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Raquel Brubaker v. Michael J. Astrue

March 30, 2011


The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge



On August 7, 2007, Ms. Brubaker filed an application for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act (the "Act"), 42 U.S.C. §§ 1381. (Administrative Record, p. 137).*fn1 She protectively filed her application on July 30, 2007, alleging disability since August 31, 1998. (Docket 11, p. 1). Ms. Brubaker previously filed for disability and SSI benefits on January 26, 2005. Id. The earlier application was denied and not appealed. Id.

An evidentiary hearing on the 2007 application was held before an Administrative Law Judge ("ALJ") on May 20, 2009. Id. The ALJ issued his decision adverse to plaintiff on August 3, 2009. Id. The Appeals Council denied Ms. Brubaker's request for review. Id. The decision of the ALJ became the final decision of the Commissioner. Id. Ms. Brubaker timely filed her complaint in district court. (Docket 1).

The court issued a briefing schedule requiring the parties to file a joint statement of material facts ("JSMF"). (Docket 10). If there were any disputed facts, the parties were required to attach a separate joint statement of disputed facts. Id. The parties filed their JSMF. (Docket 11). Ms. Brubaker then filed a motion for order reversing the decision of the Commissioner. (Docket 17). Following briefing, the motion is ripe for resolution.

For the reasons stated below, the motion is granted in part and denied in part, and the matter is remanded to the Commissioner for further consideration consistent with this order.

FACTUAL AND PROCEDURAL HISTORY The parties' JSMF (Docket 11) is incorporated by reference. Further recitation of salient facts is included in the discussion section of this order.


The Commissioner's findings must be upheld if supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir. 2006). The court reviews the Commissioner's decision to determine if an error of law was committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).

"Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation marks omitted). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the Commissioner's decision. Choate, 457 F.3d at 869 (quoting Ellis v.Barnhart, 392 F.3d 988, 993 (8th Cir. 2005)). The review of a decision to deny disability benefits is "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision . . . [the court must also] take into account whatever in the record fairly detracts from that decision." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)).

It is not the role of the court to re-weigh the evidence and, even if this court would have decided the case differently, it cannot reverse the Commissioner's decision if that decision is supported by good reason and is based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). A reviewing court may not reverse the Commissioner's decision " 'merely because substantial evidence would have supported an opposite decision.' " Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)).


"Disability" is defined as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment [or combination of impairments] which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). Although SSI is not payable prior to the month following the month in which the application was filed, the ALJ is required to considered a claimant's complete medical history.

20 CFR §§ 416.335 and 416.912(d).

The Social Security Administration established a five-step sequential evaluation process for determining whether an individual is disabled. 20 CFR § 416.920(a)(4). If the ALJ determines a claimant is not disabled at any step of the process, the evaluation does not proceed to the next step as the claimant is not disabled. Id.

The same five-step analysis determines eligibility for Title II benefits as well as for Title XVI benefits. See House v. Astrue, 500 F.3d 741, 742 n.1 (8th Cir. 2007). The five-step sequential evaluation process is: (1) whether the claimant is presently engaged in a "substantial gainful activity"; (2) whether the claimant has a severe impairment-one that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the residual functional capacity to perform . . . past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove there are other jobs in the national economy the claimant can perform. Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998); see also 20 CFR § 416.920(a)(4)(i)-(v).


At step one, the ALJ must determine if the claimant is engaging in substantial gainful activity ("SGA"). 20 CFR § 416.920(b). SGA is defined as "work activity that is both substantial and gainful." 20 CFR § 416.972. "Substantial work activity is work activity that involves significant physical or mental activities." 20 CFR § 416.972(a). "Gainful work activity is work that is usually done for pay or profit, whether or not a profit is realized." 20 CFR § 416.972(b). If an individual has earnings from employment or self-employment above a specific level set out in the regulations, it is presumed claimant has demonstrated the ability to engage in SGA and is not disabled.

20 CFR §§ 416.974 and 416.975. If claimant is not engaging in SGA, the analysis proceeds to step two.

The ALJ determined Ms. Brubaker had not been engaged in substantial gainful activity since July 30, 2007, the protective filing date of her 2007 application. (AR, p. 12). Thus, the evaluation proceeds to step two.


At step two, the ALJ must decide whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. 20 CFR § 416.920(c). A medically determinable impairment can only be established by an acceptable medical source. 20 CFR § 404.1513(a). Accepted medical sources include, among others, licensed physicians. Id. An impairment or combination of impairments is severe if it significantly limits an individual's ability to perform basic work activities. 20 CFR § 416.921. Basic work activities focus on "the abilities and aptitudes necessary to do most jobs." Id. at subsection (b). Examples of those abilities and aptitudes are:

(1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual work situations; and

(6) Dealing with changes in a routine work setting.

Id. If a claimant has a severe impairment or combination of impairments which are severe, the analysis continues to step three.

The ALJ found Ms. Brubaker had a number of severe impairments which significantly limited her physical and mental ability to do basic work activities. (AR, p. 12). These severe impairments are: "Degenerative disc disease of the cervical spine status post cervical fusions, Obesity, Depression, and Anxiety Disorder." Id.


At step three, the ALJ determines whether claimant's impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. 20 CFR §§ 416.920(d), 416.925, and 416.926. If a claimant's impairment or combination of impairments meets or medically equals the criteria for one of the impairments listed and meets the duration requirement of 20 CFR § 416.909, claimant is considered disabled. If not covered by these criteria, the analysis is not over, and the ALJ proceeds to the next step.

The ALJ determined Ms. Brubaker did not have an impairment or combination of impairments which met or were medically equal to one of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1. (AR, p. 13). Ms. Brubaker does not challenge that conclusion. (Docket 17).


Before considering step four of the evaluation process, the ALJ is required to determine a claimant's residual functional capacity ("RFC").

20 CFR § 416.920(d). RFC is a claimant's ability to do physical and mental work activities on a sustained basis despite any limitations from her impairments. 20 CFR 404.1545(a)(1). In making this finding, the ALJ must consider all of the claimant's impairments, including those which are not severe. 20 CFR §§ 404.1545(e) and 416.945(e). All of the relevant medical and non-medical ...

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