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Lee M. v. Berryhill

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

March 31, 2019

ROXIE LEE M., on behalf of the Estate of KELLY C. J., [1]Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Plaintiff 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.[2] (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.

         FACTUAL AND PROCEDURAL HISTORY

         The 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, 2005. Id.

         On 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).[3] 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. ¶ 28.

         On 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 timely appeals.

         The 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)).

         STANDARD OF REVIEW

         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 DIB under Title II or SSI benefits under Title XVI. 20 CFR §§ 404.1520(a) and 416.920(a).[4] 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).

         STEP ONE

         At step 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 & 21).

         STEP TWO

         At step 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).

         The 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 ...


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