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Burns v. Berryhill

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

October 11, 2018

LEZLIE J. BURNS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Office of General Counsel, Social Security Administration, Defendant.

          ORDER

          CHARLES B. KORNMANN UNITED STATES DISTRICT JUDGE

         BACKGROUND

         Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g) to obtain judicial review of the final decision denying plaintiffs claim for a period of disability and disability insurance benefits under Title II of the Social Security Act. This is plaintiffs first claim for disability benefits and first request for judicial review of the denial of her disability benefits. For the reasons stated below, the decision of the Commissioner is reversed and remanded for further administrative proceedings.

         Plaintiff was born in 1964, has earned a high school degree, and is married without children. From 2009-2015, plaintiff worked full-time at Redlinger Brothers Plumbing and Heating; since 2015, plaintiff has worked part-time at Simply Gorgeous Medical Spa. Plaintiff alleges that she left Redlinger Brothers because worsening ailments interfered with her ability to adequately perform her duties. Plaintiff also states that she is now frequently compensated for time that she does not work at Simply Gorgeous Medical Spa. Plaintiff has provided affidavits from her employers in support of these statements.

         Plaintiff filed a claim for disability benefits on March 30, 2015, for endometriosis, internal bleeding due to scar tissue, hearing and vision problems, stomach pain, problems with hip and back, pulmonary embolism, osteoporosis, and interstitial cystitis, alleging disability since February 4, 2015. Plaintiffs claim was denied by the Social Security Administration on June 25, 2015, on the following basis:

There is no indication of nerve or muscle damage which would result in severe weakness or loss of function. There is no indication of joint damage which would result in severe weakness of loss of function. Although you have pain, it does not severely limit most ordinary activities. Your visual loss is not severe enough to limit most ordinary activities. Although you have some shortness of breath, the medical evidence does not show a severe reduction in the ability to breathe. Although you have hearing loss, it does not severely limit your ability to work. The reports do not show any other condition that would severely limit the ability to work. We do not have sufficient vocational information to determine whether you can perform your past relevant work. However, based on the evidence in file, we have determined that you can adjust to other work. Considering medical records, age, education and work history, we have concluded that you are able to do work that is light in nature.

         Plaintiff filed a request for reconsideration and her claim was again denied, on October 5, 2015, on the following basis:

There is no indication of nerve or muscle damage which would result in severe weakness or loss of function. There is no indication of joint damage which would result in severe weakness or loss of function. Although you have pain, it does not severely limit normal daily activities. Your visual loss is not severe enough to limit most ordinary activities. Special tests show sufficient hearing to understand and carry on normal conversation. Although you have some shortness of breath, the medical evidence does not show a severe reduction in the ability to breathe. The reports do not show any other condition that would severely limit the ability to work. We do not have sufficient vocational information to determine whether you can perform your past relevant work. However, based on the evidence in file, we have determined that you can adjust to other work.

         Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and ALJ Kristi Bellamy reaffirmed the denial of plaintiff s claim for benefits on May 1, 2017. Plaintiff then filed a request for review by the Appeals Council, which adopted the ALJ's denial of plaintiff s application for benefits on April 10, 2018. Plaintiff has thus exhausted administrative review of her claim.

         On May 8, 2018, plaintiff filed the current request for judicial review, claiming that (1) the residual functional capacity ("RFC") determined by the ALJ is not supported by substantial evidence; (2) that the ALJ failed to identify all of plaintiff s severe impairments and incorporate them into her RFC; and (3) that the ALJ erred by relying on vocational evidence that was not supported by substantial evidence. In response to plaintiffs appeal for judicial review, defendant requests that this court uphold the Commissioner's disability determination, stating that (1) substantial evidence supports the ALJ's RFC finding; (2) the ALJ did not fail to identify all of plaintiffs severe impairments; and (3) the ALJ properly determined that plaintiff could perform other work available in significant numbers in the national economy.

         Each of these arguments is addressed in the context of the five-step disability determination process, discussed below.

         DECISION

         I. Standard of Review

         A court reviewing a disability benefits determination must "neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record." Mittlestedt v. Apfel, 204 F.3d 847, 851 (8th Cir. 2000). Rather, the reviewing court must consider both evidence that detracts from the Commissioner's decision along with evidence that supports it. Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009). Such review "is more than a search of the record for evidence supporting the [Commissioner's] findings" and "requires a scrutinizing analysis, not merely a 'rubber stamp' of the [Commissioner's] action." Scott ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (internal citations omitted). A Commissioner's findings must be upheld so long as 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); and Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001). Substantial evidence is that which "a reasonable mind might accept as adequate to support the Commissioner's conclusion." Klug v. Weinberger, 514 F.2d 423, 425 (8th Cir. 1975) (internal citations omitted). The reviewing court may not reverse a Commissioner's decision "merely because substantial evidence would have supported an opposite decision." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). Instead, "[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ's] findings, the court must affirm the [ALJ's] decision." Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). The reviewing court "must view the record in the light most favorable to [the final agency] determination." Chismarich v. Berryhill, 888 F.3d 978, 980 (8th Cir. 2018).

         The reviewing court must also review the ALJ's decision to determine if the ALJ committed an error of law or applied an erroneous legal standard. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992); and 42 U.S.C. § 405(g). Deference is given to the Commissioner's construction of the Social Security Act. Smith v. Sullivan, 982 F.2d at 311. However, the Commissioner's conclusions of law are persuasive, not binding, on the reviewing court. Id.; see also Miller v. Colvin, 114 F.Supp.3d 741, 760 (D.S.D. 2015). If an opinion evidences "[s]everal errors and uncertainties . . . that individually might not warrant remand" such errors and uncertainties may "in combination create sufficient doubt about the ALJ's rational for denying [an applicant's] claims to require further proceedings." Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir. 2008).

         II. The Five Step Process for Disability Determination

         Social Security law establishes a mandatory five step process for determining whether an applicant is disabled and entitled to SSI benefits. Smith v. Shalala,987 F.2d 1371, 1373 (8th Cir. 1993); and 20 C.F.R. ยง 416.920. The ...


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