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Arevalo v. Berryhill

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

January 30, 2018

JUAN J. AREVALO, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY; Defendant.

          MEMORANDUM OPINION AND ORDER REVERSING THE DECISION OF THE COMMISSIONER

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE.

         Plaintiff, Juan J. Arevalo, seeks review of the decision of the Commissioner of the Social Security Administration denying his claim for disability insurance benefits (SSDI) under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. § 1382. The Commissioner opposes the motion and urges the court to affirm the denial of benefits. For the following reasons, the court reverses the decision of the Commissioner.

         PROCEDURAL HISTORY

         Arevalo filed an application for SSDI and SSI on December 6, 2013, alleging disability since December 31, 2008. AR 70.[1] The Commissioner denied his claim initially on May 19, 2014, and upon reconsideration on August 29, 2014. AR 124, 132. Arevalo then appeared with counsel before Administrative Law Judge (ALJ) Hallie Larsen at an administrative hearing on October 22, 2015. See AR 36 (transcript of hearing). The ALJ issued an opinion affirming the denial of benefits on December 4, 2015. AR 18. The Appeals Council denied Arevalo's request for review on October 31, 2016. AR 1. Thus, Arevalo's appeal of the Commissioner's final decision is properly before the court under 42 U.S.C. § 405(g).

         FACTUAL BACKGROUND

         Arevalo was born March 26, 1972. AR 199. At the time of his hearing before the ALJ, Arevalo was 43 years old. AR 46. Arevalo completed two years of school in Guatemala, and he finds reading and writing very difficult in both English and Spanish. Id. He fled Guatemala as a political refugee and is a legal permanent resident of the United States. AR 58, 206. At his administrative hearing, Arevalo explained that his employment history included jobs in construction and truck driving, but he had to discontinue his most recent job as a truck driver because of his ongoing back pain following back surgery. AR 46-47. He claims he can no longer do construction work because it involves too much heavy work. AR 53. Arevalo claims he has been unable to work since June or July of 2012. AR 46.

         On September 2, 2008, Arevalo injured his lower back, which caused radiating pain in his left leg. AR 494. At the referral of Dr. Ferrie, Arevalo's treating physician, Dr. Fox performed surgery on Arevalo's back on December 2, 2008. AR 569. Since his surgery, Arevalo has been treated by several doctors, participated in physical therapy, and taken numerous pain medications. Arevalo was initially apprehensive to try cortisone injections (AR 455), but he did receive an epidural steroid injection on August 18, 2014, which only provided pain relief for approximately two weeks before the pain came back worse. AR 49, 533.

         Arevalo claims he continues to suffer from the following impairments: back injury, left leg numbness, neck and shoulder pain, problems using his arms and hands, and poor mood resulting from his chronic back pain. AR 245, 256, 260. There is also some indication that he suffers from depression. AR 57.

         ADMINISTRATIVE HEARING

         During the administrative hearing, the ALJ heard testimony from Arevalo and Tom Addett, a vocational expert. Arevalo, represented by counsel at the hearing, testified about his minimal education, work experience as a truck driver and in construction, and how it is difficult for him to continue working due to his back pain. AR 46. Since his back surgery, Arevalo attempted physical therapy but reports this did not help with the pain. AR 49.

         Arevalo testified that he can sit for about seven to eight minutes at a time, and he must constantly move side to side to tolerate the pain while sitting. AR 50. He can comfortably stand up without pain for five to ten minutes. Id. And while he attempts to walk a mile every two days, walking causes him a lot of pain and forces him to lay or sit down and take pain medication. Id. He is also able to sleep for only about four hours a night. AR 58. When asked how much weight he can lift, Arevalo was unsure because he has not tried to lift anything other than coffee cups or plates since his back surgery. AR 50.

         While he took prescribed opioids for his back pain for a period of time, Arevalo stated that he no longer takes them because he knows people become addicted to opioids. AR 56. At the time of his administrative hearing, Arevalo was taking medications prescribed by Dr. Ferrie, including Methocarbamol for muscle spasms and Amitriptyline. Id. He would take Tylenol if he could afford to buy it. Id. Arevalo reported sleep disruption and dizziness as side effects of the pain medication he has been prescribed. AR 48.

         Arevalo testified that he does bathe, dress, and feed himself, and he can cook his own meals. AR 52. He also sometimes watches his son, but he cannot play with him because of his back pain. AR 53. He further testified that he can no longer fish because he cannot throw a fishing line and he can no longer play soccer because he cannot run. Id.

         In response to the hypothetical question posed by the ALJ, Addett testified that someone with Arevalo's impairments could not perform his past work but could perform other occupations that exist in the national economy. AR 60-61. Specifically, Addett listed positions such as a small products assembler, which is light work at the unskilled level, a final assembler and a preparer, which are sedentary, unskilled jobs. AR 61-63. In response to the second hypothetical question posed by the ALJ, Addett testified that someone with Arevalo's impairments could also perform occupations such as the final assembler and the preparer, as well as a lens inserter position. AR 63.

         ALJ DECISION

         Using the five-step analysis associated with an application for social security benefits, the ALJ denied Arevalo's claim on December 4, 2015. AR 28. In Step One, the ALJ found that Arevalo has not engaged in substantial gainful activity since January 31, 2012, the amended onset date. AR 20. In Step Two, the ALJ concluded that Arevalo has the following severe impairments: degenerative disk disease of the lumbar spine, status post fusion of L4-5, and obesity. Id. The ALJ also found that while Arevalo had mild degenerative changes in his left ankle and osteophytes at ¶ 4-5, C5-6, and C6-7 in his neck, these impairments only cause minimal limitations on Arevalo's ability to perform basic work activities, and thus they are non-severe impairments. AR 21. Finally, the ALJ found that Arevalo's medically determinable mental impairment of depression was also non-severe. Id.

         At Step Three, the ALJ found that Arevalo does not have an impairment, or combination of impairments, that meets or equals the severity required under 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 22. In Step Four, the ALJ concluded that Arevalo cannot perform his past relevant work, but found that he has the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b).[2] AR 22, 27. In Step Five, the ALJ found there are jobs in the national economy that Arevalo can perform. AR 27. Thus, the ALJ concluded that Arevalo is not disabled under the Social Security Act.

         STANDARD OF REVIEW

         The court must uphold the ALJ's decision if it is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”); Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). “ ‘Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the conclusion.' ” Teague, 638 F.3d at 614 (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). When reviewing the record, “the court ‘must consider both evidence that supports and evidence that detracts from the Commissioner's decision.' ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007)). If the Commissioner's decision is supported by substantial evidence in the record as a whole, the court may not reverse it merely because substantial evidence also exists in the record that would support a contrary position or because the court would have determined the case differently. Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).

         The court also reviews the Commissioner's decision to determine if an error of law has been committed, which may be a procedural error, the use of an erroneous legal standard, or an incorrect application of the law. Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are reviewed de novo with deference accorded to the Commissioner's construction of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th Cir. 2008)).

         THE FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS

         Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(3)(A). “An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]” 42 ...


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