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Quinn v. Berryhill

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

March 20, 2018

ROSE A. QUINN, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM OPINION AND ORDER REVERSING THE DECISION OF THE COMMISSIONER

          KAREN E. SCHREIER, UNITED STATES DISTRICT JUDGE

         Plaintiff, Rose A. Quinn, seeks review of the decision of the Commissioner of the Social Security Administration denying her claim for disability insurance benefits (SSDI) under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. § 1382. The Commissioner opposes the motion and urges the court to affirm the denial of benefits. For the following reasons, the court reverses the decision of the Commissioner.

         PROCEDURAL HISTORY

         Quinn filed an application for SSDI and SSI on November 12, 2013, alleging disability since August 1, 2013. AR 180. The Commissioner denied her claim initially on March 18, 2014, and upon reconsideration on September 19, 2014. AR 109, 116. Quinn then appeared with counsel before Administrative Law Judge (ALJ) Denzel R. Busick at an administrative hearing on November 20, 2015. See AR 28 (transcript of hearing). The ALJ issued an opinion affirming the denial of benefits on December 16, 2015. AR 22. The Appeals Council denied Quinn's request for review on December 12, 2016. AR 1. Thus, Quinn's appeal of the Commissioner's final decision is properly before the court under 42 U.S.C. § 405(g).

         FACTUAL BACKGROUND

         Quinn was born August 10, 1960. AR 33. She was 53 years old at the alleged disability onset date, and thus 55 years old at the time of her hearing before the ALJ. Id. Quinn obtained her GED, graduated from a vocational technical school's human services technician program, and obtained an Associate's degree from Colorado Technical University. Id. She has also completed two years of college. AR 225. Quinn reported working a number of jobs since 2000. Specifically, she worked at the Sioux Falls area humane society until 2005 or 2006 as a cruelty investigator humane officer, she was the founder and director of the Second Chance Rescue Center until 2011, and at the time of her hearing, she worked 16 hours a week as a receptionist at Inner Lights Community Action. AR 33-35. Quinn has also received a rent reduction as the manager of her trailer park since 2007. AR 35-36.

         Quinn's primary care provider has been Troy VanOverbeke, a Physician's Assistant with Sanford. PA VanOverbeke treated Quinn for depression in 2011, and he has prescribed different amounts of Effexor and Zanax since then. See AR 337-38. He has also treated Quinn for anxiety. See AR 398-99 (changing medication dosage on December 2, 2013 visit); AR 576 (discussing side effects of medication on March 31, 2014 visit). He managed the care for Quinn's ongoing lower back pain, leg weakness, and bilateral foot numbness since Quinn fell while walking up stairs in July 2013. See AR 391 (noting backward fall, bilateral foot numbness for prior six months, low back pain on July 22, 2013 visit); AR 600 (noting continued numbness in toes, difficulty walking on May 30, 2014 visit). PA VanOverbeke also filled out a Definitions of Rating Terms form for Quinn on October 30, 2015. AR 838-40.

         On September 16, 2013, Dr. Assam at Sanford performed an EMG on Quinn, which measures electrical activity in response to a nerve's stimulation of muscle. AR 472-73. Dr. Assam noted mild neuropathy (nerve damage), but the EMG was negative for evidence of radiculopathy, plexopathy, or myopathy. AR 475.

         Quinn was referred to Dr. Ansari, a neurologist, for lower extremity paresthesias. AR 292. Dr. Ansari noted that Quinn had a history of anxiety, depression, tobacco use, and lower back pain. Id. She reported that her lower extremity numbness and tingling sensation were becoming progressively worse over the eight months prior to seeing Dr. Ansari on October 8, 2013. Id. Dr. Ansari diagnosed Quinn with mild peripheral polyneuropathy, but noted her symptoms were well controlled without medication, and chronic back pain with leg weakness. AR 296. Following an MRI on her lower back on October 17, 2013, the radiologist at Sanford noted “extensive disk disease and degenerative change throughout the lumbar spine, ” including mild to moderate spinal stenosis at the L3-L4 level and severe stenosis at the right L5-S1 neural foramen. AR 322-23.

         On November 20, 2013, Quinn saw Dr. Chris Janssen, a Sanford Physical Medicine and Rehabilitation specialist, for her low back pain and bilateral leg pain. AR 494. At this visit, she reported weakness in her legs when standing for a long period of time and sharp, aching pain. Id. Dr. Janssen noted Quinn was not a candidate for surgery and recommended five weeks of physical therapy. AR 496. While Quinn reported the physical therapy appeared to help at first (AR 513), her pain continued. AR 518. See also AR 457 (physical therapy notes for lower back pain in December 2013). At her February 3, 2014 visit with Dr. Janssen, she explained her lower back pain was worse with increased activity and worse with bending and twisting. AR 530. Dr. Janssen started Quinn on Cymbalta, but she suffered side effects. AR 560. Dr. Janssen also filled out a Definitions of Rating Terms form on an unknown date. AR 627-629.

         Quinn continued participating in physical therapy at McCook Therapy for her low back pain in 2014. AR 609. She also visited Dean Berg, DC, FACO, a chiropractor at Total Health Chiropractic numerous times in 2013 and 2014. See AR 570 (diagnosing subluxation/nonallopathic lesion, lumbar region); AR 571 (same); AR 572 (same). Dr. Berg noted that Quinn appeared to respond favorably to chiropractic treatment. AR 571.

         On June 18, 2014, Quinn was seen by Dr. Sanders for her low back pain. AR 617. Dr. Sanders reviewed her previous MRI and performed an epidural steroid injection at Quinn's L3-L4 level. AR 620. At her July 14, 2014 visit, Quinn reported the injection helped but activity still aggravated her back. AR 621. Dr. Sanders noted Quinn's limited range of motion, pain with motion, but a negative straight leg raise bilateral test. AR 621-22. Quinn received a second epidural steroid injection. AR 624.

         Quinn claims she still suffers from lower back pain, numbness in her toes, and walking is very difficult. AR 600. There is also evidence that she has scoliosis. AR 326. Following a June 17, 2015 X-ray on her left elbow, the radiologist noted some degenerative changes. AR 792. She also had an MRI on her cervical spine on July 15, 2015, which shows shoulder pain, radiculopathy, some disk protrusion, but significant spinal stenosis is not present in her neck. See AR 742 (Sanford radiologist, DO Free, noting impression of disk disease and degenerative change in cervical spine).

         ADMINISTRATIVE HEARING

         During the administrative hearing, the ALJ heard testimony from Quinn and James Miller, a vocational expert. Quinn, represented by counsel at the hearing, testified about her education and her work experience as a cruelty investigator humane officer, director of the Second Chance Rescue Center, and as a part time receptionist. AR 33-35. She testified that while she did some physical work and lifted kennels with several animals in them while working at the humane society, she cut back how much weight she lifted when she was the director of the rescue center. AR 34-35. She does not do heavy lifting at her current job as a receptionist. AR 35.

         Quinn then testified about her physical problems that make it difficult for her to continue working. AR 36. Specifically, she discussed her low back pain, neck problems, anxiety due to her fear that she will fall again, and the numbness in her toes. AR 36-37. She testified that when she stands to wash dishes, she has to bend over after ten minutes because the pressure in her back causes fatigue in her legs. AR 39. Quinn stated that she can only stand for 10-15 minutes at a time, but she often has to lean against something during that period of time, and she cannot sit for very long either. Id. She can only lift and carry 10-15 pounds, she cannot pull 10-15 pounds but she would “try” to push 10-15 pounds. AR 41.

         Quinn testified that she was taking 800 milligrams of Ibuprofen a day, Ambien to fall asleep, Effexor for anxiety and stress, a triglyceride for cholesterol, water pills, and she used a prescription cream on her back. AR 42. In order to alleviate her back and neck pain, Quinn explained that she moves around a lot and tries to see her chiropractor to relieve the pressure. AR 43. At the time of her hearing, Quinn lived in a house with her teenage son. Id. In a typical day, she cleans and cooks, but she needs her son's help with the yard work. AR 44.

         Prior to Quinn's administrative hearing, Miller submitted a Work History report, which listed manager mobile home park, manager animal shelter, and dog catcher as Quinn's past jobs. AR 286. He noted that Quinn acquired the skills of managing the mobile home park, collecting rent, showing facilities, and directing maintenance staff from her job as manager of the mobile home park. Id. He listed no acquired skills from her position as manager of the animal shelter and noted her acquired skills of protecting animals, capturing strays, and caring for animals from her position as dog catcher. Id.

         In response to the hypothetical question posed by the ALJ, Miller testified that someone with Quinn's impairments could not perform her past work as a manager of an animal shelter “as she did it[, ]” but could perform this work as it is described in the Dictionary of Occupational Titles (DOT). AR 49. Miller also testified that someone with Quinn's impairments could perform the manager of a mobile home park position “as she did it, ” but could not do her past work as a dog rescuer. AR 50.

         The ALJ then posed a hypothetical to Miller about a person whose pain moderately interferes with concentration, persistence, or pace and who is limited to routine tasks of three to four steps. AR 50-51. In response, Miller testified that such a person could not perform Quinn's past work at a light level, but noted to the ALJ: “I think you are coming up with more of an unskilled level.” AR 51. Miller then indicated that the skills Quinn acquired in her past work would be transferable to some office clerical types of jobs. AR 51. He identified positions such as general office clerk, file clerk, or storage facility clerk as available in the national economy. AR 51-52. When accounting for concentration limitations, Miller testified that a person could only perform unskilled positions, such as an inspector hand packager, which is available in the national economy. AR 52.

         ALJ DECISION

         Employing the five-step analysis associated with an application for social security benefits, the ALJ denied Quinn's claim on December 16, 2015. AR 22. At step one, the ALJ found that Quinn has not engaged in substantial gainful activity since August 1, 2013, the alleged onset date. AR 15. At step two, the ALJ determined Quinn has the following severe impairments: degenerative disc disease, peripheral neuropathy, anxiety, and affective disorder. Id.

         At step three, the ALJ concluded Quinn does not have an impairment, or combination of impairments, that meets or medically equals the severity required under 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. At step four, the ALJ found that Quinn cannot perform her past relevant work, but concluded that she has the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b).[1] At step five, the ALJ found that Quinn has acquired work skills from past relevant work that are transferable to other occupations with jobs available in the national economy. AR 21. Thus, the ALJ concluded that Quinn is not disabled under the Social Security Act.

         STANDARD OF REVIEW

         The court must uphold the ALJ's decision if it is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”); Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). “ ‘Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the conclusion.' ” Teague, 638 F.3d at 614 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). When reviewing the record, “the court ‘must consider both evidence that supports and evidence that detracts from the Commissioner's decision.' ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). If the Commissioner's decision is supported by substantial evidence in the record as a whole, the court may not reverse it merely because substantial evidence also exists in the record that would support a contrary position or because the court would have determined the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).

         The court also reviews the Commissioner's decision to determine if an error of law has been committed, which may be a procedural error, the use of an erroneous legal standard, or an incorrect application of the law. Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are reviewed de novo with deference accorded to the Commissioner's construction of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th Cir. 2008)).

         THE FIVE STEP PROCEDURE FOR ...


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