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Kevan v. Colvin

United States District Court, D. Idaho

April 27, 2015

RHONDA R. KEVAN, Petitioner,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.

MEMORANDUM DECISION AND ORDER

CANDY W. DALE, Magistrate Judge.

Before the Court is Petitioner Rhonda Kevan's appeal of Respondent's final determination that Petitioner is no longer entitled to Title II disability benefits, because her disability ended as of March 1, 2001. Petitioner has disputed that determination for 14 years, and this is the third time she has sought judicial review. The Court has reviewed the Petition for Review and the Answer, the parties' memoranda, and the administrative record (AR), and for the reasons that follow, will remand to the Commissioner for further proceedings consistent with this decision.

PROCEDURAL AND FACTUAL HISTORY

Petitioner filed an application for Disability Insurance Benefits and Supplemental Security Income on December 28, 1993, alleging inability to work since September 15, 1991. In February of 1994, the Social Security Administration (SSA) determined Petitioner was disabled due to malignant melanoma, which met the criteria for Listing 13.05B in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. Following a review of Petitioner's medical records, the SSA determined in July of 1997 that Petitioner's melanoma had metastasized to her lungs and continued to meet the criteria for Listing 13.05B. The SSA began another continuing disability review in August of 2000. Following this review, the SSA concluded that medical records after 1997 established Petitioner's melanoma was in sustained remission and thus no longer met the criteria of Listing 13.05B. Accordingly, the SSA notified Petitioner that she was no longer disabled as of March 1, 2001, and that her benefits would terminate on May 31, 2001.

At the time of the termination of benefits, Petitioner was 39 years of age. She had completed high school and attended some college. Her prior work experience at the time included work on an assembly line from 1981 until 1988. Petitioner had no other work experience as of March 1, 2001.

Petitioner requested reconsideration in April of 2001, and a reconsideration hearing was held in late October of 2001. Following the hearing, the SSA affirmed its determination that Petitioner was no longer disabled as of March 1, 2001. Petitioner requested a hearing before an ALJ, a hearing was held before ALJ John Arkoosh on December 6, 2002, and ALJ Arkoosh issued a decision denying Petitioner continuing disability benefits on February 7, 2003. Petitioner then sought review by the Appeals Council, which issued a denial in May of 2003.

In August of 2003, Petitioner filed in this Court a Petition to Review ALJ Arkoosh's decision. Kevan v. Barnhart, No. 1:03-cv-00319-LMB (D. Idaho filed Aug. 1, 2003). Prior to completion of the briefing, however, the parties filed a stipulation for remand under "sentence four" of 42 U.S.C. § 405(g), which the Court approved on March 17, 2004. Id. at Dkt. 20. On remand, a second hearing was held before ALJ Robin Henrie. In a decision issued on April 8, 2005, ALJ Henrie also found Petitioner was no longer disabled as of March 1, 2001. Petitioner again requested review by the Appeals Council, but, in May of 2008, the Appeals Council concluded the request was not timely. As a result, ALJ Henrie's decision became the final decision of the Commissioner.

On July 16, 2008, Petitioner opened this action by filing a petition for judicial review of ALJ Henrie's decision. (Dkt. 1.) Before briefing commenced, the parties filed a Stipulation for Remand, explaining that one of the two tapes recording the hearing before ALJ Henrie was lost. (Dkt. 12.) On November 3, 2008, the Court remanded the case for a de novo hearing under "sentence six" of 42 U.S.C. § 405(g). (Dkt. 14.)

On remand, a third hearing was held, this time before ALJ Kurt Schuman on December 10, 2009. ALJ Schuman issued an unfavorable decision on December 29, 2010, again finding that Petitioner was no longer disabled as of March 1, 2001. On February 3, 2011, Petitioner sent the Appeals Council exceptions to ALJ Schuman's decision and requested further review, but for reasons that are not clear in the record it appears this request languished until March 9, 2013.[1] Almost nine months later, the parties filed a Joint Motion to Reopen this case, explaining "the Appeals Council completed the further administrative proceedings on remand." (Dkt. 17 at 2.) Accordingly, the Court has jurisdiction to review ALJ Schuman's decision pursuant to 42 U.S.C. § 405(g).

In early 2014, the Court granted the motion to reopen the appeal, Respondent filed an Answer and the administrative record, and the parties filed briefs on the merits. In addition, the parties consented in writing to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

SEQUENTIAL PROCESS

After a claimant is awarded disability benefits, the SSA periodically evaluates the claimant's impairments to determine whether the claimant remains entitled to disability benefits. 20 C.F.R. § 404.1589. Under 20 C.F.R. § 404.1594(f), the ALJ uses an eight-step sequential process to determine whether a claimant continues to be disabled.

At step one, the ALJ must determine whether the claimant is engaging in substantial gainful activity. ALJ Schuman found Petitioner had not engaged in substantial gainful activity from the date of her most recent favorable disability decision, July 1, 1997, through March 1, 2001.

Step two asks whether the claimant has an impairment or combination of impairments that meets or equals a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found Petitioner had the following medically determinable impairments as of March 1, 2001: hypertrophic cardiomyopathy, a history of seizures, a history of fractured left distal femur with surgery, insomnia, hyperthyroidism, depression, and adjustment disorder with mixed emotional features of anxiety. ...


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