United States District Court, D. South Dakota, Western Division
LOREN G. JORGENSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
Loren Jorgenson filed a complaint appealing the final
decision of Nancy A. Berryhill,  the Acting Commissioner of
the Social Security Administration, finding him not disabled.
(Docket 1). Defendant denies plaintiff is entitled to
benefits. (Docket 9). The court issued a briefing schedule
requiring the parties to file a joint statement of material
facts (“JSMF”). (Docket 11). The parties filed
their JSMF. (Docket 12). The parties also filed a joint
statement of disputed facts
(“JSDF”). (Docket 12-1). For the reasons stated
below, plaintiff's motion to reverse the decision of the
Commissioner (Docket 15) is denied.
AND PROCEDURAL HISTORY
parties' JSMF (Docket 12) and JSDF (Docket 12-1) are
incorporated by reference. Further recitation of salient
facts is incorporated in the discussion section of this
20, 2013, Mr. Jorgenson filed an application for disability
insurance (“DI”) benefits under Title II and
supplemental social security income (“SSI”)
benefits under Title XVI, alleging an onset of disability
date of December 25, 2008. (Docket 12 ¶ 1). On October 8,
2014, the ALJ issued a decision finding Mr. Jorgenson was not
disabled. Id. ¶ 6; see also
Administrative Record at pp. 17-27 (hereinafter “AR at
p. __”). The Appeals Council denied Mr. Jorgenson's
request for review and affirmed the ALJ's decision.
(Docket 12 ¶ 9). The ALJ's decision constitutes the
final decision of the Commissioner of the Social Security
Administration. It is from this decision which Mr. Jorgenson
issue before the court is whether the ALJ's decision of
October 8, 2014, that Mr. Jorgenson was not “under a
disability, as defined in the Social Security Act, from
December 25, 2008, [through October 8, 2014]” 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
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 DI 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.
applied the five-step sequential evaluation required by the
Social Security Administration regulations. (AR at pp.
one, the ALJ determined Mr. Jorgenson had “not [been]
engaged in substantial gainful activity since December 25,
2008, the alleged onset date.” Id. at p. 19
two, the ALJ must decide whether the claimant has a medically
determinable impairment that is severe or a combination of
impairments that are severe. 20 CFR § 404.1520(c). A
medically determinable impairment can only be established by
an acceptable medical source. 20 CFR § 404.1513(a).
Accepted medical sources include, among others, licensed
physicians. Id. “It is the claimant's
burden to establish that his impairment or combination of
impairments are severe.” Kirby v. Astrue, 500
F.3d 705, 707 (8th Cir. 2007).
regulations describe “severe impairment” in the
negative. “An impairment or combination of impairments
is not severe if it does not significantly limit your
physical or mental ability to do basic work
activities.” 20 CFR § 404.1521(a). 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. Thus, a
severe impairment is one which significantly limits a
claimant's physical or mental ability to do basic work
identified Mr. Jorgenson suffered from the following severe
impairment: “right lower extremity chronic pain
syndrome.” (AR at p. 19) (bold omitted). Mr. Jorgenson
challenges this finding. (Docket 16 at pp. 22-26). He asserts
the ALJ erred by not finding his “combined mental
disorders . . . severe.” Id. at p. 26.
basis for plaintiff's challenge is two-fold. First, Dr.
Donald Burnap diagnosed a “personality disorder, PTSD
[post-traumatic stress disorder], and chronic pain
syndrome.” Id. at p. 23 (referencing Docket
12-1 ¶ 67). Second, Dr. Brett Valette diagnosed a
“nonspecific personality disorder with schizoid
features, somatization disorder, and dysthymia.”
Id. (referencing Docket 12-1 ¶ 69). Mr.
Jorgenson claims his combined mental disorders are severe.
[The] combined mental disorders clearly had more than minimal
impact on work-related functioning, evident in his history of
walking away from jobs, interspersed with incarcerations;
life-long problem of not fitting in and not being able to put
up with people; odd and unhygienic appearance and dress;
reclusiveness; his very restricted activities of daily
living; and his experience of severe pain in multiple joints
and in all fibromyalgia trigger points.
Id. at p. 25. Mr. Jorgenson claims “the
ALJ's rejection of Jorgenson's mental disorders as a
‘severe' impairment negatively influenced
assessments of credibility and residual functional capacity,
resulting in an unsupported step five determination.”
Commissioner argues the ALJ's decision is supported by
the substantial weight of the evidence. (Docket 17 at pp.
3-6). The Commissioner contends Mr. Jorgenson “does not
even attempt to reconcile his reliance on the opinion from
[Dr.] Burnap . . . which was issued in 2004, with the
undisputed fact that [Mr. Jorgenson] was denied disability in
prior applications that were filed subsequent to the opinion
. . . . More important is his failure to reconcile Dr.
Burnap's opinion with [claimant's] performance of
work years after Dr. Burnap's opinion . . . .”
Id. at p. 6.
rebuttal, Mr. Jorgenson argues the “Commissioner
overlooks that Dr. Burnap, describing the effects of
Jorgenson's psychiatric disorders, stated that he clearly
had marked difficulty interacting with people under any
circumstances.” (Docket 18 at p. 2). He claims
“Dr. Burnap's opinion was the first medical
evidence . . . [in] the record ..... No adjudicator stated a
reason to ignore Dr. Burnap's opinion that included
longstanding posttraumatic stress disorder and personality
disorder. The ALJ stated no reason to reject it, and there is
no rationale to review.” Id. at p. 3.
decision at step-two has an impact on the ALJ's
credibility analysis and the remaining steps of the
evaluation process. Pratt v. Sullivan, 956 F.2d 830,
836 (8th Cir. 1992). For that reason, the court will provide
a detailed summary of the medical evidence surrounding the
2004, Psychiatrist Donald Burnap conducted a consultative
evaluation of Mr. Jorgenson. (Docket 12-1 ¶ 6). During
the examination, Dr. Burnap learned Mr. Jorgenson witnessed
his girlfriend's violent death in 1997. Id.
¶ 9. Following that traumatic event, Mr. Jorgenson
reported experiencing nightmares and daytime flashbacks of
the event. Id. ¶ 10. Approximately four years
later Mr. Jorgenson was involved in a truck accident in which
his semi-tractor and trailer went off the road and he
suffered upper-body injuries. Id. ¶ 11. As a
result of the crash, Mr. Jorgenson told Dr. Burnap that he
still had “ongoing pain, mainly in the upper
extremities” and that he was “fearful of getting
back into a truck driving situation.” Id. Mr.
Jorgenson stated that if he was able drive without
“severe pain[, ] he would resume driving a truck
regardless of his fears.” Id. As of the date
of Dr. Burnap's examination Mr. Jorgensen had not worked
for two years. Id. ¶ 13.
the mental status examination, Dr. Burnap found Mr. Jorgenson
alert and cooperative and his behavior appropriate for the
setting. Id. ¶ 14. Physically, Mr. Jorgenson
was “tall and very thin, ” with
“poor” grooming and dress and a “relatively
strong body odor.” Id. Dr. Burnap found Mr.
Jorgenson “moderately depressed and his affect is
moderately flattened consistent with his depression.”
Id. Dr. Burnap diagnosed Mr. Jorgenson as suffering
with “post-traumatic stress disorder; major depressive
disorder; personality disorder, not otherwise specified,
mainly cluster B; and chronic pain syndrome secondary to some
organic cause.” Id. ¶ 67. Dr. Burnap
described Mr. Jorgenson's limitations in the following
This man has clearly had a relatively longstanding
personality disorder. His lifestyle has been distinctly
different from the typical standards of society. He has been
in trouble with law numerous times. However, all along he has
managed to maintain gainful employment. His longest vocation
has been as a long haul truck driver. His lack of ongoing
relationships is consistent with a cluster B type of
personality disorder. Also, notably he has not been able to
maintain a residence of his own and throughout practically
all of his life has lived with his parents. The exceptions
are times spent in jail.
Id. On August 2, 2004, Dr. Burnap assigned him a
global assessment of function (“GAF”) score of
“50.” Id. Dr. Burnap concluded Mr.
Jorgenson “appears to have a chronic pain disorder and
. . . based on the pattern of his emotional experience during
this time and observed behavior on mental status, he does
indeed have bona fide pain, which is limiting
function.” Id. ¶ 68.
Jorgenson's argument the ALJ erred by not adopting Dr.
Burnap's 2004 opinions is misplaced. Mr. Jorgenson had an
extensive personal and work history in the years after 2004.
In 2005, Mr. Jorgenson was convicted of driving while under
the influence of alcohol and spent a year in a county jail.
Id. ¶ 62. When released from jail, he ran a
bobcat at the Black Hills Nursery, which ended
“unsuccessfully” without explanation.
2006, Mr. Jorgenson worked for a Canadian trucking company.
Id. ¶ 63; see also AR at p. 283. He
described this as the “best job I ever had in my
life.” They “treat[ed] their drivers right . . .
. They told me I would not touch freight, all I had to do was
drive . . . . I drove all over the place, even Canada.”
(Docket 12-1 ¶ 63). He reported the company was sold to
a group in Montana who wanted him to work for them because of
his “safety record, no violations.” (AR at p.
283). Mr. Jorgenson stated he was not able to continue
working for the new company because he “couldn't
leave the state of South Dakota because [he] owed child
support.” (Docket 12-1 ¶ 63; AR at p. 283).
2007, Mr. Jorgenson returned to work at the Black Hills
Nursery. (Docket 12-1 ¶ 64; AR at p. 284). In this job,
he “drove a bobcat and unloaded trucks. . . . [He] was
always doing anything [he] could.” (AR at p. 284). Mr.
Jorgenson left this job “to work for Fresh Start
Convenience Store, driving again.” Id. In
2007-2008, Mr. Jorgenson worked for Fresh Start Convenience
Stores driving a truck in “4 or 5