MEYERHOFF v. ASTRUE
| Decision Date | 31 March 2011 |
| Docket Number | No. C 09-3067-MWB,C 09-3067-MWB |
| Parties | DIANA JO MEYERHOFF, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security. |
| Court | U.S. District Court — Northern District of Iowa |
OPINION TEXT STARTS HERE
B. Factual Background............................................................................5
1. Introductory facts and Meyerhoff's hearing testimony .........................................................5
2. Meyerhoff's medical history ............................................................................7
3. Vocational expert's testimony ............................................................................ 28
4. The ALJ's Decision............................................................................ 29
A. Procedural Background
On October 8, 2004, Plaintiff Diana Jo Meyerhoff filed an application for Title II1disability insurance, alleging a disability onset date of July 1, 1997. The application was denied and Meyerhoff did not appeal. Meyerhoff filed another application for SSI benefits on August 19, 2005, again alleging July 1, 1997 as the onset date. The August 19, 2005, application was also denied and Meyerhoff did not appeal.
On August 17, 2006, Meyerhoff filed a third application for SSI benefits, again alleging a disability onset date of July 1, 1997. In her third application, Meyeroff claims that she is disabled due to arthritis, fibromyalgia, osteoporosis, and "leaking arteries." She claims that these alleged conditions cause her trouble with lifting, standing, and memory. After Meyerhoff's application was initially denied, and while it was on reconsideration, she requested a hearing. A hearing was held on January 27, 2009, before an Administrative Law Judge ("ALJ"). At this hearing, Meyerhoff appeared without a representative. Meyerhoff was given a continuance to obtain representation. The hearing reconvened on April 9, 2009, at which time Meyerhoff was represented by attorney Ruth Carter. Meyerhoff and a Vocational Expert ("VE"), Robert Marquart, both testified at the hearing. On May 8, 2009, the ALJ denied Meyerhoff's application for benefits, finding that although Meyerhoff has some severe impairments, she is able to work. Meyerhoffappealed the ALJ's ruling, and on August 28, 2009, the Appeals Council denied her request for review, making the ALJ's decision the final decision of the Commissioner.
On October 22, 2009, Meyerhoff filed a timely Complaint (docket no. 3) in this court seeking review of the ALJ's ruling. The case was referred to Chief United States Magistrate Judge Paul A. Zoss for a report and recommendation, in accordance with Administrative Order #1447.
On February 19, 2010, Meyerhoff filed her brief (docket no. 10). In her brief, Meyerhoff claimed: 1) That there is not substantial evidence in the record to support the ALJ's determination of Plaintiff's residual functional capacity; 2) That the ALJ failed to pose a hypothetical question to the VE that clearly presents a set of limitations that mirror Meyerhoff's; and 3) that the overwhelming evidence of record, when given the weight the rules demand, support a finding that she is disabled and that a remand for payment of benefits is appropriate.
On March 29, 2010, the Commissioner filed his brief (docket no. 11). According to the Commissioner, the ALJ properly evaluated the credibility of Meyerhoff's subjective allegations; the ALJ properly considered the medical opinions of record; and substantial evidence supports the ALJ's determination that Meyerhoff retained the residual functional capacity to perform other work in the national economy.
On July 26, 2010, Judge Zoss issued his Report And Recommendation (docket no. 15). Judge Zoss found that the record contains substantial evidence that Meyerhoff would be unable to sustain full-time employment on a sustained basis. Judge Zoss found that the ALJ failed to credit Dr. Dankle's opinion that Meyerhoff "likely will need to change positions on a regular basis," and would only be able to "stand, move about, walk, and sit at her tolerance." Judge Zoss also found that the ALJ failed to include the appropriate limitation, on Meyerhoff's ability to sit, from the residual functional capacity, in thehypothetical question to the VE. Not only did Judge Zoss find that substantial evidence supported a finding that Meyerhoff would be unable to sustain full-time employment on a sustained basis, but that the record "overwhelmingly supports" an immediate finding of disability, allowing reversal and an immediate finding of disability, in accordance with Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000). Judge Zoss concluded that the remaining issue to be determined is the applicable time period of Meyerhoff's disability, noting that the ALJ did not make any determination as to whether or not Meyerhoff's prior applications should be reopened and, instead, only considered whether Meyerhoff had been disabled since August 17, 2006, the date that Meyerhoff had filed her most recent application. Therefore, Judge Zoss recommended that the Commissioner's decision be reversed and that the case be remanded for a determination of when Meyerhoff's disability began, and whether to reopen her prior applications, for purposes of calculation and immediate award of benefits.
On August 9, 2010, the Commissioner filed Objections To The Report And Recommendation (docket no. 16). The Commissioner objects to Judge Zoss's conclusion that the case needs to be remanded for further proceedings related to the reopening of prior applications. The Commissioner argues that generally, a claimant loses the right to further review of a determination if the claimant does not request further review within the stated time period. See 20 C.F.R. § 416.1487. The Commissioner argues that, while a determination may be reopened "within 12 months of the date of the notice of the initial determination, for any reason," pursuant to 20 C.F.R. § 416.1488(a), the ALJ did not reopen the prior final determinations in this case. On this basis, the Commissioner argues, that the ALJ's decision not to reopen prior applications is not subject to judicial review, citing to Efinchuk v. Astrue, 480 F.3d 846, 848 (8th Cir. 2007). The Commissioner, however, argues that remand for further consideration of whether Meyerhoff is disabled,rather than reversal and award of benefits, is the appropriate remedy in this case. The Commissioner argues that there is not "overwhelming evidence" supporting an "immediate finding of disability," as required by Buckner v. Apfel, 213 F.3d. 1006, 1011 (8th Cir. 2000).
B. Factual Background
No party has objected to any of Judge Zoss's findings of fact. Thus, this summary of the factual background to Meyerhoff's disability claims is drawn from Judge Zoss's more exhaustive statement. However, this summary focuses somewhat more specifically on the factual issues that the court finds are relevant to the determination of whether or not overwhelming evidence supports Meyerhoff's claim of disability, although enough other facts are presented to provide necessary factual context.
1. Introductory facts and Meyerhoff's hearing testimony
Meyerhoff was 54 years old at the time of the hearing on April 9, 2009. She last worked full time prior to 2004, as a housekeeper at a Holiday Inn Express. Prior to her employment at the Holiday Inn Express, Meyerhoff worked for ServiceMaster in another cleaning job. Both of the cleaning jobs required her to be on her feet all of the time, do vacuuming and dusting, picking up garbage, cleaning restrooms, and lifting from twenty to fifty pounds. (R. 42) She stated that she stopped working altogether due to "burning pains up in [her] upper thighs." (R. 41)
Meyerhoff stated that she was diagnosed with fibromyalgia in 1997, when she was working for ServiceMaster. She began having problems with her elbow that caused her to seek medical attention. That led to a referral to a specialist, who x-rayed her back and diagnosed fibromyalgia. She also has been diagnosed with spinal stenosis. (R. 42-43)
Meyerhoff stated she has pain in her lower back, on the left side of her neck, and along her shoulders. She has been tested for fibromyalgia "trigger points," which apparently were positive, but, to her knowledge, there is no treatment for the condition. She did physical therapy and learned some exercises, which she does every day. She takes Tylenol regularly for pain, but she has declined to take any stronger pain medication. She also uses heat at times, which helps her pain somewhat. Meyerhoff testified that she can sit about ten to fifteen minutes without shifting positions and that she sometimes has to lie down. (R. 44-45) She also stated that after sitting for about fifteen minutes, she will get up and move around for awhile until her legs start hurting, when she sits down again. (R. 45)
Meyerhoff also has headaches that require her to sit and rest, or lie down, about three times a week. Meyerhoff believes that these are a symptom of fibromyalgia. (R. 46) Meyerhoff indicated her neck pain is getting worse, and she...
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