Opinion
Case No. 7:01CV5012
October 9, 2002
MEMORANDUM AND ORDER
This matter is before the Court on the denial, initially and on reconsideration, of the Plaintiff's disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 401-433. The Court has carefully considered the record and the parties' briefs.
PROCEDURAL BACKGROUND
On December 9, 1999, the Plaintiff, Roxi P. Kriz, filed an application for disability benefits pursuant to Title II. (Tr. 84-86.) The claim was denied initially (Tr. 56, 64-67) and on reconsideration (Tr. 60, 71-74). Kriz requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 75-6.) An administrative hearing was held before ALJ Allan C. Miller on December 5, 2000. (Tr. 24-55.) On March 22, 2001, the ALJ issued a decision finding that Kriz is not disabled within the meaning of the Act. Specifically, the ALJ determined that, although Kriz cannot return to her past relevant work, she has the residual functional capacity to perform work with certain limitations. (Tr. 11-20.) On June 29, 2001, the Appeals Council denied Kriz' request for review. (Tr. 4-5.) Kriz now seeks judicial review of the ALJ's determination as the final decision of the Defendant, the Commissioner of the Social Security Administration ("SSA"). (Filing No. 1.)
Jo Anne B. Barnhart, the new Commissioner of Social Security, is substituted for Larry G. Massanari, Acting Commissioner of the Social Security Administration, as Defendant pursuant to Federal Rule of Civil Procedure 25(d)(1).
Kriz claims that the ALJ's opinion was incorrect because the ALJ: 1) erred in determining Kriz' residual functional capacity; and 2) failed to consider the entire record, noting that the record filed with the Commissioner's Answer (Filing No. 13) is incomplete. Upon careful review of the record, the parties' briefs and the law, the Court concludes that the ALJ's decision denying benefits is not supported by substantial evidence on the record as a whole. Therefore, the Court will reverse the Commissioner's decision and remand this case for reconsideration and further proceedings consistent with this Memorandum and Order.
FACTUAL BACKGROUND
At the hearing before the ALJ, the following colloquy was had regarding the evidence in the record:
ALJ: . . . . The exhibits in the file, how high do those go, those exhibits?
ATTY: We've got 18F.
ALJ: . . . [T]here was 6E in the non-medical and 12F in the medical. We've now gone up to 18 among the medical and 7 in the non-medical, okay? Any objection to receipt into evidence of any of the exhibits?
ATTY: No, Your Honor.
ALJ: They're all received.
(Exhibit 1A through 13F, previously identified, were received into evidence and made a part of the record.) (Tr. 27.)
However, "13F" in the transcript was formed with a handwritten "3" over another numeral, which appears to be an "8." (Tr. 27.)
The record includes only the following exhibits: 1A, 2A, 1B, 2B, 3B, 4B, 5B, 1D, 2d 3D, 1E, 2E, 3E, 4E, 5E, 6E, 1F, 2F, 3F, 4F, 5F, 6F, 7F, 8F, 9F, 10F, 11F, 12F and 13F. (Filing No. 13F.) Therefore, it appears that the record does not include all of the exhibits that the ALJ admitted into evidence, and it appears that the transcript was changed to reflect only the exhibits filed.
THE ALJ'S DECISION
The ALJ determined that Kriz is not disabled within the meaning of the Act. The ALJ found that, although Kriz cannot return to her past relevant work, she has the residual functional capacity to perform certain types of sedentary work. (Tr. 11-20.)
STANDARD OF REVIEW
In reviewing an ALJ's decision to deny disability benefits, a district court does not reweigh evidence or the credibility of witnesses or revisit issues de novo. Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995); Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995). Rather, the district court's role under 42 U.S.C. § 405(g) is limited to determining whether substantial evidence in the record as a whole supports the Commissioner's decision and, if so, to affirming that decision. Harris, 45 F.3d at 1193.
"Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision." Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir. 2001). The Court must consider evidence that both detracts from, as well as supports, the Commissioner's decision. Id. As long as substantial evidence supports the Commissioner's decision, that decision may not be reversed merely because substantial evidence would also support a different conclusion or because a district court would decide the case differently. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000); Harris, 45 F.3d at 1193.
DISCUSSION
Kriz argues that the ALJ failed to consider the entire record in rendering a decision. The Commissioner argues that, although the ALJ must develop the record fully, an ALJ is not required to discuss or cite to every item of evidence submitted, citing Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998).
The situation in Kriz' case, however, is not that the ALJ allegedly failed to "discuss" or "cite" to specific evidence, but rather that the ALJ failed to include all the evidence received in the official record presented to this Court for review. Moreover, given the handwritten change to the transcript, the Court cannot determine whether the ALJ considered the entire record. While there appears to be no reported case precisely on point, Kriz' case is similar to Spencer v. Bowen, 798 F.2d 275 (8th Cir. 1986). In Spencer, on appeal to the Eighth Circuit the plaintiff argued that certain medical records necessary for determination of his disability claim were never made part of the administrative record. Although the plaintiff submitted the records to the Eighth Circuit, the records were not available to the ALJ or the Appeals Council. Therefore, the Eighth Circuit remanded the case to allow the ALJ to view the evidence with specific instructions to give explicit consideration on the record to all relevant evidence and indicate the weight attributed to the evidence. Id. at 277.
This Court is to determine whether "there is substantial evidence in the record as a whole" to support the Commissioner's decision. Harris, 45 F.3d at 1193 (emphasis added). The Court cannot perform this important function without the benefit of knowing that the ALJ and the Appeals Council considered the record "as a whole," or without being presented with the record "as a whole." Therefore, Kriz' case will be remanded for reconsideration and further proceedings consistent with this Memorandum and Order. Cf. Spencer, 798 F.2d at 277.
CONCLUSION
For the reasons discussed, the Court concludes that the Secretary's decision is not based on substantial evidence on the record as a whole. The Court is unable to determine whether an award of benefits is appropriate, based on the record. Callison v. Callahan, 985 F. Supp. 1182, 1188 (D.Neb. 1997). The case will be remanded to the ALJ pursuant to sentence four of 42 U.S.C. § 405(g) for reconsideration. Specifically, the ALJ shall: 1) include all of the relevant evidence in the record; and 2) issue a new opinion giving explicit consideration to all relevant evidence in the record. In view of the Court's decision, the remaining issues raised in this appeal need not be addressed.
IT IS ORDERED that judgment will be entered by separate document reversing the final decision appealed from pursuant to sentence four of 42 U.S.C. § 405(g) and remanding this case for reconsideration and further proceedings consistent with this Memorandum and Order.