Opinion
Civil No. 00-2452 ADM/JMM
September 12, 2001
Robert J. Hoglund, Esq., Hoglund, Chwialkowski Greeman, Roseville, MN, on behalf of Plaintiff.
Roylene Ann Champeaux, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Defendant's Objections [Doc. No. 15] to the Report and Recommendation ("RR") of United States Magistrate Judge John M. Mason [Doc. No. 14]. The RR, dated June 20, 2001, recommends that Plaintiff's Motion for Summary Judgment [Doc. No. 10] be denied in part and granted in part and that Defendant's Motion for Summary Judgment [Doc. No. 12] be granted in part and denied in part. Defendant objects to the RR's conclusion that substantial evidence did not support the Administrative Law Judge's ("ALJ") finding that Plaintiff was not disabled as the result of asthma. For the reasons set forth below, the Objections are granted in part and denied in part, the portion of the RR directing an award of benefits is reversed, and the case is remanded for further proceedings.
II. BACKGROUND
The factual background for this matter is set forth in the RR and is incorporated by reference for purposes of the present objections.
III. DISCUSSION
Defendant objects to the RR's conclusion that Plaintiff is entitled to benefits for her asthma impairment, claiming the ALJ's conclusion that Plaintiff was not disabled as the result of her asthma is supported by substantial evidence in the record as a whole.
Where a magistrate judge's RR concerns a dispositive motion, a district court must make an independent, de novo evaluation of those portions of an RR to which objection is made and may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge. See 28 U.S.C. § 636(b)(1)(C); Minn. LR 72.1(c)(2).
On review of the Commissioner's findings, a court must take into consideration the weight of the evidence and determine whether or not substantial evidence in the record as a whole supports the findings upon which a plaintiff's claims were granted or denied by the ALJ. Loving v. Sec'y of Health and Human Servs., 16 F.3d 967, 969 (8th Cir. 1994). "Substantial evidence" is a standard deferential to the agency and the ALJ. Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). "Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). The ALJ's decision must be upheld if there is substantial evidence supporting it, even if there is substantial evidence of the opposite decision as well. Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998). Thus, neither the evidence nor the factual record is reviewed de novo. Flynn v. Chater, 107 F.3d 617, 620 (8th Cir. 1997).
The RR recommends a reversal of the ALJ's determination that Plaintiff was not disabled by finding that she was disabled because of asthma under 20 C.F.R. Part 404, Subpart P, App. 1, Listing 103.03B ("Listing 103.03B"). Under this listing, a claimant may prove an asthma disability by showing evidence of
attacks (as defined in 3.00C), in spite of prescribed treatment and requiring physician intervention, occurring at least once every two months or at least six times a year. Each inpatient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of the attacks.
Id. These attacks are defined as "prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting." 20 C.F.R. Part 404, Subpart P, App. 1, § 3.00C ("§ 3.00C").
At the hearing, the medical expert testified that at no time did he find "documented that the claimant qualifies for six visits a year" according to Listing 103.03B. Record at 61. In 1996, Plaintiff was hospitalized for more the 24 hours for asthma attacks twice, once on January 23-25 and again on October 23-25. Id. at 231, 217. These hospitalizations account for four of the six attacks required by Listing 103.03B and were the only attacks documented in the record. The expert testified that Plaintiff's guardians claimed to have brought Plaintiff into the hospital for care more often than was documented. Id. at 57. The ALJ acknowledged this fact and left the record open for another week to allow Plaintiff's attorney to document additional attacks. Id. at 59-65. Plaintiff's attorney submitted additional records from 1998, but not 1996 or 1997. Id. at 21. Having found that Plaintiff did not meet any of the listings for asthma disability, the ALJ denied her disability claim. Id. at 26.
A reviewing court can enter a finding of disability only if the record "overwhelmingly supports" such a finding. See Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000) citing Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1987); Talbot v. Bowen, 821 F.2d 511, 514 (8th Cir. 1987) (citations omitted) ("Unless the case is one in which the outcome should be clear regardless of who bears the burden of proof, . . . we will remand for further proceedings . . . ."). For the reasons stated above, the record does not "overwhelmingly support" a finding of disability. As Judge Mason articulates, the record does contain indications that such a finding is supported by the evidence currently of record. However, without the substantial "overwhelming support," this Court does not replace the finding of "no disability" with one of a determination of "disability." The portion of the RR directing an award of benefits is reversed.
Conversely, substantial evidence does not support the ALJ's determination that Plaintiff is not disabled as the result of her asthma. As the RR asserts, the ALJ was unreasonable in relying on the opinion of the expert because the expert did not address a notation in the margin of the hospital's record of Plaintiff's January 1996 hospitalization. Record at 233. The notation states "completed 5/5 Day course of steroids — then restarted to symptoms during the past two weeks." Id. It is possible, as the RR suggests, that these steroid treatments stemmed from at least two attacks, fulfilling the six attack requirement. The claimant bears the burden of proving medical documentation of their disability. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). In light of this information not originally considered by the ALJ, this case is remanded to the Commissioner for further proceedings to determine if this burden is met.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED THAT:
1. The June 20, 2001 RR [Doc. No. 14] is ADOPTED in part and REVERSED in part;
2. Defendant's Objections to the RR [Doc. No. 15] are GRANTED in part;
3. Plaintiff's Motion for Summary Judgment [Doc. No. 10] is DENIED;
4. Defendant's Motion for Summary Judgment [Doc. No. 12] is DENIED; and
Because the RR's determination that Plaintiff was not disabled as the result of cerebral palsy was not objected to, this recommendation is adopted without review.
5. This case is REMANDED for further proceedings.
LET JUDGMENT BE ENTERED ACCORDINGLY.