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Barbara A. Ekeren v. Michael J. Astrue

March 31, 2011


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



On January 23, 2008, Plaintiff Barbara A. Ekeren applied for disability insurance benefits ("DIB") and supplemental security income ("SSI") pursuant to Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-83f (2006), respectively. (Administrative Record, pp. 124-131 and 134-37).*fn1

Plaintiff previously applied for DIB and SSI on May 21, 2007. (Docket 18 ¶ 1, n. 1). The Commissioner denied those applications initially and on reconsideration. Id. Plaintiff did not appeal those earlier decisions. Id.

Plaintiff was allegedly disabled since July 31, 2006, due to a herniated disc in her back and right knee pain. (Docket 18 ¶ 2). After denial of her application, an Administrative Law Judge ("ALJ") held an evidentiary hearing on June 30, 2009. Id. On August 12, 2009, the ALJ concluded Ms. Ekeren was not disabled and denied her benefits.*fn2 Id.; see also AR, pp. 6-22. The Appeals Council denied plaintiff's request for review. (Docket 18 ¶ 3). The decision of the ALJ became the final decision of the Commissioner. Id. Plaintiff 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 11). 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 18). Plaintiff then filed a motion for an order reversing the decision of the Commissioner. (Docket 24). Following briefing,*fn3 the motion is ripe for resolution.

For the reasons stated below, the motion is denied and the decision of the Commissioner is affirmed.


The parties' JSMF (Docket 18) 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 they are 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 evidence that 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.*fn4 20 CFR §§ 404.1520(a)(4) and 416.920(a)(4).*fn5 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 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). The ALJ applied the five-step sequential evaluation required by the Social Security Administration regulations. (Docket 18 at ¶ 3).


At step one, the ALJ must determine if the claimant is engaging in substantial gainful activity ("SGA"). 20 CFR §§ 404.1520(b) and 416.920(b). SGA is defined as "work activity that is both substantial and gainful." 20 CFR §§ 404.1572 and 416.972. "Substantial work activity is work activity that involves significant physical or mental activities." 20 CFR §§ 404.1572(a) and 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 §§ 404.1572(b) and 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 §§ 404.1574, 404.1575, 416.974 and 416.975. If claimant is not engaging in SGA, the analysis proceeds to step two.

The ALJ determined Ms. Ekeren had not been engaged in substantial gainful activity since December 18, 2006. (Docket 18 at ¶ 3). 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 CPR §§ 404.1520(c) and 416.920(c). A medically determinable impairment can only be established by an acceptable medical source. 20 CFR §§ 404.1513(a) and 416.913(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 §§ 404.1521 and 416.921. ...

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