues that the ALJ
failed to fully and fairly develop the record because he gave
great weight to the opinions of non-examining reviewing
physicians and proceeded to reach and decide the merits of
her claim of disability without any opinions or other
evidence from a treating or examining physician.
medical record in this case contains no opinion from a
treating or examining physician concerning the effect of
Dunkwu's physical impairments on her ability to work. The
ALJ gave great weight to the opinions of two reviewing
physicians (state agency medical consultants, David L. Hicks,
M.D., and James Wellons, M.D.) who had scant medical evidence
to review in formulating their opinion about how Dunkwu's
physical impairments affected her ability to work. (R. at
22). As a result, the ALJ chose to substitute his own medical
judgment for that of a treating or examining physician, and,
in doing so, failed to properly evaluate all of Dunkwu's
example, the ALJ discounted Dunkwu's carpal tunnel
syndrome as non-severe because he concluded she had the
condition for less than twelve months. (R. at 19). However,
medical records indicate that Dunkwu had been diagnosed with
carpal tunnel syndrome three years earlier. (R. at 454).
Those medical records call into question the ALJ's
conclusion that Dunkwu's carpal tunnel syndrome is not a
severe impairment because it did not satisfy the twelve-month
an ALJ is required to account for all of a claimant's
impairments, both severe and non-severe, in assigning an RFC.
Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
It is not clear whether the ALJ considered Dunkwu's
carpal tunnel syndrome in assigning limitations. The ALJ
noted that Dunkwu's “degenerative impairments and
diabetes” limited her to medium ...