Kroger v. Astrue
| Decision Date | 13 February 2012 |
| Docket Number | CIV. 11-4012-KES |
| Parties | DIANNE M. KROGER, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Plaintiff, Dianne M. Kroger, moves for reversal of the Commissioner of Social Security's (Commissioner) decision denying her application for supplemental security income (SSI) under Title XVI of the Social Security Act for the time period between July 26, 2007, and September 17, 2009. The Commissioner opposes this motion. The court reverses and remands.
On July 26, 2007, Kroger applied for SSI and alleged an onset date of February 28, 2007. AR 111.1 On October 15, 2007, the Social Security Administration denied Kroger's application. AR 68. On January 15, 2008, Kroger requested reconsideration, which was denied on April 17, 2008. AR 73. Kroger then requested a hearing before an Administrative Law Judge (ALJ). AR 76. The ALJ held a hearing on September 24, 2009, after which he determined that Kroger was not disabled, and, thus, she was not entitled to SSI benefits. AR 3-13. On November 16, 2009, Kroger requested that the Appeals Council review the decision. AR 2.
On May 2, 2010, Kroger's counsel submitted additional evidence and a "Compassionate Allowances Inquiry" to the Appeals Council addressing a new medical condition, namely lung cancer (adenocarcinoma). AR 210-12. On July 16, 2010, the Appeals Council granted review and proposed finding Kroger disabled beginning on September 18, 2009, due to her lung cancer. AR 105-108.2
After Kroger submitted additional documents, the Appeals Council adopted the ALJ's decision for the time period of July 26, 2007, through September 17, 2009, but found that Kroger was disabled as of September 18, 2009. AR 660. Kroger appeals the Commissioner's final decision regarding the time period of July 26, 2007, through September 17, 2009. Docket 1 at ¶ 2.
Kroger was 48 years old at the time of her application and turned 50 years old on May 20, 2009. AR 111. After Kroger suffered a head injury while waterskiing when she was 16, she began having seizures. AR 334. Kroger continues to take Dilantin for her seizures, but she has not had a seizure for over 20 years. AR 32.
After graduating from high school, Kroger worked in a machinery shop in Flandreau, South Dakota. AR 368. The machinery shop fired her because she had a seizure on her way to work. AR 368. Kroger then worked for Alibi, a bar in Dell Rapids, for an unknown period of time. AR 368. After Alibi, she worked in a bakery and, after that, cleaned houses for a couple of years. AR 368. She lived with her parents until her late 20s or early 30s, and then moved in with her boyfriend, Ross Goetz, with whom she has lived for over 20 years. AR 368. Kroger has no children, but Goetz's 21-year-old son lives in the home. AR 368. Kroger has not worked outside the home since she began living with Goetz. AR 368. Kroger's medical history is set out by each medical condition.
Kroger was diagnosed with Hodgkin's lymphoma3 when she was 36 years old. AR 146. While Kroger has suffered from an occasional flare-up from her Hodgkin's,4 she did not allege that she was disabled due to her Hodgkin's.
On June 10, 2008, a lab report showed that Kroger had a 6-mm by 6-mm noncalcified nodule in the right upper lobe of her lung. AR 411. A biopsy of the nodule later proved to be cancerous, and Kroger had a lobectomy of the rightlung on October 19, 2009. AR 529. Because Kroger was not diagnosed with lung cancer during the time period at issue here, the remainder of the facts about Kroger's lung cancer are omitted.
In January of 2005, Kroger sought treatment from Dr. Nicola Pike, D.P.M., for severe pain and discomfort in her right toe. AR 428. Dr. Pike assessed that Kroger suffered from a chronic ingrown toenail and infection of the right great toe. AR 429. Kroger underwent some physical therapy. AR 426. During a March 17, 2006, appointment with Dr. Pike, Kroger reported that she was able to perform all of her normal activities and wear her normal shoes. AR 425.
Kroger did not complain about toe pain again until April of 2008. Dr. Pike removed Kroger's great right toenail and the toenail's root on April 4, 2008. AR 405. Following this procedure, Kroger experienced "purulent discharge," and she was prescribed antibiotics and foot soaks. AR 405.
Kroger also saw Dr. Pike for pain in her left foot in April of 2008, which Dr. Pike diagnosed as metatarsalgia (pain in the forefoot) and left joint bursitis.5 AR 492-93. Dr. Pike referred her to physical therapy, AR 492, which Kroger attended in July and August of 2008. AR 436, 438, 461. On September 19, 2008, Kroger told Dr. Pike that she did not often experience foot pain and that she could perform her normal activities. AR 454.
During the hearing, Kroger testified that she was "still having problems with" her right toe and thought that she would have to see the doctor again because she did not think it was healing correctly. AR 52.
On December 14, 2007, Kroger applied for vocational rehabilitation (VR) services through the South Dakota Department of Human Services, Division of Rehabilitation Services (Rehabilitation Services). AR 200. Kroger's VR counselor, Vicki Nelson, told Kroger that she needed to have achievement testing completed before Rehabilitation Services would be able to assist her. AR 193. Dr. Elwin Unruh, a psychologist, performed the testing on January 28, 2008. AR 88, 371.
Dr. Unruh determined that Kroger had a verbal IQ score of 72, a performance IQ score of 74, and a full scale IQ score of 70. AR 371. Dr. Unruh also determined Kroger's grade equivalent scores for different categories, which represents Kroger's grade level functioning compared to the national norm group. AR 372. Kroger's ability to read was a grade equivalent of 8.8, her spelling ability was a grade equivalent of 7.3, and her math calculation, or "pencil and paper" math, was a grade equivalent of 4.4. AR 372. Dr. Unruh observed that Kroger experienced difficulties with affect or motivation because she easily became frustrated, agitated, or impulsive during the testing session. AR 377.
Dr. Unruh diagnosed Kroger as having premorbid intellectual functioning in the low-average levels, generalized anxiety disorder, attention deficit/hyperactivity disorder, and borderline intellectual functioning. AR 370. Heobserved that Kroger AR 369.
On April 15, 2008, Dr. Richard Gunn, Ph.D., a state agency psychologist, reviewed Kroger's examination and noted that while Kroger suffers from a generalized persistent anxiety disorder, her impairment was not severe. AR 390. He opined that Kroger's functional limits had a mild degree of limitation on her activities of daily living and in maintaining concentration, persistence, or pace, no limitation in maintaining social functioning, and no episodes of decompensation. AR 400. Dr. Gunn summarized that Kroger's intellectual level is in the borderline intellectual functioning range, but her functioning is such that she can care for herself and others and "could do basic routine work." AR 402.
During the hearing, Kroger testified that she "sometimes get[s] kind of scared," nervous, and "[k]ind of shaky" around people and that issue has persisted for a while. AR 35, 46. She reads the newspaper, but if she wants to remember something, she has to write it down. AR 46. Goetz testified that Kroger sometimes needs to reread directions or a recipe several times before she can understand it. AR 57-58.
Rehabilitation Services found that Kroger was eligible for services under "Priority Category II- Significantly Disabled" with primary disabilities of "Manipulations/Dexterity Orthopedic/Neurological Impairments," due to a "multi-level degenerative disk disease with disk herniations throughout the spineto the lumbar spine" and "bilateral carpal tunnel syndrome." AR 197. Rehabilitation Services concluded that Kroger AR 197.
On January 16, 2008, Nelson reviewed Kroger's medical records and noted that her limitations include avoiding heavy lifting and frequent use of her arms. AR 189. On February 25, 2008, Nelson and Kroger met to discuss Kroger's VR plans. AR 187. Kroger stated that her back pain prevented her from participating in the various situational assessments offered by Nelson. AR 187. Nelson stated that she would keep Kroger's file open for a period of time to determine whether Kroger could participate in assessments or if she would receive SSI benefits. AR 187.
On April 7, 2008, Kroger told Nelson that she had her toe nail and root removed, and the doctor estimated that she would need six weeks to recover. AR 186. On May 30, 2008, Kroger informed Nelson that her toe was infected, and she would be unable to do anything until it was healed. AR 184. On June 16, 2008, Kroger again informed Nelson that she was unable to try to work due to continuing issues with her toe. AR 183. On June 26, 2008, Kroger informed Nelson that her toe was still sore and her doctor had found a lump in her body that needed to be checked out. AR 182.
On August 22, 2008, Nelson notified Kroger that she was in the process of closing Kroger's file because of her continued medical issues. AR 180. Kroger didnot contest the closing of her VR file, and the file was closed on September 5, 2008. AR 178.
Kroger...
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