Nebelsick v. Commissioner of Social Security

Filing 39

ORDER - The decision of the ALJ is reversed and remanded for further consideration. Signed by Senior Judge Donald E OBrien on 3/30/15. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CALVIN NEBELSICK on behalf
of GILLIAN M. NEBELSICK,
Plaintiff,

No. 13-CV-4104-DEO

vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,

ORDER

Defendant.
____________________
I.

BACKGROUND
The above captioned case arises out of a Social Security

Complaint filed by the (former) Plaintiff Gillian Nebelsick
[hereinafter Ms. Nebelsick] on October 28, 2013.
2.

Docket No.

This case has an usually complicated procedural history,

owing in part to the fact that Ms. Nebelsick passed away on
January 2, 2014.
Ms. Nebelsick filed the present Complaint on October 28,
2013, shortly before she passed away.

On April 9, 2014,

Plaintiff’s counsel filed Plaintiff’s initial brief.
No. 13.

Docket

On April 15, 2014, this Court entered an Order

vacating the pending briefing schedule.

Docket No. 14.

In

its Order, the Court noted several deficiencies in Plaintiff’s

brief

and

instructed

supplemental brief.

Plaintiff’s

Id.

brief on May 17, 2014.

counsel

to

file

a

The Plaintiff filed a supplemental

On July 18, 2014, the Defendant filed

a Motion to Dismiss, Docket No. 18.

In the Motion to Dismiss,

the Defendant argues that Ms. Nebelsick’s case should be
dismissed, because after she passed away, her attorney failed
to properly substitute a new party to the case. Specifically,
the Defendant argued:
[b]ecause
plaintiff’s
successors
or
representative did not file a motion for
substitution of a party within 90 days
after making a statement to the Court
noting
plaintiff’s
death,
defendant
respectfully requests that this Court enter
an order dismissing this case under Rule
25(a)(1).
Docket No. 18, Att. 1, p. 5.

1

Plaintiff’s counsel filed a Resistence.

Docket No. 20.

On August 27, 2014, United States Magistrate Judge Leonard T.
Strand considered whether Plaintiff should be allowed to add
a new party even though the deadline had passed. Judge Strand
ruled that:

1

Under the applicable rule, Plaintiff’s counsel should
have moved to substitute her next of kin by July 8, 2014.
2

[i]n considering all of the relevant
circumstances, including the relatively
short delay, I find that it would be unjust
to penalize Mr. Nebelsick for plaintiff’s
counsel’s inaction. As such, I find that
plaintiff has shown excusable neglect such
that the untimely motion to substitute
party should be allowed. I further find,
based on the representations set forth in
plaintiff’s reply (Doc. No. 26 at ¶ 2),
that Mr. Nebelsick is a proper party in
interest.
See 42 U.S.C. § 404(d); 20
C.F.R. § 404.503(b). As such, he may be
substituted as the plaintiff in this case.
Docket No. 27, p. 3. Based on the Magistrate’s ruling, Calvin
Nebelsick [hereinafter Mr. Nebelsick] was added as the new
Plaintiff in this case. Shortly thereafter, this Court denied
the Defendant’s Motion to Dismiss because Judge Strand allowed
Mr. Nebelsick to be added as a party in this case.
No. 28.

See Docket

The Defendant then filed its brief on November 21,

2014. The parties appeared for a hearing on January 14, 2015.
After considering the parties’ arguments, the Court took the
matters under consideration and now enters the following.
II.

FACTS
Ms. Nebelsick was born on November 1, 1962, and was 49

years old at the time of the hearing before the Administrative
Law Judge (ALJ).

She lived in Lake Park, Iowa.

She had three

children, only one of them was still at home at the time of
3

the hearing.

She lived with her husband who was an over the

road trucker.

Ms. Nebelsick had a high school education and

some post-high school education to become a paramedic.
Ms. Nebelsick had a relatively consistent work history
prior to her alleged onset date.

She worked for the Lake Park

ambulance crew for 13 years and ran her own business until
2006.

Her business provided pilot cars for truck drivers.

Her business had several employees who drove pilot cars for
her.

After the birth of the last child in 2002, Ms. Nebelsick

began developing mental health issues. She also suffered from
an alcohol addiction through that time period.
Ms. Nebelsick alleged disability due to bipolar disorder,
depression, hyperthyroidism, COPD-Stage 3, and emphysema. Her
alleged onset date is September 30, 2006, which is also the
date Ms. Nebelsick is last insured.
III.

PROCEDURAL HISTORY
Plaintiff applied for disability insurance benefits under

Title II of the Social Security Act (“Act”), 42 U.S.C. §§
401-434

on

March

2,

2011,

alleging

disability

beginning

September 30, 2006. The claim was denied initially on May 12,
2011,

and

upon

reconsideration
4

on

July

27,

2011.

Ms.

Nebelsick appealed the case to the ALJ who held a hearing on
June 11, 2012. The ALJ denied Ms. Nebelsick’s claim on August
6, 2012.

Ms. Nebelsick appealed to the Appeals Council who

denied her claim on August 8, 2013.

Ms. Nebelsick filed the

present Complaint shortly thereafter.
The ALJ set out the issue in Ms. Nebelsick’s case:
[t]he issue is whether the claimant is
disabled under sections 216(i) and 223(d)
of the Social Security Act. Disability is
defined as the inability to engage in any
substantial gainful activity by reason of
any medically determinable physical or
mental
impairment
or
combination
of
impairments that can be expected to result
in death or that has lasted or can be
expected to last for a continuous period of
not less than 12 months.
There is an
additional issue whether the insured status
requirements of sections 216(i) and 223 of
the Social Security Act are met.
The
claimant’s earnings record shows that the
claimant has acquired sufficient quarters
of coverage to remain insured through
September 30, 2006 (hereinafter “the date
last insured”).
Thus, the claimant must
establish disability on or before that date
in order to be entitled to a period of
disability
and
disability
insurance
benefits.
Docket No. 9, Tr. 9.

5

Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential

evaluation

process

for

determining

whether

individual is disabled and entitled to benefits.
404.1520.

The five successive steps are:

an

20 C.F.R. §

(1) determination

of whether a plaintiff is engaged in “substantial gainful
activity,” (2) determination of whether a plaintiff has a
“severe medically determinable physical or medical impairment”
that lasts for at least 12 months, (3) determination of
whether a plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether a plaintiff’s Residual Functional
Capacity

(RFC)

requirements

an

incapacity

their

past

relevant

of

determination

indicates

of

whether,

given

a

to

perform

the

work,

and

(5)

Plaintiff’s

RFC,

age,

education and work experience, a plaintiff can “make an
adjustment to other work.”

20 C.F.R. § 404.1520(4)(i-v).

At step one, if a plaintiff is engaged in “substantial
gainful activity” within the claimed period of disability,
there

is

no

disability

404.1520(a)(4)(i).

during

that

time.

20

C.F.R.

§

At step 2, if a plaintiff does not have a
6

“severe medically determinable physical or mental impairment”
that lasts at least 12 months, there is no disability.
C.F.R. § 404.1520(a)(4)(ii).
impairments

meet

or

20

At step 3, if a plaintiff’s

medically

equal

the

criteria

of

an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1,

and

last

at

least

12

months,

a

plaintiff

is

deemed

disabled. 20 C.F.R. § 404.1520(e). Before proceeding to step
4

and

5,

the

ALJ

must

determine

Functional Capacity [RFC].
still

do”

despite

404.1545(a)(1).

their

a

plaintiff’s

Residual

RFC is the “most” a person “can
limitations.

20

C.F.R.

§

The RFC an ALJ assigns a plaintiff has been

referred to as the “most important issue in a disability case
Malloy v. Astrue, 604 F. Supp. 2d 1247, 1250 (S.D.

. . . .”

Iowa 2009) (citing McCoy v. Schweiker, 683 F.2d 1138, 1147
(8th Cir. 1982)(en banc) abrogated on other grounds by Higgins
v.

Apfel,

222

F.3d

504,

505

(8th

Cir.

2000)).

When

determining RFC, the ALJ must consider all of the relevant
evidence and all of the Plaintiff’s impairments, even those
which are not deemed severe, as well as limitations which
result

from

symptoms,

404.1545(a)(2) and (3).

such

as

pain.

20

C.F.R.

§

An ALJ “may not simply draw his own
7

inferences about a plaintiff’s functional ability from medical
reports.”

Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th

Cir. 2004).
At step 4, if, given a plaintiff’s RFC, a plaintiff can
still

perform

disability.

their

past

relevant

work,

20 C.F.R. § 404.1520(a)(4)(iv).

there

is

no

At step 5, if,

given a plaintiff’s RFC, age, education, and work experience,
a plaintiff can make an adjustment to other work, there is no
disability.
416.920(a)(4)(v).

20

C.F.R.

§§

404.1520(a)(4)(v)

and

This step requires the ALJ to provide

“evidence” that a plaintiff could perform “other work [that]
exists in significant numbers in the national economy.”
C.F.R. § 404.1560(c)(2).

20

In other words, at step 5, the

burden of proof shifts from a plaintiff to the Commissioner of
the S.S.A. Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir.
1984).

The ALJ generally calls a Vocational Expert (VE) to

aid in determining whether this burden can be met.
In this case, the ALJ applied the appropriate methodology
and found that Ms. Nebelsick had not engaged in substantial
gainful employment since September 30, 2006.

8

(As admitted in

her brief, Ms. Nebelsick had no reported earnings in 2004,
2005, or 2006.)
The ALJ stated that Ms. Nebelsick had the following
medically determinable impairments:

mood disorder; substance

addictive disorder with a history of polysubstance abuse;
hypothyroidism; chronic obstructive pulmonary disease (COPD)
(20 C.F.R. 404.1521 et seq.).
However, the ALJ considered Ms. Nebelsick’s impairments
individually and combined and found that Ms. Nebelsick did not
suffer

from

a

Security Code.

disability

as

contemplated

by

the

Social

Specifically, the ALJ concluded that Ms.

Nebelsick had no severe impairments, concluding his analysis
at Step Two.

The ALJ stated:

impairment or combination of impairments
that significantly limited the ability to
perform basic work- related activities for
12 consecutive months; therefore, the
claimant did not have a severe impairment
or combination of
impairments (20 CFR
404.1521 et seq.).
Docket No. 9, Tr. 11.
The ALJ considered Ms. Nebelsick’s mental impairments
using

the

“paragraph

B”

criteria

criteria as set out in 20 C.F.R.
9

and
Part

the

“paragraph

C”

404, Subpart P,

Appendix 1 (20 C.F.R. 416.920(d), 416.925 and 416.926), and
determined that Ms. Nebelsick’s mental impairments did not
meet either set of requirements.

Docket No. 9, Tr. 13-14.

The ALJ based his finding on a lack of medical evidence
from the time period in question.

The ALJ relied on the

consultative opinions of Dr. Rene Staudacher and Dr. Donald
Shumate, who opined there was not enough evidence in the
record to determine a severe physical impairment prior to the
alleged onset date.

However, the ALJ noted that relevant

medical records were not available until after the experts
offered their opinions.

Docket No. 9, Tr. 14.

The ALJ also

relied on the opinion of Dr. Aaron Quinn, who opined the
medical

records

did

not

support

a

finding

of

a

severe

impairment prior to the alleged onset date. Docket No. 9, Tr.
15.

The ALJ also gave weight to one treating source, Dr.

McCabe, who opined Ms. Nebelsick was doing well in 2006, but
gave less weight to the opinions of Nurse Hemphill, the other
treating source.

2

2

The ALJ also noted that several sources, including
nurse practitioner Dawn Howley, provided medical evidence of
disability from the time period after the alleged onset date.
10

The ALJ considered the Plaintiff’s credibility under the
Polaski standard and stated:
[a]fter considering the evidence of record,
the undersigned finds that the claimant's
medically determinable impairments could
have been reasonably expected to produce
the
alleged
symptoms;
however,
the
claimant's
statements
concerning
the
intensity, persistence and limiting effects
of these symptoms are not credible to the
extent they are inconsistent with finding
that the claimant has no severe impairment
or combination of impairments for the
reasons explained below.
Docket No. 9, Tr. 14.

The ALJ concluded:

[c]onsidering the claimant's activities of
daily living and previous work activity,
the treatment records, the State agency
consultant assessments at Exhibits 6F, 7F,
8F, and 9F, the testimony of Nurse
Practitioner Hemphill at hearing, and the
claimant's
subjective
complaints
and
hearing testimony, the undersigned finds
that the claimant's mental and physical
impairments did not cause significant
limitation in her ability to perform basic
work activities as of her alleged onset
date and date last insured, and were
therefore not “severe” under the meaning of
Social Security disability regulations.
The claimant was not under a disability, as
defined in the Social Security Act, at any
time from September 30, 2006, the alleged
onset date, through September 30, 2006, the
date last insured (20 CFR 404.1520(c)).
Docket No. 9, Tr. 16.
11

IV.

STANDARD OF REVIEW
This

Court's

role

in

review

of

the

ALJ’s

decision

requires a determination of whether the decision of the ALJ is
supported by substantial evidence in the record as a whole.
See 42 U.S.C. § 405(g); Finch v. Astrue, 547 F.3d 933, 935
(8th

Cir.

2008).

Substantial

evidence

is

less

than

a

preponderance but enough that a reasonable mind might find it
adequate to support the conclusion in question.

Juszczyk v.

Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (citing Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).

This Court must

consider both evidence that supports and detracts from the
ALJ’s decision.

Karlix v. Barnhart, 457 F.3d 742, 746 (8th

Cir. 2006) (citing Johnson v. Chater, 87 F.3d 1015, 1017 (8th
Cir. 1996)).

In applying this standard, this Court will not

reverse the ALJ, even if it would have reached a contrary
decision, as long as substantial evidence on the record as a
whole supports the ALJ’s decision.

Eichelberger v. Barnhart,

390 F.3d 584, 589 (8th Cir. 2004).

The ALJ’s decision shall

be reversed only if it is outside the reasonable “zone of

12

choice.”

Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir.

2006) (citing Culbertson v. Shalala, 30 F.3d 934, 939 (8th
Cir. 1994)).
This Court may also ascertain whether the ALJ’s decision
is based on legal error.
(8th Cir. 2001).

Lauer v. Apfel, 245 F.3d 700, 702

If the ALJ applies an improper legal

standard, it is within this Court’s discretion to reverse
his/her decision.

Neal ex rel. Walker v. Barnhart, 405 F.3d

685, 688 (8th Cir. 2005); 42 U.S.C. 405(g).
V.

ISSUES
Mr. Nebelsick argues that the ALJ’s finding that Ms.

Nebelsick had no severe impairments prior to the date last
insured is not supported by substantial evidence.
VI.

ANALYSIS
In

order

for

a

plaintiff

to

qualify

for

disability

benefits, they must demonstrate they have a disability as
defined in the Social Security Act [hereinafter the Act]. The
Act defines a disability as an:
inability to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment
which can be expected to result in death or
which has lasted or can be expected to last
13

for a continuous period of not less than 12
months . . . .
42 U.S.C. § 423(d)(1)(A).
This case is largely about time.
in

the

last

years

disabling illnesses.

of

her

life,

There is no doubt that
Ms.

Nebelsick

suffered

However, Ms. Nebelsick’s date last

insured is 2006, some seven years before she passed way. Many
people are perfectly healthy, or at least not disabled, seven
years before they pass away. The ALJ found that Ms. Nebelsick
was one of those people.
The parties agree that Ms. Nebelsick’s date last insured
was

September

30,

2006,

and

to

support

a

finding

of

disability, she must prove disability on or before that date.
(See Plaintiff’s initial brief, Docket No. 13, p. 2, stating
“Plaintiff had no reported earnings in 2004, 2005, 2006, or
2007, and was last insured for Title II benefits as of
September 30, 2006.”)

However, her husband argues the ALJ’s

decision is not supported by substantial evidence because Ms.
Nebelsick was disabled by September 30, 2006.
This case is further complicated by two factors.

First,

in the most relevant time period, 2005-2006, Ms. Nebelsick
treated

with

nurse

practitioner
14

Denise

Hemphill.

Ms.

Hemphill’s office was destroyed in a fire some time thereafter
and

many

testified

records
in

were

person

at

lost.
the

Accordingly,
hearing

Ms.

before

the

Hemphill
ALJ

to

supplement the record.
Second, in most social security appeals, the ALJ finds
that the claimant has a severe impairment, but either has the
residual functional capacity to return to their past relevant
work or relies on a vocational expert to find that the
claimant could perform some job.

In this case, the ALJ found

that Ms. Nebelsick had no severe impairments.
noted

in

its

Order

directing

the

Plaintiff

As the Court
to

file

a

supplemental brief:
[t]he ALJ determined that Ms. Nebelsick had
no severe impairments. Consequently, the
ALJ did not conduct a residual functional
capacity evaluation. The Plaintiff shall
brief what affect the ALJ’s determination
has on her argument.
Docket No. 14, p. 3.

The Plaintiff touched on this issue in

the supplement brief, but only stated that the ALJ should have
done an RFC evaluation. As the Defendant states in its brief:
Plaintiff appears to allege that the ALJ
erred in not making a finding of a residual
functional capacity (“RFC”) in the process
of the determination that plaintiff was not
disabled at step two of the sequential
15

evaluation process. See Pl.’s Second Br.
at 2.
This argument is nonsense and
demonstrates a misunderstanding of the
sequential evaluation process.
The RFC
finding is made after step three of that
process, thus, because plaintiff was deemed
not disabled at step two no RFC finding was
necessary.
Docket No. 31, p. 14.

The Defendant is, of course, correct;

if the ALJ’s finding that there is no severe impairment
stands, there is no need to conduct an RFC.
Thus, turning back to the Court’s original question in
Docket No. 14, what effect the lack of an RFC has on this
appeal,

the

answer

is

that

what

a

the

record

social

is

security

significantly

underdeveloped

from

record

‘normally’ be.

As stated in the Defendant’s brief:

[p]laintiff argues that the evidence,
minimal though it is, overwhelmingly
supports an immediate award of benefits.
See Pl.’s First Br. at 6; Pl.’s Second Br.
at 12...Although defendant maintains that
the
ALJ’s
decision
is
supported
by
substantial evidence on the record as a
whole, should this Court disagree, the
proper remedy is for remand for further
development,
fact-finding,
and
consideration of the evidence.

16

would

Docket No. 31, p. 14.

The Defendant is correct.

Without an

RFC finding, an evaluation of past relevant work or testimony
from a vocational expert, there simply is not evidence in the
record from which the Court could award benefits.

Doing so

would invite a reversal from the 8th Circuit Court of Appeals.
Accordingly, even if the Court agrees with the Plaintiff that
the

ALJ’s

finding

regarding

severe

impairments

is

not

supported by substantial evidence (the Court does agree), it
cannot award benefits.

The proper remedy in this type of

situation is a reversal for the ALJ to further develop the
record.
Turning to the alleged errors, the ALJ based his findings
on the opinions of consulting experts.

The ALJ specifically

stated:
the undersigned has adopted the opinions of
the State agency consultants in finding
that the claimant did not have a severe
physical impairment as of the alleged onset
date and date last insured.
Docket No. 9, Tr. 14.

Dr. Staudacher, who considered Ms.

Nebelsick’s physical impairments, dated her opinion May 2,
2011,

and

Dr.

Donald

Shumate,

who

also

considered

Ms.

Nebelsick’s physical impairments, dated his opinion July 21,
17

2011.

The

ALJ

likewise

adopted

the

opinions

of

state

consultants Dr. Aaron Quinn and Dr. Myrna Tashner that Ms.
Nebelsick had no severe mental impairments.
his opinion May 11, 2011.

Dr. Quinn dated

Dr. Tasher dated her opinion on

July 22, 2011.
The dates of those opinions are very important because,
as the ALJ admits:
[t]he undersigned acknowledges that Nurse
Hemphill's treatment records, received
after the completion of the State agency
consultants'
evaluations,
show
some
treatment for respiratory problems and
hypothyroidism around the time of the date
last insured...
Docket No. 9, Tr. 14.
As discussed above, Nurse Hemphill was Ms. Nebelsick’s
primary care provider in the year so leading up to Ms.
Nebelsick’s alleged onset date/expiration of insured status.
Nurse Hemphill’s medical records provide valuable insight into
Ms. Nebelsick’s condition around the alleged onset date.
For example, regarding her mental health, on March 22,
2006, Nurse Hemphill stated that Ms. Nebelsick was having a
lot anxiety attacks and that Ms. Nebelsick felt she was not
getting proper care to treat all her issues.
18

Docket No. 9,

Tr. 467.
2005.

Nurse Hemphill noted panic attacks on November 4,

See Docket No. 9, Tr. 468.

On July 14, 2006, where

Nurse Hemphill stated that Ms. Nebelsick has been spiraling
out of control for approximately the last four years.
No. 9, Tr. 469.

Docket

Nurse Hemphill also noted uncontrolled

depression and the fact that Ms. Nebelsick was not satisfied
with her treatment progression.

Id.

On August 16, 2006, Ms.

Nebelsick was still depressed with no motivation.
No. 9, Tr. 471.

See Docket

On October 6, 2006, Nurse Hemphill noted that

Ms. Nebelsick needed to continue treating for her depression.
Docket No. 9, Tr. 472.

Nurse Hemphill’s records continue for

the period after the alleged onset date and consistently
report that Ms. Nebelsick suffered from ongoing mental health
issues such as depression and anxiety.

See Docket No. 9, Tr.

474-479.
Another major issue in this case was Ms. Nebelsick’s
COPD.

While the COPD was a major factor in Ms. Nebelsick’s

end of life issues, it is undisputed that the COPD did not
manifest until after her date last insured.

However, Ms.

Nebelsick and Nurse Hemphill testified that Ms. Nebelsick
suffered from chronic bronchitis in the time frame leading up
19

to Ms. Nebelsick’s alleged onset date.

This testimony is

supported by Nurse Hemphill’s medical records.

See, for

example, Docket No. 9, Tr. 468, dated November 4, 2005, where
Nurse Hemphill stated that Ms. Nebelsick had suffered from a
cough for a long time.

Similarly, on October 6, 2006, a week

after the alleged onset date, Ms. Nebelsick complained to
Nurse Hemphill of coughing related issues.

See Docket No. 9,

Tr. 472.
The ALJ adopted the findings of the reviewing consultants
mentioned above, but those consultants did not have access to
the medical records provided by Ms. Nebelsick’s treating
provider. Considering that he adopted incomplete findings, it
would be an error to maintain that the ALJ’s determination
that Ms. Nebelsick did not suffer from any severe impairments
is supported by substantial evidence.
It is beyond dispute that treating practitioners have the
clearest insight into the medical conditions at issue in
social security disability cases.

As has been repeatedly

stated:
[t]he opinion of a treating physician:
should not ordinarily be disregarded and is
entitled to substantial weight. A treating
physician's
opinion
regarding
an
20

applicant's impairment will be granted
controlling weight, provided the opinion is
well-supported by medically acceptable
clinical
and
laboratory
diagnostic
techniques and is not inconsistent with the
other substantial evidence in the record.
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); see also 20
C.F.R. §404.1527(c)(2) and Reed v. Barnhart, 399 F.3d 917, 920
(8th Cir. 2005).

Even if not entitled to controlling weight,

in many cases, a treating source’s medical opinion will be
entitled to the greatest weight and should be adopted. SSR
96-5p; see Reed, 399 F.3d at 920; 20 C.F.R. §404.1527(c)(2).
The ALJ must “always give good reasons . . . for the weight
[he

gives

the]

§404.1527(c)(2);

treating
see

source’s

Singh,

222

opinion.”
F.3d

at

20

452.

C.F.R.
In

the

decision’s narrative discussion section, the ALJ “must . . .
explain how any material inconsistencies or ambiguities in the
evidence in the case record were considered and resolved.”
SSR

96-8p.

Additionally,

the

opinions

of

an

examining

physician should be given greater weight than the opinions of
a source who had not examined the claimant.

See Shontos v.

Barnhart, 328 F.3d 418, 425 (8th Cir. 2003), citing 20 C.F.R.
§ 404.1527(d)(1) (now 20 C.F.R. §404.1527(c)).

21

Although

it

runs

contrary

to

the

current

trends

in

medicine, the social security regulations do not recognize
nurse practitioners and physician’s assistants as treating
sources.

Accordingly,

source’ under the rules.

Nurse

Hemphill

would

be

‘another

The 8th Circuit has given explicit

instruction regarding the weight given to other sources:
[o]n August 9, 2006, the SSA issued Social
Security Ruling (SSR) 06-03p, 71 Fed. Reg.
45,593 (Aug. 9, 2006).
The ruling
clarified how it considers opinions from
sources who are not what the agency terms
“acceptable medical sources.”
Social
Security separates information sources into
two main groups:
acceptable medical
sources and other sources. It then divides
other sources into two groups:
medical
sources and non-medical sources. 20 C.F.R.
§§ 404.1502, 416.902 (2007).
Acceptable
medical sources include licensed physicians
(medical or osteopathic doctors) and
licensed or certified psychologists.
20
C.F.R. §§ 404.1513(a), 416.913(a) (2007).
According to Social Security regulations,
there are three major distinctions between
acceptable medical sources and the others:
(1) Only acceptable medical sources can
provide evidence to establish the existence
of a medically determinable impairment,
id., (2) only acceptable medical sources
can provide medical opinions, 20 C.F.R. §§
404.1527(a)(2), 416.927(a)(2) (2007), and
(3) only acceptable medical sources can be
considered treating sources, 20 C.F.R. §§
404.1527(d) and 416.927(d) (2007). Other
sources:
Medical sources include nurse
practitioners,
physician
assistants,
22

licensed
clinical
social
workers,
naturopaths, chiropractors, audiologists,
and therapists.
Non-medical sources
include school teachers and counselors,
public and private social welfare agency
personnel,
rehabilitation
counselors,
spouses, parents and other caregivers,
siblings,
other
relatives,
friends,
neighbors, clergy, and employers.
20
C.F.R. §§ 404.1513(d), 416.913(d) (2007).
“Information from these ‘other sources’
cannot establish the existence of a
medically
determinable
impairment,”
according to SSR 06-03p. “Instead, there
must be evidence from an ‘acceptable
medical source’ for this purpose. However,
information from such ‘other sources’ may
be based on special knowledge of the
individual and may provide insight into the
severity of the impairment(s) and how it
affects
the
individual’s
ability
to
function.”
Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007).

The Sloan

Court went on to say, “[i]n general, according to the ruling,
the factors for considering opinion evidence include:

[h]ow

long the source has known and how frequently the source has
seen the individual; [h]ow consistent the opinion is with
other evidence; [t]he degree to which the source presents
relevant evidence to support an opinion; [h]ow well the source
explains the opinion; [w]hether the source has a specialty or
area of expertise related to the individual’s impairment(s);

23

and [a]ny other factors that tend to support or refute the
opinion.”

Sloan, 499 F.3d at 889.

Given the importance of treating providers, even if they
are qualified as ‘other sources’ as Nurse Hemphill would be,
the Court cannot credit the consultant opinions when those
opinions did not have access to her records. Accordingly, the
Court finds that ALJ’s finding that Ms. Nebelsick did not
suffer

from

a

severe

impairment

is

not

supported

by

substantial evidence.
Moreover, as discussed above, Nurse Hemphill’s office
suffered a fire in the years between Ms. Nebelsick’s alleged
onset

date

and

the

date

these

proceedings

commenced.

Accordingly, while some records were delayed, others were
apparently lost.

To make up for the gap in the record, Nurse

Hemphill testified at the ALJ hearing.

As set out in the

Plaintiff’s initial brief:
[f]irst, Ms. Hemphill expressed the opinion
that plaintiff’s medication management at
Seasons Center for mental health issues
bounced around and contributed to making
plaintiff feel unable to function at normal
capacity. (Tr. p. 54). She also expressed
the opinion that the medications prescribed
by Seasons Center tended to make plaintiff
too groggy and drugged.
(Tr. p. 55).
Second, Ms. Hemphill believed that the
24

Seasons Center treatment records suggest
that
plaintiff
was
not
capable
of
functioning
in
a
competitive
work
environment. Those records were compiled
through 2006.
(Tr. p. 55).
Third, Ms.
Hemphill testified that plaintiff developed
hypothyroidism because of Lithium she had
been prescribed while under treatment at
Seasons Center which rendered her tired,
fatigued all the time, unable to function,
confused, and not able to think clearly.
(Tr. p. 56). She testified that there is
something about Lithium that is known to
cause the development of hypothyroidism.
(Tr. p. 56).
Fourth, Ms. Hemphill
described
plaintiff
with
physical
manifestations of severe fatigue and
depression when she first started treating
her in 2005.
(Tr. p. 57).
Fifth, Ms.
Hemphill testified that plaintiff had a
tremor in her hands and was very shaky all
the time when she first observed her back
in March, 2006 and that it was plaintiff’s
mental health disorder that contributed to
her abuse of alcohol. (Tr. p. 58). Sixth,
Ms. Hemphill testified that plaintiff’s
memory and recall was very poor and that
she had absolutely no libido at that time
of her office visit in March, 2006. (Tr.
p. 59). Seventh, she described plaintiff
as suffering from anxiety attacks in 2006
which led to the shakiness in her upper
extremities and that her panic attacks were
attributable to both her underlying bipolar
illness and her medications, but more so
the bipolar illness. (Tr. p. 59). Eighth,
Ms.
Hemphill
described
plaintiff
as
exhausted and crying when she was in the
clinic on March 22, 2006 for evaluation.
(Tr. p. 60). Ninth, Ms. Hemphill testified
that plaintiff has a lot of problems with
bronchitis and some problems with bronchial
25

spasms (wheezing) which wheezing would
prevent her from getting good oxygenation.
That finding is documented in the October,
2006 office visit. Ms. Hemphill diagnosed
hypothyroidism at the time of that visit.
(Tr. p. 61).
Docket No. 13, p. 4-5.
Nurse
either.

Hemphill’s

records

do

not

exist

in

a

vacuum,

They are the natural extension of Ms. Nebelsick’s

earlier treatment history.

As set out in the Plaintiff’s

supplemental brief, on December 13, 2002, Dr. M. Christine
Segreto stated that Ms. Nebelsick does have symptoms of
depression and lack of motivation.

She does feel that she is

too tired to get anything accomplished and is overwhelmed.
See Docket No. 9, Tr. 465.

On June 6, 2004, Dr. Segreto noted

that Ms. Nebelsick had Major Depression recurrent, moderate
and Global Assessment Function (GAF) score of 40.
9, Tr. 455.

On June 28, 2004, Dr. Segreto continued to note

major depression with a GAF score of 31.
453.

On

December

22,

2004,

depression with a GAF score of 45.
February

Docket No.

24,

2005,

Dr.

McCabe

Dr.

Docket No. 9, Tr.

Barbara

McCabe

noted

Docket No. 9, Tr. 450.
noted

that

Ms.

On

Nebelsick

continued to suffer from major depression and found she had a
GAF score of 40.

Docket No. 9, Tr. 448-449.
26

On March 14,

2005, Dr. McCabe noted that Ms. Nebelsick had a GAF score of
60.

Docket No. 9, Tr. 447.

On April 11, 2005, Dr. McCabe

continued to note major depression and bipolar disorder.
Docket No. 9, Tr. 446.
Additionally, at the hearing, Ms. Nebelsick testified
about her condition leading up to the alleged on set date.
Ms.

Nebelsick

depression
Tr. 47.

testified

that

she

suffered

leading up to September 30, 2006.

from

severe

Docket No. 9,

She also testified she suffered chronic bronchitis

during that time period.

Docket No. 9, Tr. 46.

Based on the foregoing, the Court is persuaded that, at
the

very

least,

Ms.

Nebelsick

suffered

from

the

severe

impairment of depression on her alleged onset date.
VII.

CONCLUSION
It is clear the ALJ erred and his determination that Ms.

Nebelsick

has

no

severe

substantial evidence.

impairment

is

not

supported

by

As discussed above, the Court must

remand the case so the Commissioner can further develop the
record, because the Eighth Circuit has held that a remand for
an award of benefits is appropriate only where “the record
‘overwhelmingly supports’” a finding of disability. 42 U.S.C.
27

405(g); Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000)
(citing Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir.
1992).
In this case, the record is lacking in several key areas.
Accordingly, an award for benefits would not be appropriate at
this time.

The medical consultants did not have the benefit

of the entire medical record when they formed their opinion
that Ms. Nebelsick did not have any severe impairments.
Accordingly, those opinions, adopted by the ALJ, were not
supported

by

substantial

evidence.

On

remand,

the

Commissioner must further develop the record to determine
whether Ms. Nebelsick suffers from other severe impairments
and whether her severe impairments amount to any listings.
Additionally, an ALJ will have to develop an RFC and continue
with the five step sequential evaluation discussed above.
Therefore,

the

decision

of

the

ALJ

is

reversed

and

remanded for further consideration.
Application for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (EAJA), must be filed
within thirty (30) days of the entry of final judgment in this
action.

Thus,

unless

this
28

decision

is

appealed,

if

plaintiff’s attorney wishes to apply for EAJA fees, it must be
done within thirty (30) days of the entry of the final
judgment in this case.
IT IS SO ORDERED this 30th day of March, 2015.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

29