United States District Court, D. South Dakota, Southern Division
MARK R. BORMES, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY; Defendant.
MEMORANDUM OPINION AND ORDER
VERONICA L. DUFFY, UNITED STATES MAGISTRATE JUDGE.
Mark R. Bormes, seeks judicial review of the
Commissioner's final decision denying him payment of
supplemental security income (SSI) benefits under Title XVI
of the Social Security Act. Mr. Bormes has filed a complaint
and has requested the court to reverse the Commissioner's
final decision denying him disability benefits and to enter
an order awarding benefits. Alternatively, Mr. Bormes
requests the court remand the matter to the Social Security
Administration for further hearing. The matter is fully
briefed and is ready for decision. For the reasons more fully
explained below, the Commissioner's decision is reversed
appeal of the Commissioner's final decision denying
benefits is properly before the district court pursuant to 42
U.S.C. § 405(g). This matter is before this magistrate
judge pursuant to the consent of the parties. See 28
U.S.C. § 636(c).
Mark Bormes (“Claimant”) is a male born April 12,
1961. AR 184. On November 25, 2013, Claimant protectively
filed an application for supplemental security income
(“SSI Claim”), alleging disability since October
1, 1996. AR 184-192. The Social Security Administration
(“SSA”) denied Claimant's SSI claim initially
on March 7, 2014, and on reconsideration on October 22, 2014.
AR 114-116, 123-129.
November 5, 2014, Claimant filed a written request for
hearing. AR 130-133. On November 16, 2015, Claimant appeared
and testified before Administrative Law Judge Denzel Busick
(the “ALJ”) at a hearing held in Sioux Falls,
South Dakota. AR 64-99. James Miller, an impartial vocational
expert (“VE”), also testified at the hearing. AR
64. On December 21, 2015, the ALJ issued an unfavorable
decision. AR 43-57.
February 11, 2016, Claimant requested the Appeals Council to
review the ALJ's decision. AR 42. On September 1, 2016,
the Appeals Council denied Claimant's request for review.
found that the Claimant has not engaged in substantial
gainful activity since November 25, 2013, the date of the
application at issue. AR 48. (Decision 3). The ALJ found that
Claimant has the following severe impairments pursuant to 20
CFR 416.920; eczema and hearing problems. AR 48. (Decision 3.)
At the hearing, Claimant testified he was not alleging
disability due to poor hearing. AR 80. The ALJ determined
that Claimant's medically determinable impairment of
affective disorders and anxiety disorders were non-severe. AR
48. (Decision 3.)
2014, Claimant's human immunodeficiency virus (HIV) test
was positive and asymptomatic. AR 345. Charles Shafer, M.D.,
also assessed chronic hepatitis B virus. AR 345. (Ex. 5/F/9).
July 2014 Function Report, Claimant stated that he lived
alone, prepared meals, fed and walked his dog, watched
television, did laundry, mowed his small yard, and did light
housework. AR 251-253. Claimant also said he drove, gardened,
shopped in stores, and went to his brother's house for
dinner once a week. AR 254-255. He said he had no problems
shaving, feeding himself, caring for his hair, and using the
toilet. AR 252.
hearing, Claimant testified that he was diagnosed with HIV in
1991. AR 71. He said that he continued to work for at least
the next four years. AR 71. Claimant testified that he was
diagnosed with full-blown AIDS in 2005. AR 71. Claimant
testified that he was diagnosed with Hepatitis B in about
1995. AR 71-72.
testified that he takes the following prescription
medications to treat his HIV condition: Epzicom and Triumeq.
AR 74. Claimant testified that he takes the following
prescription medications to treat his conditions of affective
disorders and anxiety disorder: Klonopin, Abilify and
Doxepin. AR 75.
testified that he has been continuously treated for HIV and
hepatitis B since he was diagnosed with those diseases. AR
72. Claimant testified that he takes the following
prescription medications to treat hepatitis B: Viry. AR 73.
found the Claimant has the RFC to perform light work as
defined by 20 CFR 416.967(b) as follows: can lift 20 pounds
occasionally and less than 10 pounds frequently; can sit for
a total of 6 hours, as well as stand and walk, combined, a
total of 6 hours in an 8-hour day; no limits in reaching and
handling; is able to perform all postural activities
frequently; has no visual limits with proper glasses; has
some difficulty hearing; and is unable to wear a hearing aid,
thus he must avoid environments with loud noise, large crowd
noise, and loud background noise. AR 49-50. (Decision p. 4.)
notes dated December 2012, August 2013, February 2014, June
2014, and July 2015 indicated that Claimant's HIV testing
was positive, but asymptomatic (AR. 289, 300, 345, 360, 396).
At an August 2013 HIV follow-up appointment, Claimant
reported new skin lesions. AR 286. He said that his current
skin lesions were always related to heat. AR 286. Claimant
also said that he used Triamcinolone Acetonide Cream (TAC)
and Hibiclens, which helped a bit. AR 286. Charles Shafer,
M.D., thought that Claimant's skin issues involved
“some component from psych/stress.” AR 289.
November 2013, Claimant sought treatment for a left groin
rash, which he attributed to recurrent fungal problems. AR
285. Claimant had no other concerns of fever, chills,
headaches, nausea or vomiting. AR 285.
December 2013 psychotherapy appointment, Claimant's
speech, attitude, cognitive functioning and affect were
normal. AR 308. His thought processes and thought content
were not impaired. AR 308. He said he felt good physically
and emotionally and was coping with stressors well. AR 308.
At a follow-up psychiatry visit that same month, Claimant
said the Thanksgiving holiday was a little stressful, but he
had not had a major breakout of hives. AR 307. He said his
medications were working fine. AR 307.
Claimant returned to psychotherapy in January 2014, his
appearance, grooming, and attitude were normal. AR 362. He
was also cooperative with no behavior abnormalities. AR 362.
Claimant reported he did not have a painful breakout of
sores, but was frustrated because he was sick. AR 362-363. At
a follow-up later that month, Claimant reported anxiety
because his car window was broken. AR 361. He also said some
family issues caused him to “break out.” AR 361.
During the session, Erin Sanford, M.A., worked with Claimant
on better ways to manage his feelings and stress levels so as
to help with the breakouts and associated pain. AR 361.
January 2, 2014, letter to Disability Determination Services,
Vicki Harkness, Claimant's social worker, stated that he
enjoyed gardening, watching television, walking his dog, and
exploring antique stores. AR 330.
March 2014, Claimant told Rajesh Singh, M.D., that he was
doing fair and his mood was fairly stable. AR 353. He said
that he used Xanax when he started to feel breakouts, which
seemed to help. AR 353. Claimant also said Celexa seemed to
be working well. AR 353. Dr. Singh noted Claimant was alert
with coherent thoughts. AR 353. He did not make any
medication changes. AR 353.
August 2014, Claimant told Ms. Sanford that he still had some
painful skin rashes and bumps, but for the most part, they
were getting better. AR 422. Claimant said his health was
great and he was doing better with his anxiety. AR 422.
August 2014, Claimant followed up with Dr. Shafer. AR 423.
Claimant reported that he had not been using his TAC ointment
and creams on a regular basis, and never more than once per
day. AR 423. He said his skin felt better when he used the
ointments/creams, but that it eventually peeled and seemed
worse. AR 423. Claimant said his skin always got worse when
he was emotionally stressed. AR 423. Dr. Shafer instructed
Claimant to use the ointment when his rash was really bad,
and then use the cream when it got better. AR 426.
September 2014, Claimant attended a psychotherapy follow-up.
AR 419. He said that his physical health “has been
good, ” and he reported no major rashes or breakouts.
AR 420. Claimant also said he was doing some things to
improve his self-care such as gardening, accepting
invitations to do things with his brother, etc. AR 420.
December 2014, Claimant told Dr. Singh that his skin symptoms
were worse when stressed. AR 470.
February 2015, Claimant sought treatment for generalized
anxiety disorder. AR 475. He reported that a rash on his left
leg had gotten worse over the past week secondary to stress
and anxiety pertaining to family and financial stressors. AR
475. Claimant also reported that aside from situational
anxiety, his moods had been good with no depression or
feelings of helplessness/hopelessness. AR 475. He also said
his sleep had been better the past couple of days. AR 475.
Claimant's symptoms were “well controlled” on
current psychiatric medications, and he reported no side
effects. AR 476.
April 2015, Claimant saw Dr. Shafer for a re-check of
multiple medical problems. AR 402. He reported a right lower
leg rash, but said that he had stopped using his TAC cream
and ointment because it caused burning. AR 402. Claimant
reported no nausea, vomiting, abdominal pain, or diarrhea. AR
402. Dr. Shafer instructed Claimant to restart the TAC
ointment for his right leg rash. AR 405. He also recommended
that Claimant “get out and exercise.” AR 405.
May 2015 psychiatry appointment, Claimant reported family and
financial stressors, but said that he was still gardening and
trying to get out and do things. AR 484. He believed his
medications were adequately managing his symptoms with no
reported side effects. AR 484. On examination, Claimant was
well-groomed, appropriate, and cooperative. AR 486. His
speech and thought processes were normal, his associations
were intact, his judgment and insight were fair, and his
mood, attention, and concentration were good. AR 486. Dr.
Singh instructed Claimant to continue his current mediations.
2015, Claimant reported that his skin issues had worsened
amount a month ago due to stress, but were currently
improving. AR 377. He also said he experienced some diarrhea
about 2 months ago but that is had cleared up on its own. AR
October 2015, Claimant told Dr. Shafer that his skin broke
out due to stress after learning that he had to visit with a
judge regarding his disability claim. AR 383. Claimant also
reported right ear fullness and discomfort, but his recent
labs were “really quite excellent.” AR 383. He
reported no nausea, vomiting, or diarrhea. AR 383. He said he
experienced abdominal pain when anxious, but that it resolved
when the source of stress disappeared. AR 383. On
examination, Claimant was alert and in no acute distress. AR
April 2015, “To Whom It May Concern” letter, Dr.
Shafer, one of Claimant's treating physicians, opined
that Claimant struggled with a number of medical and mental
health issues. AR 370. He concluded that Claimant was not
able to work at that time due to the combination of his
diagnoses and treatment. AR 370. (Ex 7F).
December 2014, Dr. Singh, Claimant's psychiatrist, opined
that Claimant was unable to work due to generalized anxiety
disorder combined with his chronic medical conditions. AR
369. (Ex 6F).
December 21, 2015, decision, the ALJ determined that the
Claimant had no past relevant work. AR 52. (Decision 7). At
the November 16, 2015, hearing, Claimant testified that he
has an associates degree in fashion merchandising and visual
merchandising. AR 69. Claimant testified that his last full
time work was with Bloomingdales department store, which
ended in 1996. AR 70. Claimant testified that he earned about
$3, 500 in 2014, and would earn approximately $3, 500 by the
end of 2015. AR 70. Claimant testified that he lived alone
and was able to care for himself “pretty good.”
AR 83. He also testified that his doctors had never advised
him not to work. AR 84.
hearing, the ALJ asked the VE to consider a hypothetical
individual with limitations that matched the ALJ's
ultimate RFC finding. AR 49-50, 88-89. The VE testified that
such a hypothetical individual could perform light, unskilled
jobs of an electronics worker, motel cleaner, and survey
worker. AR 90. Accordingly, the ALJ found that Claimant was
not disabled because there are jobs existing in significant
numbers in the national economy that Claimant can perform. AR
52-53. (Decision 8).
on the testimony of the VE, the ALJ found that
“considering age, education, work experience and RFC,
the claimant is capable of making a successful adjustment to
other work existing in significant numbers in the national
economy.” Accordingly, the ALJ determined that Claimant
was not disabled between November 25, 2013, the date he
protectively applied for SSI, and December 21, 2015, the date
of the ALJ's decision. AR 53. (Decision 8).
testified that the side effects he experiences from taking
Viry are severe fatigue and diarrhea. AR 73. Claimant
testified that the diarrhea he experiences requires him to
immediately need to use a bathroom and he experiences this
type of diarrhea about once per week and the episode of
diarrhea can last for four or five days. AR 73-74.
testified that he took Triumeq to treat his HIV and took a
pill that combined Reyataz and Epzicom. AR 74. Claimant
testified that for years he has suffered from severe fatigue
cause by his HIV medications. AR 74-75. Claimant testified
that the fatigue he experiences requires naps about
10:30-11:00 a.m. of one to three hours. AR 75.
testified that he takes Doxepin primarily to treat skin
rashes. AR 76. He also said that it helped with his
depression. AR 76. Claimant testified that the rash condition
he experiences manifests itself as sores the size of nickels
or dimes. AR 76. Claimant testified that the sores he
experiences develop primarily on his wrists, legs, ankles,
feet and toes. AR 76-78. Claimant testified that his sores
bleed and ooze bodily fluid. AR 76. Claimant described these
sores as being nearly constant and having about a 10 day
cycle. AR 77. Claimant testified that he takes triamcinolone
to treat his sores. AR 77.
testified that he is about half deaf in each ear. AR 79.
Claimant testified that he is unable to wear hearing aids. AR
80. Claimant testified that he takes Klonopin twice daily. AR
81. Claimant testified that taking Klonopin causes him to
experience confusion. AR 81. He also testified that he
described the confusion he experienced to his doctor. AR 82.
His doctor did not suggest discontinuing the drug. AR 82.
Instead, he instructed Claimant to take it twice a day, but
adjust it down a couple of hours, which Claimant said seemed
to help. AR 82. Claimant testified that he experiences
drowsiness from Klonopin and Xanax. AR 82. Claimant testified
that he would require a nap of about one hour in the morning
and in the afternoon if he worked an 8-hour job. AR 85.
Claimant testified that the Klonopin would cause him to feel
“a step behind everything.” AR 86.
testified that because of his hepatitis B, he must clean his
socks or other things which came in contact with bodily
fluids from his sores with bleach. AR 87. Claimant testified
that sometimes the bodily fluid from his sores which gets in
his socks cannot be cleaned with bleach so he must throw away
the socks. AR 87.
VE's opinion is that a person able to perform light level
work requiring a 30 minute to one hour break during the first
half of the day and another 30 minute to one hour break in
the afternoon would not be able to maintain competitive
full-time employment. AR 91. The VE's opinion is that an
unskilled person with moderate limitations on his ability to
perform because of the side effects of Doxepin which Claimant
described would not be capable of competitive employment. AR
92-94. The VE's opinion is that employers would not be
willing to “deal” with an employee with HIV and
hepatitis B who experiences an outbreak of sores as Claimant
described his condition. AR 95.
Standard of Review.
reviewing a denial of benefits, the court will uphold the
Commissioner's final decision if it is supported by
substantial evidence on the record as a whole. 42 U.S.C.
§ 405(g); Minor v. Astrue, 574 F.3d 625, 627
(8th Cir. 2009). Substantial evidence is defined as more than
a mere scintilla, less than a preponderance, and that which a
reasonable mind might accept as adequate to support the
Commissioner's conclusion. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Klug v.
Weinberger, 514 F.2d 423, 425 (8th Cir. 1975).
"This review is more than a search of the record for
evidence supporting the [Commissioner's] findings, and
requires a scrutinizing analysis, not merely a rubber stamp
of the [Commissioner's] action.” Scott ex rel.
Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008)
(internal punctuation altered, citations omitted).
assessing the substantiality of the evidence, the evidence
that detracts from the Commissioner's decision must be
considered, along with the evidence supporting it.
Minor, 574 F.3d at 627. The Commissioner's decision
may not be reversed merely because substantial evidence would
have supported an opposite decision. Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005); Woolf
v. Shalala 3 F.3d 1210, 1213 (8th Cir. 1993). If it is
possible to draw two inconsistent positions from the evidence
and one of those positions represents the Commissioner's
findings, the Commissioner must be affirmed. Oberst v.
Shalala, 2 F.3d 249, 250 (8th Cir. 1993). “In
short, a reviewing court should neither consider a claim de
novo, nor abdicate its function to carefully analyze the
entire record.” Mittlestedt v. Apfel, 204 F.3d
847, 851 (8th Cir. 2000)(citations omitted).
court must also review the decision by the ALJ to determine
if an error of law has been committed. Smith v.
Sullivan, 982 F.2d 308, 311 (8th Cir. 1992); 42 U.S.C.
§ 405(g). Specifically, a court must evaluate whether
the ALJ applied an erroneous legal standard in the disability
analysis. Erroneous interpretations of law will be reversed.
Walker v. Apfel, 141 F.3d 852, 853 (8th Cir.
1998)(citations omitted). The ...