Russ v. Commissioner of the Social Security Administration

Background

Willetha Renee Russ sought review under the Social Security Act of the Commissioner’s decision that she was not disabled and therefore was not entitled to Disability Insurance Benefits or Supplemental Security Income benefits. Russ alleged disability beginning January 31, 2018, based on headaches, right shoulder pain, right knee pain, and back pain following a 2016 car accident. She was represented by counsel.

An Administrative Law Judge found that Russ had several severe impairments, including degenerative disc disease, degenerative joint disease, chronic pain syndrome, and obesity. The Administrative Law Judge determined that she had the residual functional capacity—the ability to work despite her impairments—to perform a range of light and sedentary work, subject to postural, environmental, and right-arm limitations. A vocational expert testified that a person with that capacity could perform certain unskilled jobs, but that jobs would not be available if the person could use the right upper extremity only occasionally.

The Administrative Law Judge found the opinions of consulting examiner Dr. Michael Rosenberg and non-examining consulting doctor Dr. R. Mohanty persuasive. Dr. Mohanty issued his opinion on August 21, 2018, and therefore did not review medical records from that date through the Administrative Law Judge’s September 30, 2019 decision. Dr. Rosenberg examined Russ on August 9, 2018. During the later period, Russ had at least fourteen visits with pain-management professionals Dr. Mohammad Islam and Nurse Practitioner Alice Looney. No medical source provided an opinion about the significance of those later records for Russ’s functional abilities.

Issues and Analysis

Russ argued that the Administrative Law Judge failed to develop the record, that the residual functional capacity finding lacked substantial evidentiary support, and that the conclusion that she could perform light or sedentary work was unsupported. She also argued that the vocational expert relied on outdated job information from the Dictionary of Occupational Titles rather than newer information from the Occupational Information Network.

The court agreed that the record-development error required a remand. Social Security proceedings are non-adversarial, so the Administrative Law Judge has an affirmative duty to investigate the facts and develop a complete medical record, even when the claimant has a lawyer. The court held that the existing opinions did not adequately address the medical evidence from August 2018 through August 2019. That evidence repeatedly recorded substantial pain affecting Russ’s neck, back, shoulder, knee, and right upper extremity, often worsened by walking, sitting, or standing.

The court concluded that the Administrative Law Judge improperly decided that the later records did not change Dr. Mohanty’s opinion without a medical source having evaluated those records. In doing so, the Administrative Law Judge substituted his own medical judgment for that of a medical professional. The court also found it improper for the Administrative Law Judge to fault Russ’s representative for not providing a treating-source functional assessment when the duty to develop the record belonged to the Administrative Law Judge.

Ruling

Judge Robert W. Lehrburger granted Russ’s motion for judgment on the pleadings, denied the Commissioner’s cross-motion, and remanded the case under sentence four of 42 U.S.C. § 405(g). On remand, the Administrative Law Judge should try to obtain a functional assessment from Russ’s treating pain-management professionals that considers the records created after Dr. Mohanty’s opinion.

The court declined to decide whether the residual functional capacity finding was supported by substantial evidence because that assessment could change after new medical evidence was obtained. For the same reason, it did not decide whether Russ could perform light or sedentary work. The court discussed Russ’s challenge to the Dictionary of Occupational Titles, noting that the regulations contemplate reliance on that source and other listed sources and do not mention the Occupational Information Network, but the remand was based on the failure to adequately develop the medical record. The opinion does not state that attorney’s fees were awarded, although Russ’s motion requested fees under the Equal Access to Justice Act.