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Misener v. Social Security Administration

United States District Court, E.D. Arkansas, Western Division

January 28, 2019

DIANE L. MISENER PLAINTIFF
v.
SOCIAL SECURITY ADMINISTRATION DEFENDANT

          RECOMMENDED DISPOSITION

         I. Procedures for Filing Objections:

         The following Recommended Disposition (“Recommendation”) has been sent to Chief Judge Brian S. Miller. Either party may file written objections to all or part of this Recommendation. Objections should specifically explain the factual or legal basis for the objection. To be considered, objections must be filed with the Clerk of Court within 14 days of this Recommendation. By not objecting, parties may waive the right to appeal questions of fact.

         II. Background:

         Diane Misener applied for social security disability benefits with an alleged onset date of May 1, 2014. (R. at 135). After a hearing, the administrative law judge (“ALJ”) denied Ms. Misener's application. (R. at 22). Subsequently, the Appeals Council denied her request for review. (R. at 1). Therefore, the ALJ's decision stands as the Commissioner's final decision. Ms. Misener filed this case to request judicial review of the Commissioner's decision.

         III. Commissioner's Decision

         The ALJ found that Ms. Misener's back disorder and dysthymic disorder were severe impairments for purposes of the Social Security Act. (R. at 13). The ALJ further found that Ms. Misener had the residual functional capacity (“RFC”) to perform sedentary work, except that she could only occasionally climb, balance, stoop, kneel, crouch, and crawl and would be limited to simple, routine, repetitive tasks involving few, if any workplace changes and no more than incidental contact with coworkers. (R. at 15). This RFC precluded Ms. Misener from returning to her past relevant work. (R. at 20).

         The ALJ heard testimony from a vocational expert (“VE”), who testified that a person with Ms. Misener's age, education, work experience, and RFC could perform other jobs in the economy, such as document preparer, type copy examiner, and compact assembler. (R. 21). The ALJ found, therefore, that Ms. Misener was not disabled. (R. at 22).

         IV. Discussion

         Ms. Misener argues that the ALJ failed to fully and fairly develop the record; failed to find her posttraumatic stress disorder and cardiac condition to be severe impairments; and improperly based her RFC on a non-examining source opinion. Because the ALJ failed to fully and fairly develop the record, it is not necessary to reach Ms. Misener's other points.

         The Court's function on review is to determine whether the Commissioner's decision is supported by substantial evidence on the record and free of legal error. Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018); see also 42 U.S.C. § 405(g). Substantial evidence in this context means enough relevant evidence that a reasonable mind would accept as adequate to support a conclusion. Id. (citing Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010) (other citation omitted). To determine whether the Commissioner's decision is supported by substantial evidence, the Court must consider evidence in the record that supports the decision and also evidence that detracts from the decision. Stanton v. Comm'r, Soc. Sec. Admin., 899 F.3d 555, 557 (8th Cir. 2018) (citation omitted). Reversal is not warranted, however, “merely because substantial evidence would have supported an opposite decision.” Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009) (citations omitted).

         Ms. Misener contends that the ALJ made several errors in developing the record. Two days after her hearing before the ALJ, Ms. Misener suffered a heart attack. (R. at 585-98). The ALJ's opinion fails to mention Ms. Misener's heart attack. He mentions her treating physician's opinion that Ms. Misener would be limited in her ability to work with her hands without acknowledging that this limitation was the result of her heart attack. (R. at 19, 599).

         Ms. Misener was sent for two consultative examinations-one physical and one mental-but neither examiner was provided any of her relevant past treatment records. (R. at 445-49, 501-09). Regulations require the Commissioner to provide consultative examiners with all necessary background information. 20 C.F.R. § 404.1517. The Commissioner does not contradict Ms. Misener's assertion that the consultative examiners were not provided with copies of her medical records, but instead argues generally that the record was sufficient for the ALJ to make a reasoned decision.

         At a minimum, a consultative examiner's opinion is entitled to less consideration if the examiner was not provided a claimant's medical records. Gavin v. Heckler, 811 F.2d 1195, 1200 (8th Cir. 1987) The Commissioner's regulations require that a consultative examiner be given any necessary background information about a claimant's condition. 20 CFR § 404.1517. Such background information is essential because consultative exams are used to “resolve an inconsistency in the evidence” and when “the evidence as a whole is insufficient to allow us to make a determination or decision in [the] claim.” § 404.1519a(b); see also, Brantley v. Comm'r of Soc. Sec., 637 Fed.Appx. 888, 896 (6th Cir. 2016)(holding that ALJ violated the regulation requiring that consultative examiners receive any necessary background about a claimant's medical condition). Even if Gavin did not establish a bright-line rule as to the weight to be afforded a consultative examiner's opinion where the examiner was not provided a claimant's past medical records, the lack of access to relevant records should at least be considered in deciding the weight of the examiner's opinion.

         In this case, Don Ott, Psy. D., performed a consultative mental examination without the benefit of Ms. Misener's mental health treatment records. (R. at 502). Dr. Ott diagnosed dysthymic disorder and assigned a Global Assessment of Functioning score of 50-60. (R. at 506). Nothing in the record suggests that Dr. Ott was aware of Ms. Misener's prior diagnoses of major depressive disorder and posttraumatic stress disorder or of her certification of Serious Emotional Disturbance/Serious Mental Illness (SED/SMI). (R. at 450-52). This left Dr. Ott to render ...


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