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Mellon v. Berryhill

United States District Court, D. North Dakota

December 5, 2019

Terri Lynn Mellon, Plaintiff,
v.
Nancy A. Berryhill, Acting Social Security Administration Commissioner, Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT TO THE EXTENT THAT IT REQUESTS REMAND

          Clare R. Hochhalter, Magistrate Judge United States District Court.

         Plaintiff 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).

         I. BACKGROUND

         A. Procedural History

         In 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).

         On 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.

         Mellon 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).

         B. Personal History

         Mellon 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.

         Mellon 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.

         C. Medical History

         Mellon's 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).

         Mellon's 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 criteria. Id.

         The SSA 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.

         The 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).

         II. GOVERNING LAW

         A. Standard of review

         Upon 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 evidence” standard:

“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 contradictory.

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).

         The 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.

         B. Law governing eligibility for continuing disability

         Mellon 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.

         A 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 gainful activity,
(2) if not, whether the disability continues because the claimant's impairments meet or equal the severity of a listed impairment,
(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 applies,
(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 severe,
(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.

         III. ANALYSIS AND DISCUSSION

         A. ALJ's Decision

         The ALJ issued her written opinion on March 23, 2017. (Doc. No. 11-2).

         The ALJ 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 24.

         The ALJ 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.

         The ALJ 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.

         Lastly, 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 26-27.

         Because 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.

         B. ...


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