Opinion
3:02-cv-90162
April 8, 2004
ORDER
Plaintiff, Carol Martin, filed a Complaint in this Court on December 23, 2002, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. and 1381 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g). For the reasons set out herein, the decision of the Commissioner is reversed.
BACKGROUND
Plaintiff filed applications for Social Security Disability Benefits on March 26, 2001. Tr. at 259-61, 440-43. Plaintiff claimed to have become disabled January 1, 2001. Tr. at 259. After the applications were denied initially and on reconsideration, a hearing was held before Administrative Law Judge Thomas M. Donahue (ALT) on April 16, 2002. Tr. at 665-97. The ALJ issued a Notice Of Decision — Unfavorable on July 25, 2002. Tr. at 13-31. After the ALJ's decision was affirmed by the Appeals Council on November 14, 2002, Plaintiff filed a Complaint in this Court on December 23, 2002. On March 3, 2003, Defendant moved to remand the case because she was unable to provide a record of the administrative proceedings for judicial review. The Motion was granted on March 4, 2003. On August 15, 2003, the Commissioner informed the Court that a record had been prepared and moved the Court to reopen the case. The case was reopened on August 18, 2003, and was fully briefed on January 7, 2004.
Plaintiff filed previous applications for benefits on November 17, 1999. Tr. at 62-64 229-31. On these applications, Plaintiff claimed November 1, 1999, as the onset of disability. Tr. at 62. These applications were denied initially on January 18, 2000 (Tr. at 50) and on Reconsideration on April 19, 2000 (Tr. at 56). Plaintiff requested a hearing on May 11, 2000. Tr. at 60. On February 28, 2001, Plaintiff, through counsel, wrote to Administrative Law Judge J. Michael Johnson to confirm a phone message that Plaintiff was dismissing her application. Tr. at 61. On March 5, 2001, Judge Johnson issued a Notice of Dismissal. Tr. at 238-40. In the decision of July 25, 2002, the ALJ noted that although the new application indicated an onset of disability of January 1, 2001, correspondence from claimant's attorney reflected the old onset date of January 1, 2001. The ALJ, however, found no good cause to reopen and change the determination in the prior application and established April 2, 2001, as the earliest date of onset of disability for consideration in the second application. Tr. at 16. Plaintiff argues that the Court has jurisdiction to overrule that finding. The Court does not agree that it has subject matter jurisdiction. Because the first application was not decided with a final decision made after a hearing, reopening is a matter committed to the Commissioner's discretion and may be decided without a hearing. Brock v. Shalala, 48 F.3d 348, 351 (8th Cir. 1995) citing 42 U.S.C. § 405(g) and Califano v. Sanders, 430 U.S. 107-08, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977). Although a hearing commenced on January 16, 2001 (Tr. at 457-64), the hearing was adjourned after nine minutes so that Plaintiff could submit employment records which would establish whether or not she had been engaged in substantial gainful activity. Therefore, Judge Johnson did not hear any evidence on the issue of Plaintiff's impairments or limitations, and did not make a decision on any of the steps of the sequential evaluation. The Order Of Dismissal, therefore, was not a final decision made after a hearing subject to judicial review under § 405(g).
Plaintiff was admitted to Mercy Hospital in Iowa City, Iowa from January 9 to 11, 1998. On January 9, she underwent bone grafting from her right hip to her right knee. An external fixator was used to protect the pins that were inserted into her leg. On discharge, she was instructed that she could bear weight as tolerated. Tr. at 158. Because of an infection, Plaintiff was hospitalized again from January 22 to 26, 1998. During this hospitalization the fixator and pins were removed. Tr. at 166. Plaintiff saw Mark C. Mysnyk, M.D. several times from the time of discharge through December of 1998. Tr. at 174-77. By February 5, 1998, Plaintiff was no longer taking Vicodin and was getting by with ibuprofen and tylenol. She was making two 15 minute walks a day and was progressing slowly. On March 26, 1998, Plaintiff reported that she was taking 1600 mg of ibuprofen, which Dr. Mysnyk thought was too much but noted that Plaintiff's family doctor knew about it and had prescribed Tagamet. X-rays showed no significant change and Plaintiff said she felt up to getting back to work the next week. Dr. Mysnyk released her for 6 hour days. He said that after two weeks, she could progress to 7 hour days for two weeks and thereafter to 8 hour days. Tr. at 176. On August 27, 1998, Dr. Mysnyk wrote that Plaintiff had lost 57 lbs. Plaintiff was working six-hour days. The doctor opined that Plaintiff was making slow improvement. Tr. at 175. On October 8, 1998, Plaintiff was alternating six and eight-hour days. She reported that her car had broken down and she had to walk two miles earlier in the week. On November 9, 1998, Plaintiff saw Dr. Mysnyk because she was in a great deal of pain. The doctor recommended staying off work for two weeks. When she returned on December 10, 1998, she was alternating six and eight hour days and was doing well. Tr. at 174.
Plaintiff was seen by Dr. Mysnyk on May 27, 1999, because of pain in her left knee. The pain had begun about a month and a half before the evaluation. X-rays showed bone-on-bone in the medial compartment and severe degenerative changes at the patellofemoral joint and spurring laterally. Dr. Mysnyk's impression was that Plaintiff had three compartment degenerative joint disease. Because of Plaintiff's young age, he did not recommend a knee replacement. Tr. at 172. On June 4, 1999, Plaintiff sought medical permission to work at a job which allowed for sitting half the day and using a cart to move around the other half of the day. She was instructed that she could return to work. Tr. at 171.
Plaintiff's family doctor is Ann Broderick, M.D. Tr. at 189-210. On August 26, 1998, Dr. Broderick's assessment included: "Reactive depression with good response on Paxil. Plaintiff was seen by Juan A. Aquino, Ph.D. on March 21, 2000, at the request of Disability Determination Services. Tr. at 211-13. Plaintiff was living by herself. She said that when she is not working, she does some laundry or household chores including vacuuming or cooking. Tr. at 211. She said that she does not do yard work or shovel snow, that she pays a neighbor to do those things. On mental status examination, the smell of smoke emanated from Plaintiff's clothing and she appeared to be overweight. After his examination Dr. Aquino diagnosed Major Depressive Disorder and "Rule out Panic Disorder without Agoraphobia." Plaintiff said that Paxil was helpful and she wanted to continue taking it. Tr. at 213.
On December 11, 2000, Dr. Mysnyk opined that Plaintiff met the requirements of Social Security Listing 1.03. The Doctor wrote:
Based on the description that you sent me, I think Carol Martin does meet the requirements to satisfy Social Security listing 1.03. Her knee flexion is only to 120 [degrees], and normal flexion would be to 135-140 [degrees]. Her x-rays have shown that she has severe degenerative changes. At surgery 11-13-96, she was bone-on-bone in the patellofemoral joint and in the medial compartment. Therefore, she has confirmation by direct view at arthroscopy, plus x-rays of the severe degenerative changes. Her motion is limited, and she has significant pain associated with it.
Tr. at 226.
Plaintiff was seen for an intake interview by the Iowa Department of Vocational Rehabilitation on March 17, 2000. During the intake process, Plaintiff registered for work at the Workforce Center, and was offered a job as a substitute at a dry cleaners. Plaintiff said that the job would not offer enough hours to support her. Tr. at 320. On May 9, 2000, it was noted that Plaintiff had been cleaning a post office, but that being on her feet for 20 hours a week was very painful. She had recently taken a job driving a shuttle bus. On July 25, 2000, the counselor wrote that Plaintiff was still working as a bus driver and was looking for other jobs. Tr. at 321. A note dated November 27, 2000, states that in addition to working as a bus driver, Plaintiff had taken a seasonal job in a retail store. Although it was difficult for Plaintiff to be on her feet as much as required, she managed to do it because she needed the money. Tr. at 323. The note dated December 19, 2000, states that the institution for which Plaintiff was driving bus had offered her some extra hours working in the cafeteria. Tr. at 322.
Plaintiff was seen at the University of Iowa Hospitals and Clinics, on February 1, 2001. She had transferred her care to the University for financial reasons. Plaintiff related her history of surgeries on her right knee and said that she was seeking care for her left knee. At the time of the examination, Plaintiff was using a cane or walker. She was still driving the bus, but noted difficulty getting in and out of it. Tr. at 340. X-rays of the left knee showed severe subluxation and varus deformity with tricompartmental degenerative changes. The diagnosis was left knee severe osteoarthritis. Plans were made for a total knee arthroplasty. Tr. at 343. Plaintiff underwent a total left knee replacement on April 9, 2001. Charles R. Clark, M.D. was the attending surgeon. Tr. at 348. Plaintiff's condition on discharge from the hospital on April 13, 2001, was ambulatory and independent. Tr. at 351.
Plaintiff underwent a second psychological evaluation at the request of Disability Determination Services on May 17, 2001, by James N. Marchman, Ph.D. Tr. at 354-55. Dr. Marchman diagnosed a generalized anxiety disorder with mild depression. Dr. Marchman said that Plaintiff's cognitive function appeared to be intact although he noted significant dyslexia. He said that Plaintiff does not respond well to stress. Tr. at 355.
Plaintiff was seen at the Family Care Center at the University on May 8, 2001. On examination, Plaintiff's extremities demonstrated no edema, a fairly good range of motion, and intact muscle strength. Plaintiff complained of leg cramps, but the examining doctor wrote that the cramps were likely due to improved activity following surgery. Tr. at 382. When Plaintiff was seen on June 21, 2001, she complained of chronic right shoulder pain. Although she had the pain for about seven years, it had become more problematic in the previous year. The pain was in the right shoulder extending to the right side of her neck. The doctor opined that the pain had a radicular component which might be related to disk disease. The doctor ordered thoracic and cervical spine films and prescribed amitriptyline for possible neuropathic pain. Tr. at 380. When Plaintiff was seen on July 13, 2001, the doctor wrote that the cervical spine x-rays showed changes consistent with advanced degenerative disc disease. Plaintiff described her symptoms as a sharp pain originating around her scapula and radiating down her arm. The pain was aggravated by activity and relieved with rest. Tr. at 378. The doctor discontinued the amitriptyline and began Neurontin. Tr. at 379.
Plaintiff saw Dr. Clark, who did her knee surgery, on July 24, 2001. Plaintiff reported that she was not doing as well as she would like. On examination it was noted that she walked with a limp. She had significant atrophy of her left thigh and there was pain with range of motion. Dr. Clark opined that the focus of treatment should be on strengthening exercises. Tr. at 377.
When Plaintiff was seen for her shoulder pain on August 10, 2001, she reported good results from the Neurontin. "However, it appears that she is not taking the Neurontin on a regular basis." Plaintiff reported morning stiffness which seemed to resolve after 30 or 45 minutes. Tr. at 397.
Plaintiff was hospitalized at the University September 7 to 11, 2001. Plaintiff went to the emergency room and reported that she had been having chest pain for three days. The pain came on after she had been doing yard work. She also had shortness of breath and diaphoresis along with the pain. Plaintiff was admitted to the hospital and a myocardial infarction was ruled out. There was no evidence of acute pulmonary embolism. A thallium stress test showed a reversible defect in the anterior and apical wall of the heart. During the hospital stay, Plaintiff showed signs of COPD and chronic bronchitis for which an inhaler was prescribed. Tr. at 416. Upon discharge, Plaintiff was ambulatory without chest pain or shortness of breath. Tr. at 417.
Plaintiff saw Joseph J. Chen, M.D. on October 18, 2001, at the University's orthopaedic clinic. Tr. at 418-19. During his examination, the doctor noted that Plaintiff exhibited some dramatic pain behavior with light palpation of her spine and upper extremities. Tr. at 418. After his examination, Dr. Chen opined that Plaintiff had chronic myofascial neck pain. He found no definite evidence of a radiculopathy. The doctor wrote that he and Plaintiff discussed a home exercise program aimed at improving posture, flexibility and back and neck strengthening. Dr. Chen arranged for Plaintiff to see a physical therapist. Tr. at 419. Plaintiff was seen at the University on October 19, 2001. Plaintiff said that the Neurontin had provided a significant amount of relief for her shoulder. Tr. at 399.
When Plaintiff was seen on November 2, 2001, she reported several episodes of chest pain which occurred at night while at rest. She did not use nitroglycerin and she was not taking an aspirin as had been recommended. The doctor noted that over the previous weekend, Plaintiff had raked approximately 18 bags of leaves and did not experience any chest pain. The diagnoses included atypical chest pain as well as coronary artery disease, chronic obstructive pulmonary disease, depression, chronic right shoulder pain, history of renal insufficiency, elevated transaminases, gastroesophageal reflux disease, perimenopausal and bloating. Tr. at 401. On January 25, 2002, Plaintiff said that she had done reasonably well since her last visit, but she complained of pain at the base of her right thumb. The doctor noted Plaintiff's extensive history of osteoarthritis. Plaintiff said with one exception, the episodes of chest pain had resolved. Tr. at 404. In a letter dated February 8, 2002, from the doctors at the University, Plaintiff was informed that x-rays of her hand revealed changes consistent with very severe osteoarthritis. Tr. at 407.
At the administrative hearing, after Plaintiff had testified, the ALJ called Barbara Laughlin to testify as a vocational expert. Tr. at 491. The ALJ asked the following hypothetical question:
First would be age 48 female. She has a GED, two years of college, can lift up to ten pounds occasionally, ten pounds frequently, sitting up to two hours at a time for six of an eight-hour day, standing up to two hours at a time for five of an eight-hour day, only occasional climbing of ramps and stairs, only occasional balancing, stooping, kneeling, crouching and bending, rarely crawling. Would be limited to simple routine tasks due to problems with concentration. Based on this hypothetical, would the claimant be able to do any of her past relevant work?
Tr. at 493. In response, the vocational expert testified that Plaintiff could do the job of cook helper, which she was doing at the time of the hearing, and the job of assembler which was listed as one of Plaintiff's past jobs (Tr. at 334). The vocational expert went on to identify two jobs to which Plaintiff's skills would transfer and several unskilled sedentary jobs. The vocational expert testified that Plaintiff's transferable skills were "record-keeping, care of others [INAUDIBLE] she did operate a bus, trained others in daily skills. According to the vocational expert, these skills transfer to jobs such as customer service representative, and telephone solicitor. The vocational expert also identified unskilled jobs such as document preparer, addresser, call-out operator, and telephone quote clerk. When the inability to complete a normal work day or work week was added to the hypothetical, the vocational expert said that competitive work was not possible. Tr. at 493-94.
In his decision, following the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 2, 2001. The ALJ found that Plaintiff has severe chronic right shoulder pain with paresthesias; bilateral osteoarthritis of the knees, status post total left knee replacement; and, degenerative disc disease of the cervical spine. The ALJ found that none of these impairments, alone or in combination, met or equaled any found in Appendix 1, Subpart P, Regulations number 4. The ALJ found that Plaintiff is unable to perform any of her past relevant work but that she could perform the type of work identified by the vocational expert at the hearing. The ALJ found that Plaintiff has a residual functional capacity consistent with his first hypothetical question quoted above. Tr. at 23. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 24.
DISCUSSION
The scope of this Court's review is whether the decision of the Secretary in denying disability benefits is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). See Lorenzen v. Chater, 71 F.3d 316, 318 (8th Cir. 1995). Substantial evidence is less than a preponderance, but enough so that a reasonable mind might accept it as adequate to support the conclusion. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996). We must consider both evidence that supports the Secretary's decision and that which detracts from it, but the denial of benefits shall not be overturned merely because substantial evidence exists in the record to support a contrary decision. Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996) (citations omitted). When evaluating contradictory evidence, if two inconsistent positions are possible and one represents the Secretary's findings, this Court must affirm. Orrick v. Sullivan, 966 F.2d 368, 371 (8th Cir. 1992) (citation omitted).Fenton v. Apfel, 149 F.3d 907, 910-11 (8th Cir. 1998).
In Barnett v. Barnhart, — F.3d — 2004 WL 635409 (8th Cir. April 1, 2004), at *2 the Court, citing Menendez-Donis, v. Ashcroft, — F.3d —, 2004 WL 307451, at *2 (8th Cir. February 9, 2004), wrote, "Before we can reverse we must find that it would not be possible for any reasonable fact-finder to come to the conclusion reached by the [ALJ]." In Menendez-Donis, Judge Morris Sheppard Arnold explained that the substantial evidence standard was originally imported into administrative law from cases dealing with the review of jury verdicts. Review of administrative decisions "has always involved a large amount of deference to the relevant fact-finder." The Court continued: "[U]nder the substantial evidence standard we cannot substitute our determination for that of the administrative fact-finder just because we believe that the fact-finder is clearly wrong. Rather, before we can reverse we must find that it would not be possible for any reasonable fact-finder to come to the conclusion reached by the administrator." Citations omitted. Nevertheless, the opinion continues, Universal Camera Corp. v. NLRB, 340 U.S. 472, 487-88, 71 S.Ct. 456, 95 L.Ed. 456 (1951), holds that the substantiality of the evidence must take into account whatever in the record fairly detracts from its weight. As Judge Lay wrote in Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987), the substantial evidence on the record as a whole test requires a "scrutinizing analysis," and a "searching inquiry." In Stark v. Weinberger, 497 F.2d 1092, 1099 n. 14 (7th Cir. 1974) Circuit Judge, now Mr. Justice, wrote:
We must of course, affirm the Secretary's decision if it is supported by substantial evidence. 42 U.S.C. § 405(g); Bartell v. Cohen, 445 F.2d 80, 82 (7th Cir. 1971). However, this does not mean that the findings of the administrative agency must be blindly accepted. On the contrary, the statutorily-granted right of review contemplates more than an uncritical rubber stamping of the administrative action. Byrd v. Richardson, 362 F. Supp. 957, 959 (D.S.C. 1973).
Furthermore, as Judge Bright wrote in Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir. 2003), "We do not defer to the ALJ's legal conclusions." The most concise statement of this standard was stated in Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir. 1975) when Judge Stephenson wrote: "In making this inquiry, we should neither consider a claim de novo, nor abdicate our function to carefully analyze the entire record in conducting a review."
Plaintiff first argues that she should have been found disabled at the third step of the sequential evaluation because she meets the requirement of 1.03 of the listings. In support, she points to the letter dated December 11, 2000, from Dr. Mysnyk. See Tr. at 226. Whether one consults the regulation in effect when the doctor wrote his letter, or the later revised listing (See, e.g., Fredrickson v. Barnhart, 359 F.3d 972, 977 n. 3 (8th Cir. 2004)), in order to meet the requirements it is necessary to show that the claimant has a marked inability to stand and/or walk. There is ample evidence in this record to support Plaintiff's ability to walk both with and without assistance. "For a claimant to show that her impairment matches a listed impairment, she must show that she meets all of the specified medical criteria." Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004). The ALJ's finding that Plaintiff does not qualify at step 3 of the sequential evaluation is supported by substantial evidence on the record as a whole.
In the case at bar, there is substantial medical and other evidence which supports the ALJ's finding that Plaintiff is limited to sedentary work activity. The vocational expert's testimony, however, is completely inadequate on the issues of past relevant work and transferable skills. In response to the ALJ's hypothetical, the vocational expert testified that Plaintiff would be able to do her past relevant work as an assembler. This is a light job, both as she performed it and as the job is described in the Dictionary of Occupational Titles (DOT). See e.g. Tr. at 334. Although the ALJ properly found that Plaintiff is unable to return to this or any other of her past relevant work, the vocational expert's testimony that Plaintiff can return to past relevant work is not substantial evidence and the ALJ was correct to reject it. As will be shown below, the ALJ should have rejected other aspects of the vocational expert's testimony as well.
The vocational expert listed the job of Mental Retardation Aide on Plaintiff's past work summary. Tr. at 334. According to the DOT, this is a skilled job which takes between one and two years to learn. The DOT describes the job:
Assists in providing self-care training and therapeutic treatments to residents of mental retardation center: Demonstrates activities such as bathing and dressing to train residents in daily self-care practices. Converses with residents to reinforce positive behaviors and to promote social interaction. Serves meals and eats with residents to act as role model. Accompanies residents on shopping trips and instructs and counsels residents in purchase of personal items. Aids staff in administering therapeutic activities, such as physical exercises, occupational arts and crafts, and recreational games, to residents. Restrains disruptive residents to prevent injury to themselves and others. Observes and documents residents' behaviors, such as speech production, feeding patterns, and toilet training, to facilitate assessment and development of treatment goals. Attends to routine health-care needs of residents under supervision of medical personnel. May give medications as prescribed by physician. May train parents or guardians in care of deinstitutionalized residents.
DOT 355.377-018. The Court has searched the record of this case, without success, to find some support for this job being listed among Plaintiff's past relevant work. There was no testimony regarding this job. Plaintiff's past work consisted of bus driver, bus aide, assembler, lunch preparer, and nurse aide. Tr. at 112. In none of these jobs did Plaintiff do the duties described above. This highly skilled job should not have been part of Plaintiff's past work. The remainder of the jobs listed were either semi-skilled (nurse aide, janitor, and bus driver) or unskilled (assembler and cook helper). Tr. at 334. From these jobs, the vocational expert testified that Plaintiff acquired skills of record keeping, care of others, operate a bus, and trained others in daily skills. The vocational expert testified that these skills would transfer to the jobs of customer service representative and telephone solicitor. This testimony is not substantial evidence for several reasons. First, the job of customer service representative is a skilled job requiring between six months and one year to learn. Plaintiff's only acquired skills are from semi-skilled employment. 20 C.F.R. § 404.1568(d)(2)(I), states that in order for skills to be considered transferable, they must transfer to jobs with the same or lesser degree of skill.
The job of telephone solicitor is a semi-skilled job, but there is no indication in the vocational expert's testimony how the jobs of nurse aide, janitor, and bus driver, provide the skills necessary to do the work of a phone solicitor. In Fines v. Apfel, 149 F.3d 893, 896 (8th Cir. 1998), Judge Heaney, citing Social Security Ruling 82-41, wrote that transferability is defined as applying work skills which a person has demonstrated in vocationally relevant past jobs to meet the requirements of other skilled or semiskilled jobs.
Yet another reason for rejecting the vocational expert's testimony is that the ALJ's hypothetical stated that Plaintiff would be limited to simple routine tasks due to problems with concentration. As Judge Heaney points out in Fines, 20 C.F.R. § 404.1568(b), states that semiskilled jobs require alertness and close attention. The ALJ's hypothetical, therefore, clearly limits Plaintiff to unskilled sedentary work.
In McCoy v. Schweiker, 683 F.2d 1138, 1148 (8th Cir. 1982) (en banc), the Court, referring to the Medical Vocational Guidelines, wrote: "If an individual has a combination of exertional and non-exertional impairments, the Guidelines are first considered to determine whether he is entitled to a finding of disability based on exertional impairments alone." Plaintiff was born September 12, 1953. Tr. at 75. Plaintiff is insured for Title II benefits through the end of December, 2005. Tr. at 262. She was 50 years old on September 12, 2003. Rule 201.14 of the medical vocational guidelines provides that an individual who cannot return to past relevant work, who is 50 years old, who has a high school education, and who does not have transferable skills, is entitled to a finding of disability. Plaintiff, therefore, is entitled to a finding of disability as of her fiftieth birthday. In McKinney v. Apfel, 228 F.3d 860 (8th Cir. 2000), the ALJ found that the claimant was able to do a full range of light work. On appeal, McKinney attained the age of 55 and the Appeals Council awarded benefits as of that date. In the case at bar, while the claimant may not be able to do a full range of sedentary work, vocational expert testimony, flawed though it may be in other respects, establishes the existence of unskilled sedentary work for a person with Plaintiff's impairments and limitations. Plaintiff, therefore, is entitled to a finding of disability from and after her fiftieth birthday, but not before.
In Ingram v. Barnhart, 303 F.3d 890, 895, (8th Cir. 2002), the Court wrote that the ordinary remedy in cases where the decision to deny benefits is improper is to remand for further proceedings out of an abundance of deference to the agency. However, the Court continued, if overwhelming evidence supports a finding of disability, the court may reverse the Commissioner's decision outright and award benefits. Such is the situation in the case at bar.
CONCLUSION AND DECISION
It is the holding of this Court that Commissioner's final decision that Plaintiff is not disabled is not supported by substantial evidence on the record as a whole. The Court finds that the evidence in this record is transparently one sided against the Commissioner's decision. See Bradley v. Bowen, 660 F. Supp. 276, 279 (W.D. Arkansas 1987). A remand to take additional evidence would only delay the receipt of benefits to which Plaintiff is entitled.
The final decision of the Commissioner is reversed in part and affirmed in part. The Commissioner is ordered to award Plaintiff the benefits to which she is entitled, from and after her fiftieth birthday. The decision is affirmed for the period of time prior to the fiftieth birthday.
The judgment to be entered will trigger the running of the time in which to file an application for attorney's fees under 28 U.S.C. § 2412 (d)(1)(B) (Equal Access to Justice Act). See also, McDannel v. Apfel, 78 F. Supp.2d 944 (S.D. Iowa 1999) (discussing, among other things, the relationship between the EAJA and fees under 42 U.S.C. § 406 B), and LR 54.2(b).
N.B. Counsel is reminded that LR 54.2(b), states that an EAJA application "must specifically identify the positions taken by the government in the case that the applicant alleges were not substantially justified."
IT is so ORDERED.