United States District Court, D. South Dakota
JEFFREY L. VIKEN, Chief District Judge.
On August 19, 2010, Ms. White Thunder filed an application for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act (the "Act"), 42 U.S.C. § 1381. An evidentiary hearing was held before an Administrative Law Judge ("ALJ") on September 18, 2012. (Docket 16 at ¶ 4). The ALJ issued a decision adverse to plaintiff on September 20, 2012. Id. at ¶ 3. The Appeals Council denied Ms. White Thunder's request for review. Id . The ALJ's decision is the Acting Commissioner's final administrative decision for purposes of judicial review. (Docket 24 at p. 2).
Ms. White Thunder timely filed a complaint in district court. (Docket 1). Plaintiff seeks an order awarding benefits or, in the alternative, remanding her case for a new hearing. (Docket 17). The Acting Commissioner ("Commissioner") moves to affirm the decision of the ALJ. (Docket 23). For the reasons stated below, plaintiff's motion is denied and defendant's motion is granted.
FACTUAL AND PROCEDURAL HISTORY
The parties' JSMF (Docket 16) is incorporated by reference. Further recitation of salient facts is included in the discussion section of this order.
On August 19, 2010, Ms. White Thunder filed an application for SSI benefits. Id. at ¶ 2. On September 20, 2012, the ALJ issued a decision finding Ms. White Thunder was not disabled. (AR, p. 24). Ms. White Thunder timely appeals from that decision. The issue before the court is whether the ALJ's decision of September 20, 2012, that Ms. White Thunder "has not been under a disability... since August 19, 2010..." is supported by substantial evidence on the record as a whole. (AR, p. 24). See also Howard v. Massanari , 255 F.3d 577, 580 (8th Cir. 2001) ("By statute, the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.") (internal quotation marks and brackets omitted) (citing 42 U.S.C. § 405(g)).
STANDARD OF REVIEW
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); Howard , 255 F.3d at 580. 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).
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 decide 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)). Issues of law are reviewed de novo with deference given to the Commissioner's construction of the Social Security Act. See Smith , 982 F.2d at 311.
Plaintiff challenges the ALJ's decision on a number of grounds. The issues posed by her are:
1. Whether White Thunder's combined impairments equal listing 12.05C;
2. Whether the credibility assessment was supported by substantial evidence, legal criteria and sound reasoning;
3. Whether the ALJ's residual functional capacity (RFC) assessment captured limitations resulting from "severe" and "non-severe" impairments;
4. Whether the RFC complied with the Nevland  requirement that, in a step five case, RFC must be based on some examining medical evidence; and
5. Whether White Thunder's cognitive and memory limitations met requirements of the step five jobs the ALJ found her capable of performing.
(Docket 18 at p. 18). Each of plaintiff's challenges to the ALJ's decision will be separately addressed.
1. Whether White Thunder's combined impairments equal listing 12.05C
The Social Security Administration established a five-step sequential evaluation process for determining whether an individual is disabled. 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. (Docket 16 at ¶ 50).
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. White Thunder did not have an ...