United States District Court, D. South Dakota, Western Division
MEMORANDUM OPINION AND ORDER AFFIRMING THE DECISION
OF THE COMMISSIONER
E. SCHREIER UNITED STATES DISTRICT JUDGE.
Doris Edwards, 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.
Docket 17. The Commissioner opposes the motion and urges the
court to affirm the denial of benefits. Docket 18. For the
following reasons, the court affirms the decision of the
filed for SSDI benefits on July 29, 2014, alleging disability
since April 3, 2010. AR 91, 285. The Commissioner denied her
claim initially on January 22, 2015, and upon reconsideration
on April 22, 2015. AR 117-21, 126-32. Edwards then appeared
with counsel before Administrative Law Judge (ALJ) Michele M.
Kelley on January 10, 2017. See AR 30 (transcript of
hearing). The ALJ issued an opinion affirming the denial of
benefits on April 5, 2017. AR 11-23. The Appeals Council
denied Edwards's request for review on November 14, 2017.
AR 1-4. Thus, Edwards's appeal of the Commissioner's
final decision is properly before the court under 42 U.S.C.
Doris Edwards, was born on July 5, 1960. AR 40. Edwards is a
military veteran and divorced. AR 577, 612. At the time of
the hearing, Edwards was living with a female roommate named
Alice. AR 47. Edwards and Alice have lived together “on
and off” since 1999. AR 52. Between the onset date and
the date last insured, Edwards lived with Alice. AR 49-50.
During the relevant time period, Alice assisted Edwards with
several activities like dressing, showering, and caring for
Edwards's emotional support dog. AR 47, 52-53, 621-22.
the onset date, Edwards had the following health issues:
hearing loss, sleep apnea, obesity, shoulder injury,
osteoarthrosis of the leg and knee, dysthymia, knee injury,
ovarian cancer, depression, and asthma. AR 652 (emergency
department problem list from April of 2009). To address the
sleep apnea issue, Edwards used a sleep apnea machine. AR
622. Edwards's shoulder injury stemmed from an injury
during her time in the military. AR 462, 577. Edwards has a
history of multiple orthopedic surgeries. AR 576-77. Edwards
has been cancer free since 2005. AR 462. Additionally, on
February 24, 2010, Edwards was diagnosed with plantar
fasciitis. AR 573-74.
of 2009, Edwards was diagnosed with fibromyalgia. AR 357-58.
Edwards was prescribed medication to treat this condition. AR
588. On March 18, 2010, Edwards complained her fibromyalgia
was “still bothersome.” AR 577. Dr. Margaret
Becker, Edwards's primary care physician, assessed
Edwards's fibromyalgia as “not well
controlled.” AR 560. At her next primary care
appointment with Dr. Becker on June 14, 2010, Edwards
complained her fibromyalgia was “acting up.” AR
546. At this time, Dr. Becker changed her prescription. AR
549. On November 26, 2010, Edwards's MRI scans showed
mild degenerative disc changes but no significant canal or
foraminal stenosis. AR 666. At a neurology consultation with
Dr. Laurie A. Weisensee on April 6, 2011, Edwards's
lumbar spine magnetic resonance imaging was unremarkable. AR
463. Dr. Weisensee stated she did not find any neurologic
also has chronic pain in her knees, hips, and lower back. On
June 2, 2010, both of Edwards's knees were x-rayed. AR
670-73. All three compartments of her knees demonstrated
osteoarthritic changes. AR 671, 673. At an orthopedic
consultation with Dr. Curtis Hartman on September 3, 2010,
Edwards complained of longstanding bilateral knee pain,
numbness in her legs, and falling on a regular basis. AR 359.
Dr. Hartman stated the x-rays showed “significant
arthritic changes” in the knee, mild to moderate. AR
360. Also, he worried that the majority of the pain was
related to Edwards's back and lumbar spine. Id.
primary care appointment with Dr. Becker on September 22,
2010, Edwards had tenderness throughout her back muscles and
spine. AR 510. Dr. Becker stated Edwards's hip films from
a year ago were “unremarkable.” Id. On
October 4, 2010, Edwards's lumbar spine film showed there
was no fracture or malalignment. AR 667. Additionally, she
had unremarkable bilateral hip films. AR 668-70. On November
26, 2010, Edwards's lumbar spine film showed no
significant canal or foraminal stenoses, but did show mild
degenerative disc changes and mild facet acropathy. AR
April 6, 2011, at Edwards's neurology consultation with
Dr. Weisensee, Edwards complained of chronic pain in her
bilateral knees and back. AR 462. Dr. Weisensee opined there
were degenerative findings in Edwards's knees; she also
noted that Edwards's hip films were unremarkable. AR 463.
At her primary care appointment on September 19, 2011, Dr.
Becker noted Edwards had lower back tenderness, knee pain,
and used crutches. AR 446. Edwards's radiology films from
September 22, 2011, showed Edwards had osteoarthritis and
mild degenerative joint disease in her knees. AR 662. Edwards
did not have another primary care appointment with Dr. Becker
for the next two years. AR 384, 416.
addition to her physical health issues, Edwards received
treatment for her mental health. Edwards was diagnosed with
depression, which her mental health providers, Dr. Shirley
Herbel and Dr. Thomas J. Jewitt, classified as a chronic
condition. AR 466, 551. Edwards had mental health counseling
sessions with Dr. Herbel, a psychologist at the Veterans
Affairs Black Hills Fort Meade Campus, to address her
symptoms of depression/dysthymia. AR 641. These sessions
occurred between every three to four weeks (AR 641) or
between every four to six weeks (AR 585) depending on
Edwards's depression and symptoms. In the record, Dr.
Herbel's treatment notes for Edwards start around May of
2009. AR 641. During the relevant time period, Edwards met
with Dr. Herbel twenty-three times. AR 390, 391, 393, 402,
404, 421, 425, 429, 431, 434, 436, 440, 455, 456, 460, 464,
481, 495, 504, 518, 538, 551, 552.
Edwards met with Dr. Jewitt, a physician at the VA Black
Hills Fort Meade Campus, for her mental health medication
checkups. AR 640. Dr. Jewitt specialized in psychiatry. AR
68-71. In the record, Dr. Jewitt's treatment notes start
around June of 2009. AR 639-40. Dr. Jewitt generally met with
Edwards twice a year. AR 846. During the relevant time
period, Edwards met with Dr. Jewitt six times. AR 417, 459,
466, 505, 553, 554.
current claim, Edwards's onset date is April 3, 2010. AR
11, 285. Her date last insured status expired on December 31,
2012. AR 33. Edwards's original onset date was September
16, 2006. AR 285. But Edwards's first social security
claim covered the time of her original onset date to April 1,
2010 (the date her first claim's decision was issued). AR
11. Edwards previously filed a social security claim in 2015
but was denied based on her receipt of Veterans Affairs
benefits. AR 33. Her VA benefits decreased in amount in
January of 2016. AR 33. The decrease in VA benefits allowed
her to be eligible for social security disability insurance
the administrative hearing, the ALJ heard testimony from
Edwards and a vocational expert. Edwards, represented by
counsel at the hearing, testified about the pain she had
during the relevant time period. Edwards stated she
experienced a constant sharp pain from “the top of
[her] head to the tip of [her] toes.” AR 40. She
testified that her doctors told her the pain was caused by
fibromyalgia and prescribed her medication. AR 40.
also testified about the constant pain in her right shoulder
and both of her knees. AR 41. Edwards testified she had
complete knee replacements of both her knees the year before
the hearing (outside of the relevant time period). AR 50.
Edwards stated that even after her knee replacements she
still used a cane to walk because of her fear of falling. AR
51. She testified that she still had a lot of pain in her
knees, but it was “a little less” than before the
replacements. AR 51. She also mentioned she had surgery on
her left shoulder. AR 50.
testified about how her pain affects her daily activities. AR
43-44. She stated she can only sit and stand for ten-minute
increments and can only walk for five minutes. AR 43. She
said her ability to lift is also restricted by the limited
use of her right arm. AR 44. Her pain only allows her to
sleep for two-hour increments. AR 46. Her day consisted of
waking up, taking care of her dog, her roommate making her
breakfast, sitting on the couch to watch TV, and taking a
nap. Id. Edwards testified that she can only sit for
a short period of time before she has to get up, move around,
and then can sit down again. Id. She also testified
that she needed help from her roommate to take a shower and
get dressed. AR 47. Edwards also testified about caring for
her dog. AR 46. Edwards stated she owned a Jack Russel
terrier as an emotional support dog during the relevant time
period. AR 47, 52.
Edwards testified about her use of assistive devices. AR
41-42. She stated that during the relevant time period, she
used crutches (held by her hands) that were prescribed by her
doctor. AR 41. She testified that she was prescribed the
crutches because her knees were damaged and she could not
stand up on her own or she would fall. AR 42. Also, during
the relevant time, she was prescribed a wheeled walker.
Id. She used the walker to assist in walking and to
sit for rest when she was outside on level ground.
also testified about various trips she took during the
relevant time period. AR 47-49. Edwards took two road trips,
one to California and one to Texas. Id. The purposes
of the trips were to visit family. AR 47. During these trips,
Edwards's roommate or sister drove, and they took several
stops to eat, rest, and for Edwards to move around.
also testified about her depression. AR 45. Edwards stated
that her depression was severe. Id. She explained
how her depression made her feel useless and that she
attempted suicide. Id. She testified that she was
prescribed medication that helped with her depression.
Tisdale served as the vocational expert at the hearing. AR
54. The ALJ posed two hypotheticals. AR 56-57, 60-61. For the
first hypothetical, the ALJ asked whether an individual with
the similar past work history, age, and educational
background as Edwards, who could stand and walk for two
hours, sit for six hours, with additional lifting and moving
limitations, could perform any of Edwards's past jobs. AR
56-57. The vocational expert stated that such an individual
could work as a night auditor, a billing clerk, and a
cashier. AR 57-59. For the second hypothetical, the
individual was the same as the first but was off task two
hours per work day. AR 60-61. The vocational expert testified
that the individual could not perform any of Edwards's
past work or be a billing clerk. AR 61. Edwards's
attorney also asked about a hypothetical situation to the
vocational expert. Id. Edwards's attorney asked
what jobs were available for an individual who could sit and
stand for ten minutes at a time and only walk for five
minutes. Id. The vocational expert stated that the
individual could not perform any job. AR 62.
the five-step analysis associated with an application for
social security benefits, the ALJ denied Edwards's claim
on April 5, 2017. AR 23. At step one, the ALJ found that
Edwards had not engaged in substantial gainful activity from
her alleged onset date, September 16, 2006, through her date
last insured, December 31, 2012. AR 13. At step two, the ALJ
determined Edwards had the following severe impairments:
osteoarthritis of the knees, degenerative disc disease,
asthma, plantar fasciitis bilaterally, and obesity. AR 13.
three, the ALJ concluded Edwards did not have an impairment
or combination of impairments that met or medically equaled
the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. AR 15. At step four, the ALJ
found Edwards had the residual functional capacity (RFC) to
perform sedentary work with some limitations. AR 17, 21. At
step five, the ALJ found, through the date last insured,
Edwards was capable of performing past relevant work as a
night auditor, medication aide, and cashier. AR 21. The ALJ
held that based on Edwards's age, education, work
experience, and RFC, through the date last insured, Edwards
was capable of making a successful adjustment to other work
that existed in significant numbers in the national economy.
AR 23. Thus, the ALJ concluded that Edwards was not disabled
under the Social Security Act. Id.
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)).
FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS
is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months[.]” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C.
§ 1382c(3)(A). “An individual shall be determined
to be under a disability only if his physical or mental
impairment or impairments are of such severity that he is not
only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national
economy[.]” 42 U.S.C. § 423(d)(2)(A). An ALJ must
apply a five-step procedure when determining if an applicant
is disabled. Smith v. Shalala, 987 F.2d 1371, 1373
(8th Cir. 1993). The steps are as follows:
One: Determine whether the applicant is presently
engaged in substantial gainful activity. 20 C.F.R. §
404.1520(b); 20 C.F.R. § 416.920(b).
Two: Determine whether the applicant has an
impairment or a combination of impairments that are severe.
20 C.F.R. ...