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Jacki Herman v. Carolyn W. Colvin

March 26, 2012


The opinion of the court was delivered by: Jeffrey L. VIKEN Chief Judge



On May 11, 2009, Jacki Herman applied for disability insurance benefits ("DIB"). (Administrative Record, pp. 150-59).*fn1 Plaintiff alleged a disability onset date of May 1, 2004. (AR at p. 9). After denial of her application, an Administrative Law Judge ("ALJ") held an evidentiary hearing on January 11, 2011. Id. at pp. 27-52. At the hearing, Ms. Herman amended her onset date to October 15, 2007. Id. at pp. 29-30. On March 28, 2011, the ALJ concluded Ms. Herman was not disabled and denied her benefits.*fn2 Id. at pp. 9-21. The Appeals Council denied plaintiff's request for review. Id. at pp. 1-5. The decision of the ALJ became the final decision of the Commissioner.*fn3 Id. at p. 1.

Plaintiff timely filed her complaint appealing from the ALJ's decision. (Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 11). The court issued a briefing schedule requiring the parties to file a joint statement of material facts ("JSMF"). (Docket 13). 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 14). Plaintiff then filed a motion for an order reversing the decision of the Commissioner. (Docket 15). For the reasons stated below, plaintiff's motion to reverse the Commissioner's decision is granted.


The parties' JSMF (Docket 14) 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).

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). 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. (AR at pp. 10-11).


At step one, the ALJ determined Ms. Herman had not been engaged in substantial gainful activity since May 1, 2004.*fn5 Id. at p. 23;

20 CFR §§ 404.1520(b) & 404.1572.


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 §§ 404.1520(c). The regulations describe "severe impairment" in the negative. "An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities." 20 CFR § 404.1521(a). Thus, a severe impairment is one which significantly limits a claimant's physical or mental ability to do basic work activities.

The ALJ found Ms. Herman had five severe impairments. (Docket 12 at ¶ 2.1). Ms. Herman's severe impairments are: "borderline mental functioning, depressive disorder, adjustment disorder with anxiety, lumbar degenerative disc disease, and lumbar facet degenerative joint disease . . . ." (Docket 14 at p. 13).


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 ("Appendix 1"). 20 CFR §§ 404.1520(d), 404.1525, and 404.1526. 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 § 404.1509, claimant is considered disabled.

At step three, the ALJ found Ms. Herman did not meet or was not medically equal to the requirements of any of the impairments in the Listing of Impairments. (Docket 14 at pp. 13-14). Focusing on Listing 12.05, "the ALJ found 'the evidence clearly shows that [Herman] has subaverage general intellectual functioning' but that Herman had not proved that she had 'deficits in adaptive functioning' or that her subaverage general intellectual functioning had existed prior to age 22." Id. at p. 14. Plaintiff challenges these findings. (Docket 15).

In analyzing the ALJ's decision, the court must first focus on the following preliminary question: Did Ms. Herman satisfy the requirements of the introductory paragraph of Listing 12.05, Mental Disorders? The introductory paragraph of Listing 12.05 states:

Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.

Appendix 1, Listing 12.05. Stated another way, the elements which must be proven are before age 22 does the evidence demonstrate that Ms. Herman had (1) significant subaverage general intellectual functioning (2) with deficits in adaptive functioning? "[T]he requirements in the introductory paragraph are mandatory." Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006). However, the introductory paragraph does not require a "formal diagnosis of mental retardation." Id.

The ALJ concluded "the evidence does not show that [Ms. Herman's] borderline intellectual functioning existed prior to age 22 years old." (AR at

p. 15). The ALJ based this conclusion on the following findings:

1. Dr. Pelc testified that the medical evidence was inconclusive and he noted that this was a point of ...

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