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Tonya S. G v. Berryhill

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

September 17, 2018

TONYA S. G.,[1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.




         Plaintiff Tonya G. filed a complaint appealing the final decision of Nancy A. Berryhill, the Acting Secretary of the Social Security Administration, finding her not disabled. (Docket 1). The Commissioner denies plaintiff is entitled to benefits. (Docket 10). The court issued a briefing schedule requiring the parties to file a joint statement of material facts (“JSMF”). (Docket 12). The parties filed their JSMF. (Docket 14). For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner is granted.


         The parties' JSMF (Docket 14) is incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order. On March 6, 2013, plaintiff Tonya G. applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) pursuant to Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-83f (2006), respectively. Id. ¶ 1. Tonya G. alleged an onset of disability date of August 15, 2012. Id.

         On February 3, 2016, the administrative law judge (“ALJ”) issued a decision finding Tonya G. was not disabled. Id. ¶ 15; see also Administrative Record at pp. 24-36 (hereinafter “AR at p. ”). The Appeals Council denied Tonya G.'s request for review and affirmed the ALJ's decision. (Docket 14 ¶ 19). The ALJ's decision constitutes the final decision of the Commissioner of the Social Security Administration. It is from this decision which Tonya G. timely appeals.

         The issue before the court is whether the ALJ's decision of February 3, 2016, that Tonya G. “has not been under a disability within the meaning of the Social Security Act from January 6, 2013, through [February 3, 2016]” is supported by substantial evidence in the record as a whole. (AR at p. 25); 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 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. 24-36).

         STEP ONE

         At step one, the ALJ determined Tonya G. had “not [been] engaged in substantial gainful activity since January 6, 2013, the amended alleged onset date.” Id. at p. 26 (bold omitted). Plaintiff objects to this finding. (Docket 17 at pp. 9-11).

         In her application for benefits, Tonya G. alleged an onset of disability date of August 15, 2012. (Docket 14 ¶ 1). The SSA field office investigated Tonya G.'s work activities during the relevant time period. Id. ¶¶ 2-4. The field office filed a “Correction to POD”[3] verifying her alleged onset date of August 15, 2012, was confirmed as “POD 08/15/2012.” Id. ¶ 4.

         At the administrative hearing, the attorney[4] representing Tonya G. moved to “amend the alleged onset date to January 6, 2013, because it was after this date that [Tonya G.] had a knee scope and was working very limited hours part time and not reaching substantial gainful activity.” Id. ¶ 12 (internal quotations and citation omitted). After a brief discussion about the significance of an alleged onset date, the ALJ suggested Tonya G. and her attorney step away from the hearing and discuss the issue. Id. Upon their return to the hearing room, Tonya G. indicated she would use the 2013 date. Id. “The ALJ stated, without establishing a factual basis, ‘I find that to be a knowing decision . . . .' ” Id.

         Tonya G. claims the ALJ accepted plaintiff's attorney's motion to “amend her onset date to January 6, 2013, without showing awareness of the SSA field office's analysis of [Tonya G.'s] work and potential onset date.” (Docket 17 at p. 10). Plaintiff challenges the motion to amend because her attorney had just signed a representation notice on the date of the hearing and the attorney “gave the ALJ reason to doubt the adequacy of his representation.” Id. Plaintiff identifies the following actions as supportive of her challenge:

Not only did the attorney move to amend the onset date contrary to the field office's determination, he was retained on the day of hearing . . . revealed his unfamiliarity with the record (said vocational rehabilitation records were in a physiatry exhibit . . . although there was no voc rehab evidence), showed up with a stack of medical records that the ALJ did not have time to read . . . reported there were several months of medical records still to be submitted . . ., provided a lame excuse for not timely submitting these . . ., said he would submit the evidence within 30 days, and never submitted the evidence . . . . Further, the attorney did not ask the vocational expert a single cross-examination question. . . . Finally, [the attorney] did ...

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