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Browning v. Colvin

United States District Court, D. South Dakota

September 30, 2014

MARK R. BROWNING, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.


JEFFREY L. VIKEN, Chief District Judge.


Plaintiff Mark R. Browning filed a complaint appealing from an administrative law judge's ("ALJ") decision denying disability benefits. (Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 7). The court issued an amended briefing schedule requiring the parties to file a joint statement of material facts ("JSMF"). (Docket 13). The parties filed their JSMF. (Docket 14). For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner of the Social Security Administration ("SSA") (Docket 15) is granted in part and denied in part consistent with this order. Defendant's motion to affirm the decision of the Commissioner (Docket 18) is denied.


The parties' JSMF (Docket 14) is incorporated by reference. Further recitation of salient facts is included in the discussion section of this order.

On June 2, 2010, plaintiff Mark R. Browning applied for social security disability benefits alleging a disability onset date of September 1, 2006. (Docket 14 at ¶ 1). The claim was denied initially on September 3, 2010, and on reconsideration on December 17, 2010. (Administrative Record at pp. 83-85, 87-88).[1] Mr. Browning filed a request for a hearing on January 28, 2011, and a hearing was held on November 29, 2011. (Docket 14 at ¶¶ 1, 2). At the hearing, Mr. Browning amended his disability onset date to September 1, 2007. Id. at ¶ 2. On December 13, 2011, the ALJ issued a decision finding Mr. Browning disabled only from September 1, 2007 to July 20, 2010, and found that a medical improvement occurred as of the latter date. Id. at ¶ 3. The ALJ subsequently amended his decision on February 28, 2012 and March 27, 2012, to reflect Mr. Browning's amended disability onset date, the medical improvement date and the date on which Mr. Browning's disability ended. Id. at ¶ 3; see also AR at p. 23.

On January 13, 2012, Mr. Browning sought review of the ALJ's amended decision by the Appeals Council, challenging the finding that a medical improvement occurred on July 21, 2010. (Docket 14 at ¶ 4). On March 19, 2013, the Appeals Council denied the request for review. Id. at ¶ 4. The ALJ's decision constitutes the final decision of the Commissioner. (Docket 14 at ¶ 4). It is from this decision that Mr. Browning timely appeals. (Docket 1).

The issue before the court is whether the ALJ's decision of December 13, 2011, as amended on February 28, 2012 and March 27, 2012, finding Mr. Browning was "disabled under sections 216(i) and 223(d) of the Social Security Act, from September 1, 2007 through July 20, 2010" is supported by the substantial evidence on the record as a whole. (AR at p. 38); see also Howard v. Massanari , 255 F.3d 577, 580 (8th Cir. 2001) ("By statute, the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.") (internal quotation marks and brackets omitted) (citing 42 U.S.C. § 405(g)).


The Commissioner's findings must be upheld if they are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v. Barnhart , 457 F.3d 865, 869 (8th Cir. 2006); Howard , 255 F.3d at 580. The court reviews the Commissioner's decision to determine if an error of law was committed. Smith v. Sullivan , 982 F.2d 308, 311 (8th Cir. 1992). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Cox v. Barnhart , 471 F.3d 902, 906 (8th Cir. 2006) (citation and internal quotation marks omitted).

The review of a decision to deny disability benefits is "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision... [the court must also] take into account whatever in the record fairly detracts from that decision." Reed v. Barnhart , 399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari , 258 F.3d 742, 747 (8th Cir. 2001)).

It is not the role of the court to re-weigh the evidence and, even if this court would decide the case differently, it cannot reverse the Commissioner's decision if that decision is supported by good reason and is based on substantial evidence. Guilliams v. Barnhart , 393 F.3d 798, 801 (8th Cir. 2005). A reviewing court may not reverse the Commissioner's decision "merely because substantial evidence would have supported an opposite decision.'" Reed , 399 F.3d at 920 (quoting Shannon v. Chater , 54 F.3d 484, 486 (8th Cir. 1995)).


"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] which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A).

The SSA established a five-step sequential evaluation process for determining whether an individual is disabled. 20 CFR § 404.1520(a)(4). If the ALJ determines a claimant is not disabled at any step of the process, the evaluation does not proceed to the next step as the claimant is not disabled. Id . The five-step sequential evaluation process is:

(1) whether the claimant is presently engaged in a "substantial gainful activity"; (2) whether the claimant has a severe impairment-one that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the residual functional capacity to perform... past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.

Baker v. Apfel , 159 F.3d 1140, 1143-44 (8th Cir. 1998) (citing Kelley v. Callahan , 133 F.3d 583, 587-88 (8th Cir. 1987)).

The ALJ applied the five-step sequential evaluation required by the SSA's regulations. (AR at pp. 34-35). At the conclusion of the five-step process, the ALJ found "[t]he claimant was under a disability, as defined by the Social Security Act, from September 1, 2007 through July 20, 2010." (AR at p. 35) (citations omitted).

The SSA established an eight-step sequential review process for determining whether a claimant's disability has ceased. 20 CFR § 404.1594(f). "The regulations for determining whether a claimant's disability has ceased may involve up to eight steps." Dixon v. Barnhart , 324 F.3d 997, 1000 (8th Cir. 2003). The eight steps are:

(1) whether the claimant is currently engaging in substantial gainful activity, (2) if not, whether the disability continues because the claimant's impairments meet or equal the severity of a listed impairment, (3) whether there has been a medical improvement, (4) if there has been medical improvement, whether it is related to the claimant's ability to work, (5) if there has been no medical improvement or if the medical improvement is not related to the claimant's ability to work, whether any exception to medical improvement applies, (6) if there is medical improvement and it is shown to be related to the claimant's ability to work, whether all of the claimant's current impairments in combination are severe, (7) if the current impairment or combination of impairments is severe, whether the claimant has the residual functional capacity to perform any of his past relevant work activity, and (8) if the claimant is unable to do work performed in the past, whether the claimant can perform other work.

Id. at 1000-01 (citing 20 CFR § 404.1594(f)); see also Wilson v. Astrue, No. 4:09cv1468 TCM, 2011 WL 903084, at *11 (E.D. Mo. Mar. 15, 2011).

"To discontinue a claimant's benefits because his or her medical condition has improved, the Commissioner must demonstrate that the conditions which previously rendered the claimant disabled have ameliorated, and that the improvement in the physical condition is related to claimant's ability to work.'" Muncy v. Apfel , 247 F.3d 728, 734 (8th Cir. 2001) (citing Nelson v. Sullivan , 946 F.2d 1314, 1315 (8th Cir.1991) (citing 20 CFR § 404.1594(b)(2)-(5)). The Social Security regulations define a medical improvement as:

[a]ny decrease in the medical severity of [a claimant's] impairment(s) which was present at the time of the most recent favorable medical decision that [the claimant] [was] disabled or continued to be disabled. A determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with [the claimant's] impairment(s).

Wilson, 2011 WL 903084, at *11 (quoting 20 CFR § 416.994(b)(1)(I)).

A "[m]edical improvement can be found in cases involving the improvement of a single impairment if that improvement increases the claimant's overall ability to perform work related functions." Id . (citing 20 CFR § 416.994(c)(2)). "Whether a claimant's condition has improved is primarily a question for the trier of fact, generally determined by assessing witnesses' credibility." Muncy , 247 F.3d at 734 (citing Nelson , 946 F.2d at 1316).

In step three of determining whether Mr. Browning's disability continued through the date of his decision, the ALJ found there had been a medical improvement increasing Mr. Browning's residual functional capacity ("RFC"). (AR at p. 36). In step eight of the evaluation, in light of the medical improvement, the ALJ found there were jobs that existed in significant numbers in the national economy that Mr. Browning could perform, and he was, therefore, no longer disabled. Id. at 37.


Mr. Browning identifies the following issues: (1) the ALJ erred by finding there was a medical improvement and failed to follow the treating physician rule; (2) the ALJ failed to properly evaluate Mr. Browning's credibility; and (3) the ALJ relied on flawed vocational expert testimony. The court discusses each issue in turn. (Docket 15-2)

1. Whether the ALJ Properly Found a Medical Improvement

The ALJ found that Dr. Steven Frost's opinions "appear[ed] to be based on the claimant's subjective complaints, as [Mr. Browning's] treatment records... do not support such extreme limitations." (AR at p. 37). Mr. Browning argues the ALJ failed to properly evaluate Dr. Frost's credibility in reaching the conclusion that a medical improvement occurred because Dr. Frost's opinions, as Mr. Browning's treating physician, are entitled to controlling weight or, in the alternative, "the greatest weight." (Docket 15-2 at p. 4). Defendant contends the ALJ reasonably considered Dr. Frost's credibility in light of inconsistencies between Dr. Frost's opinions and his treatment notes and the substantial evidence in the record. (Docket 19 at pp. 4-9). The court finds the ALJ's determination that Dr. Frost's opinions were not entitled to controlling weight is supported by substantial evidence. Prosch v. Apfel , 201 F.3d 1010, 1013-14 (8th Cir. 2000). However, the court finds the ALJ erred by failing to consider all of the factors enumerated in 20 CFR §§ 404.1527(c) and 416.927(c) and thus, did not conduct a proper analysis of the weight accorded to Dr. Frost's opinions.

a. Dr. Frost's Opinions Are Not Entitled to Controlling Weight

"A treating physician's opinion is given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence." House v. Astrue , 500 F.3d 741, 744 (8th Cir. 2007) (citation and internal quotation marks omitted). However, "while entitled to special weight, it does not automatically control, particularly if the treating physician evidence is itself inconsistent." Id . (citations and internal quotation marks omitted). "It is well established that an ALJ may grant less weight to a treating physician's opinion when that opinion conflicts with other substantial medical evidence contained within the record." Prosch , 201 F.3d at 1013-14. Therefore, the ALJ must "give good reasons for discounting a treating physician's opinion." Dolph v. Barnhart , 308 F.3d 876, 878-79 (8th Cir. 2002).

In this case, Dr. Frost was Mr. Browning's treating physician. (AR at pp. 37, 985-1003). Mr. Browning was transferred to Dr. Frost's care on May 27, 2010, due to Mr. Browning moving to South Dakota. Id. at 737. Dr. Frost is a pain management specialist. (Docket 14 at ¶ 34). Dr. Frost or a member of Rapid City Regional Pain Management examined Mr. Browning on at least four separate occasions during the four-month period immediately preceding Dr. Frost's completion of the Multiple ...

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