United States District Court, D. South Dakota, Southern Division
JUAN J. AREVALO, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY; Defendant.
MEMORANDUM OPINION AND ORDER REVERSING THE DECISION
OF THE COMMISSIONER
E. SCHREIER UNITED STATES DISTRICT JUDGE.
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.
filed an application for SSDI and SSI on December 6, 2013,
alleging disability since December 31, 2008. AR
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. §
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.
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.
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.
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.
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.
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.
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.
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.
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
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). 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.
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)).
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)).
FIVE STEP PROCEDURE FOR DISABILITY DETERMINATIONS
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 ...