Opinion
1:22-cv-19 RP-SBJ
2023-07-18
Dawn HOUGH, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.
Casey B. Stettler, SANDBERG, STETTLER & BLOXHAM, KAYSVILLE, UT, for Plaintiff. SSA-Office of the General Counsel, Woodlawn, MD, Rachel J. Scherle, UNITED STATES ATTORNEY'S OFFICE, DES MOINES, IA, for Defendant.
Casey B. Stettler, SANDBERG, STETTLER & BLOXHAM, KAYSVILLE, UT, for Plaintiff. SSA-Office of the General Counsel, Woodlawn, MD, Rachel J. Scherle, UNITED STATES ATTORNEY'S OFFICE, DES MOINES, IA, for Defendant. MEMORANDUM OPINION AND ORDER ROBERT W. PRATT, UNITED STATES DISTRICT JUDGE
Plaintiff, Dawn Hough, filed a Complaint in this Court on November 2, 2022, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).
On May 28, 2020, Plaintiff filed an application for Title XVI benefits. Tr. at 171-76. After the application was denied initially and on reconsideration, Plaintiff appeared before Administrative Law Judge (ALJ) Jan Dutton on October 14, 2021. Tr. at 35-64. The ALJ issued a Notice of Decision - Unfavorable on October 27, 2021. Tr. at 13-29. On September 7, 2022, the Appeals Council denied Plaintiff's request for review. Tr. at 1-3. Thereafter, Plaintiff filed her Complaint in this Court. Both parties filed briefs and Plaintiff filed a reply brief. The matter is fully submitted.
THE ALJ's FINDINGS
At the first step of the sequential evaluation the ALJ found that Plaintiff has not engaged in substantial gainful activity since May 28, 2020, the date of the application. The ALJ found Plaintiff has the following severe impairments: anxiety, bipolar depression, arthritis of the bilateral hands, and obesity. Tr. at 19. The ALJ found that Plaintiff's impairments, alone or in combination, do not meet or equal a listed impairment. Tr. at 20. The ALJ found:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except she can only use her hands frequently, not constantly, for handling, fingering, and feeling and must be limited to simple, routine tasks with no more than occasional contact with coworkers, supervisors, and members of the public.Tr. at 24. At the fourth step, the ALJ found Plaintiff has no past relevant work. At the fifth step, the ALJ found there are a significant number of jobs that Plaintiff can perform, examples of which are mail clerk, marker, and collator operator. The ALJ found Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 25.
SUMMARY OF RELEVANT MEDICAL EVIDENCE
The bone of contention in this case is whether or not Plaintiff retains the mental residual functional capacity to perform substantial gainful activity as found by the ALJ. The physical residual functional capacity is not in dispute. For that reason, the Court will focus this discussion on the medical evidence that relates to Plaintiff's mental status.
On September 6, 2019, Plaintiff saw Kathryn Hajj, M.D. Tr. at 302-06. It was noted that Plaintiff used an unspecified amount alcohol daily. Plaintiff requested that the doctor write letter to the landlord requesting a change of apartment so that Plaintiff could get improved sunlight, which Plaintiff thought would help her drink less. On the History of Present Illness, it was noted that Plaintiff seemed very anxious about her health and wellbeing. Plaintiff was agreeable to seeing one of the counselors at the clinic. Tr. at 302.
On January 2, 2020, Plaintiff saw Linda Garcia-Dorta, M.D. It was noted that Plaintiff had anxiety that been on-going for several years. Plaintiff was being treated with Xanax and Wellbutrin, but the doctor recommended that Plaintiff see a psychiatrist. Tr. at 292.
On May 5, 2020, Plaintiff saw Linda Garcia-Dorta, M.D. Tr. at 281-85. Plaintiff was seen for a medication check. Dr. Garcia-Dorta noted that services provided included a brief assessment, brief psychotherapy, medication management, and clinical guidance. The doctor noted that Plaintiff has anxiety and was irritable. Plaintiff had lost her daughter to foster care and later her daughter died in a school bus fire. Tr. at 281. Plaintiff reported that she preferred to see a provider in Omaha, and Dr. Garcia-Dorta made a referral. Tr. at 285.
On June 24, 2020, Plaintiff was seen by Andrew Martin, PMHNP for an initial psychiatric evaluation at the request of Plaintiff's primary care physician. Tr. at 271-75. Plaintiff reported taking Xanax for several months although she had not taken it for the previous two months. Plaintiff reported the onset of her panic attacks and anxiety after her daughter was killed in a school bus fire. Plaintiff was seeking treatment so that she could get back to school and/or work. Tr. at 271. Mr. Martin wrote:
-1st tx — patient states that she started very high anxiety after she lost her daughter in 2017. Daughter was almost 16 at this time. She started having issues with drinking before this and had some issues where her daughter was taken from her because of this. After daughter was taken from her at age 7 and patient tried to commit suicide by overdosing after this. She was taken to McDermott after being in critical care for this. When she lost her daughter again from the fire she began having even greater problems with anxiety.Tr. at 272-73. Plaintiff was encouraged to continue therapy. Plaintiff was told to restart sertraline which she had taken in the past. Plaintiff also agreed to begin Xanax and to try trazodone for sleep. Tr. at 274-75.
- past dx — anxiety, alcohol use disorder, depression.
-suicidal attempts — yes
-previous medications — Wellbutrin, Xanax, clonazepam, Zoloft, Prozac was too activating and caused suicidal ideation.
- previous hospitalizations (mental health) — one time after suicide attempt after patient's daughter was taken from her.
On September 3, 2020, Plaintiff saw Mr. Martin for medication management. Tr. at 311-13. Although Plaintiff reported that the medication had been helpful, she continued to report high anxiety and depression. Tr. at 311. The dosage of sertraline was increased for major depression and anxiety — the Xanax was discontinued and alprazclam was increased. Trazodone was discontinued and Mirtazapine was started to treat insomnia. Tr. at 313.
On November 24, 2020, Plaintiff saw Dr. Garcia-Dorta. Tr. at 320-25, and 340-45. Under History of Present Illness, it was noted that Plaintiff had a history of major depression. Of concern was that Plaintiff was having menstrual periods after not having any in three years. Tr. at 340. Among the chronic problems listed was anxiety which had an onset of October 22, 2015. Tr. at 341.
On April 29, 2021, Plaintiff underwent a pulmonary function test. Tr. at 427-33. It was noted that the test was terminated early due to Plaintiff not having enough breath, but it was also noted that Plaintiff could have given better effort. Tr. at 427.
On July 12, 2021, Plaintiff was seen at the emergency department at Methodist Health System in Council Bluffs, Iowa complaining of headaches. Tr. at 441-75. It was noted that Plaintiff had a history of brain surgery. Plaintiff also complained of chest pain and shortness of breath as well as pain in her right arm. Plaintiff reported that she "passes out" several times each day. Plaintiff admitted to increased alcohol intake since her daughter's death. Tr. at 451. A CT scan of the head without contrast showed no acute findings but Plaintiff was advised to follow up with her primary care physician because she may need to see a neurologist for the chronic headaches. Tr. at 455.
On July 14, 2021, Plaintiff saw Mr. Martin for medication management. Tr. at 435-37. Mr. Martin noted that Plaintiff had not been taking any of her mental health medication. Plaintiff reported that she was crying uncontrollably for no apparent reason. When Plaintiff thought of her deceased daughter, she found it hard to work and stop herself from crying. Plaintiff reported that her mood had been low and she worried that it would continue to get worse. Tr. at 435. Mr. Martin prescribed Venlafaxine and advised Plaintiff that she would need to take it consistently to avoid feeling sick. Gabapentin was prescribed for anxiety. Tr. at 436.
On August 16, 2021, Plaintiff saw Dr. Garcia-Dorta. Tr. at 541-46. Plaintiff reported being seen at least two times at an emergency room for headaches. Plaintiff had been told that a CT scan was normal. The doctor noted that during the intake examination Plaintiff was crying because she felt scared. Tr. at 541.
On September 2, 2021, Plaintiff saw Dr. Garcia-Dorta. Tr. at 531-35. Plaintiff complained of anxiety and fear. The doctor noted that Plaintiff "starts crying [f]or no reason or because of daughter death." The doctor noted a forthcoming appointment with Andrew Martin. Tr. at 531.
On September 9, 2021, Plaintiff saw Mr. Martin for medication management. Tr. at 528-30. Plaintiff reported that her mood was not improving. Plaintiff was having mood swings and very high anxiety each morning, around the time of day her daughter's accident occurred. Plaintiff reported episodes of crying with the inability to stop. Tr. at 528. Diagnoses were Major Depression, recurrent for which venlafaxine and aripiprazole were prescribed; and, Adjustment disorder with anxiety and depression. Tr. at 530.
On October 5, 2021, Plaintiff saw Rose Kirkpatrick, PLMHP, MS at All Care Health Center. Tr. at 522-27. Plaintiff presented in an agitated and emotional state and was unable to complete the session, to talk freely, or to stay on topic. Plaintiff was noted to be delusional and paranoid. Tr. at 522. On mental status exam, Ms. Kirkpatrick wrote:
Mental Status Exam: Appearance: Normal, Attitude: Defensive, Evasive, Mistrustful. Psychomotor: Agitated, Stereotyped/peculiar. Mood: Anxious, Irritable, Affect: congruent with mood. Speech; normal rate. Thought Process: circumstantial, Loose, Incoherent. Thought Content: Obsessional, Paranoid, Phobic, Preoccupations/ruminations. Cognition: Impaired attention/concentration, not able to abstract. Intelligence Estimate: average. Judgement: Moderate impairment, Insight: Difficulty acknowledging psychiatric problems, Mostly blames others, Minimal insight. Perception: Derealizations, Illusions, Hallucinations: denied. Delusions: client demonstrated delusion of events and actions.Tr. at 526.
CONSULTATIVE MENTAL HEALTH EXAMINATION AND OPINIONS
On April 1, 2021, Plaintiff saw Jennifer L. Lindner, Ph.D. for a consultative mental status examination. Tr. at 414-16.
Plaintiff's work history included working as a paid caregiver for a neighbor until the neighbor passed away. Plaintiff worked for a cleaning company and as a waitress. Her last job as a production worker ended because her schedule could not be accommodated. Tr. at 414.
Plaintiff reported drinking 1-2 mixed drinks "every other day." It was noted that she had completed a 28-day inpatient treatment program. Tr. at 415.
On mental status exam Plaintiff had difficulty with long-term, short term, and immediate memory. "She also has word finding difficulties. She was unable to demonstrate abstract reasoning skills. She has adequate concentration and appeared impulsive." Plaintiff's mood appeared depressed, and her affect was tearful. Plaintiff reported sleeping difficulties. Tr. at 415. Dr. Lindner's diagnoses were Major Depressive Disorder, recurrent, moderate, and Generalized Anxiety Disorder. The psychologist opined that Plaintiff has significant problems with depression, emotional lability, and anxiety. The doctor opined that Plaintiff would benefit from individual therapy, ongoing medication management, and participation in services from Community Alliance. Tr. at 416.
Scott Shafer, Ph.D., a State Agency psychological consultant, reviewed Dr. Lindner's report and noted that Dr. Lindner did not indicate any limitations which would preclude employment. Dr. Shafer noted that Plaintiff was able to perform various entry-level jobs and had worked as recently as three weeks before his evaluation. Dr. Shafer wrote that Plaintiff's only treatment for mental health reasons was on November 24, 2020, when she was diagnosed by her primary care physician with anxiety and given prescriptions for depression and anxiety. "There is no further treatment in the record." Tr. at 77
VOCATIONAL EXPERT TESTIMONY
At the hearing, after Plaintiff testified, the ALJ called Jennifer Ruhnke to testify as a vocational expert. Tr. at 59, The ALJ asked the vocational expert to consider a hypothetical individual with the physical ability to perform medium work (the ability to lift a maximum of 50 pounds, and the ability to frequently lift 25 pounds, (20 C.F.R. § 416.967(c)) but who needs simple, routine tasks with social interaction limited to not more than occasional with coworkers, supervisors, and the public. In response, the vocational expert cited jobs such as hospital food service worker, industrial cleaner, and lab equipment cleaner. All three examples are medium level, unskilled jobs. Tr. at 60. The vocational expert also identified examples of light (20 pounds occasionally and 10 pounds frequently (20 C.F.R. § 416.967(b)) jobs -- marker, mail clerk, and collator operator. Tr. at 60-61.
On cross examination, the vocational expert testified that the need to be off task in excess of 20 percent of the eight-hour workday would preclude work activity. Likewise the need to be absent from work more than one day per month would preclude work. Finally, the need to have occasional reminders regarding their job duties would preclude work. Tr. at 62-63.
STANDARD OF REVIEW
We will affirm the ALJ's decision "[i]f the ALJ's findings are supported by substantial evidence on the record as a whole," an inquiry that requires us to consider evidence in the record that detracts from the ALJ's decision. Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007). "Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the decision." Reutter ex rel.
Reutter v. Barnhart, 372 F.3d 946, 950 (8th Cir. 2004).Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008). In Brand v. Secretary of Dep't of Health, Education and Welfare, 623 F.2d 523, 527 (8th Cir. 1980), Chief Judge Lay wrote that Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951), is "the guideline for the evaluation of the standard of review." In Universal Camera, the Court wrote:
We will not reverse the ALJ's "denial of benefits so long as the ALJ's decision falls within the 'available zone of choice.' " Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2007 [2008]) (quoting Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). The decision of the ALJ "is not outside the 'zone of choice' simply because we might have reached a different conclusion had we been the initial finder of fact." Id. (quoting Nicola, 480 F.3d at 886). Rather, "[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision." Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005).
We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.340 U.S. at 490, 71 S.Ct. 456. In reviewing disability decisions from the Social Security Administration, the Court sits in an appellate capacity and is responsible for giving the agency decision a scrutinizing analysis. This requires the Court to determine the substantiality of the evidence by determining if the ultimate decision is supported by substantial evidence on the record as a whole. Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). In Gavin, the Court wrote:
In the review of an administrative decision, "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight." Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.Id. (citations omitted).
In Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989), the Court articulated the standard of review thus:
In reviewing the Secretary's decision to deny disability benefits, we look to see whether the decision is supported by substantial evidence in the record as a whole. McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983). This review
is more than a rubber stamp for the Secretary's decision, and is more than a search for the existence of substantial evidence supporting his decision. Id. Indeed, we must take into account evidence in the record which fairly detracts from his decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951).
Most recently, in Bowers v. Kijakazi, 40 F.4th 872 (8th Cir. 2022), the Court wrote:
When reviewing the denial of disability insurance benefits, we decide whether the findings "are supported by substantial evidence on the record as a whole." Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000) (quotation omitted). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the [ALJ's] conclusion," Id. We will not reverse the decision "merely because substantial evidence supports a contrary outcome." Id. (quotation omitted).
In Lucus v. Saul, 960 F.3d 1066, 1068 (8th Cir. 2020), the Court wrote that it is the task of a reviewing court ". . . to determine whether the ALJ's decision complies with the relevant legal standards and is supported by substantial evidence in the record as a whole." The Court, quoting Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) continued: "Legal error may be an error of procedure, the use of erroneous legal standards, or an incorrect application of the law."
In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Wilcutts v. Apfel, 143 F.3d 1134, 1136-37 (8th Cir. 1998) (citing Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir. 1975)).
In her brief, the Commissioner asserts that a reviewing court should defer heavily to the findings and conclusion of the Commissioner. ECF No. 14, p. 6, citing Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010) and Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001). Hurd cites Howard which states:
We defer heavily to the findings and conclusions of the SSA. "If, after review, we find it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, we must affirm the denial." Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996) (citing Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).In the preceding paragraph, however, the Court wrote:
. . . We have stated that [w]e will uphold the Commissioner's determinations if they are supported by substantial evidence on the record as a whole. Substantial evidence is relevant evidence which a reasonable mind would accept as adequate to support the Commissioner's conclusion. In assessing the substantiality of the evidence, we must consider evidence that detracts from the Commissioner's decision as well as evidence that supports it. We may not reverse the Commissioner merely because substantial evidence exists supporting a different outcome.Id. at 580-81.
In other words, the standard of review is "substantial evidence on the record as a whole" as articulated by Chief Judge Lay in Brand v. Secretary of Dep't of Health, Education and Welfare, 623 F.2d 523, 527 (8th Cir. 1980) and Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987) as well as the other cases cited above.
ARGUMENTS OF THE PARTIES
For reversal, Plaintiff argues: 1) the ALJ's mental residual functional capacity determination is not supported by substantial evidence [on the record as a whole] because after she failed to fairly and properly develop the record, she crafted a residual functional capacity that is made up out of whole cloth; 2) the ALJ's mental residual functional capacity determination is not supported by substantial evidence [on the record as a whole] and is the product of legal error where the ALJ fails to incorporate her findings of moderate limitations in Plaintiff's ability to maintain concentration, persistence, and pace. ECF No. 13, p. 1.
The Commissioner argues that the residual functional capacity found by the ALJ need not be supported by a specific medical opinion, only by the medical evidence. ECF No. 14, p. 7. The Commissioner argues the ALJ is only required to further develop the record when there are conflicts in the evidence which the ALJ cannot resolve or that there is insufficient evidence to permit an informed decision. Id. at 8 citing 20 C.F.R. §§ 416.917, 416 920(b); Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989), Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001). The Commissioner argues that the ALJ properly relied on the opinion of the State Agency psychological consultant Dr. Shafer. The Commissioner argues that even if the ALJ erred in developing the record, the error was not harmful. The Commissioner argues that Plaintiff's second argument must also fail because the limitations in the hypothetical question - simple, repetitive, routine tasks -- captured the limitations identified at step three - moderate deficiencies in concentration, persistence, or pace. Id. at 14.
DECISION OF THE COURT
In McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc), Judge Richard S. Arnold, writing for the Court wrote:
Probably the most important issue will be the question of [residual functional capacity] . . . The RFC that must be found . . . is not the ability merely to lift weights occasionally in a doctor's office; it is the ability to perform the requisite physical acts day in and day out in the sometimes competitive and stressful conditions in which real people work in the real world.
As stated above, it is not sufficient that the final decision of the Commissioner be supported by some substantial evidence. It must be supported by substantial evidence on the record as a whole.
In the case at bar, the Commissioner relies on the opinion of the consultative psychologist, Dr. Lindner. Likewise, the Commissioner argues that the State Agency psychological consultant interpreted Dr. Lindner's opinion and established the limitations upon which the ALJ relied. In Masterson v. Barnhart, 363 F.3d 731, 737-38 (8th Cir. 2004), the Court wrote:
Although the ALJ "bears the primary responsibility for assessing a claimant's residual functional capacity based on all relevant evidence," Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000), we have also stated that a "claimant's residual functional capacity is a medical question," Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). "[S]ome medical evidence," Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000) (per curiam), must support the determination of the claimant's RFC, and the ALJ should obtain medical evidence that addresses the claimant's "ability to function in the workplace[.]" Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). In evaluating a claimant's RFC, the ALJ is not limited to considering medical evidence, but is required to consider at least some supporting evidence from a professional. See 20 C.F.R. § 404.1545(c); Baldwin [v . Barnhart] , 349 F.3d [549] at 556 [(8th Cir. 2003)] (internal citations omitted). (Bold emphasis added).
In Masterson, the opinions relied on by the ALJ were supported by the medical evidence in the record. On the other hand, in Lauer v. Apfel, 245 F.3d 700 (8th Cir. 2001), the ALJ rejected the opinion of a treating psychiatrist because the doctor had not performed any testing. The ALJ rejected the opinion of a psychologist who administered tests because the psychologist was not a treating physician. Both the psychiatrist and the psychologist opined that Lauer had limited or nonexistent ability to work. Id. at 704. The Court held that even if the ALJ had adequate reasons not to adopt those opinions, there was no other medical evidence to support the ALJ's decision. Id.
In the case at bar, from beginning to end, the treatment records describe a woman suffering from anxiety and depression after the death of her daughter in a school bus fire. There are frequent medical observations of uncontrollable crying. Plaintiff has been described as delusional and paranoid. There is also an unexplained mention that Plaintiff's history includes brain surgery. Yet, the psychologist - Dr. Lindner - on whom the ALJ relied, had no knowledge of any of this history. Furthermore, although Dr. Lindner did not offer an opinion on Plaintiff's ability to function in the workplace, she described Plaintiff's problems with depression, emotional lability, and anxiety as "significant." Tr. at 416. Likewise, Dr. Shafer was aware of only one mental health treatment. The point being that Dr. Lindner and Dr. Shafer, based their opinions on incomplete information.
Dr. Shafer pointed out that Plaintiff "was able to perform various entry-level jobs and worked as recently as three weeks ago." Tr. at 77. However, in Tennant v. Schweiker, 682 F.2d 707, 710 (8th Cir. 1982), the Court held that the most compelling evidence of Tennant's disability was his work history which consisted of 46 jobs during twelve years, from which he was fired. Likewise, in the case at bar, Plaintiff numerous unsuccessful efforts to work are compelling evidence of her inability to function in the workplace.
The Commissioner also points to Plaintiff's capability to respond appropriately to questions, drive a car, shop for groceries, watch her grandchild, wash laundry, prepare meals and play with her dog. ECF No. 14, p. 9. In Kirksey v. Heckler, 808 F.2d 690, 693 (8th Cir. 1987), counsel for the government conceded at hearing before the Court of Appeals, that a finding that Kirksey did not have pain because he could visit with neighbors, "borders on the ridiculous."
Regarding Plaintiff's ability to shop for groceries, wash her clothes, prepare meals and play with her grandchild, it must be remembered that "[A] claimant need not prove she is bedridden or completely helpless to be found disabled." Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). The court continued:
Second, we remind the [Commissioner] that to find a claimant has the residual functional capacity to perform a certain type of work, the claimant must have the ability to perform the requisite acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world. McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982)(en banc). Substantial gainful activity means the performance of substantial services with reasonable regularity either in competitive or self-employment. Markham v. Califano, 601 F.2d 533, 534 (10th Cir. 1979). The ability to do light housework with assistance, attend church, or visit with friends on the phone does not qualify as the ability to do substantial gainful activity.
At step 5 of the sequential evaluation, proof of the ability to work "must be based on a realistic evaluation of the claimant's abilities in view of her age, education, training, work experience, and physical and mental capabilities." Rhines v. Harris, 634 F.2d 1076, 1080 (8th Cir. 1980) (bold emphasis added). The Court went on to note that employers are concerned with substantial capacity, psychology stability and steady attendance. Id.
The final decision of the Commissioner cannot be affirmed because it is not supported by substantial evidence on the record as a whole. This is not a case where it is possible to draw inconsistent conclusions from the evidence in the record. Rather, the evidence in this record is transparently one-sided against the Commissioner's decision.
Sentence 4 of the statute, 42 U.S.C. § 405(g), states: "The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." (Bold emphasis added).
In Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984), the Court wrote: "If the record as presented to the ALJ contains substantial evidence supporting a finding that the claimant was disabled, then a reviewing court may reverse and remand the case to the District Court for an entry of an order granting benefits to the claimant." The Court noted that Parsons had been consistently diagnosed with severe mental problems, and that further hearings would merely delay the receipt of benefits to which the claimant was entitled. "[A]n order granting benefits is appropriate." In Gavin v. Heckler, 811 F.2d at 1201, the Court wrote [W]here the total record is overwhelmingly in support of a finding of disability, and the claimant has demonstrated his disability by medical evidence on the record as a whole, we find no need to remand."
In the case at bar, we have a 50-year-old woman who has no past relevant work, who suffered a parent's worst nightmare - the tragic death of a child - and who has been consistently diagnosed with anxiety and depression. The record is devoid of evidence supporting the ability to work, day in and day out in competitive and stressful conditions in which real people work in the real world. In other words, the Commissioner's decision in this case falls far outside the available zone of choice and is hereby reversed and remanded for an award of benefits to which Plaintiff is entitled.
Because Plaintiff prevails on her first argument, that the final decision of the Commissioner is not supported by substantial evidence on the record as a whole, the Court finds it unnecessary to consider the second argument that the Commissioner's Decision is affected by an error of law which requires reversal or remand.
CONCLUSION AND DECISION
The Court has considered the evidence that supports, as well as the evidence that detracts, from the decision made by the ALJ. After applying the balancing test noted in Gavin, 811 F.2d at 1199, and cases cited therein, this Court holds that the final decision of the Commissioner is not supported by substantial evidence on the record as a whole. The case is reversed and remanded for an award of the benefits to which Plaintiff is entitled.
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.A(b). See also, Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817, 1821, 152 L.Ed.2d 996 (2002); Mitchell v. Barnhart, 376 F.Supp. 2d 916 (S.D. Iowa 2005).
N.B. Counsel is reminded that LR 54.A (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.