Opinion
Civil No. 00-1899 (JRT/SRN).
September 30, 2001
Edward C. Olson, OLSON LAW OFFICE, 442 Norwest Midland Building, 401 Second Avenue South, Minneapolis, MN, 55401, for plaintiff.
Roylene Ann Champeaux, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415 for defendant.
ORDER ON REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Plaintiff brings this action against the Commissioner of Social Security seeking judicial review of the denial of his application for disability benefits. The parties have filed cross-motions for summary judgment. In a Report and Recommendation dated June 4, 2001, United States Magistrate Judge Susan Richard Nelson recommended that the matter be reversed and remanded to the Commissioner for further development of the record.
This matter is before the Court on objections by defendant to the Report and Recommendation. The Court has conducted a de novo review of these objections pursuant to 28 U.S.C. § 636(b)(1)(c) and D. Minn. LR 72.1(c)(2). Upon such review, the Court agrees with the Magistrate Judge that further development of the record is necessary in this case. The Court is particularly troubled by suggestions in the record that plaintiff suffers from non-exertional angina, including non stress-related angina. There is evidence in the record that plaintiff suffers from angina while at rest. For instance, in March 1997, plaintiff's treating physician, Dr. Houle, noted that plaintiff has "persistent angina at rest 2 to 3 times per week. This is also induced by stress." In June 1997, Dr. Houle again noted that "plaintiff had angina with rest and exertion." It is the effect of this non-stress-related angina which, if true, could alter the ALJ's residual functional capacity determination, hypothetical to the vocational expert, and ultimate disability determination.
The Court also agrees with the Magistrate Judge that the additional evidence submitted by plaintiff to the appeals council should be considered on remand. The letter by Dr. Huotori, plaintiff's current primary care physician, further diagnoses plaintiff's medical condition and most importantly, opines that plaintiff "does have non-exertional, as well as exertional, angina" and that his angina is "complicated by extreme fatigue." As the Magistrate Judge noted, this assessment was made by a treating physician, it relates back to plaintiffs' initial diagnosis of heart disease, and it supports plaintiff's contention that non-exertional stressors affect his medical condition.
The Court does, however, sustain defendant's objection regarding the Magistrate Judge's suggestion that the use of interrogatories by Dr. LaBree, a medical expert, was improper because he did not examine plaintiff. As defendant points out, a medical expert reviews the plaintiff's medical records and provides an impartial expert advisory opinion to the ALJ to assist him in evaluating the medical evidence. 20 C.F.R. § 404.1527(f)(2)(iii). Medical experts do not examine claimants. In fact, internal procedures mandate that an ALJ may never permit a medical expert to perform an examination of a claimant and may not use a medical expert who has treated the claimant in the past or has examined the claimant on a consultative basis. HALLEX, ch. I-2-532, I-2-536.
The Court remands this case not based on the reweighing of evidence, but based on the ALJ's failure to develop the record. The Court is mindful that the Eighth Circuit has repeatedly cautioned that it is not the job of the reviewing court to reweigh the evidence or substitute its own judgment for that of the ALJ. Stephens v. Shalala, 46 F.3d 37, 39 (8th Cir. 1995). Accordingly, the Court remands this case for further development of the record on the issues stated herein and those stated in the report and recommendation.
ORDER
Based on the foregoing, the submissions of the parties, and all of the files, records, and proceedings herein, the Court OVERRULES in part and SUSTAINS in part defendant's objections [Docket No. 16], and ADOPTS in part and REJECTS in part the Report and Recommendation of the Magistrate Judge [Docket No. 12]. Accordingly,
IT IS HEREBY ORDERED that:
1. Plaintiff's Motion for Summary Judgment [Docket No. 9] is DENIED;
2. Defendant's Motion for Summary Judgment [Docket No. 11] is DENIED;
3. This case is remanded to the Commissioner for further proceedings consistent with this opinion.
LET JUDGMENT BE ENTERED ACCORDINGLY.