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Horn v. Colvin

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

September 25, 2015

OLIVIA R. ONE HORN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


JEFFREY L. VIKEN, Chief District Judge.


Plaintiff Olivia One Horn filed a complaint appealing an administrative law judge's ("ALJ") decision denying disability insurance benefits. (Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 6). The court issued a briefing schedule requiring the parties to file a joint statement of material facts ("JSMF"). (Docket 8). The parties filed their JSMF. (Docket 9). Within the JSMF the parties also filed their separate statements of disputed facts. Id. For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner (Docket 10) is denied.


The parties' JSMF (Docket 9) is incorporated by reference.[1] Further recitation of salient facts is incorporated in the discussion section of this order.

On January 8, 2011, Ms. One Horn filed applications for disability insurance benefits and supplemental social security income alleging an onset of disability date of April 30, 2010.[2] Id. ¶ I(1); see also Administrative Record at p. 157 (hereinafter "AR at p. ____"). Those applications were denied and Ms. One Horn did not appeal. (Docket 9 ¶ I(1)). On July 15, 2011, Ms. One Horn filed a second set of applications for benefits alleging an onset of disability date of April 30, 2010. Id. ¶ I(2). During the administrative hearing, Ms. One Horn amended the onset of disability date to April 1, 2011. (AR at p. 37).

On April 16, 2013, the ALJ issued a decision finding Ms. One Horn was not disabled. Id. ¶ I(4); see also AR at pp. 16-29. On February 12, 2014, the Appeals Council denied Ms. One Horn's request for review. Id. ¶ I(5); see also AR at pp. 1-3. The ALJ's decision constitutes the final decision of the Commissioner of the Social Security Administration. It is from this decision which Ms. One Horn timely appeals.

The issue before the court is whether the ALJ's decision of April 16, 2013, that Ms. One Horn was not "under a disability, as defined in the Social Security Act, from April 1, 2011, through [April 16, 2013]" is supported by the substantial evidence in the record as a whole. (AR at p. 29); 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)).


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 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.

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. (AR at pp. 19-21).


At step one, the ALJ determined Ms. One Horn had not been engaged in substantial gainful activity since April 1, 2011, the amended onset date. (Docket 9 ¶ 1; AR at p. 21). The ALJ noted Ms. One Horn worked for the Wolakota Waldorf Society in the fall of 2012, but this part-time income did "not constitute substantial gainful activity ["SGA"] within the meaning of the regulations." (AR at p. 21).


"At the second step, [the agency] consider[s] the medical severity of your impairment(s)." 20 CFR § 404.1520(a)(4)(ii). "It is the claimant's burden to establish that [her] impairment or combination of impairments are severe." Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). A severe impairment is defined as one which significantly limits a physical or mental ability to do basic work activities. 20 CFR § 404.1521. An impairment is not severe, however, if it "amounts to only a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities." Kirby, 500 F.3d at 707. "If the impairment would have no more than a minimal effect on the claimant's ability to work, then it does not satisfy the requirement of step two." Id. (citation omitted). Additionally, the impairment must have lasted at least twelve months or be expected to result in death. See 20 CFR § 404.1509.

The ALJ identified Ms. One Horn suffered from the following severe impairments: "osteoarthritis, degenerative disc disease L5-S1, diabetes mellitus type II with neuropathy, and obesity." (Docket 9 at p. 9 ¶ 3; AR at p. 21). Ms. One Horn did not allege obesity as one of her disabling impairments. (AR at p. 21). The ALJ concluded under the regulations that she qualified for such a finding: "[G]iven the claimant's osteoarthritis, including involvement in the knees, the undersigned finds [her] obesity would impose more than a minimal effect on [her] ability to perform basic work activities, and thus is considered severe' within the meaning of the Social Security Act and regulations." Id.

The ALJ examined Ms. One Horn's vision and gastroesophageal reflex disease disability claims. The ALJ concluded these conditions were only "slight abnormalit[ies]" and when "considered singly and in combination, and would have no more than a minimal effect on [her] ability to work, and such is therefore considered nonsevere' within the meaning of the Social Security Act and regulations." Id. at p. 22.

Ms. One Horn challenges the ALJ's conclusions and alleges she has the following additional severe impairments: (1) "sublaxation of patella and degenerative arthritis of right knee...." (Docket 9 at p. 21 ¶ 1); (2) "degenerative disk disease L5-S1 level with vacuum disk phenomenon...." Id. ¶ 2; and (3) "presbyopia...." Id. ¶ 3. Each of these challenges to the ALJ's findings will be separately addressed.


An x-ray taken on April 30, 2009, revealed "[p]osterior and lateral spurring. Patella slightly lateral but in notch.... Subluxation patella and degenerative arthritis. [R]ight knee." (AR at p. 395). A subsequent x-ray of Ms. One Horn's right knee taken on September 28, 2012, showed:

The bones are slightly demineralized. There is minimal medial joint space narrowing with osteophytosis on both sides of the joint. Laterally, there has been a significantly depressed fracture of the tibial plateau with relative sparing of the tibial margin. There is osteophytosis about the tibial margin, and about the anterior tibial spine as well as about the anterior superior and posterior femoral condyles. There is osteophytosis about the posterior tibial margin. There is a moderate amount of fluid in the knee joint and... there is swelling of the prepatellar bursa.

(AR at p. 589). The radiologist's conclusions were "[d]egenerative change on both sides of the joint and old central compression of the lateral tibial table[.] Joint fluid and swelling of the prepatellar bursa which may be related to the degenerative changes." Id.

The ALJ's analysis of this issue recognized that Ms. One Horn "alleges disability due to diabetes, arthritis in both knees.'" (AR at p. 21) (referencing AR at p. 259). The ALJ considered Ms. One Horn's "osteoarthritis, including involvement in the knees" when determining her obesity was a severe impairment. Id.

The ALJ noted that following a medical records review on December 16, 2011, Dr. Whittle stated Ms. One Horn's physical capabilities for lift and carry were somewhat limited "due to degenerative arthritis of the hands and knees, right greater than left...." (AR at p. 27). While Dr. Whittle's report does not specifically ...

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