United States District Court, D. South Dakota, Southern Division
ROSE A. QUINN, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER REVERSING THE DECISION
OF THE COMMISSIONER
E. SCHREIER, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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
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.
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).
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.
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.
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.
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.
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
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.
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.
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). 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.
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)).
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)).
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