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Zwetzig v. Colvin

United States District Court, D. South Dakota, Western Division

September 30, 2014

SHANNON SIMM ZWETZIG, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

ORDER

JEFFREY L. VIKEN, Chief District Judge.

INTRODUCTION

Plaintiff Shannon Simm Zwetzig filed a complaint appealing from an administrative law judge's ("ALJ's") decision denying Supplemental Security Income ("SSI") benefits. (Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 23). The court issued an amended briefing schedule requiring the parties to file a joint statement of material facts ("JSMF"). (Docket 19). The parties filed their JSMF. (Docket 20). For the reasons stated below, plaintiff's motion to reverse the decision of the Social Security Administration Commissioner ("Commissioner") (Docket 21) is denied and the decision of the Commissioner is affirmed.

FACTUAL AND PROCEDURAL HISTORY

The parties' JSMF (Docket 20) is incorporated by reference. Further recitation of salient facts is included in the discussion section of this order.

On June 26, 1992, plaintiff Shannon Simm filed an application for SSI alleging disability since January 1, 1991.[1] (Docket 20 at ¶ 1). On September 10, 1992, the claim was denied because Ms. Zwetzig failed to attend a scheduled consultative examination. Id . On May 23, 1995, Ms. Zwetzig filed a second application for SSI alleging disability since January 1, 1995. Id. at ¶ 2. ALJ Joanne L. Anderson held a hearing on the claim on February 5, 1997. Id .; see also (Administrative Record at p. 799).[2] ALJ Anderson denied the claim on May 21, 1997. (Docket 20 at ¶ 2). On September 12, 1997, Ms. Zwetzig requested review by the Appeals Council of the Social Security Administration ("SSA"). Id. at ¶ 3.

On July 10, 1997, while Appeals Council review was pending, Ms. Zwetzig filed a third application for SSI with a disability onset date of January 1, 1991. Id. at ¶ 4. On December 2, 1998, based on Ms. Zwetzig's third application for SSI, the SSA found her to be disabled as of July 1, 1997, but ineligible for SSI benefits due to her husband's income. Id .; see also AR at p. 799. On November 15, 1999, the Appeals Council vacated ALJ Anderson's May 21, 1997, decision and remanded the case to another ALJ for resolution of the following issues:

• Make specific credibility findings regarding the testimony of the claimant's spouse and mother;
• Reassess the claimant's maximum residual functional capacity, showing full consideration to the limitations resulting from the mental impairment and provide appropriate rationale with specific references to the evidence of record in support of the assessed limitations; and
• Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational bases.

(AR at p. 800) (citing AR at p. 308); see also (Docket 20 at ¶ 5).

On March 9, 2000, ALJ Nicholas LoBurgio held the remand hearing. (Docket 20 at ¶ 5). On July 27, 2000, ALJ LoBurgio issued an unfavorable decision finding Ms. Zwetzig not to be disabled during the adjudicative period before him, September 11, 1992 through January 31, 1995. Id. at ¶ 6. ALJ LoBurgio found Ms. Zwetzig "had not satisfied [the] SSR 91-5p criteria to extend the time to appeal the denial of her 1992 claim." Id . ALJ LoBurgio noted Ms. Zwetzig "failed to provide evidence of lack of mental capacity in September 1992... and... [Ms. Zwetzig] provided inconsistent narratives." Id . (citations omitted). ALJ LoBurgio concluded Ms. Zwetzig's "request to revisit the 1992 claim could not rely on SSR 95-1p because her application was in 1992 and the ruling applied to earlier claims." Id . (citations omitted).

On August 28, 2000, Ms. Zwetzig requested Appeals Council review. Id. at ¶ 7. On December 4, 2001, the Appeals Council affirmed ALJ LoBurgio's decision that Ms. Zwetzig "was not disabled, and his determination not to revisit the June 1992 application." Id. at ¶ 8. On February 1, 2002, Ms. Zwetzig sought district court review of ALJ LoBurgio's decision. Id. at ¶ 9; see also Simm v. Barnhart, Civ. No. 02-5012-KES (D.S.D. Feb. 1, 2012) (Docket 1). While Ms. Zwetzig's action was pending before the court, counsel for the Commissioner moved to remand the case to the SSA pursuant to "sentence four of 42 U.S.C. § 405(g)." Simm, Civ. No. 02-5012-KES (Docket 18 at p. 1). On October 15, 2002, the district court remanded the case to the SSA. See id. at (Docket 19).

On June 14, 2003, the Appeals Council vacated ALJ LoBurgio's July 27, 2000, decision and remanded the case to ALJ James Olson. (Docket 20 at ¶ 10). The Appeals Council instructed ALJ Olson to "offer the claimant an opportunity to submit additional evidence and/or testimony regarding her medical condition from May 1, 1995 through June 30, 1997." (AR at p. 801). ALJ Olson was instructed to make findings and issue a decision regarding whether Ms. Zwetzig was disabled during that period, and, if she was disabled, the ALJ was to obtain evidence of her "relationship with Mr. [William] Simm [her husband] beginning May 1, 1995, as well as Mr. Simm's income and resources." Id.

On February 24, 2004, a third hearing was held before ALJ Olson. (Docket 20 at ¶ 11); see also AR at p. 801. On April 27, 2004, ALJ Olson issued an unfavorable decision. (Docket 20 at ¶ 11). Ms. Zwetzig requested Appeals Council review. Id . On November 2, 2006, the Appeals Council vacated ALJ Olson's decision and remanded the case to another ALJ. Id. at ¶¶ 11-12; see also AR at pp. 801-02. The Appeals Council instructed the ALJ to resolve the following issues:

• Obtain evidence from a medical expert to clarify the nature and severity of the claimant's impairments;
• Evaluate the claimant's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms (20 CFR 416.929, pertinent circuit case law, and Social Security Ruling 96-7p);
• Address the third party statement in the record;
• Further evaluate the claimant's mental impairments in accordance with the special technique described in 20 CFR 416.920a, documenting application of the technique in the decision by providing specific findings and appropriate rationale for each of the functional areas described in 20 CFR 416.920a(c); and
• If warranted, obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base[.]

(AR at pp. 801-02) (citing AR at pp. 922-24).

On June 27, 2007, ALJ Larry M. Donovan held the fourth hearing on the matter. (Docket 20 at ¶ 12). ALJ Donovan issued an unfavorable decision, and Ms. Zwetzig requested Appeals Council review. (Docket 20 at ¶ 12). The Appeals Council remanded Ms. Zwetzig's case to another ALJ with the following instructions:

• Further evaluate the claimant's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms (20 CFR 416.929, pertinent circuit case law, and Social Security Ruling 96-7p);
• Address the third party statement of the claimant's mother at Exhibit 44;
• Further evaluate the claimant's mental impairments [in] accordance with 20 CFR 416.920a, by providing specific findings and appropriate rationale for each of the functional areas described in 20 CFR 416.920a(c); and
• If warranted, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base.

(AR at p. 802) (citing AR at pp. 1028-31).

On April 19, 2011, ALJ Randi E. Lappin, appearing by video, held Ms. Zwetzig's fifth hearing. (Docket 20 at ¶ 13). Following the hearing, ALJ Lappin determined the vocational expert present at the hearing was incompetent. (Docket 20 at ¶ 13). ALJ Lappin held a supplemental hearing on December 6, 2011, to receive testimony from vocational expert William J. Tysdal. Id .; see also AR at p. 802. Ms. Zwetzig and her counsel appeared in person at the supplemental conference, and ALJ Lappin appeared by video. (AR at p. 802). On May 11, 2012, ALJ Lappin issued an unfavorable decision finding Ms. Zwetzig not to have been under a disability since May 23, 1995. Id. at 827. Ms. Zwetzig requested Appeals Council review. (Docket 20 at ¶ 13). On February 12, 2013, the Appeals Council denied Ms. Zwetzig's request. Id . ALJ Lappin's decision constitutes the final decision of the Commissioner of the Social Security Administration. 42 U.S.C. § 405(g); 20 CFR § 422.210(a). It is from this decision Ms. Zwetzig timely appeals.

The issue before the court is whether ALJ Lappin's decision of May 11, 2012, finding Ms. Zwetzig was "not under a disability, as defined in the Social Security Act, since May 23, 1995, the date the application was filed" is supported by substantial evidence on the record as a whole. (AR at p. 827); 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) (citation and internal 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)).

DISCUSSION

"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. 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 that there are other jobs in the national economy that 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 SSA regulations. (AR at pp. 808-27). At step five of the evaluation, ALJ Lappin found "there are jobs that exist in significant numbers in the national economy that [Ms. Zwetzig] could perform." Id. at 826-27.

PLAINTIFF'S ISSUES ON APPEAL

Plaintiff's brief in support of her motion to reverse the decision of the Commissioner argues ALJ Lappin[3] failed to apply the correct legal standard in refusing to reopen or grant Ms. Zwetzig a "deemed" appeal date with respect to her 1992 claim. (Dockets 22; 23). Ms. Zwetzig further claims the ALJ improperly assessed her residual functional capacity ("RFC") and relied on flawed vocational expert testimony. (Docket 22).

1. The ALJ's Refusal to Reopen Ms. Zwetzig's 1992 Claim Did Not Violate Ms. Zwetzig's Due Process Rights

Ms. Zwetzig asserts the ALJ failed to apply the correct legal standard in refusing to reconsider or grant her a "deemed" appealed date with respect to her 1992 SSI application. (Dockets 22 at pp. 34-41; 24 at pp. 2-3). The government responds that the court does not have jurisdiction to adjudicate the Commissioner's decision. (Docket 23 at pp. 8-9) (citing Boock v. Shalala , 48 F.3d 348, 351-52 (8th Cir. 1995).

Ms. Zwetzig objects to the ALJ's characterization that plaintiff sought to "reopen" her June 1992 claim. (Docket 22 at pp. 40-41). Re-opening and granting an extension of time to request reconsideration are separate and distinct remedies. Boock , 48 F.3d at 350; see also Anderson v. Barnhart, Civ. No. 03-2611JRT/JGL, 2004 WL 2066829, at *3 (D. Minn. Sept. 1, 2004). "Re-opening typically occurs after a claimant has already exhausted all levels of administrative review. Re-opening is discretionary, does not require a hearing, and presumes that plaintiff has already received all the ...


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