United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER REGARDING REPORT AND RECOMMENDATION
MARK W. BENNETT, District Judge.
This case is before me on a Report and Recommendation (R & R) (docket no. 17) from Judge Leonard T. Strand, filed on July 1, 2014. In the R & R, Judge Strand recommends that the Commissioner's decision be reversed and remanded for further proceedings and that judgment be entered against the Commissioner and in favor of the plaintiff, Christopher Barrows (Barrows). Report at 26. The Commissioner timely filed objections to the R & R (docket no. 18). For the reasons discussed below, I adopt in part and reject in part the recommendations in Judge Strand's R & R.
First, I adopt Judge Strand's recommendation that I find the Administrative Law Judge (ALJ) appropriately considered and evaluated the effects of Barrows's obesity in formulating his residual functional capacity (RFC). Id. at 11. Second, I adopt Judge Strand's recommendation that I find the ALJ provided good reasons, supported by substantial evidence, for affording the appropriate weight to certain medical and non-medical opinions- i.e., Sharon Eckhart, ARNP; William Morton, Psy.D; Marlene Gernes, D.O.; and Russell Lark, Ph.D-with regard to Barrows's mental RFC. Id. at 19, 21. Third, I also adopt Judge Strand's finding that the "new" records Barrows cites to do not cast doubt on other opinions as to Barrows's mental health recommendation,  and I adopt Judge Strand's recommendation finding that the ALJ's determination of Barrows's mental RFC was supported by substantial evidence in the record as a whole. Id. at 21. Neither party has objected to these findings by Judge Strand.
Finally, I disagree with Judge Strand's R & R because of its finding that the ALJ did not fulfill his duty of developing the record for assessing Barrows's physical RFC. After considering the evidence relied upon by the ALJ and the record, I find it is unnecessary for the ALJ to obtain an additional medical opinion from a treating or examining source to support its physical RFC determination. The ALJ fulfilled his duty to develop the record, and it assessed Barrows's physical RFC based on all the relevant evidence. Thus, the ALJ properly made a mental and physical RFC determination, which was supported by substantial evidence in the record, and I affirm the ALJ's decision.
The single question presented is whether the record consists of sufficient evidence as to Barrows's physical RFC to support the ALJ's finding, even though the record does not include an explicit opinion by a treating or examining source as to Barrows's physical work-related limitations based on his impairments.
III. FACTS AND PROCEDURAL HISTORY
Plaintiff Christopher Carl Barrows (Barrows) filed a Title II application for Social Security Disability (DIB) and a Title XVI application for Supplemental Security Income benefits (SSI) on March 7, 2011. Tr. 12. The record provides that Barrows alleges disability beginning on March 18, 2009. In his disability report, Barrows claimed to be disabled because of the following impairments: bipolar disorder; degenerative disc disease; sleep apnea; and ADD. Tr. 284. He previously worked as a welder, meat packing worker, and construction worker. Tr. 17, 36.
After Barrows's claims were denied initially and on reconsideration, he requested a hearing before an ALJ. On June 12, 2012, there was an administrative hearing, following which ALJ Robert Maxwell issued a decision finding Barrows was not disabled since the alleged onset date. Tr. 23. Barrows's request for review by the Appeals Council was denied on August 6, 2013. Tr. 1-3. Thus, the ALJ's decision became the final decision of the Commissioner. Tr. 1, 9; see also 20 C.F.R. § 416.1481. On September 11, 2013, Barrows commenced this action in federal district court and objected to the ALJ's decision on four bases.
To determine whether Barrows was disabled, the ALJ applied the five-step evaluation set forth in the Code of Federal Regulations (C.F.R.) to determine disability in social security proceedings. See Tr. 13-14; 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (citing Simmons v. Massanari, 264 F.3d 751, 754 (8th Cir. 2001); 20 C.F.R. § 416.920(a)(4)). Applying that five-step test, the ALJ determined the following: (1) Barrows has not engaged in substantial gainful activity since March 14, 2009; (2) Barrows has the following severe impairments: "degenerative disc disease of the lumbar spine, " "obesity, " and "major depressive disorder"; (3) Barrows's impairments do not meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) Barrows is not capable of performing past relevant work; (5) Barrows can perform other jobs that exist in the national economy. See Tr. 14-23. The ALJ then held that Barrows was not disabled from his alleged onset date through the date of the ALJ's decision. Tr. 23. Thus, it is undisputed that the ALJ's evaluation proceeded to Step Five.
Barrows had the burden of production and persuasion from Steps One through Four, but when the ALJ's evaluation proceeded to Step Five, the burden of production, not persuasion, shifted to the Commissioner. Hattig v. Colvin, No. C. 12-4092, 2013 WL 6511866, *9 (N.D. Iowa Dec. 12, 2013) (citing Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004) ("The Commissioner recently promulgated a new rule designed to clarify that although a burden of production shifts to the Commissioner at step five, the ultimate burden of persuasion remains with the claimant." (citing 68 Fed.Reg. 51153, 51155 (Aug. 26, 2003))). "At Step 5, the Commissioner's burden is twofold: The Commissioner must [ ] prove, first that the claimant retains the RFC to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to perform." Id. (citing Eichelberger, 390 F.3d at 591). If an individual is able to perform "other" work, then that person is not "disabled." See 20 C.F.R. § 416.920(a)(4)(v).
"The key issue' on the question of whether the Commissioner met his burden at the fifth step of the analysis in this case, as in Nevland, is the Commissioner's proof on the first requirement, the claimant's residual functional capacity." Scott v. Apfel, 89 F.Supp.2d 1066, 1073 (N.D. Iowa 2000) (quoting Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.2000)). One of Barrows's claims of error related to the ALJ's Step Five determination, and agreeing with Barrows, Judge Strand held that the ALJ erroneously established Barrows's physical RFC in the absence of an opinion from a treating or examining source as to Barrows's work-related limitations. Report at 25-26. The gravamen of the Commissioner's objections to Judge Strand's R & R is that the ALJ did not err in making a physical RFC determination. I turn to analyze more closely Judge Strand's R & R and the Commissioner's objections.
IV. REPORT AND RECOMMENDATION
In reaching his recommendation to reverse and remand the Commissioner's decision, Judge Strand finds that the Commissioner only relied on medical opinions submitted by state agency consultants as to Barrows's physical RFC. Those consultants "reviewed records but never treated or examined Barrows." Report at 21. For example, the Commissioner relied on the opinions of Dr. Marlene Gernes and Dr. John May. Id. at 21-22. Judge Strand asserts that the ALJ's reliance on such opinions, i.e., opinions of non-treating and non-examining sources, "raises a serious issue as to whether the ALJ fully and fairly developed the record concerning Barrows's physical RFC." Id. Judge Strand's R & R continues: "I find that he did not." Id.
To bolster his finding that the ALJ did not fully and fairly develop the record as to Barrows's physical RFC, Judge Strand likens this case to Nevland, 204 F.3d 853. Id. at 22. Judge Strand asserts that, in Nevland, like this case, the Commissioner determined that, although the claimant could not perform past work, the claimant could perform various jobs identified by a VE. Id. At Step Five of its analysis, the ALJ in Nevland relied on non-treating and non-examining physicians who reviewed the claimant's records and formed opinions about the claimant's RFC based on those records, which also influenced the ALJ's formulation of hypothetical questions to the VE. Id.
In reviewing the Commissioner's decision in Nevland, the Eighth Circuit Court of Appeals held that "the ALJ should have sought [an examining opinion] from [the claimant's] treating physicians or, in the alternative, ordered consultative examinations, including psychiatric and/or psychological evaluations to assess [the claimant's] mental and physical residual functional capacity." Id. at 22-23 (quoting Nevland, 204 F.3d at 858). After quoting from Nevland, Judge Strand points out that, contrary to the Commissioner's arguments, " Nevland remains good law." Id. at 23. Additionally, Judge Strand stated, "[I]t has been the law in this Circuit for at least fourteen years that the Commissioner ordinarily' cannot meet her burden of production at Step Five without an opinion from at least one doctor who actually examined the claimant." Id.
Citing to Hattig, 2013 WL 6511866, *11, Judge Strand recognizes that "other medical evidence of record" (aside from a medical opinion from a treating or examining doctor) "might fill the gap by clearly establishing a claimant's RFC to do other work, and to function in the workplace." Report at 23. In such a case, remand is unnecessary. Id. Therefore, Judge Strand explains that the question becomes "whether the record contains sufficient evidence concerning Barrows's physical RFC to support the ALJ's findings despite the lack of a medical opinion from any doctor who treated or examined Barrows." Id. at 23. From Judge Strand's perspective, there is "nothing" in this record "that even arguably could make up for the lack of medical evidence from any treating or examining source to support the ALJ's decision." Id. at 24. Judge Strand then focuses his attention on Barrows's physical limitations: "The ALJ found that Barrows has the severe physical impairments of degenerative disc disease of the lumbar spine and obesity." Id. For Judge Strand, it is problematic that "no doctor who ever treated or examined Barrows provided an opinion as to the effects of these impairments on Barrows's ability to function in the workplace." Id.
Judge Strand also finds that this case is distinct from Agan v. Astrue, 922 F.Supp.2d 730, 755-56 (N.D. Iowa Feb. 7, 2013). In Agan, as Judge Strand notes, no further development of the record was necessary for the ALJ's RFC determination because "other medical evidence" provided sufficient support for finding Agan was able to function in the workplace. Report at 24. After surgery, Agan's sole impairment- back pain-was resolved. By contrast, despite taking pain medication and having epidural steroid injections,  Barrows's back pain persists. Id. at 24-25. According to Judge Strand, the inconsistencies in the record as to Barrows's condition from different medical providers "should have alerted the ALJ to the need for a medical opinion from a treating or examining source to resolve any discrepancies and determine Barrows's physical work-related limitations associated with his degenerative disc diseases." Id. at 25.
Finally, Judge Strand emphasizes the limitations that accompany Barrows's "extreme obesity" and "degenerative disc disease" in furtherance of the argument that the record was not properly developed for the ALJ to make a physical RFC determination. Id. In Judge Strand's words,
No medical evidence fills the gap created by the ALJ's failure to obtain an opinion from a treating or examining source as to how those impairments, alone and in combination with each other, affect Barrows's ability to function in the workplace. If anything, the medical evidence suggests Barrows experiences greater physical limitations than provided in the RFC.
Id. For the above reasons, Judge Strand recommends that I find the ALJ's conclusion, that Barrows retains the ability to do other work available in the national economy, to be unsupported by substantial evidence in the record. Id.
Based on the decision of the Eighth Circuit Court of Appeals in Nevland, Judge Strand asserts that "remand is necessary to correct [the ALJ's] error." Id. In an explanatory footnote following that recommendation, Judge Strand asserts that "the evidentiary hole created by the ALJ's failure to obtain an opinion from a treating or examining source as to Barrows's physical RFC requires remand for further development of the record." Id. at 25-26 n.8. More specifically, Judge Strand recommends that I order the ALJ to further develop the record as to Barrows's physical impairments by "obtaining an opinion from a treating or examining acceptable medical source as to his physical RFC." Id. at 26. If I adopted Judge Strand's recommendation, the ALJ would have to reconsider Barrows's disability claim based on that one additional medical opinion.
V. COMMISSIONER'S OBJECTIONS
On July 15, 2014, the Commissioner filed timely objections to the R & R. Defendant's Brief (docket no. 18). The Commissioner argues that the ALJ fulfilled its duty to develop the record, and Barrows's physical RFC assessment is supported by ...