Rick Whitman v. Carolyn W. Colvin

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 13-2215
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Rick A. Whitman

lllllllllllllllllllll Plaintiff - Appellant

v.

Carolyn W. Colvin, Acting Commissioner of Social Security

lllllllllllllllllllll Defendant - Appellee
____________

Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 17, 2014
Filed: August 7, 2014
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Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.

RILEY, Chief Judge.

Rick Whitman applied for disability insurance benefits under Title II of the
Social Security Act, 42 U.S.C. §§ 401-434. The Acting Commissioner of Social
Security (Commissioner) denied Whitman benefits, and the district court1 affirmed the

1
The Honorable Jon Stuart Scoles, Chief Magistrate Judge, United States
District Court for the Northern District of Iowa. See 28 U.S.C. § 636(c); Fed. R. Civ.
P. 73.
Commissioner’s decision. Whitman appeals. We have appellate jurisdiction under
28 U.S.C. § 1291. We affirm.

I. BACKGROUND
Rick Whitman claims he has been disabled since June 15, 2007, because of
degenerative disc disease and right thumb degenerative joint disease. Whitman’s
spotty work history since 1997 consists of manual labor jobs, and he has not worked
at all since his alleged onset date.

Whitman was incarcerated from November 2007 to October 2008. As part of
his disability application, Whitman submitted a prison “intake screening” stating
Whitman had “[l]ower back problems due to numerous falls” and a physical report
stating he had a history of “lower back pain [and] report[ed] Tylenol [was] not helping
much.” The medical practitioner listed her impressions as “44 [year old] healthy
male” with “[history] of chronic lower back pain” and prescribed ibuprofen, with “no
[work] restrictions.” Whitman’s “Exit Status” report upon his release did not list back
pain as a “health problem,” although he was again prescribed ibuprofen.

Whitman submitted no medical records from the time of his release in October
2008 until he was evaluated for his disability application in March 2010. On March
8, 2010, Whitman’s back x-ray, interpreted by Ryan M. Holthaus, M.D., showed “[n]o
lumbar spine fracture or dislocation” and “normal alignment,” but “[m]oderately
severe L5-S1 degenerative disk disease.” On March 17, 2010, Whitman was
personally evaluated by Thomas C. Graham, M.D., who reported Whitman
complained of “unbearable back pain for the past two years,” which Whitman
attributed to falls he had suffered during his work life. Whitman told Dr. Graham he
had severe pain at night that interfered with his ability to sleep. Whitman “also
state[d] that he can’t walk . . . any distance without developing severe pain in his
back,” and had trouble bending forward and straightening back up. Dr. Graham stated

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conclusively, “[Whitman] is disabled now and not able to work at all.” Dr. Graham
wrote:

I feel he has generalized osteoarthritis especially in his back, right wrist,
and right thumb. . . . I think he is truly disabled due to his back. I think
it would be very difficult for him to carry or lift anything of any weight.
Standing, moving about, walking, and sitting for an 8 hour day would be
very difficult for him. Stooping, climbing, kneeling, and crawling would
be very difficult.

In contrast, Whitman’s initial medical records evaluating physician, Mary
Greenfield, M.D., assigned Whitman a residual functional capacity (RFC) stating he
could occasionally lift twenty pounds, frequently lift ten pounds, and stand or walk
and sit about six hours in an eight-hour work day, with unlimited push and pull
activities. Dr. Greenfield considered but discounted Dr. Graham’s assessment, giving
it

little weight since it is more restrictive than self reported activities.
[Whitman] reports . . . he is able to lift 50-100 pounds but it is painful,
carry 20-30 pounds, walk 1-2 blocks, and uses cane when back gets real
bad. [Whitman’s] allegations are eroded to some degree by his failure to
seek related care and to report the degree of functional limitation that he
reports to this agency.2

The Commissioner denied Whitman’s application on initial review. Upon
reconsideration a few months later in June 2010, a second physician evaluating
medical records, Jan Hunter, D.O., affirmed Dr. Greenfield’s RFC. The
Commissioner denied Whitman’s application on reconsideration.

2
Whitman admitted he “[c]an lift 50-100 lbs but very painful[], can’t carry very
much[,] maybe 20-30 lb[s].”

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 In May 2011, Whitman presented to Joseph A. Brunkhorst, M.D., complaining
of back pain. Other than Dr. Graham’s disability evaluation over a year earlier, this
was the first time Whitman sought medical care since his release in October 2008. Dr.
Brunkhorst prescribed a regimen of a prescription pain reliever for Whitman’s back
pain. In July 2011, Whitman returned to Dr. Brunkhorst’s clinic, but saw David L.
Van Gorp, M.D. Dr. Van Gorp wrote, “Apparently, [Whitman] call[ed] and the nurses
said he had to have an appointment and wouldn’t refill his meds. When he sees me
he says he need[s] something stronger.” Dr. Van Gorp prescribed a narcotic,
commenting, “ I [am] not sure about him in terms of chronic usage. We will let Dr.
Brunkhorst sort it out.”

Whitman appealed the Commissioner’s denial of benefits to an Administrative
Law Judge (ALJ), who heard Whitman’s case on November 7, 2011. Whitman
appeared pro se and testified he was not interested in legal representation. Whitman
said he was disabled because his “lower back and [his] hips don’t hold in place,” and
he has “sciatic nerve damage that runs down [his] left leg,” “arthritis in [his] wrists,
[his] elbows[, and his] shoulders,” “a neck problem that hasn’t been diagnosed yet,”
and “real bad headaches two to three times a week.” Whitman stated he had seen no
doctor other than Dr. Brunkhorst because of a lack of insurance, but he hadn’t “tried
any of the charity hospitals” within the last thirty years. Whitman stated he could lift
twenty-five pounds once or twice an hour.

Also at the ALJ hearing, a vocational expert testified that someone with
Whitman’s RFC, as stated by Dr. Greenfield, would be able to perform at least three
jobs of which there were thousands of openings in Iowa and hundreds of thousands
of openings nationally.

The ALJ upheld the Commissioner’s denial of benefits, finding “the medical
evidence does not support a finding of total disability.” Like Dr. Greenfield, the ALJ
discredited Dr. Graham’s opinion because “it is more restrictive than self-reported

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activities.” The ALJ considered the factors articulated in Polaski v. Heckler, 739 F.2d
1320, 1322 (8th Cir. 1984) (order), and stated,

Although the claimant has described daily activities that are fairly
limited, two factors weigh against considering these allegations to be
strong evidence in favor of finding the claimant disabled. First,
allegedly limited daily activities cannot be objectively verified with any
reasonable degree of certainty. Secondly, even if the claimant’s daily
activities are truly as limited as alleged, it is difficult to attribute that
degree of limitation to the claimant’s medical condition, as opposed to
other reasons, in view of the relatively weak medical evidence and other
factors discussed in this decision.

The ALJ concluded Whitman “has not generally received the amount and type of
medical treatment one would expect for a totally disabled individual, considering the
relatively infrequent trips to the doctor for the allegedly disabling symptoms and
significant gaps in the claimant’s history of treatment.” In addition to the
“inconsistencies” that “eroded” Whitman’s credibility, the ALJ noted that Whitman
had received unemployment compensation throughout 2010, during the time he
alleges he was disabled. The ALJ also commented that Whitman “acknowledged
being incarcerated for indecent contact with a child from November 2007-October
2008, which could also be affecting his ability to obtain employment in and of itself.”

Whitman appealed the ALJ’s decision to the Appeals Council and submitted a
new medical record dated January 25, 2012, from Dr. Brunkhorst. Dr. Brunkhorst
assessed Whitman as follows:

Back pain at the present time I don’t think i[s] surgical, I think he needs
physical therapy. . . . As far as is he entitled to disability? With the
amount of pain pills he is taking and the way he acts he appears to be in
a lot of pain. . . . I feel that he is probably entitled to some disability
because of the amount of pain that he has and his frustration of trying to
get a job[.]

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After considering Dr. Brunkhorst’s note, the Appeals Council declined review of
Whitman’s claim.

Whitman, represented by counsel, sought judicial review in the district court
pursuant to 42 U.S.C. § 405(g). After full briefing by the parties, and six months after
filing his complaint, Whitman moved to remand for the ALJ to consider additional
medical evidence. The district court denied the motion and affirmed the ALJ’s
decision.

II. DISCUSSION
A. Standard of Review
“The claimant bears the burden of proving disability.” Teague v. Astrue, 638
F.3d 611, 615 (8th Cir. 2011). “[I]n order to receive benefits,” Whitman “must show
that he was disabled on or before” June 30, 2011, “his date last insured.” Krogmeier
v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See 20 C.F.R. §§ 404.101, 404.130-
.131. Because the Appeals Council declined review of Whitman’s claim, “the ALJ’s
decision [is] the final decision of the Commissioner.” Young v. Apfel, 221 F.3d 1065,
1068 (8th Cir. 2000). “The findings of the [Commissioner] as to any fact, if supported
by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). “‘We review de
novo the District Court’s determination of whether substantial evidence on the record
as a whole supports the ALJ’s decision.’” Perkins v. Astrue, 648 F.3d 892, 897 (8th
Cir. 2011) (quoting Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009)).
“‘Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioner’s conclusion.’” Goff v. Barnhart, 421 F.3d
785, 789 (8th Cir. 2005) (quoting Young, 221 F.3d at 1068).

[W]e will not reverse an administrative decision “simply because some
evidence may support the opposite conclusion. If, after reviewing the
record, the court finds it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the ALJ’s
findings, the court must affirm the ALJ’s decision.”

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Medhaug, 578 F.3d at 813 (internal citation omitted) (quoting Goff, 421 F.3d at 789).
On appeal, we consider the January 2012 medical record Whitman supplied to the
Appeals Council. See, e.g., Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000).

B. Substantial Evidence
“[A] treating physician’s opinion is given controlling weight if it is
well-supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence.” Goff, 421 F.3d at 790
(alteration in original) (quotations omitted). “In considering how much weight to give
a treating physician’s opinion, an ALJ must also consider the length of the treatment
relationship and the frequency of examinations.” Casey v. Astrue, 503 F.3d 687, 692
(8th Cir. 2007).

First, Whitman complains the ALJ did not give enough weight to Dr. Graham’s
opinion. But Whitman himself calls Dr. Graham a “consultative examiner,” rather
than a treating physician. The record shows Dr. Graham examined Whitman on only
one occasion, and Dr. Graham’s assessment is based largely on Whitman’s subjective
complaints (other than the clinical appearance of his right thumb and a reduced range
of motion in his spine), as opposed to “well-supported . . . medically acceptable
clinical and laboratory diagnostic techniques.” Goff, 421 F.3d at 790 (internal
quotation omitted). The ALJ reasonably stated he discounted Dr. Graham’s opinion
because his opinion was “more restrictive than self-reported activities. In other
disability filings, the claimant reported to Iowa Disability Determination Services that
he is able to lift 50-100 pounds but it is painful, carry 20-30 pounds, walk 1-2 blocks,
and [sometimes] uses a cane.” The ALJ’s conclusion also is supported by Whitman’s
admission at his hearing that he could lift “[m]aybe 25 pounds” “off the floor [and]
put it on the table” “a couple times” an hour.

Second, Whitman objects to the ALJ’s observation about the infrequency of his
medical care. Whitman states he “did not obtain consistent treatment because he did

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not have insurance and could not afford treatment.” “It is for the ALJ in the first
instance to determine a claimant’s real motivation for failing to follow prescribed
treatment or seek medical attention,” Hutsell v. Sullivan, 892 F.2d 747, 750 n.2 (8th
Cir. 1989), and “the fact that [the claimant] is under financial strain is not
determinative,” Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir. 1992). “While not
dispositive, a failure to seek treatment may indicate the relative seriousness of a
medical problem.” Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995). The ALJ
properly considered Whitman’s relative lack of medical care, including his failure to
seek care from “charity” providers, as relevant, considering Whitman’s allegations of
“unbearable back pain for the last two years.” As the Commissioner’s brief explains,
“Aside from the prison intake examination, [Whitman] sought no medical treatment
for his allegedly disabling pain until May 2011, nearly four years after his alleged
onset of disability and one month before his insured status expired.”

Third, Whitman alleges that the ALJ failed to consider whether Whitman had
a legitimate reason for his failure to seek more frequent care, such as a lack of “free
care” in Whitman’s area. To be sure, the ALJ has a “duty to develop the record.”
Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). But the fact that Whitman
appeared pro se does not relieve him of the burden to establish disability. See e.g.,
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). “[T]he ALJ is not
required to function as the claimant’s substitute counsel, but only to develop a
reasonably complete record.” Clark v. Shalala, 28 F.3d 828, 830-31 (8th Cir. 1994).
Our review of the hearing transcript confirms the ALJ sufficiently developed the
record. See id. Given the ALJ’s development of the record, Whitman has simply not
established good cause for not seeking medical care, even in his own hometown, that
would be commensurate with an onset of disability in June 2007 through June 30,
2011. See, e.g., Kelley v. Barnhart, 372 F.3d 958, 961 (8th Cir. 2004).

Finally, Whitman objects to the ALJ noting Whitman’s treating physician
(presumably Dr. Brunkhorst) had not recommended any restrictions for Whitman. See

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Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (“A treating doctor’s silence
on the claimant’s work capacity does not constitute substantial evidence supporting
an ALJ’s functional capacity determination when the doctor was not asked to express
an opinion on the matter and did not do so, particularly when that doctor did not
discharge the claimant from treatment.”). We do not read the ALJ’s passing reference
to this fact as determinative to the ALJ’s decision, considering the substantial
evidence that otherwise supports the ALJ’s RFC determination.

In summary, “even if inconsistent conclusions may be drawn from the evidence,
the decision will be affirmed where the evidence as a whole supports either outcome.”
Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003). The evidence here supports
the ALJ’s decision, even if “some evidence,” Dr. Graham’s opinion, “may support the
opposite conclusion.” Medhaug, 578 F.3d at 813 (quoting Goff, 421 F.3d at 789).
We agree with the district court “that the ALJ properly articulated his reasons for
granting ‘little weight’ to Dr. Graham’s opinions, and for finding Dr. Graham’s
opinions to be inconsistent with the record as a whole,” “that the ALJ properly
considered Whitman’s medical records, observations of treating physicians, and
Whitman’s own description of his limitations in making the RFC assessment for
Whitman,” and “that the ALJ made a proper RFC determination based on a fully and
fairly developed record.”

C. Credibility Finding
“‘[Q]uestions of credibility are for the [ALJ] in the first instance. If an ALJ
explicitly discredits a claimant’s testimony and gives a good reason for doing so, we
will normally defer to that judgment.’” Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.
2008) (alterations in original) (quoting Karlix v. Barnhart, 457 F.3d 742, 748 (8th Cir.
2006)).

Here the ALJ considered the Polaski factors and concluded Whitman’s
“acknowledged functional capabilities during the disability process have far

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outweighed what he testified to at the hearing” and Whitman’s “limited daily activities
[could not] be objectively verified.” The ALJ considered the fact Whitman did not
seek much medical care for his “unbearable” pain, along with Whitman’s
“discrepancies in information reported . . . to various treating sources,” and that
Whitman’s alleged limitations were not consistent with the amount of medical care
he had sought.

The ALJ also called attention to Whitman’s application for unemployment
compensation, noting the implication that Whitman was capable of work,3 saying,

The claimant’s credibility is also eroded by receipt of unemployment
compensation throughout 2010 (Exhibit 3D) when he alleges that he was
disabled. From an evidentiary standpoint, under section 96.4(3) of the
Code of Iowa, an individual applying for unemployment compensation
is eligible for such compensation if “[t]he individual is able to work, is
available for work, and is earnestly and actively seeking work.”

(Alteration in original). The ALJ acknowledged, “Applying for unemployment
compensation does not prove by itself that the applicant is not disabled. Nevertheless,
it is compelling and seriously undermines a claimant’s assertion that he is incapable
of working in competitive employment.” See, e.g., Johnson v. Chater, 108 F.3d 178,
180-81 (8th Cir. 1997) (“‘[A] claimant may admit an ability to work by applying for
unemployment compensation benefits because such an applicant must hold himself
out as available, willing and able to work.’ . . . Applying for unemployment benefits
‘may be some evidence, though not conclusive, to negate’ a claim of disability.”
(quoting Jernigan v. Sullivan, 948 F.2d 1070, 1074 (8th Cir. 1991))).

3
As Whitman’s counsel pointed out at oral argument, Whitman’s unemployment
application is not part of the record. Yet Whitman’s counsel essentially acknowledged
Whitman made the application and the application would have stated Whitman was
able to work.

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 Considering our deferential standard of review, substantial evidence exists in
the record to support the ALJ’s adverse credibility finding. See, e.g., Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (“We do not re-weigh the evidence
presented to the ALJ, and we defer to the ALJ’s determinations regarding the
credibility of testimony, so long as they are supported by good reasons and substantial
evidence.” (internal citation omitted)).

D. Remand Under 42 U.S.C. § 405(g)
Six months after Whitman filed his complaint in district court and a week after
the matter was fully briefed, Whitman filed a motion to remand under 42 U.S.C.
§ 405(g) to permit the Commissioner to consider additional evidence not previously
presented either to the ALJ or to the Appeals Council. Whitman claims the district
court erred in denying his motion and contends the record should be expanded to
include five additional pieces of medical evidence. We review the district court’s
denial of a motion to remand for abuse of discretion. See Mouser v. Astrue, 545 F.3d
634, 636 (8th Cir. 2008).

Section 405(g) permits a district court “at any time [to] order additional
evidence to be taken before the Commissioner . . . , but only upon a showing that there
is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
“Material evidence is ‘non-cumulative, relevant, and probative of the claimant’s
condition for the time period for which benefits were denied, and there must be a
reasonable likelihood that it would have changed the [Commissioner’s]
determination.’” Krogmeier, 294 F.3d at 1025 (alteration in original) (quoting Woolf
v. Shalala, 3 F.3d 1210, 1215 (8th Cir. 1993)).

1. Cumulative Evidence
First, Whitman submits an additional note from Dr. Brunkhorst dated
November 4, 2011, before the ALJ hearing and before Whitman’s additional

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submission to the Appeals Council. The note states, “Right now [Whitman] is
complaining a lot of back pain and left leg pain,” and “[n]ow he cannot sit for long
times because of his back problems.” (Emphasis added.) This note is not new
evidence—predating the ALJ hearing, being cumulative of other evidence already in
the record, and describing symptoms five months after the date last insured. The note
is not “probative of the claimant’s condition for the time period for which benefits
were denied.” Id. at 1025 (quoting Woolf, 3 F.3d at 1215).

The second record is a note dated January 25, 2012, for a lumbar spine x-ray
taken that day, almost three months after the ALJ hearing. The note is partially
cumulative, because it reports as to L5-S1, “Pattern is similar to patient’s previous
examination.” The note also records a “milder degree of degenerative changes at
L4-L5 and L3-L4. . . . Findings are mildly progressive from the patient’s prior exam.”
Any new findings post-date Whitman’s last date insured and thus do not relate to the
denial period at issue. See, e.g., id.

Because these first two records are partially cumulative and are not probative
of the applicable time period, the district court did not abuse its discretion by failing
to remand for reconsideration.

2. Other New Evidence
The third and fourth medical records consist of notes evaluating a cervical spine
MRI taken January 20, 2012, and a cervical spine x-ray taken January 16, 2012. These
notes are not cumulative, because no MRI or x-ray of the cervical spine previously
appears in the record. The physician who read the MRI describes five cervical
abnormalities, and the physician who read the x-ray describes two cervical

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abnormalities. Neither physician indicates with any specificity when the cervical
abnormalities might have had their onset.4

Fifth, Whitman provides a medical exam note dated December 3, 2012, for an
examination on November 2, 2012, almost a year after the ALJ hearing and sixteen
months after the date last insured. The examining physician, Farid Manshadi, M.D.,
lists nine conditions, including “[c]hronic low back pain,” “moderately severe
narrowing at L5-S1 and mild narrowing at L4-5,” “[n]eck pain,” and “severe arthritis”
in the right thumb. Dr. Manshadi states he “[does] not believe Mr. Whitman is able
to work even part-time at this point,” but does not state whether that opinion would
apply to the time sixteen months earlier, before Whitman’s date last insured.
(Emphasis added.) Dr. Manshadi states,

Mr. Rick Whitman is not gainfully employable due to significant
arthritic changes in his hands as well as reduced strength in his hands,
reduced range of motion in both shoulders due to rotator cuff syndrome,
and significant limitation in his neck range of motion as well as in his
low back and weakness in his left lower extremity.

Dr. Manshadi concludes, “Mr. Whitman’s lifting abilities are very negligible and I
recommend no lifting of more than 20 pounds and that is only from the waist up.” Dr.
Manshadi also suggests restrictive physical limitations for daily activities, similar to
an RFC, “[f]or the time period March 8, 20105 to November 23, 2011,” which
includes time before Whitman’s date last insured, June 30, 2011.

4
At the ALJ hearing, Whitman stated, “I have a neck problem that hasn’t been
diagnosed yet.”
5
Presumably Dr. Manshadi uses the March 8, 2010, onset date because it is the
date of Whitman’s initial back x-ray, where Dr. Holthaus found “[n]o lumbar spine
fracture or dislocation” and “normal alignment,” but “[m]oderately severe L5-S1
degenerative disk disease.”

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 3. Good Cause
Assuming, without deciding, that the third, fourth, and fifth pieces of new
evidence are material, non-cumulative, and related to the denial period at issue, we
must nonetheless agree with the district court that Whitman has failed to show “good
cause for the failure to incorporate such evidence into the record in a prior
proceeding.” 42 U.S.C. § 405(g). Whitman points to his status as a pro se claimant
as evincing good cause.

Before the ALJ hearing, the Commissioner advised Whitman, in writing, of his
right to legal representation, instructing, “Some organizations can help you find an
attorney or give you free legal services if you qualify. Some representatives do not
charge unless you receive benefits. Your Social Security Office has a list of
organizations that can help you find a representative.” At the hearing, the ALJ
specifically asked Whitman whether he wanted to be represented by counsel:

You’re here today without legal representation. You have the absolute
right to have legal representation. If you were to ask, I would give you
a one time continuance to go find someone to help you present your case.
While it’s not necessary, that’s something that could be helpful to you.
Does this sound like something you might be interested in?

Whitman answered, “No, sir.” As the Commissioner’s brief persuasively argues,
“Under the logic of plaintiff’s argument, any pro se plaintiff—solely by virtue of his
pro se status—would have good cause to submit additional evidence after the ALJ had
issued his decision and after the Appeals Council has denied review of that decision.”

Whitman has provided no explanation as to why he did not provide objective,
supporting medical evidence before the ALJ hearing, other than his decision to ignore
the ALJ’s advice and proceed pro se. “[H]is miscalculation in this regard does not
supply good cause,” Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991), for
failing to obtain objective evidentiary support in the first instance. The district court

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noted that Whitman: (1) knowingly declined the opportunity to continue the hearing
and obtain counsel; (2) stated he was under a doctor’s care for medication only; and
(3) delayed his motion to remand for six months after finally obtaining counsel. We
agree with the district court: “Under such circumstances, . . . Whitman has failed to
show good cause for remand under 42 U.S.C. § 405(g).” The district court did not
abuse its discretion in denying Whitman’s motion to remand under § 405(g).6

III. CONCLUSION
We affirm.
______________________________

6
The statute also empowers “[t]he court . . . to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of
the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g). A remand under this provision is “proper [when] the district court makes
a substantive ruling regarding the correctness of a decision of the Commissioner and
remands the case in accordance with such a ruling.” Buckner v. Apfel, 213 F.3d 1006,
1010 (8th Cir. 2000). Because we affirm the district court’s “substantive ruling” in
favor of the Commissioner, no remand is warranted.

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