United States District Court, D. South Dakota
JEFFREY L. VIKEN, Chief 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). An evidentiary hearing was held before an Administrative Law Judge ("ALJ #1") on May 20, 2009. (Docket 21 at ¶ I(1)). ALJ #1 issued his decision adverse to plaintiff on August 3, 2009. Id . The Appeals Council denied Ms. Brubaker's request for review. Id . Ms. Brubaker timely filed a complaint in district court. Id. at ¶ I(2). On March 30, 2011, the court entered an order reversing the decision of the Commissioner and remanding the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g) ("First Remand Order"). Id .; see also Docket 21 at p. 31, CIV. 10-5005-JLV.
On December 13, 2011, a second Administrative Law Judge ("ALJ #2") issued a decision denying plaintiff benefits. (Docket 21 at ¶ I(3)). The Appeals Council denied Ms. Brubaker's request for review. Id . Ms. Brubaker timely filed a second complaint in district court. Id. at ¶ I(4). On May 24, 2012, the court entered an order granting the Commissioner's unopposed motion for remand ("Second Remand Order"). Id .; see also Docket 16, CIV. 12-5012-JLV.
On April 9, 2013, the Appeals Council denied Ms. Brubaker's request for review, making the December 13, 2011, decision of ALJ #2 the final decision of the Commissioner. (Docket 21 at ¶ I(5)). It is from this decision Ms. Brubaker timely filed her third complaint in district court. (Docket 1).
The Commissioner filed a motion for judgment and an order of reversal and requested a sentence four remand pursuant to 42 U.S.C. § 405(g). (Docket 13). Plaintiff resists the motion and files her own motion seeking to reverse the Commissioner's decision and requesting an award of benefits. (Docket 24).
For the reasons set out below, plaintiff's motion is granted in part and denied in part and the Commissioner's motion is granted.
FACTUAL AND PROCEDURAL HISTORY
The parties' JSMF (Docket 21) is incorporated by reference. Further recitation of salient facts is included in the discussion section of this order.
This case is on appeal to the district court for the third time. Because of the unique content of the Commissioner's motion for remand, the court will limit its analysis to those matters necessary to justify remanding the case for a third time.
ALJ #1 found Ms. Brubaker had severe impairments, namely "Degenerative disc disease of the cervical spine status post cervical fusions, Obesity, Depression, and Anxiety Disorder." (Docket 21 at p. 6, CIV. 10-5005) (citing AR, p. 12). In determining a residual functional capacity ("RFC"), ALJ #1 "gave considerable weight to the January 2008 report of Richard Gunn" and "relied heavily on the testimony of Dr. Houston." Id. at pp. 10 & 12 (citing AR, pp. 13-14). ALJ #1 "chose to accept Dr. Houston's testimony and gave no weight to [treating psychiatrist] Dr. Garry's opinions." Id. at p. 16 (citing AR, pp. 17).
On March 30, 2011, the court completed a comparative analysis of the opinions of Dr. Houston and Dr. Garry and the medical record as a whole. Id. at pp. 12-22. The First Remand Order held "[i]n accordance with these conclusions, the ALJ must give Dr. Garry's opinions controlling weight.'" Id. at p. 25 (citing 20 CFR § 404.1527(d)(2)). The court found "because... Dr. Garry's opinions are entitled to greater weight and consideration than Dr. Houston's conclusions, the ALJ's self-constructed RFC is likewise erroneous." Id. at p. 28 (referencing Krogmeier v. Barnhart , 294 F.3d 1019, 1024 (8th Cir. 2002)).
The court also found ALJ #1 "then judged Ms. Brubaker's testimony against an improperly developed RFC.... [and failed to] articulate how, if at all, Ms. Brubaker's subjective complaints of chronic pain are inconsistent with the medical records." Id. at pp. 28-29. Contrary to ALJ #1's faulty analysis, the court found "Ms. Brubaker's medical records show a course and pattern of severe, debilitating, chronic pain-through her cervical disk fusions and post-surgical residual pain, as well as her depression and anxiety disorder-and its impact on her physical and mental activities." Id. at p. 29. The court directed "Ms. Brubaker's subjective testimony of chronic pain and its effect upon her activities of daily living need to be examined in light of Dr. Garry's ...