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Horn v. Berryhill

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

September 26, 2017

WILLIAM SHORT HORN, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         INTRODUCTION

         Plaintiff William Short Horn 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 7). The court issued a briefing schedule requiring the parties to file a joint statement of material facts (“JSMF”). (Docket 9). The parties filed their JSMF. (Docket 10). The parties also filed a joint statement of disputed facts (“JSDF”).[2] (Docket 10-1). For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner (Docket 13) is granted.

         FACTUAL AND PROCEDURAL HISTORY

         The parties' JSMF (Docket 10) is incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order.

         On July 28, 2009, Mr. Short Horn filed an application for supplemental social security income (“SSI”) benefits under Title XVI, alleging an onset of disability date of April 25, 2009.[3] (Docket 10 ¶¶ 4 & 11). On June 12, 2015, the ALJ issued a decision finding Mr. Short Horn was not disabled. Id. ¶¶ 8 & 116; see also Administrative Record at pp. 20-34 (hereinafter “AR at p. ___”). The Appeals Council denied Mr. Short Horn's request for review and affirmed the ALJ's decision. (Docket 10 ¶ 8). The ALJ's decision constitutes the final decision of the Commissioner of the Social Security Administration. It is from this decision which Mr. Short Horn timely appeals.

         The issue before the court is whether the ALJ's decision of June 12, 2015, that Mr. Short Horn was not “under a disability within the meaning of the Social Security Act since July 28, 2009, the date the application was filed [through June 12, 2015]” is supported by substantial evidence in the record as a whole. (AR at p. 21); 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)).

         STANDARD OF REVIEW

         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 SSI benefits under Title XVI. 20 CFR § 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. 21-22).

         DISCUSSION

         Plaintiff challenges the ALJ's decision on a number of grounds. The issues posed by him are:

1. Whether Mr. Short Horn's bilateral knee impairments met the criteria of Listing 1.02;[5]
2. Whether the ALJ's assessment of opinion testimony was in accord with the legal standard and the substantial evidence in the record;
3. Whether the ALJ's assessment of Mr. Short Horn's credibility was in accord with the legal standard and the substantial evidence in the record;
4. Whether the ALJ's assessment of residual function capacity was in accord with the legal standard and the substantial evidence in the record; and 5. Whether the ALJ's decision at step five was in accord with the legal standard and the substantial evidence in the record.

(Docket 12 at p. 7). Plaintiff's challenges to the ALJ's decision will be addressed as necessary.

         1. Whether Mr. Short Horn's bilateral knee impairments met the criteria of Listing 1.02

         At step two, the ALJ found Mr. Short Horn had the following severe impairments: “bilateral knee disorder, blindness in the right eye, and bilateral elbow disorder.” (Docket 10 ¶ 110). 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. At that point the Commissioner “acknowledges [the impairment or combination of impairments] are so severe as to preclude substantial gainful activity. . . . [and] the claimant is conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137, 141 (1987).

         The ALJ determined Mr. Short Horn did not have an impairment or combination of impairments which met or were medically equal to one of the impairments listed in Appendix 1. (Docket 10 ¶ 111). The ALJ indicated he considered Mr. Short Horn's impairments individually and in combination, but no treating or examining physician found equivalent severity to any listed impairment. Id.

         Mr. Short Horn objects to the ALJ's step three conclusion. (Docket 12 at pp. 7-16). He argues the ALJ's “failure to consider Listing 1.02-when evidence in the record met or equaled Listing 1.02 criteria-and to state reviewable reasons for his step three determination, deprives the reviewing court of any way to ascertain on this record whether the ALJ''s denial of Mr. Short Horn's claim at step three was supported by substantial evidence.” Id. at p. 16.

         The Commissioner counters that Mr. Short Horn “failed to satisfy his burden of proving that he met Listing 1.02.” (Docket 14 at p. 4). The Commissioner argues that “[t]o meet a listing, an impairment must meet all of the listing's specified criteria. . . . [And] Plaintiff has failed to prove he was unable to ambulate effectively. . . . Objective medical evidence also fails to support Plaintiff's claim he was unable to ambulate effectively for a continuous 12 months.”[6]Id. at pp. 4-5 & 7. Finally, the Commissioner submits that ...


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