United States District Court, D. South Dakota, Western Division
TONYA S. G., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
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.
AND PROCEDURAL HISTORY
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.
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.
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)).
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).
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.
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.
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). 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
(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).
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).
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” verifying her alleged onset date of August
15, 2012, was confirmed as “POD 08/15/2012.”
Id. ¶ 4.
administrative hearing, the attorney 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.
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 ...