United States District Court, D. South Dakota, Southern Division
ALI M. GILBERTSON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER REVERSING AND REMANDING DECISION OF COMMISSIONER
KAREN E. SCHREIER, District Judge.
Plaintiff, Ali M. Gilbertson, seeks review of the Commissioner of Social Security's decision denying her claim for disability insurance benefits. The Commissioner opposes the motion and requests that the court affirm the decision. The court reverses and remands.
Gilbertson applied for disability insurance benefits on August 6, 2008, alleging disability beginning September 5, 2006. AR 172. Her application was denied at the administrative level, and she requested a hearing before an Administrative Law Judge (ALJ). AR 107. Following a hearing held on March 11, 2011, the ALJ concluded that Gilbertson was not entitled to benefits. AR 19. The Appeals Council denied Gilbertson's request to review the decision of the ALJ. AR 1-6. Subsequently, Gilbertson appealed to this court to review the decision of the Commissioner denying her benefits. Docket 1.
Gilbertson was born on January 30, 1961. Upon completing high school, she entered the military, where she served six years on active duty with the Army, followed by sixteen years in the Air National Guard. AR 58. In the Army, Gilbertson was a field medic. Id. For nine years, Gilbertson worked as a cardiovascular technician at Sioux Valley Hospital specializing in electrophysiology studies, and then for approximately nine years she was a lab technician at Avera McKennan Hospital. AR 59. Gilbertson has one daughter from her first marriage.
On March 7, 2005, Gilbertson suffered an injury at work that resulted in a herniated disk in her neck. After an epidural block treatment failed to manage her pain, Gilbertson underwent surgery on her neck to remove the herniated disk and fuse the vertebrae on either side. AR 906. Following this procedure, Gilbertson underwent physical therapy and was able to return to work on a limited basis. Shortly after her surgery, Gilbertson began to experience increased difficulty swallowing, and eventually she underwent a second surgery on September 6, 2006, to remove the plate and screws inserted in her neck. AR 391-92. During the second surgery, a nerve was damaged, causing Gilbertson to suffer from Horner's syndrome. AR 487.
After her second neck surgery, Gilbertson underwent more physical therapy. She reported increased pain in her neck after short periods of exertion, and headaches and difficulty reading stemming from her Horner's syndrome. AR 66-67. Gilbertson returned to work on a limited basis in Avera's communications center with various accommodations for her condition, but she reported being unable to work more than three hours a day without intolerable neck pain. AR 62. Gilbertson received a workers' compensation settlement and has not worked since June of 2009.
Gilbertson has also received treatment for depression stemming from her injury, marital problems, financial trouble, and a gambling addiction. In the past, Gilbertson struggled with alcoholism. Additionally, Gilbertson underwent a sex change operation from male to female in June of 2009, which transition is not the basis of her disability claim. Gilbertson previously filed a claim for social security disability benefits based on her neck injury, which was denied on November 6, 2007, and was never appealed. AR 100.
After a hearing in which Gilbertson was represented by counsel, the ALJ issued an unfavorable decision. Initially, the ALJ treated Gilbertson's claim alleging disability beginning on September 5, 2006, as an implied request to reopen the prior initial denial dated November 6, 2007. AR 22. The ALJ determined that the new evidence submitted with Gilbertson's current claim was cumulative and did not constitute new and material evidence to reopen her prior claim. Therefore, the ALJ limited Gilbertson's current claim to November 6, 2007, at the earliest, although relevant evidence from before that date was considered. AR 22-23.
In evaluating Gilbertson's claim, the ALJ applied the five-step process for determining disability. See 20 C.F.R. § 404.1520. At the first step, the ALJ found that Gilbertson had engaged in substantial gainful activity (SGA) from September 8, 2008, through June of 2009. AR 25. Rather than stop at that step, the ALJ evaluated whether Gilbertson could establish a disability at the remaining steps beginning in June of 2009, when her SGA ended. AR 27. At step two, the ALJ determined that Gilbertson's neck condition relating to her cervical fusion was a severe impairment. Id. The ALJ also considered Gilbertson's depression, sleep apnea, swallowing problems, Horner's syndrome, carpal tunnel syndrome, and past alcohol abuse, but determined those were nonsevere impairments. AR 27-29. Based on those findings, the ALJ concluded at step three that Gilbertson did not have an impairment or combination of impairments that met or equaled a listed impairment. AR 29.
Before moving on to step four, the ALJ determined that Gilbertson had the residual functional capacity (RFC) to lift and carry 20 pounds occasionally and 10 pounds frequently; sit as well as stand and/or walk for six hours in a work day with normal breaks; frequently balance but only occasionally climb ladders; climb steps slowly with a handrail; and occasionally stoop, crouch, kneel, and crawl. Id. The ALJ also acknowledged that Gilbertson had mild limitations on social functioning and her ability to maintain concentration, persistence, and pace. Id. In deciding Gilbertson's RFC, the ALJ found that Gilbertson's subjective complaints of pain were exaggerated and unsupported by medical evidence. Id. Based on that RFC and the testimony of a vocational expert, the ALJ determined at step four that Gilbertson could perform her past work as a laboratory technical assistant as generally performed in the national economy. AR 33. Therefore, the ALJ concluded that Gilbertson was not entitled to disability benefits. AR 34.
STANDARD OF REVIEW
A reviewing court must uphold the Commissioner's decision if it is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g) ("The findings of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive...."); Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.'" Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006)). "The substantial evidence in the record as a whole' standard is not synonymous with the less rigorous substantial evidence' standard." Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998). "Substantial evidence on the record as a whole'... requires a more scrutinizing analysis." Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987) (citation omitted). The court considers evidence that both supports and detracts from the Commissioner's decision. Moore v. Astrue, 623 F.3d 599, 605 (8th Cir. 2010). If the Commissioner's decision is supported by substantial evidence in the record as a whole, the court may not reverse it merely because substantial evidence also exists in the record that would support a contrary position or because the court would have determined the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
In determining whether the Commissioner's decision is supported by substantial evidence in the record as a whole, the court reviews the entire administrative record and considers six factors: (1) the ALJ's credibility determinations; (2) the claimant's vocational factors; (3) medical evidence from treating and consulting physicians; (4) the claimant's subjective complaints relating to activities and impairments; (5) any third-party corroboration of claimant's impairments; and (6) a vocational expert's testimony based on proper hypothetical questions setting forth the claimant's impairment(s). ...