United States District Court, E.D. Arkansas, Western Division
DIANE L. MISENER PLAINTIFF
SOCIAL SECURITY ADMINISTRATION DEFENDANT
Procedures for Filing Objections:
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.
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
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).
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).
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
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
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).
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.
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
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 ...