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Gann v. Berryhill

United States Court of Appeals, Eighth Circuit

July 28, 2017

Rhonda Gann Plaintiff- Appellant
v.
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration Defendant-Appellee

          Submitted: February 8, 2017

         Appeal from United States District Court for the Western District of Missouri - St. Joseph

          Before SMITH, [1] BENTON and SHEPHERD, Circuit Judges.

          SHEPHERD, Circuit Judge.

         Rhonda Gann appeals the decision of the district court affirming the decision of the Commissioner denying her application for disability insurance benefits (DIB) and supplemental security income (SSI) under the Social Security Act. 42 U.S.C. § 401 et seq.; 42 U.S.C. § 1381 et seq. Having jurisdiction under 28 U.S.C. § 1291 and finding substantial evidence lacking to support the ALJ's denial, we reverse and remand for proceedings consistent with this opinion.

         I. Background

         Gann applied for DIB and SSI benefits alleging a disability onset of July 12, 2011, due to "degenerative disc disease, arthritis, eye problems, neck injury, migraines, and sinus problems." After reviewing the record and conducting a hearing including testimony by Gann and a vocational expert, the ALJ determined that Gann "is not disabled under . . . the Social Security Act, " and therefore, DIB and SSI benefits were denied. The Appeals Council denied Gann's request for review. Gann sought review of the Commissioner's decision in the United States District Court for the Western District of Missouri which subsequently entered a final judgment affirming the decision of the Commissioner. This appeal followed.

         Gann has a long history of multiple health problems to which she attributes her alleged disability. First, she has at least two psychiatric issues-"major depressive disorder, recurrent, severe without psychotic features" and post-traumatic stress disorder (PTSD). Documentation supporting these diagnoses includes notations in the medical record from medical doctors (MD), psychologists (Psy.D.), nurse practitioners (NP), and qualified mental health professionals (QMHP). During her medical visits seeking treatment for her psychiatric disorders, she has complained of crying spells, anxiety, nervousness, suicidal ideation, anger, and insomnia. Her medical providers have prescribed multiple psychiatric medications during the course of her care including Celexa, trazadone, mirtazepine, Cymbalta, and doxepin.

         Second, Gann has complained of low-back pain since before a lumbar spine fusion surgery performed in 2001. She continued to have pain after the back surgery, which one of her doctors described as "all too common of a result." Multiple health professionals have treated her back pain, including several MDs, NPs, and physical therapists. To treat her back pain, the professionals have (1) prescribed narcotic pain medications (including Vicodin and Lortab), (2) ordered diagnostic tests (including an MRI), (3) performed invasive treatments (including facet joint injections), (4) prescribed assistive devices to help with her gait (including canes and wheelchairs), and (5) prescribed "in-home services" to help with her activities of daily living. Her lumbar spine MRI revealed "facet spondylosis and hypertrophy . . . coincid[ing] with the area of pain she indicates." A pain management doctor who performed facet injections for her back pain diagnosed her with "facet syndrome lumbar" and "post laminectomy syndrome." One provider recommended that she stand for no more than "five minutes at a time, sit for [no more than] 30 minutes at a time, lift no weight, " and "never bend, stoop or perform fine manipulation."

         Third, Gann has a plethora of other medical issues which she alleges contribute to her disability including migraine headaches, severe insomnia, obesity, restless leg syndrome (RLS), knee arthritis, and dizziness with frequent falling. She has reported migraine headaches occurring up to seven times per week and lasting around six hours per episode; her migraines were treated with prescriptions for Topamax and Imitrex. Professionals have prescribed Ambien to treat her insomnia. She is 5'3, " 235 to 250 pounds, and has been described as morbidly obese. Her RLS is treated with prescription Requip. Both of her knees have been injected with steroids to treat the arthritis. Her dizziness and falls have been attributed to inner ear problems (chronic otitis media) and treated with prescriptions for physical therapy and medications. She has complained of neck pain at times, and she has a history of alcohol abuse. Global Assessment of Functioning (GAF) scores of 50 and 30 have been assigned to her by health professionals at various times during her care.

         As a result of her health issues, at least two doctors expressed concerns regarding Gann's ability to adapt to a work environment. Dr. C. William Breckenridge, Psy.D., said: "Her ability to adapt to a work environment appears to be highly marginal at this time." (emphasis added). Similarly, Dr. Raphael Smith, Psy.D., noted "adaptive limitations" and an "ability to respond appropriately to changes in the work setting" that is "moderately limited." Smith noted that Gann cannot work in a setting that "require[s] frequent or intense . . . change in routine."

         Gann contends on appeal that the ALJ's residual functional capacity assessment and the hypothetical question posed to the vocational expert did not include all of her limitations.

         II. Analysis

         We review de novo the district court's decision to affirm the ALJ's denial of social security DIB and SSI. Lawson v. Colvin, 807 F.3d 962, 964 (8th Cir. 2015). "By statute, '[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.'" Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (quoting 42 U.S.C. § 405(g)). "If substantial evidence in the record as a whole supports the ALJ's decision, then this Court will affirm the denial of benefits." Lawson, 807 F.3d at 964 (emphasis added). "Substantial evidence is less than a preponderance but . . . enough that a reasonable mind would find it adequate to support the conclusion." Id. (alteration in original) (internal quotation marks omitted). Our review "is more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision . . . . [W]e also take into account whatever in the record fairly detracts from that decision." Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001) (internal quotation marks omitted). However, "[w]e may not reverse the Commissioner's decision merely upon a finding that we would have reached a contrary conclusion." Vandenboom v. Barnhart, 421 ...


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