United States District Court, D. South Dakota, Western Division
JAMES B. DILLON, JR., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
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.
AND PROCEDURAL HISTORY
parties' JSMF (Docket 13) is incorporated by reference.
Further recitation of salient facts is incorporated in the
discussion section of this order.
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.
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)).
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).
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.
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.
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). 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
(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).
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.
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.
found Mr. Dillon suffered from the following severe
impairments: “bi-polar disorder; anxiety
disorder with panic; impulse control disorder;
diabetes mellitus; recurrent deep vein thrombosis; lumbar
degenerative disease; sleep apnea.” (AR at p. 14) (bold
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.
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.
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 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 . . . 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.
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).
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.
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.
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)).
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