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Nebelsick v. Colvin

United States District Court, N.D. Iowa, Western Division

March 30, 2015



DONALD E. O'BRIEN, Senior District Judge.


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. Docket No. 2. 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. Docket No. 13. 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 Plaintiff's counsel to file a supplemental brief. Id . The Plaintiff filed a supplemental brief on May 17, 2014. 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:

[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. See Docket No. 28. 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.


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 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.


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 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.

Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled and entitled to benefits. 20 C.F.R. § 404.1520. The five successive steps are: (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) indicates an incapacity to perform the requirements of their past relevant work, and (5) determination of whether, given a 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 during that time. 20 C.F.R. § 404.1520(a)(4)(i). At step 2, if a plaintiff does not have a "severe medically determinable physical or mental impairment" that lasts at least 12 months, there is no disability. 20 C.F.R. § 404.1520(a)(4)(ii). At step 3, if a plaintiff's impairments meet or 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 a plaintiff's Residual Functional Capacity [RFC]. RFC is the "most" a person "can still do" despite their limitations. 20 C.F.R. § 404.1545(a)(1). 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, such as pain. 20 C.F.R. § 404.1545(a)(2) and (3). An ALJ "may not simply draw his own 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 their past relevant work, there is no disability. 20 C.F.R. § 404.1520(a)(4)(iv). 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. 20 C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v). This step requires the ALJ to provide "evidence" that a plaintiff could perform "other work [that] exists in significant numbers in the national economy." 20 C.F.R. § 404.1560(c)(2). 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. (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 disability as contemplated by the Social Security Code. Specifically, the ALJ concluded that Ms. Nebelsick had no ...

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