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Dunkwu v. Berryhill

United States District Court, E.D. Arkansas, Little Rock Division

October 18, 2018

BETTY J. DUNKWU PLAINTIFF
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security Administration DEFENDANT

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections:

         The 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.

         II. Introduction:

         Betty 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.

         For the reasons stated below, the magistrate judge recommends reversing and remanding the Commissioner's decision.

         III. The Commissioner's Decision:

         The ALJ 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).

         After 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).

         IV. Discussion:

         Dunkwu 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.

         An 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.

         The 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 physical limitations.

         For 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 durational requirement.

         Additionally, 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 ...


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