United States District Court, D. North Dakota
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT TO THE EXTENT THAT IT REQUESTS REMAND
R. Hochhalter, Magistrate Judge United States District Court.
Terri Mellon seeks judicial review of the Social Security
Commissioner's decision to discontinue her benefits under
the Social Security Act, 42 U.S.C. §§ 401-434. This
court reviews the Commissioner's final decision pursuant
to 42 U.S.C. § 405(g).
October 2013, the Social Security Administration
(“SSA”) found that Mellon was disabled due to
breast cancer with an onset date of April 12, 2013. (Doc. No.
11-3 at 2). The SSA later reviewed her file and found that
her disability had ceased as of February 1, 2015.
Id. at 14. Mellon's requests for reconsideration
were denied, and she requested a hearing in front of an
administrative law judge. This hearing was held on December
5, 2016. Mellon was unrepresented. (Doc. No. 11-3 at 15-16,
Doc. No. 11-2 at 22).
March 23, 2017, the ALJ issued a hearing decision confirming
the denial of Mellon's request for continued benefits.
Id. On February 6, 2018, the Appeals Council of the
SSA denied Mellon's request for review. Id. at
2. This action followed.
filed a Motion for Summary Judgment in the instant case on
August 20, 2018. (Doc. No. 13). The SSA filed a Motion for
Summary Judgment on September 18, 2018. (Doc. No. 15). Mellon
filed her response on October 5, 2018. (Doc. No. 17).
was born in 1968. (Doc. No. 11-2 at 47). At the time of the
hearing, she lived alone. Id. She has a
bachelor's degree in graphic design and an
associate's degree in commercial art. Id.
worked as a graphic designer from 1989 until April 2013 for
various companies. (Doc. No. 11-2 at 50-53). Her most recent
job was at a business called KK Bold; she was fired in April
2013. Id. at 53.
October 2013 disability finding was based on a primary
diagnosis of breast cancer. (Doc. No. 11-3 at 2).
Mellon's breast cancer was diagnosed and treated via
multiple surgeries and rounds of chemotherapy in 2010 and
2011. (See generally, Doc. Nos. 10-16). She has
taken the medication anastrozole (brand name Arimidex) since
approximately 2011 to reduce the risk of cancer recurrence.
(Doc. No. 11-24 at 12-13).
breast cancer met the criteria for Listing 13.10A when she
first applied in 2013, automatically justifying a finding of
disability. (See Doc. No. 11-3 at 3-13). Other
severe impairments noted by the SSA in 2013 included
affective disorder, organic brain syndrome, and anxiety
disorder. These impairments did not meet any listing
later found Mellon's disability had ceased as of February
1, 2015. Numerous medical records between February 2015 and
Mellon's 2016 disability hearing reflect treatment for a
variety of conditions such as lymphedema, depression,
fatigue, and memory and attention difficulties. See
generally Doc. Nos. 11-20, 11-21, 11-22, 11-23.
administrative record further contains a consultation with a
neuropsychologist whom Mellon visited for cognitive testing
pursuant to her oncologist's recommendation. (Doc. No.
11-21). Four state agency consultants also prepared
evaluations of Mellon's physical and mental condition.
(Doc. Nos. 11-19, 11-21).
Standard of review
review of the entire record, the court can affirm, modify, or
reverse the decision of the Commissioner, with or without
remanding the case for rehearing. 42 U.S.C. § 405(g). To
affirm the Commissioner's decision, the court must find
that substantial evidence appearing in the record as a whole
supports the decision. See Id.; Cruse v.
Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). As the
Eighth Circuit has repeatedly stated, the “substantial
evidence on the record as a whole” standard demands
more rigorous review than the “substantial
“Substantial evidence” is merely such
“relevant evidence that a reasonable mind might accept
as adequate to support a conclusion.”
“Substantial evidence on the record as a whole, ”
however, requires a more scrutinizing analysis. 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
Minor v. Astrue, 574 F.3d 625, 627 (8th Cir. 2009)
(citing Wilson v. Sullivan, 886 F.2d 172, 175
(9th Cir. 1989)). See also Burress v.
Apfel, 141 F.3d 875, 878 (8th Cir. 1998).
court may disturb an ALJ's decision only if the decision
lies outside the available “zone of choice.”
Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)
(citation omitted). An ALJ's decision is not outside the
“zone of choice” simply because a court might
have reached a different result had it been the initial trier
of fact. Id.
Law governing eligibility for continuing
was found disabled in 2013, but her disability was found to
have ended and her benefits were terminated in 2015. She
appeals the decision to terminate her benefits.
person's disability benefits may be terminated if
substantial evidence demonstrates medical improvement to the
person's impairment or combination of impairments and the
individual is now able to engage in substantial gainful
activity. See 42 U.S.C. § 423(f). The
continuing disability review process requires an eight-step
sequential analysis found in 20 C.F.R. § 404.1594(f).
The Commissioner must determine the following:
(1) whether the claimant is currently engaging in substantial
(2) if not, whether the disability continues because the
claimant's impairments meet or equal the severity of a
(3) whether there has been a medical improvement,
(4) if there has been a medical improvement, whether it is
related to the claimant's ability to work,
(5) if there has been no medical improvement or if the
medical improvement is not related to the claimant's
ability to work, whether any exception to medical improvement
(6) if there is medical improvement and it is shown to be
related to the claimant's ability to work, whether all of
the claimant's current impairments in combination are
(7) if the current impairment or combination of impairments
is severe, whether the claimant has the residual functional
capacity to perform any of his past relevant work activity,
and (8) if the claimant is unable to do work performed in the
past, whether the claimant can perform other work.
Delph v. Astrue, 538 F.3d 940, 945-46 (8th Cir.
2008). This eight-step analysis includes the five steps
followed in an initial disability determination.
Delph, 538 F.3d at 946.
ANALYSIS AND DISCUSSION
issued her written opinion on March 23, 2017. (Doc. No.
found that, through the date of the decision, Mellon had not
engaged in substantial gainful activity. She next determined
that the evidence established the following medically
determinable impairments since February 1, 2015: history of
breast cancer, cognitive/memory impairment, depressive
disorder, fatigue, dysphagia, and lymphedema. Id. at
then found none of the impairments, individually or in
combination, equaled the severity of an impairment listed in
20 CFR Part 404, Subpart P, Appendix 1. She noted that
Listing 13.10, breast cancer, was satisfied at the outset of
Mellon's disability, but the records do not reflect
cancer recurrence. The ALJ also found the listings for mental
disorders were not satisfied. Id. at 24-26.
then concluded that medical improvement occurred by February
1, because Mellon's cancer had not recurred. She
determined that this improvement was related to Mellon's
ability to work. Id. at 26.
the ALJ found that Mellon's impairments present since
February 1, 2015 did not cause more than a minimal impact on
her ability to perform basic work activities, and as such,
Mellon no longer had a severe impairment or combination of
impairments. In making this finding, the ALJ underwent a
two-step process which resulted in two specific conclusions.
First, she determined that Mellon's medically
determinable impairments could be expected to produce her
alleged symptoms. But then, she found Mellon's statements
regarding her symptoms and their intensity, persistence, and
limiting effects were “not entirely consistent with the
objective medical and other evidence.” Id. at
the ALJ concluded none of Mellon's impairments were
severe, she found Mellon not disabled at step six and ended
the analysis. She did not complete the last two steps, which
would have included determining Mellon's residual
functional capacity and deciding whether she has the RFC to
perform any of her past work or other work.