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Jorgenson v. Berryhill

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

March 27, 2017

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.



         Plaintiff Loren Jorgenson filed a complaint appealing the final decision of Nancy A. Berryhill, [1] 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”).[2] (Docket 12-1). For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner (Docket 15) is denied.


         The 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 order.

         On May 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.[3] (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 timely appeals.

         The 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)).


         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 DI benefits under Title II or SSI benefits under Title XVI. 20 CFR §§ 404.1520(a) and 416.920(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 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. 18-19).

         STEP ONE

         At step 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 (bold omitted).

         STEP TWO

         At step 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).

         The 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 activities.

         The ALJ 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.

         The 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.” Id.

         The 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.

         In 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.

         The 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 step-two determination.

         In 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.[5] 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.

         During 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 manner:

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.”[6] 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.

         Mr. 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. Id.

         In 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).

         In 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 states.”[7 ...

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