Thesing v. Colvin
| Decision Date | 24 July 2014 |
| Docket Number | CIV. NO. 13-1079 (JRT/JSM) |
| Parties | HERBERT A. THESING, Plaintiff, v. CAROLYN W. COLVIN, Defendant. |
| Court | U.S. District Court — District of Minnesota |
This matter is before the Court on cross-motions for summary judgment. [Docket Nos. 13 and 15]. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).
For the reasons discussed below, it is recommended that Plaintiff's Motion for Summary Judgment [Docket No. 13] be GRANTED and that Defendant's Motion for Summary Judgment [Docket No. 15] be DENIED.
Plaintiff Herbert Thesing protectively filed for disability insurance benefits ("DIB") on August 30, 2010. (Tr. 98). Thesing alleged an onset date of June 23, 2010, based on depression, bi-polar disorder, anxiety, panic attacks, Attention Deficit Disorder (ADD), Attention Deficit Hyperactivity Disorder (ADHD), migraines, sleep issues and a rotator cuff injury. (Tr. 106). The Social Security Administration ("SSA") denied Thesing's application on November 22, 2010, and on reconsideration on February 1, 2011. (Tr. 101-110). Thesing requested a hearing pursuant to 20 C.F.R. 404.929 et. seq. and 416.1429 et. seq. (Tr. 111-112). A hearing was held on May 10, 2012, beforeAdministrative Law Judge ("ALJ") Lisa Groeneveld-Meijer. (Tr. 31-72). Thesing was represented by counsel. Edward J. Utities, a vocational expert ("VE") testified at the hearing, as did Thesing. (Id.).
On May 22, 2012, the ALJ issued her decision denying benefits. (Tr. 8-22). On June 22, 2012, Thesing sought a review of the ALJ's decision by the SSA's Appeals Counsel. (Tr. 7). On March 15, 2013, the Appeals Council denied Thesing's request for review, making the ALJ's decision final. (Tr. 1-6). See 20 C.F.R. §§ 404.981, 416.1481 42 U.S.C. § 405(g); Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992); 20 C.F.R. §§ 404.981, 416.1481.
Thesing sought review of the ALJ's decision by filing a Complaint pursuant to 42 U.S.C. § 405. [Docket No. 1]. The parties have now cross-moved for summary judgment. [Docket Nos. 13 and 15].
Congress has prescribed the standards by which Social Security disability benefits may be awarded. The SSA shall find a person disabled if the claimant "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 1382c(a)(3)(A). The claimant's impairments must be "of such severity that (the claimant) 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. § 1382c(a)(3)(B). The impairment must last for a continuous period of at least twelve months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1509, 416.909.
If a claimant's initial application for benefits is denied, he or she may request reconsideration of the decision. 20 C.F.R. §§ 404.907-09, 416.1407-09. A claimant who is dissatisfied with the reconsidered decision may obtain administrative review by an ALJ. 42 U.S.C. §§ 405(b)(1), 1383(c)(1); 20 C.F.R. §§ 404.929, 416.1429. To determine the existence and extent of a claimant's disability, the ALJ must follow a five-step sequential analysis, requiring the ALJ to make a series of factual findings regarding the claimant's work history, impairment, residual functional capacity, past work, age, education and work experience. See 20 C.F.R. §§ 404.1520, 416.920; see also Locher v. Sullivan, 968 F.2d 727 (8th Cir. 1992). The Eighth Circuit described this five-step process as follows:
The Commissioner of Social Security must evaluate: (1) whether the claimant is presently engaged in a substantial gainful activity; (2) whether the claimant has a severe impairment 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; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.
Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003).
If the claimant is dissatisfied with the ALJ's decision, he or she may request review by the Appeals Council, though review is not automatic. 20 C.F.R. §§ 404.967-404.982, 416.1467-1482. The decision of the Appeals Council (or of the ALJ, if the request for review is denied) is final and binding upon the claimant unless the matter isappealed to Federal District Court within sixty days after notice of the Appeals Council's action. 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481.
Judicial review of the administrative decision generally proceeds by considering the decision of the ALJ at each of the five steps. The Court is required to review the administrative record as a whole and to consider:
3. The medical evidence from treating and consulting physicians.
4. The plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments.
5. Any corroboration by third parties of plaintiff's impairments.
6. The testimony of vocational experts, when required, which is based upon a proper hypothetical question which sets forth plaintiff's impairment.
Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989) (citing Brand v. Secretary of HEW, 623 F.2d 523, 527 (8th Cir. 1980)).
This Court's review is limited to determining whether the ALJ's decision is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008); Johnson v. Apfel, 210 F.3d 870, 874 (8th Cir. 2000); Clark v. Chater, 75 F.3d 414, 416 (8th Cir. 1996). "We may reverse and remand findings of the Commissioner only when such findings are not supported by substantial evidence on the record as a whole." Buckner v. Apfel, 213 F.3d 1006, 1012 (8th Cir. 2000) (citation omitted).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Buckner, 213 F.3d at 1012 (quoting Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)); see also Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009) (citing Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)) (same); Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998) (same).
In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441, 445 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence. Culbertson, 30 F.3d at 939. The Court should not reverse the Commissioner's finding merely because evidence may exist to support the opposite conclusion. Buckner, 213 F.3d at 1011; Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994); see also Woolf, 3 F.3d at 1213 (). Instead, the Court must consider "the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Gavin v. Apfel, 811 F.2d 1195, 1199 (8th Cir. 1987); see also Heino v. Astrue, 578 F.3d 873, 878 (8th Cir. 2009) (quoting Jackson v. Bowen, 873 F.2d 1111, 1113 (8th Cir. 1989)) (same).
The claimant bears the burden of proving his or her entitlement to disability insurance benefits under the Act. See 20 C.F.R. §§ 404.1512(a), 416.912(a); Thomasv. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). Once the claimant has demonstrated he or she cannot perform prior work due to a disability, the burden of proof then shifts to the Commissioner to show that the claimant can engage in some other substantial, gainful activity. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005).
The ALJ made the following determinations under the five-step process. At step one, she determined that Thesing had not engaged in substantial gainful activity since August 30, 2010, the date he applied for benefits. (Tr. 13). At step two, the ALJ found Thesing had the following severe impairments: right shoulder degenerative disease and rotator cuff tears/tendonitis, status post multiple surgeries; bipolar disorder, schizoaffective disorder, ADHD, borderline personality disorder; and amphetamine dependence (in remission) and cannabis dependence. 1 (Id.).
At step three, the ALJ found that Thesing's impairments or combinations of impairments did not meet or equal one of the listed impairments in 20 C.F.R. §404, Subpart P, Appendix 1. (Tr. 14). In particular, the ALJ concluded that Thesing's mental impairments, considered singly and in combination, did not meet or medically equal the criteria of Listings 12.02 (Organic Mental Disorders), 12.04 (Affective Disorders), 12.08 (Personality Disorders), or 12.09 (Substance Addiction Disorders). (Id.) In reaching this conclusion, the ALJ first considered whether the "B" criteria of the Listings were met— i.e....
To continue reading
Request your trial