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Holmes v. Berryhill

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

March 27, 2017

ELIZABETH D. HOLMES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         Plaintiff Elizabeth Holmes filed a complaint appealing the final decision of Nancy A. Berryhill, [1] the Acting Commissioner of the Social Security Administration, finding her not disabled. (Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 9). The court issued a briefing schedule requiring the parties to file a joint statement of material facts (“JSMF”). (Docket 11). The parties filed their JSMF. (Docket 12). For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner (Docket 13) is granted.

         FACTUAL AND PROCEDURAL HISTORY

         The parties' JSMF (Docket 12) is incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order. On May 16, 2012, Ms. Holmes filed an application for disability insurance (“DI”) benefits under Title II and supplemental social security income (“SSI”) benefits under Title XVI, alleging an onset of disability date of March 7, 2012. (Docket 12 ¶ 1). On September 30, 2014, the ALJ issued a decision finding Ms. Holmes was not disabled. Id. ¶ 4; see also Administrative Record at pp. 18-30 (hereinafter “AR at p. __”). The Appeals Council denied Ms. Holmes' request for review and affirmed the ALJ's decision. (Docket 12 ¶ 4). The ALJ's decision constitutes the final decision of the Commissioner of the Social Security Administration. It is from this decision which Ms. Holmes timely appeals.

         The issue before the court is whether the ALJ's decision of September 30, 2014, that Ms. Holmes was not “under a disability, as defined in the Social Security Act, from March 7, 2012, [through September 30, 2014]” is supported by substantial evidence in the record as a whole. (AR at p. 30) (bold omitted); 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 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 and entitled to DI benefits under Title II or SSI benefits under Title XVI. 20 CFR §§ 404.1520(a) and 416.920(a).[2] 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. 19-20).

         STEP ONE

         At step one, the ALJ determined Ms. Holmes had not been engaged “in substantial gainful activity since March 7, 2012, the alleged disability onset date.” Id. at p. 21 (bold omitted).

         Ms. Holmes challenges the ALJ's determination of the onset date of her disability. (Docket 14 at pp. 10-15). She argues the Social Security Administration field office “is charged with responsibility to determine the ‘potential onset date' (POD) which may be earlier than the alleged onset date (AOD). . . . The POD establishes the period for which evidence must be developed, so it is foundational.” Id. at p. 10 (referencing Program Operations Manual System DI 10505.035) (hereinafter “POMS DI __”).[3] Ms. Holmes argues that just because the field office could not reach her as a homeless, mentally ill person, does not mean that the inquiry stops there. Id. at pp. 10-11. Rather, she argues POMS DI 10505.035 requires the field office to “try to identify a third party that can assist, if possible.” Id. at p. 11 (citing Docket 14-1 at p. 6). Ms. Holmes points out when she completed the initial disability application she identified both a third party and an attorney who were available to assist the field office with her claim. Id. (reference Docket 12 ¶ 19). Instead of making contact with either her attorney or the third party to establish a POD, Ms. Holmes submits the field office simply concluded an AOD of March 7, 2012, because that was the end date for her last job. Id. at p. 10.

         Ms. Holmes claims that when her file went to the Department of Disability Services Office (“DDS”) it “failed to develop a work history to compensate for the field office's curtailed analysis.” Id. at p. 11. She argues the “DDS simply noted without questioning, that ‘no' period[s] of work were determined to be unsuccessful work attempts.” Id. When her work history report got to the administrative hearing level, Ms. Holmes argues the report “should have signaled adjudicators at all levels that her work history required development to identify the POD . . . and also to develop the impairment-related reasons for minimal wages in jobs displayed in the [work report].” Id. at p. 12.

         Ms. Holmes asserts her work history report reflects the following:

Year

Employer

Address

Earning

2008

McKee's Pub & Grill

Lake Havasu City, AZ

$2, 298.37

2008

Anna Van Inc.

Anna, TX

$2, 176.24

2008

Western Dakota Gaming -Valley Sports Bar

no address shown

$8, 090.81

2008

Professional Staffing - ABTS, Inc.

Clearwater, FL

$32

2008

Baibrook Partnership

Dallas, TX

$291.76

2008

Total

Earnings

$12, 889.18

2009

Anna Van Inc.

no address shown

$2, 123.51

2009

Black Hills Coffee Rapid City, S.D. $2, 963.75

2009

Fuddruckers

Rapid City, S.D.

$521.48

2009

OS Restaurant Service

Tampa, FL

$388.42[4]

2009

Great Western Corral

Colorado Springs, CO

$501.43

2009

Total

Earnings

$6, 498.59

2010

Salvation Army

Omaha, NE

$70.69

2010

International House of Pancakes Rapid

City, S.D. $50.31

2010

Total

Earnings

$121.00

2011 Dakotah Steakhouse

Custer, SD

$361.80

2011

Total

Earnings

$361.80

(Docket 14 at p. 12; see also Docket 12 ¶ 15 and AR at pp. 293-95). Ms. Holmes had no work activity after 2011. (Docket 12 ¶ 17). Ms. Holmes argues all of her employment in the years 2009 to 2011 may qualify as “unsuccessful work attempts” or not otherwise amounting to “substantial gainful activity.” (Docket 14 at pp. 11-13) (referencing Social Security Ruling (“SSR”) 84-25;[5] see also 20 CFR § 404.1574(a)(1)) (“We generally consider work that you are forced to stop to reduce below substantial gainful activity level after a short time because of your impairment to be an unsuccessful work attempt.”).

         Ms. Holmes contends the ALJ is not allowed to simply adopt an “AOD of March 2012, ” but rather “was required to apply the criteria of SSR 83-20: ‘Factors relevant to the determination of disability onset include the individual's allegation, the work history, and the medical evidence. These factors are often evaluated together to arrive at the onset date.' ” (Docket 14 at pp. 13-14) (citing SSR 83-20[6]).

         Ms. Holmes argues “[t]he ALJ's failure to investigate and correctly identify the POD was harmful because the ALJ's adverse credibility assessment was based in part on the undeveloped work history.” Id. at p. 14. Ms. Holmes believes the failure of the ALJ to complete a proper work history was also prejudicial because had a POD been established in either 2008 or 2009, the regulations would have required the development of “medical and other evidence associated with that time frame.” Id. at p. 15. Finally, Ms. Holmes argues “monetary and medical benefits” were lost because of “an incorrect onset date.” Id.

         The Commissioner resists Ms. Holmes' challenge to the onset date of disability. (Docket 17 at pp. 4-6). The Commissioner argues the claimant “attempts to muddy her onset date with citations to a thicket of Program Operating Manual (“POMS”) citations, but the fact remains that the ALJ considered the onset date Holmes herself provided.” Id. at p. 4. The Commissioner asserts Ms. Holmes stopped working on August 1, 2010, not because of a disability, but for other reasons. Id. (referencing Docket 12 ¶ 21). In support of this argument, the Commissioner points out “[Ms.] Holmes produced medical records starting in March 2012 . . . and testified she became disabled in March 2012.” Id. at pp. 4-5. The Commissioner claims the medical records support the first notation of depression appears in claimant's medical records on March 5, 2012. Id. at p. 5. In that record, Ms. Holmes was treated for anxiety with no “history of anxiety or depression.” Id. (referencing AR at p. 413). The Commissioner also contends the onset date is accurate because Dr. Garry's psychiatric report of July 15, 2014, notes that when he first saw Ms. Holmes in “November 2012, she had not had any previous psychiatric treatment . . . .” Id. (referencing AR at p. 489). The Commissioner argues “the ALJ is not required to further investigate because Holmes did not seek any medical treatment prior to March 2012 and the record did not suggest an earlier onset date.” Id. at p. 6 (referencing Karlix v. Barnhart, 457 F.3d 742, 747 (8th Cir. 2006)).

         In rebuttal, Ms. Holmes argues the Commissioner selectively references Dr. Garry's November 2012 clinical note because she reported a mental health condition which “clearly predated March 2012.” (Docket 18 at p. 2). Because SSR 83-20 requires the ALJ to look to three factors-claimant's allegations, her work history and the medical evidence-to determine a POD, Ms. Holmes contends the Commissioner cannot overlook the obligation imposed on the agency to gather evidence from all three sources. Id. at pp. 1-2. Because of the status of the record, Ms. Holmes argues the ALJ was obligated to consider her unsuccessful work activities, obtain pre-2012 medical records and order a consultative examination. Id. at p. 2.

         The record is complicated by the fact Ms. Holmes had three separate ALJ hearings: January 8, 2014; May 27, 2014; and September 18, 2014. (Docket 12 ¶ 107). During the first hearing in Dallas, Texas, on January 8, 2014, ALJ Stanley M. Schwartz asked Ms. Holmes, who appeared pro se, what types of problems she was experiencing. Id. ¶¶ 108 & 113. Ms. Holmes testified:

I have anxiety, I have a lot of depression, I have a bipolar disorder, I have breathing problems, I have acute pneumothoraxes. I've had suicidal thoughts but that's what the bipolar is, that's what they told me. So I've been taking all my medications like I'm supposed to . . . . I mostly just stay at the house by myself because when I get around people I'll start . . . having issues . . . . I just-my heart rate, rapid heart rate. I shake, I have a hard time ...

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