United States District Court, D. South Dakota, Western Division
ROXIE LEE M., on behalf of the Estate of KELLY C. J., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
Roxie Lee M., on behalf of the Estate of Kelly C. J., filed a
complaint appealing the final decision of Nancy A Berryhill,
the Acting Commissioner of the Social Security
Administration, finding Kelly C. J. not
disabled. (Docket 1). The Commissioner denies
plaintiff is entitled to benefits. (Docket 11). The court
issued a briefing schedule requiring the parties to file a
joint statement of material facts (“JSMF”).
(Docket 13). The parties filed their JSMF. (Docket 14). For
the reasons stated below, plaintiff's motion to reverse
the decision of the Commissioner is denied and the
defendant's motion to affirm 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 August 27, 2008, Kelly
C. J. (“claimant”) 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. ¶ 2.
Claimant alleged an onset of disability date of August 14,
February 3, 2011, the Appeals Council found claimant disabled
“beginning June 1, 2008.” Id. ¶ 17.
Plaintiff does not challenge that decision. The Appeals
Council found claimant not disabled for the period
“prior to June 1, 2008.” Id. ¶ 18.
Claimant appealed that decision to this court. On September
25, 2012, the court reversed the agency's final decision.
Id. ¶ 19; see also Jones v. Astrue,
No. CIV. 11-5014, 2012 WL 4443957 (D.S.D. Sept. 25,
2012). Claimant died on June 7, 2013. (Docket 14
¶ 26). On June 7, 2013, Roxie Lee M. was substituted as
plaintiff on behalf of claimant's estate. Id.
February 7, 2017, an administrative law judge
(“ALJ”) issued a decision finding claimant was
not disabled. Id. ¶ 39; see also
Administrative Record at pp. 565-76 (hereinafter “AR at
p. ”). The Appeals Council denied plaintiff's
request for review and affirmed the ALJ's decision.
(Docket 14 ¶ 41). The ALJ's decision constitutes the
final decision of the Commissioner of the Social Security
Administration. It is from this decision which plaintiff
issue before the court is whether the ALJ's decision of
February 7, 2017, that claimant “was not under a
disability within the meaning of the Social Security Act from
August 14, 2005, through June 1, 2008” is supported by
substantial evidence in the record as a whole. (AR at p. 575)
(bold omitted); 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 DIB 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 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. 569-75).
one, the ALJ determined claimant “had not [been]
engaged in substantial gainful activity since August 14,
2005, the alleged onset date.” (AR at p. 569).
Plaintiff does not challenge this filing. (Dockets 18 &
two, the ALJ must decide whether the claimant has a medically
determinable impairment that is severe or a combination of
impairments that are severe. 20 CFR § 404.1520(c). A
medically determinable impairment can only be established by
an acceptable medical source. 20 CFR § 404.1513(a).
Accepted medical sources include, among others, licensed
physicians. Id. “It is the claimant's
burden to establish that [his] impairment or combination of
impairments are severe.” Kirby v. Astrue, 500
F.3d 705, 707 (8th Cir. 2007).
regulations describe “severe impairment” in the
negative. “An impairment or combination of impairments
is not severe if it does not significantly limit your
physical or mental ability to do basic work
activities.” 20 CFR § 404.1521(a). An impairment
is not severe, however, if it “amounts to only a slight
abnormality that would not significantly limit the
claimant's physical or mental ability to do basic work
activities.” Kirby, 500 F.3d at 707. Thus, a
severe impairment is one which significantly limits a
claimant's physical or mental ability to do basic work
activities. The ALJ identified plaintiff suffered from the