Opinion
No. C99-4050-MWB
August 29, 2000.
AMENDED MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. INTRODUCTION
In this action, plaintiff Kevin L. Gangelhoff ("Gangelhoff") seeks judicial review of a decision of an administrative law judge (ALJ) denying his application for Social Security benefits under Title II (disability insurance (DI)) and Title XVI (supplemental security income (SSI)) of the Social Security Act. Gangelhoff filed his application for disability benefits on December 10, 1996, alleging that he became disabled on March 23, 1996. He asserts disability based on low back and neck pain, hypertension, headaches, fatigue, a generalized anxiety disorder, an adjustment disorder with depressed mood, and hearing loss. However, Gangelhoff was denied DI and SSI benefits at each stage of the Social Security administrative process.
A more detailed discussion of the procedural history of Gangelhoff's application for Social Security benefits is not required here, because Magistrate Judge Zoss recounted that history in detail in his Report and Recommendation, filed July 13, 2000. Because no party has made any objection to that portion of the Report and Recommendation, the court finds it unnecessary to reprise that history.
Dissatisfied with the results of the administrative process, Gangelhoff filed this action for judicial review on June 3, 1999. This case was referred to Magistrate Judge Zoss on September 20, 1999, for the filing of a Report and Recommendation. Judge Zoss filed such a Report and Recommendation on July 13, 2000. In that Report and Recommendation, Judge Zoss recommended that judgment be entered in favor of the defendant Commissioner on Gangelhoff's action for judicial review.
Gangelhoff filed objections to Judge Zoss's Report and Recommendation on July 24, 2000, however, he did not file his memorandum in support of his objections until August 8, 2000, at which time he asserted three additional objections. Although the court is inclined not to consider the three additional objections contained in Gangelhoff's memorandum, because they were untimely, the court recognizes that the only party prejudiced by such action would be the plaintiff Gangelhoff. Therefore, in the interests of justice, the court deems all of Gangelhoff's objections to have been made timely, and, therefore, will consider all of them. On August 4, 2000, defendant filed a response to Gangelhoff's original three objections to the Magistrate Judge's Report and Recommendation. This matter is now before the court for review of Judge Zoss's Report and Recommendation in light of Gangelhoff's objections.
II. LEGAL ANALYSIS A. Standards of Review
1. Review of a report and recommendation
The standard of review to be applied by the district court to a report and recommendation of a magistrate judge is established by statute:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].28 U.S.C. § 636(b)(1). The Eighth Circuit Court of Appeals has repeatedly held that it is reversible error for the district court to fail to conduct a de novo review of a magistrate judge's report where such review is required. See, e.g., Hosna v. Groose, 80 F.3d 298, 306 (8th Cir.) (citing 28 U.S.C. § 636(b)(1)), cert. denied, 519 U.S. 860 (1996); Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (citing Belk v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994)); Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995) (also citing Belk). Because objections have been filed in this case, the court must conduct a de novo review. The court has done so by reviewing the record before Judge Zoss in light of Gangelhoff's objections to Judge Zoss's Report and Recommendation.
2. Review of an administrative denial of benefits
The Eighth Circuit Court of Appeals recently explained the standard for judicial review of an ALJ's denial of Social Security benefits as follows:
We must uphold the ALJ's decision if it is supported by substantial evidence. See Metz v. Shalala, 49 F.3d 374, 376 (8th Cir. 1995). Our task is not to reweigh the evidence, and we may not reverse the Commissioner's decision merely because substantial evidence would have supported an opposite conclusion or merely because we would have decided the case differently. See Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993); Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993). In determining whether substantial evidence supports the ALJ's decision, we must consider evidence in the record that supports the ALJ's decision as well as evidence that detracts from it. See Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993).
Harwood v. Apfel, 186 F.3d 1039, 1042 (8th Cir. 1999); Weiler v. Apfel, 179 F.3d 1107, 1109 (8th Cir. 1999) ("We cannot reverse the ALJ's decision merely because the record contains substantial evidence supporting a contrary outcome."). "`Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to support the [ALJ's] conclusion.'" Wieler, 179 F.3d at 1109 (citing Pierce v. Apfel, 173 F.3d 704, 706 (8th Cir. 1999)). However, the reviewing court "must determine whether the ALJ's findings are supported by substantial evidence on the record as a whole." Id. (again citing Pierce, 173 F.3d at 706); accord Jenikins v. Apfel, 196 F.3d 922, 924 (8th Cir. 1999) ("We review the decision of the ALJ to determine whether his findings are supported by substantial evidence on the record as a whole."); Rankin v. Apfel, 195 F.3d 427, 428 (8th Cir. 1999) (same).
The Eighth Circuit Court of Appeals has also explained how a court is to determine whether the ALJ's findings "are supported by substantial evidence on the record as a whole":
In Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987), the Court discussed the difference between "substantial evidence" and "substantial evidence on the record as a whole." "Substantial evidence on the record as a whole" wrote then Chief Judge Lay, "requires a more scrutinizing analysis" than the "substantial evidence" test. The Court went on to say:
In the review of an administrative decision, "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. See Steadman v. Securities and Exchange Commission, 450 U.S. 91, 99, 101 S.Ct. 999, 1006, 67 L.Ed.2d 69 (1981). It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.
Gavin v. Heckler, 811 F.2d at 1199. In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir. 1975).
Willcuts v. Apfel, 143 F.3d 1134, 1136-37 (8th Cir. 1998); accord Rankin, 195 F.3d at 428 ("We also evaluate whatever evidence contradicts the Commissioner's decision, rather than simply searching the record for supporting evidence."); Harwood, 186 F.3d at 1042 ("In determining whether substantial evidence supports the ALJ's decision, we must consider evidence in the record that supports the ALJ's decision as well as evidence that detracts from it."). Thus, this court must undertake a "scrutinizing analysis" of the evidence in the record as a whole.
B. Gangelhoff's Objections
Gangelhoff asserts myriad objections to Judge Zoss's Report and Recommendation. First, Gangelhoff objects to the Report and Recommendation as it recommends that the final decision of the Commissioner be affirmed even though the ALJ never expressly acknowledged a shift in the burden of proving Gangelhoff's residual functional capacity. Second, Gangelhoff objects to the Report and Recommendation as it recommends that the final decision of the Commissioner be affirmed even though the ALJ's findings concerning the claimants's residual functional capacity are not supported by medical evidence. Third, Gangelhoff objects to the Report and Recommendation as it recommends that the final decision of the Commissioner be affirmed even though the vocational expert's testimony is inadequate because it does not meet the Daubert standard as set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). Fourth, Gangelhoff objects to the Report and Recommendation as it recommends that the final decision of the Commissioner be affirmed even though the ALJ erred in rejecting Gangelhoff's subjective complaints of pain. Fifth, Gangelhoff objects to the Report and Recommendation as it recommends that the final decision of the Commissioner be affirmed even though the ALJ failed to give appropriate weight to the opinion of the State Agency's psychological consultant. Lastly, Gangelhoff objects to the Report and Recommendation as it recommends that the final decision of the Commissioner be affirmed even though the ALJ failed to fully and fairly develop the record. The court will address these objections in turn.
1. Did the ALJ expressly acknowledge a shift in the burden of proving Gangelhoff's residual functional capacity and is the ALJ's finding concerning Gangelhoff's residual functional capacity supported by medical evidence?
Gangelhoff objects to Judge Zoss's Report and Recommendation because it recommends that the final decision of the Commissioner be affirmed even though the ALJ never expressly acknowledged a shift in the burden of proving Gangelhoff's residual functional capacity. Gangelhoff contends that the ALJ failed to acknowledge that the Commissioner also has the burden of proving Gangelhoff's residual functional capacity when the ALJ stated:
On August 17, 2000, Gangelhoff submitted a letter to this court, citing to a recently decided Eighth Circuit Court of Appeals case, Cunningham v. Apfel, ___ F.3d ___, 2000 WL 1072298, *3 (8th Cir. Aug. 4, 2000) (citing Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000), to further buttress his assertion that the Commissioner retains a two-pronged burden of proof at step five of the sequential evaluation process.
As the undersigned finds the claimant retains the functional capacity to perform work at only the light exertional level and below, the undersigned finds the claimant cannot perform his past relevant work activity. Therefore, the burden shifts to the Commissioner to show there are a significant number of jobs present in the regional or national economy capable of performance by the claimant.
Record at 21. Gangelhoff contends that this portion of the ALJ's decision demonstrates that the ALJ only shifted the burden of proof to the Commissioner to show that there were a significant number of jobs present in the regional or national economy capable of performance by Gangelhoff. The court disagrees. Although the ALJ's language, taken literally, supports Gangelhoff's contention, the ALJ's prior discussion demonstrates that the ALJ did, indeed, shift the burden to the Commissioner to prove that Gangelhoff retains the residual functional capacity to do other kinds of work.
This court is no stranger to the analysis used in determining a claimant's residual functional capacity. Indeed, in Scott v. Apfel, 89 F. Supp.2d 1066 (N.D.Iowa 2000), this court comprehensively analyzed the Commissioner's burden of proof at the final step of the disability determination process under Title II or Title XVI of the Social Security Act, explaining:
Looking in more depth at this fifth step in the analysis, this court notes that the Eighth Circuit Court of Appeals has explained that, "in the last step, the Commissioner has the burden to establish that jobs realistically suited to the claimant's residual functional capabilities are available in the national economy." Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir. 1998) (citing Talbott v. Bowen, 821 F.2d 511, 514-15 (8th Cir. 1987)). More specifically, as the Eighth Circuit Court of Appeals recently explained — in a decision by United States District Judge Robert W. Pratt of the Southern District of Iowa, sitting by designation — the Commissioner bears this burden as to two particular matters:
In our circuit it is well settled law that once a claimant demonstrates that he or she is unable to do past relevant work, the burden of proof shifts to the Commissioner to prove, first that the claimant retains the residual functional capacity 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 do. McCoy v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) (en banc); O'Leary v. Schweiker, 710 F.2d 1334, 1338 (8th Cir. 1983).
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (emphasis added); accord Weiler v. Apfel, 179 F.3d 1107, 1110 (8th Cir. 1999) (analyzing the fifth-step determination in terms of (1) whether there was sufficient medical evidence to support the ALJ's residual functional capacity determination and (2) whether there was sufficient evidence to support the ALJ's conclusion that there were a significant number of jobs in the economy that the claimant could perform with that residual functional capacity); Fenton v. Apfel, 149 F.3d 907, 910 (8th Cir. 1998) (describing "the Secretary's two-fold burden" at step five to be, first, to prove the claimant has the residual functional capacity to do other kinds of work, and, second, to demonstrate that jobs are available in the national economy that are realistically suited to the claimant's qualifications and capabilities); Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998) (finding that, if the claimant cannot return to his or her past relevant work, the burden shifts to the Commissioner to prove both residual functional capacity and the existence of other jobs that realistically suit the claimant's residual functional capacity).
Scott, 89 F. Supp.2d 1066 at 1072-73. Moreover, as the Eighth Circuit Court of Appeals has emphasized, the Commissioner's determination that the claimant retains the residual functional capacity to perform "other jobs" must be supported by medical evidence. See Dykes v. Apfel, ___ F.3d ___, 2000 WL 1182820, *1 (8th Cir. Aug. 21, 2000) (the claimant was correct that the Commissioner must meet his burden at step five with medical evidence of residual functional capacity "to this extent — the record must include some medical evidence that supports the ALJ's residual functional capacity finding"); Nevland, 204 F.3d at 858 (residual functional capacity "`is a medical question'") (quoting Ford v. Secretary of Health and Human Servs., 662 F. Supp. 954, 955 (W.D.Ark. 1987)); Weiler, 179 F.3d at 1110 (there was sufficient medical evidence to support the ALJ's determination that the claimant retained the residual functional capacity to perform "other jobs"); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) ("If there is no such [medical] evidence, the ALJ's decision `cannot be said to be supported by substantial evidence.'") (quoting Frankl v. Shalala, 47 F.3d 935, 937-38 (8th Cir. 1995).
In this case, although the ALJ did not expressly articulate that the burden shifts to the Commissioner to prove that Gangelhoff retains the residual functional capacity to do other kinds of work, the ALJ did determine Gangelhoff's residual functional capacity based on the medical evidence contained in the record. See Weiler, 179 F.3d at 1110 (analyzing the fifth-step determination in terms of whether there was sufficient medical evidence to support the ALJ's residual functional capacity determination); Fent, 149 F.3d at 910 (stating that the two fold burden of the Secretary at step five requires that the Secretary first prove that the claimant has the residual functional capacity to do other kinds of work). Thus, while not expressly articulating the shift in this burden, this court concludes that the ALJ nonetheless recognized that it was his burden, and, in fact, sustained his burden of proof. Consequently, this court agrees with Judge Zoss's finding that the ALJ sustained his burden of proof.
Indeed, turning first to Gangelhoff's allegation of disabling physical impairments, Dr. Ralph F. Reeder, Gangelhoff's neurosurgeon, characterized Gangelhoff's abnormalities as being minimal, advised Gangelhoff to continue his range of motion of the back as well as general aerobic activities, and encouraged Gangelhoff to pursue continuing in automotive work as tolerated, and recommended that he minimize his bending. (R. 199). Gangelhoff's treating physician, Dr. Les J. Marczewski, wrote the following about Gangelhoff's capacity to work:
This individual is not able to work in any type of set-up where a lot of physical activity is required. He cannot do any heavy lifting, pushing, stooping or crawling.
(R. 223). Significantly, both of Gangelhoff's physicians never stated that Gangelhoff was not able to perform any work or that he was totally disabled. Davis v. Shalala, 31 F.3d 753, 756 (8th Cir. 1994) (stating that a treating physician's opinion is generally entitled to substantial weight; however, such an opinion is not conclusive in determining disability status, and the opinion must be supported by medically acceptable clinical or diagnostic data); Onstead v. Sullivan, 962 F.2d 803, 805 (8th Cir. 1992) (opinion of treating physician entitled to substantial weight). In fact, both physicians recommended that Gangelhoff retained the capacity to work, albeit at a minimal/lighter exertional level. Although the court is cognizant that such opinions by Gangelhoff's physicians do not automatically control, based upon a de novo review of the record as a whole, see Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995), this court agrees with the ALJ's finding that, [Gangelhoff] physically retains the functional capacity, at least, to perform the full and wide range of work activity at both the light and sedentary exertional levels with the additional restriction that [Gangelhoff] not perform postural activities on more than an occasional basis.(R. 6).
Moreover, turning to Gangelhoff's allegation of a disabling mental impairment due to depression, the ALJ closely tracked and examined the treatments and medicines provided to Gangelhoff. The ALJ accurately noted that in April 1996, Dr. Galbreath initially diagnosed the presence of a major depressive disorder, single episode, with a reference to ruling out a generalized anxiety disorder. (R. 18). Gangelhoff was prescribed two different types of anti-depressant medicine, namely Zoloft and Prozac. Thereafter, because Gangelhoff responded better to Zoloft, Prozac was discontinued and the dosage of Zoloft was increased. Gangelhoff's diagnosis was subsequently changed to an adjustment disorder with depressed mood. (R. 238). Gangelhoff's physicians continued prescribing him Zoloft and also prescribed Amitriptyline. (R. 225). During subsequent visits with his various physicians, Gangelhoff reported that the medications were helping his depression considerably. In so doing, the medical evidence does reflect that Gangelhoff's mental conditions were quickly and adequately treated with Zoloft and Amitriptyline. See Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999) ("Impairments that are controllable or amenable to treatment do not support a finding of total disability.") (citing Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997). Thus, upon a de novo review, this court agrees with Judge Zoss's finding that the ALJ's determination of Gangelhoff's residual functional capacity to perform other jobs was supported by the medical evidence contained in the record. In this case, however, because Gangelhoff complains of pain, the ALJ must also demonstrate that non-exertional impairments, such as pain, do not preclude Gangelhoff from performing other work. O'Leary, 710 F.2d at 1338.
2. Gangelhoff's subjective complaints of pain
Gangelhoff objects to that portion of Judge Zoss's Report and Recommendation in which Judge Zoss agrees with the ALJ's decision in rejecting Gangelhoff's subjective complaints of pain. This court agrees with Gangelhoff's objection. Although Judge Zoss correctly stated in the Report and Recommendation that the ALJ must apply the Polaski factors to Gangelhoff's subjective complaints of pain in order to determine their credibility, the court rejects Judge Zoss's conclusion that the ALJ correctly applied the Polaski factors to Gangelhoff's subjective complaints of pain.
In Robbins v. Apfel, 69 F. Supp.2d 1151, 1156 (N.D.Iowa 1999), this court reiterated the repeated warnings of the Eighth Circuit Court of Appeals that, in rejecting a claimant's subjective complaints of pain, an ALJ must make express credibility determinations, must detail the reasons for discrediting the testimony, must set forth the inconsistencies upon which he or she relies, and must discuss the Polaski factors. See, e.g., Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998) ("When rejecting a claimant's complaints of pain, the ALJ must make an express credibility determination, must detail reasons for discrediting the testimony, must set forth the inconsistencies, and must discuss the Polaski factors."); Beckley v. Apfel, 152 F.3d 1056, 1059-60 (8th Cir. 1998) (reiterating these requirements and finding that, in the case before the court, "the inconsistencies that the ALJ relied on to disbelieve Beckley's testimony are not supported by sufficient evidence"); Burress v. Apfel, 141 F.3d 875, 880-81 (8th Cir. 1998) ("Although an ALJ may reject a claimant's subjective allegations of pain and limitation, in doing so the ALJ `must make an express credibility determination detailing the reasons for discrediting the testimony, must set forth the inconsistencies, and must discuss the Polaski factors.'") (quoting Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998)); Kelley, 133 F.3d at 588 (reciting the same requirements and concluding that "the ALJ did not adequately detail the inconsistencies that she relied upon to disbelieve Kelley's testimony"); Jones v. Callahan, 122 F.3d 1148, 1151 (8th Cir. 1997) (reiterating these requirements); Shelton v. Chater, 87 F.3d 992, 995 (8th Cir. 1996) (same). More specifically, "[w]hen an ALJ fails to believe lay testimony about a claimant's allegations of pain, he should discuss the testimony specifically and make explicit credibility determinations." Ricketts v. Secretary of Health and Human Servs., 902 F.2d 661, 664 (8th Cir. 1990). Only where an ALJ adequately explains his or her findings on the Polaski factors or the reasons for discrediting testimony in light of these factors, are the ALJ's conclusions regarding the credibility of the claimant's subjective pain complaints entitled to any deference. See Jones, 122 F.3d at 1151 ("'We will not disturb the decision of an ALJ who seriously considers, but for good reasons explicitly discredits, a claimant's testimony of disabling pain.'") (quoting Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992)); Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990) ("If an ALJ explicitly discredits a claimant's testimony and gives a good reason for doing so, we will normally defer to that judgment.").
Under Polaski, an ALJ must consider the claimant's prior work record; and observations by third parties and treating and examining physicians relating to such matters as the claimant's daily activities; the duration, frequency and intensity of pain; precipitating and aggravating factors; dosage, effectiveness and side effects of medication; and functional restriction. Polaski, 739 F.2d at 1322.
Here, although the ALJ mentioned the Polaski factors, the ALJ failed to address expressly each of the Polaski factors as they relate to Gangelhoff's subjective complaints of pain, and, instead, the ALJ summarily stated:
[T]he undersigned finds testimony at hearing and statements in record as to the presence and severity of various physical impairments alleged, including pain, with resultant functional limitation were highly exaggerated, generally not credible, and not substantially supported by medical evidence and opinion in record when evaluated in its entirety.
(R. 17). The ALJ offers no detailed reasons for discrediting Gangelhoff's testimony, in relation to the Polaski factors, other than repeatedly indicating that Gangelhoff's subjective complaints of pain are contradicted by the objective medical evidence in the record. This is so, despite protestations by the Eighth Circuit Court of Appeals clearly stating that an ALJ may not reject subjective complaints of pain solely because of lack of objective medical evidence. Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996); Beeler v. Bowen, 833 F.2d 124, 127 (8th Cir. 1987) (citation omitted). The ALJ also discredited Gangelhoff's subjective complaints of pain based on Gangelhoff's prior work history, stating:
[Gangelhoff's] earnings record reflects a poor work history with minimal earnings and multiple jobs throughout the [his] adult life.
(R. 20). While the court agrees that an ALJ may discount a claimant's credibility based upon a poor work history, see Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993), in this case, the ALJ failed to discuss the other factors enumerated in Polaski. For example, the ALJ did not explicitly discuss the evidence in relationship to the Polaski factor relating to the duration, frequency, and intensity of the pain or the factor relating to the precipitating and aggravating causes of the claimed pain. Moreover, the ALJ did not discuss the side effects of the medication, namely fatigue and sleepiness, or the factor relating to Gangelhoff's daily activities. The court notes that the ALJ reiterates certain portions of Gangelhoff's testimony in the decision, however, the ALJ fails to discuss how said testimony is inconsistent in relation to the Polaski factors. (R. 3). The court finds that from the onset date of his alleged disability, March 23, 1996, the record is replete with Gangelhoff's complaints of pain, which precipitated his numerous visits to doctors and specialists, as well as the prescribing of medications for pain such as Flexeril, Ultram, Darvocet, and Tylenol #3. In addition, he has had many diagnostic tests, including CAT scans, X-rays and MRIs, and has undergone physical therapy. There is nothing demonstrating "seriou[s] consider[ation]" of the pain allegations or "good reasons" for disregarding them. Jones, 122 F.3d at 1151; Dixon, 905 F.2d at 238.
Moreover, the fact that the ALJ failed to adequately explain his reasons for discounting Gangelhoff's credibility regarding his subjective complaints of pain, in relation to the Polaski factors, is further emphasized by the simple fact that Judge Zoss was only able to expressly note the ALJ's discussion of the Polaski factor dealing with Gangelhoff's prior work record. Indeed, as articulated previously, significantly absent from the ALJ's decision is any discussion of Gangelhoff's subjective complaints of pain in light of any of the other Polaski factors. Therefore, upon a de novo review, because it cannot be said that the ALJ specifically considered all the pertinent factors before discounting Gangelhoff's subjective complaints of pain, this court rejects Judge Zoss's finding that the ALJ correctly applied the Polaski factors to Gangelhoff's subjective complaints of pain. Notwithstanding the undersigned's rejection of Judge Zoss's finding on this objection, the court will nevertheless address Gangelhoff's remaining objections, on de novo review, to provide the appropriate guidance for the ALJ.
3. Does the vocational expert's testimony need to comport with the Daubert standard?
Gangelhoff asserts that the final decision of the Commissioner should not be affirmed because the vocational expert's testimony does not meet the Daubert standard articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). In contrast, defendant Commissioner argues that, because Social Security administrative proceedings are not governed by the Federal Rules of Evidence, see 42 U.S.C. § 405 (b)(1), and because the holdings in Daubert and Kumho impose an obligation upon the trial judge to ensure that expert testimony is not only relevant, but reliable, the Daubert standard is not applicable to the testimony of a vocational expert ("VE") in a Social Security administrative hearings. This court agrees.
In Daubert, the United States Supreme Court interpreted Rule 702 of the Federal Rules of Civil Procedure. Rule 702 governs the admissibility of expert testimony. The Supreme Court explained that Rule 702 assigns to the district judge a gate-keeping role to ensure that scientific testimony is both reliable and relevant. Daubert, 509 U.S. at 597. This role requires the district judge to undertake a two-part analysis. First, the district judge must determine whether or not the proffered testimony is reliable, requiring an assessment of whether the reasoning or methodology underlying the testimony is scientifically valid. Second, the district judge must determine whether or not that reasoning or methodology can be properly applied to the facts in issue; that is, whether it is relevant. Id. at 592-93. There are several factors that a trial judge should consider when determining whether or not the scientific expert's methodology is reliable, including:
Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(1) whether the theory or technique has been tested; (2) whether the theory or technique has been subjected to peer review and publications; (3) the known or potential rate of error of the method used and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or method has been generally accepted by the scientific community.Daubert, 509 U.S. at 593-94. Thereafter, in Kumho, the Supreme Court held that this basic gate-keeping obligation applies to all expert testimony, not just scientific testimony. 526 U.S. 137 (1999)
In this case, the ALJ did not consider the Daubert factors prior to accepting and relying upon VE Thomas Audet's testimony. However, this court is not persuaded that the Daubert standard applies to a vocational expert's testimony at a Social Security hearing for two reasons. First, as defendant Commissioner asserts, the Federal Rules of Evidence generally do not apply to Social Security administrative proceedings. See 42 U.S.C. § 405(b)(1); 20 C.F.R. § 404.950(c); McClees v. Sullivan, 879 F.2d 451, 453 n. 2 (8th Cir. 1989) (stating that [t]he Social Security Act does not preclude hearsay evidence and the ALJ's proceedings are not governed by the Federal Rules of Evidence) (citation omitted). Second, there is nothing in the language of Rule 702, Daubert, or Kumho, that suggests an intent to alter the conventional functions of either the ALJ or the VE during the administrative hearing, and there is no authority indicating that an ALJ must apply Daubert before admitting a VE's testimony. It must be remembered that a Social Security administrative hearing is a non-adversarial hearing, whereas the Daubert standard applies to adversarial proceedings where the Federal Rules of Evidence apply. Therefore, on de novo review, this court agrees with, and adopts, Judge Zoss's determination that the Daubert standard does not apply to the use of vocational expert testimony in a Social Security administrative hearing.
Gangelhoff also objects to Judge Zoss's finding that the VE demonstrated expertise in the vocational rehabilitation area. Gangelhoff contends that there is little to demonstrate the vocational expert's expertise in this specific area. This court disagrees with Gangelhoff, and adopts Judge Zoss's finding. Indeed, as noted by Judge Zoss, the VE reported his credentials during the administrative hearing, (R. 78), and upon a de novo review, this court is likewise satisfied that the VE's credentials in this case demonstrate his expertise in the vocational rehabilitation area. Moreover, merely because the VE is not from the State of Iowa is irrelevant to the determination of whether or not the VE can testify as to whether work exists in the national economy or whether or not work exists in the State of Iowa. Furthermore, while the court notes that the VE did use phrases such as "I'd say." "probably." "the numbers probably aren't as much," and "I would say," (R. 81-82), having reviewed the VE's testimony in its entirety, such language does not indicate the VE's lack of expertise as Gangelhoff asserts. Rather, as Judge Zoss noted, see Report and Recommendation at p. 27 n. 11, the court finds that these terms are figures of speech, and as such do not detract form the reliability of the VE's statements. See Long v. Chater, 108 F.3d 185, 188-89 (8th Cir. 1997). Taken in context, these phrases merely demonstrate that the VE was aware that he was responding to hypothetical questions with expert opinions.
4. Remaining objections
Gangelhoff also objects to Judge Zoss's Report and Recommendation because Judge Zoss found that the ALJ did give appropriate weight to the opinion of the State Agency's psychological consultant, and that the ALJ did not fail to fully and fairly develop the record.
The court agrees with Judge Zoss's finding that the ALJ gave appropriate weight to the opinion of the State Agency's psychological consultant. Gangelhoff asserts that the ALJ is required to address the State Agency's psychological consultant's opinion, which upon a de novo review, this court finds that the ALJ did do. The ALJ is required to consider such opinions at the hearing level, however, and, significantly, the ALJ is not bound by such opinions. See C.F.R. §§ 404.1527(f)(2) and 416.927(f)(2). It is clear that the ALJ did consider the State Agency's psychological consultant's opinion when the ALJ stated that Gangelhoff cannot perform complex mental activities, (R. 23), which was an opinion rendered by the State Agency's psychological consultant, and, upon a de novo review of the ALJ's hypothetical question posed to the VE, the court is convinced that the ALJ considered the State Agency's psychological consultant's opinion regarding Gangelhoff's psychological limitations and utilized them in the hypothetical to the extent that the ALJ found them to be credible based on the other evidence in the record. See Montogomery v. Chater, 69 F.3d 273, 275 (8th Cir. 1995) ("The hypothetical posed to the VE included all of Montgomery's impairments which the ALJ concluded were credible.") (citing Chamberlain v. Shalala, 47 F.3d 1489, 1495 (8th Cir. 1995)).
With respect to Gangelhoff's argument that the ALJ erred in failing to fully and fairly develop the record, because the ALJ did not attempt to obtain Dr. Coats's treatment records or the most recent records from Dr. Marczewski, this court disagrees. The court is cognizant that an ALJ has a duty to develop the record fully and fairly even if, as in this case, the claimant is represented by counsel. See Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995); Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994); Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir. 1992); Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990) (ALJ has duty to fully and fairly develop record upon which decision is to be made); Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983). However, Gangelhoff's counsel did not even indicate that the medical evidence in the record was incomplete or request additional time to submit further medical evidence in the record when the ALJ unequivocally acknowledged during the hearing not once, but twice, that some medical records were missing. Notwithstanding, the court finds that the medical evidence and the testimony contained in the record adequately relate Gangelhoff's disabilities, such that the ALJ was not required to obtain further medical evidence. See Weiler, 179 F.3d at 111.
III. CONCLUSION
Therefore, this court accepts in part and rejects in part, the findings and recommendations made by Judge Zoss in the July 13, 2000, Report and Recommendation. Specifically, the court overrules Gangelhoff's following objections to Judge Zoss's Report and Recommendation as it recommends: (1) that the ALJ never expressly acknowledged a shift in the burden of proving Gangelhoff's residual functional capacity; (2) that the ALJ's finding concerning Gangelhoff's residual functional capacity is not supported by medical evidence; (3) that the vocational expert's testimony was inadequate; (4) that the ALJ failed to give proper weight to the opinion of the State Agency's psychological consultant; and (5) that the ALJ failed to fully and fairly develop the record. However, the court sustains Gangelhoff's objection to Judge Zoss's Report and Recommendation as it recommends that the ALJ properly rejected Gangelhoff's subjective complaints of pain. Upon a de novo review, this court concludes that the ALJ did not adequately analyze Gangelhoff's subjective complaints of pain in relation to the Polaski factors. Therefore, this case is remanded to the Commissioner so that Gangelhoff's subjective complaints of pain are adequately analyzed in relation to the Polaski factors.
IT IS SO ORDERED.