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Dillon v. Colvin

United States District Court, D. South Dakota, Western Division

September 26, 2016

JAMES B. DILLON, JR., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.



         Plaintiff James Dillon filed a complaint appealing from an administrative law judge's (“ALJ”) decision denying disability insurance benefits. (Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 17). The court issued a briefing schedule requiring the parties to file a joint statement of material facts (“JSMF”). (Docket 8). The parties filed their JSMF. (Docket 13). For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner (Docket 16) is granted.


         The parties' JSMF (Docket 13) is incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order.

         On February 12, 2010, Mr. Dillon filed an application for disability insurance (“DIB”) benefits under Title II. (Docket 13 ¶ 1). The application alleged a disability beginning February 3, 2009, and a last insured date of December 31, 2009. Id. On November 21, 2013, the ALJ issued a decision finding Mr. Dillon was not disabled. Id. ¶ 3; see also Administrative Record at pp. 11-27 (hereinafter “AR at p. __”). On March 3, 2015, the Appeals Council denied Mr. Dillon's request for review and affirmed the ALJ's decision. (Docket 13 ¶ 3). The ALJ's decision constitutes the final decision of the Commissioner of the Social Security Administration. It is from this decision which Mr. Dillon timely appeals.

         The issue before the court is whether the ALJ's decision of November 21, 2013, that Mr. Dillon was not “under a disability, as defined in the Social Security Act, at any time from February 3, 2009, . . . through December 31, 2009, ” is supported by substantial evidence in the record as a whole. (AR at p. 27) (bold omitted); 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) (internal citation and quotation marks omitted).

         The review of a decision to deny 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)). Issues of law are reviewed de novo with deference given to the Commissioner's construction of the Social Security Act. See Smith, 982 F.2d at 311.

         The Social Security Administration established a five-step sequential evaluation process for determining whether an individual is disabled and entitled to DIB benefits under Title II or SSI benefits under Title XVI. 20 CFR §§ 404.1520(a) and 416.920(a).[1] 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 there are other jobs in the national economy the claimant can perform.

Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). The ALJ applied the five-step sequential evaluation required by the Social Security Administration regulations. (AR at pp. 12-13).

         STEP ONE

         At step one the ALJ determined Mr. Dillon last met the insured status requirements of Title II on December 31, 2009. (AR at p. 14). With this finding, the relevant time period is February 3, 2009, through December 31, 2009. Id. After his alleged onset date, Mr. Dillon worked as a hotel clerk from May 1, 2009, to October 3, 2009. Id. “The agency . . . determined that this was an unsuccessful work attempt, as the work ‘was done during a period of remission and ended due to his DIB.' ” Id. The ALJ found Mr. Dillon had not been engaged in substantial gainful activity during the period February 3, 2009, through December 31, 2009. Id.

         STEP TWO

         “At the second step, [the agency] consider[s] the medical severity of your impairment(s).” 20 CFR § 404.1520(a)(4)(ii). “It is the claimant's burden to establish that [her] impairment or combination of impairments are severe.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). A severe impairment is defined as one which significantly limits a physical or mental ability to do basic work activities. 20 CFR § 404.1521. An impairment is not severe, however, if it “amounts to only a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities.” Kirby, 500 F.3d at 707. “If the impairment would have no more than a minimal effect on the claimant's ability to work, then it does not satisfy the requirement of step two.” Id. (citation omitted). Additionally, the impairment must have lasted at least twelve months or be expected to result in death. See 20 CFR § 404.1509.

         The ALJ found Mr. Dillon suffered from the following severe impairments: “bi-polar disorder;[2] anxiety disorder[3] with panic; impulse control disorder; diabetes mellitus; recurrent deep vein thrombosis; lumbar degenerative disease; sleep apnea.” (AR at p. 14) (bold omitted).

         STEP THREE

         At step three, the ALJ determines whether claimant's impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix 1”). 20 CFR §§ 404.1520(d), 404.1525, and 404.1526. If a claimant's impairment or combination of impairments meets or medically equals the criteria for one of the impairments listed and meets the duration requirement of 20 CFR § 404.1509, the claimant is considered disabled. A claimant has the burden of proving an impairment or combination of impairments meet or equals a listing within Appendix 1. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). If a claimant's impairment or combination of impairments meets or medically equals the criteria for one of the impairments listed and meets the duration requirement of 20 CFR § 404.1509, claimant is considered disabled. If not covered by these criteria, the analysis is not over, and the ALJ proceeds to the next step.

         At step three, the ALJ found Mr. Dillon's severe impairments did not qualify either individually or collectively to meet or equal a listing under Appendix 1. (AR at p. 15). Mr. Dillon challenges this finding as it relates to his severe disability, deep vein thrombosis (“DVT”), under Listing 4.11. (Docket 16 at p. 12). Although the ALJ referenced Listing 4.00 relating to cardiovascular impairments, he did not specifically address Listing 4.11. See AR at pp. 15-17. Rather, the ALJ simply included this Listing in the finding “[a]fter careful review of the medical record, the undersigned finds that his impairments do not equal the severity of any impairment described in those sections of the Listing of lmpairments.” Id. at p. 15.

         Listing 4.0 considers impairments to the cardiovascular system. (Appendix 1 at 4.0). “Disorders of the veins . . . may cause impairments of the lower extremities (peripheral vascular disease) . . . . [The agency] will evaluate peripheral vascular disease under 4.11 or 4.12 . . . .” Id. at 4.0A(1.1)(c). Peripheral vascular disease[4] to qualify under Listing 4.0 requires:

Chronic venous insufficiency of a lower extremity with incompetency or obstruction of the deep venous system and one of the following:
A. Extensive brawny edema[5] . . . involving at least two-thirds of the leg between the ankle and knee or the distal one-third of the lower extremity between the ankle and hip.
B. Superficial varicosities, stasis dermatitis, and either recurrent ulceration or persistent ulceration that has not healed following at least 3 months of prescribed treatment.

Id. at 4.11.

         Mr. Dillon argues on December 4, 2008, his chart noted DVT and edema. (Docket 16 at p. 14) (referencing (Docket 13 ¶ 92) (“firm swelling of the right lower extremity to the knee and a mottling of the entire mid-calf to the ankle.”). He asserts that just outside the December 31, 2009, coverage period on January 21, 2010, his emergency room record charts “moderate skin changes, consistent with chronic venous insufficiency are present in the distal two-thirds of the leg.” Id. (referencing Docket 13 ¶ 151).

         While the December 2008 record of “firm swelling” may qualify as brawny edema from the right ankle to the knee, the January 2010 record does not. During the insured period of February 13, 2009, through the end of the year, Mr. Dillon's medical records reflect either “no edema, ” edema of an unspecified nature, or pitting edema evidenced by charting of “1 edema.” See AR at pp. 743-44, 753, 768, 773, 780-82, 785, 787 and 818-19. Mr. Dillon fails to satisfy his burden of proving his condition meets or equals a listing within Appendix 1. Johnson, 390 F.3d at 1070.

         STEP FOUR

         Before considering step four of the evaluation process, the ALJ is required to determine a claimant's residual functional capacity (“RFC”). 20 CFR § 404.1520(e). RFC is a claimant's ability to do physical and mental work activities on a sustained basis despite any limitations from his impairments. 20 CFR § 404.1545(a)(1). In making this finding, the ALJ must consider all of the claimant's impairments, including those which are not severe. 20 CFR § 404.1545(e). All of the relevant medical and non-medical evidence in the record must be considered. 20 CFR §§ 404.1520(e) and 404.1545.

         “The ALJ should determine a claimant's RFC based on all the relevant evidence, including the medical records, observations of treating physicians and others, and an individual's own description of his limitations.” Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)); see also Cox, 495 F.3d at 619 (because RFC is a medical question, the ALJ's decision must be supported by some medical evidence of a claimant's ability to function in the workplace, but the ALJ may consider non-medical evidence as well); Guilliams, 393 F.3d at 803 (“RFC is a medical question, and an ALJ's finding must be supported by some medical evidence.”). The ALJ “still ‘bears the primary responsibility for assessing a claimant's residual functional capacity based on all relevant evidence.' ” Id. (quoting Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000)).

         “In determining RFC, the ALJ must consider the effects of the combination of both physical and mental impairments.” Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004) (citing Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003)). As stated earlier in this discussion, a severe impairment is one which significantly limits an ...

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