United States of America v. Social Security Administration

Sioux Falls, South Dakota social security disability lawyer represented Plaintiff seeking review of the denial of her application for disability benefits by HHS.





Tanya Svendsen ("petitioner,” "claimant”) moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 and 42 U.S.C. § 405(g), for judgment as a matter of law concerning her denial of Social Security Disability Income benefits. Doc. 10. As this Memorandum and Order will explain, the petitioner raises a host of issues, namely:



(1) Whether the Administrative Law Judge ("ALJ”) properly identified all impairments and their severity;



(2) Whether the administrative judge properly evaluated fibromyalgia and headaches within the context of their medically equivalent Listings;



(3) Whether the Residual Functional Capacity ("RFC”) found by the ALJ was supported by substantial evidence on the record, specifically within the context of fibromyalgia, two separate treating source opinions, manipulative limitations, and sit/stand option determinations;



(4) Whether the ALJ properly evaluated Ms. Svendsen's subjective symptoms; and



(5) Whether the ALJ erred in solely looking at available jobs related to petitioner's RFC within the national economy, and not delving into a more specific regional analysis.



Acting Commissioner Kilolo Kijakazi ("Commissioner,” "respondent”) argues the ALJ below was proper in her denial of benefits and that this Court should affirm her

decision. This Memorandum and Order will explain why petitioner's claim should be granted in part and denied in part.





Ms. Svendsen is a 46-year-old resident of Aberdeen, South Dakota, suffering from a host of ailments, including degenerative disc disease to the cervical spine, degenerative joint disease to the right shoulder, obesity, fibromyalgia, headaches, type 2 narcolepsy, lumbar spondylosis, anxiety, and depression. The claimant protectively filed her Title II application on October 4, 2018, for a period of disability and disability insurance benefits, alleging disability beginning on September 1, 2018. Ms. Svendsen's claim was first reviewed at the initial stage by a State agency physician on March 1, 2019, who found she had severe disorders of her back-(discogenic and degenerative), migraines, and fibromyalgia. The State review also found non-severe impairments of "other disorders of the nervous system,” "depressive bipolar and related disorders,” and "anxiety and obsessive-compulsive disorders.” See Administrative Record ("A.R.”) 1354-70. Further, the State physician concluded that the claimant could occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; and stand and/or walk for a total of six hours in an eight-hour workday, with no inhibition on her ability to lift and/or carry or crawling. The physician also found that Svendsen had limited reaching ability overhead for both arms, chronic neck pain, and non-severe narcolepsy. No sit/stand option opinion was offered.



Next, the petitioner's claim was reviewed by another State agency physician at the reconsideration stage on November 19, 2019. See id. at 1372-78. There, the reconsideration stage physician made markedly similar findings, parting ways with the initial review by finding Svendsen had severe chronic fatigue syndrome and could only crawl occasionally.



On December 17, 2020, Judge Brenda Rosten, a North Dakota-based ALJ, issued her decision denying Svendsen's application for disability benefits. See id. at 15-28. Accordingly, the proper inquiry for scrutinizing whether petitioner is statutorily disabled is from September 1, 2018, to December 17, 2020.



Specifically, the ALJ concluded that Ms. Svendsen met the insured status requirements through September 30, 2021, and that she has not engaged in substantial gainful activity since September 1, 2018 (the alleged onset date). Further, the administrative judge determined that the claimant had severe impairments of degenerative disc disease to the cervical spine, degenerative joint disease to the right shoulder, obesity, and fibromyalgia. She did not find any other impairments to be severe. Next, the administrative judge found that Svendsen did not have an impairment, or combination of impairments, that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.



Next, we consider the RFC. The ALJ held that the claimant has a RFC to perform a range of sedentary work as delineated in 20 C.F.R. § 404.1567(a). The judge concluded that Svendsen can lift and/or carry ten pounds occasionally and less than ten pounds frequently; that she can sit for approximately six hours in an eight-hour workday (with the ability to stand up and/or change position for roughly two to three minutes after sitting for an hour); and can stand and/or walk for a combined four hours in an eight-hour workday, among other findings. In making these determinations Judge Rosten found Svendsen's treating physician Dr. Jacob Miller's conclusions - which were presented in a checklist style form - "unpersuasive,” and treating physician Dr. Richard Hardie's findings "less persuasive.” Id. at 26.



Having determined the petitioner's RFC, the ALJ concluded that she is unable to perform any past relevant work. Classified as a younger individual (within the range 1844 at the time of the ALJ's opinion), the ALJ noted Ms. Svendsen has at least a high school education and ultimately concluded that the transferability of past job skills was immaterial since the Medical-Vocational Rules framework supported a finding that the claimant was not disabled, negating the need to tackle whether past skills were in fact transferable. Finally, the ALJ turned to a Vocational Expert ("VE”) to discern whether there were significant jobs in the national economy that the petitioner could perform, given her age, education, work experience, and RFC. Looking only to national numbers, the VE found in the Dictionary of Occupational Titles three such positions: (1) a microfilm document preparer; (2) an addresser for envelopes or typewriters; and (3) a cutter and paster of press clippings.



The Social Security Administration ("SSA”) Appeals Council denied the petitioner's request for review on September 14, 2021, thus making the ALJ's findings the Commissioner's final decision. Id. at 1-4. See generally Smith v. Berryhill, 139 S.Ct. 1765, 1775-76 (2019). Svendsen timely challenged the Commissioner's decision in her motion for summary judgment to this Court. More than three and a half years have passed since Ms. Svendsen first filed for disability benefits.

Svendsen v. Kijakazi (D. S.D. 2022)

This Memorandum and Order carefully explains why the petitioner's motion for summary judgment should be granted in part and denied in part. The Court emphasizes that nothing in this opinion mandates the ALJ to ultimately conclude a finding of disability or not. Rather, it simply tasks the ALJ below to reconsider the record before her within the proper statutory and regulatory framework. Specifically, this Court holds that:



(1) The ALJ properly identified all of Svendsen's impairments and determined their severity;



(2) The ALJ properly evaluated her headaches at Step Three to a medically equivalent listing;



(3) The ALJ erred in not properly scrutinizing fibromyalgia alongside the relevant medically equivalent listing;



(4) The ALJ erred in not properly considering all relevant factors related to the unique challenges surrounding fibromyalgia when determining the RFC;



(5) The ALJ was within her purview to find Dr. Jacob Miller's conclusions “unpersuasive;”



(6) The ALJ was well within her bounds to conclude Dr. Richard Hardie's findings were “less persuasive;”



(7) The ALJ's findings related to manipulative limitations cannot stand when specific extra analysis is required related to the complexities surrounding fibromyalgia;



(8) The ALJ's findings on the sit/stand option cannot stand when void of support in the record and for not performing the additional analysis necessary for unique challenges in fibromyalgia matters;



(9) The claimant's subjective symptoms, specifically within regards to fibromyalgia-related pain, were not properly weighed; and



(10) The ALJ and VE erred by not considering available jobs applicable to Svendsen at a more granular level than the nation writ large.



This Court is cautious to avoid “playing doctor.” Pate-Fires, 564 F.3d at 946-47. However, in matters where errors in properly considering disability applications warrant remand, courts can and must require order adjudication by ALJs below. Nothing in this Memorandum and Order requires the ALJ to hold differently on remand; rather, the ALJ must tackle these specifically listed steps necessary to properly tackle fibromyalgia-related claims, as well as a more specific study of regional jobs within the larger national economy. Only then can the findings below be supported by substantial evidence on the record as a whole. As an aside, I fully recognize the tremendous demand on ALJs faced with increasing caseloads and inadequate support.



IT IS HEREBY ORDERED that petitioner's motion for summary judgment, Doc. 10, is granted in part and denied in part.



IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly identifying all impairments and determining their severity, is denied.



IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly evaluating whether headaches were medically equivalent to a Listing, is denied.



IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly evaluating whether fibromyalgia was medically equivalent to a Listing, is granted.



IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly determining the RFC in relation to fibromyalgia, is granted.



IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly determining the RFC in relation to finding Dr. Jacob Miller's conclusions as unpersuasive, is denied.



IT IS FURTHER ORDERED petitioner's claim that the ALJ erred in properly determining the RFC in relation to finding Dr. Richard Hardie's conclusions as less persuasive, is denied.



IT IS FURTHER ORDERED that petitioner's claim that the ALJ erred in properly determining the RFC in relation to manipulative limitations, is granted.



IT IS FURTHER ORDERED that petitioner's claim that the ALJ erred in properly determining the RFC in relation to the sit/stand option, is granted.



IT IS FURTHER ORDERED that petitioner's claim that the ALJ erred in properly evaluating her subjective symptoms, is granted.



IT IS FURTHER ORDERED that petitioner's claim that the ALJ and VE failed to properly identify available jobs at one or more regional levels, is granted.

Svendsen v. Kijakazi (D. S.D. 2022)