United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE.
Dustin Atchley 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 11). The court issued a briefing schedule requiring
the parties to file a joint statement of material facts
(“JSMF”). (Docket 13). The parties filed their
JSMF. (Docket 14). For the reasons stated below,
plaintiff's motion to reverse the decision of the
Commissioner (Docket 24) is granted.
AND PROCEDURAL HISTORY
parties' JSMF (Docket 14) is incorporated by reference.
Further recitation of salient facts is incorporated in the
discussion section of this order.
February 12, 2013, Mr. Atchley filed an application for
disability insurance benefits (“DIB”) under Title
II alleging an onset of disability date of December 15, 2012.
Id. ¶ 1. On July 23, 2014, the ALJ issued a
decision finding Mr. Atchley was not disabled. Id.
¶ 4; see also Administrative Record at pp. 9-29
(hereinafter “AR at p. ___”). The Appeals Council
denied Mr. Atchley's request for review and affirmed the
ALJ's decision. (Docket 14 ¶ 5). The ALJ's
decision constitutes the final decision of the Commissioner
of the Social Security Administration. It is from this
decision which Mr. Atchley timely appeals.
issue before the court is whether the ALJ's decision of
July 23, 2014, that Mr. Atchley was not “under a
disability, as defined in the Social Security Act, from
December 25, 2012, [through July 23, 2014]” is
supported by substantial evidence in the record as a whole.
(AR at p. 28) (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)).
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).
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.
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.
Social Security Administration established a five-step
sequential evaluation process for determining whether an
individual is disabled and entitled to DIB under Title II. 20
CFR §§ 404.1520(a). 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. 10-11).
one, the ALJ determined Mr. Atchley had “not [been]
engaged in substantial gainful activity since December 15,
2012, the alleged onset date . . . .” Id. at
p. 11 (bold omitted).
two the ALJ found Mr. Atchley had the following severe
impairments: chronic obstructive pulmonary disease
[“COPD”]; obstructive sleep apnea; obesity; mild
degenerative changes of the lumbar spine; bipolar
disorder; and an anxiety disorder NOS . . . .”
Id. (bold omitted). Mr. Atchley does not challenge
these findings. (Dockets 25 & 31).
going further in the five step evaluation process the court
will address one of Mr. Atchley's issues on appeal. Mr.
Atchley argues the Commissioner erred by failing to conclude
that an October 5, 2016, lumbar spine MRI constitutes new
evidence which dictates a remand. (Docket 25 at pp. 10-12).
Mr. Atchley submits the MRI findings include:
[A] protruding herniated disc causing moderate right
foraminal stenosis at ¶ 2-3, with likely compressive
effect on the exiting right L2 nerve root and possible
compression of the L3 nerve root. The herniated disc
contributed to mild spinal stenosis on the right. At ¶
3-4, a broad-based bulging disc flattened the anterior
subarachnoid space and caused mild spinal stenosis.
Id. at p. 10 (referencing Docket 25-1). He argues
the MRI is “relevant . . . and probative” and
“non-cumulative because it reveals a herniated disc
with compressive effects on the spinal cord and L2, possibly
L3 nerve roots. [The x-ray imaging in the record] is capable
of showing spondylosis but not herniation.”
Id. Because the MRI report was not available at the
time of the administrative proceeding, Mr. Atchley argues
“good cause” exists to compel the Commissioner on
remand to consider this new evidence. Id. at p. 12.
Commissioner opposes Mr. Atchley's argument asserting
plaintiff “failed to prove that his lumbar MRI, dated
more than two years after the ALJ issued the decision, is
material to his condition during the period the ALJ
addressed. Not only was the evidence not generated during the
period under review, the evidence was not even created in
close proximity to the relevant time period.” (Docket
30 at p. 6). The Commissioner argues “[a]lthough
Atchley contends the MRI ‘likely relates back to the
events reported on October 2, 2012[, ] . . . .' he has
failed to show that the MRI explains his condition during the
period the ALJ addressed and not some subsequent injury or
deterioration.” Id. (citing Docket 25 at p.
11). The Commissioner points out the MRI specifically
references a February 2016 x-ray. Id. at p. 7.
Instead of being applicable to the 2012-2014 period under
review by the ALJ, the Commissioner submits the MRI should be
considered in the record of a DIB application filed November
19, 2015. Id. at p. 5 n.3.
rebuttal, Mr. Atchley argues the MRI constitutes
“concrete evidence relating back to the relevant
period.” (Docket 31 at p. 2). Mr. Atchley contends he
“had [a] sudden onset of symptoms unique to [the]
¶ 2-3 injury, reported five days after onset to his
treating physician on October 3, 2012[, ] . . . and that
these new symptoms coincided with his final work stoppage
soon afterward.” Id. (referencing Docket 14
court “may remand a case to have additional evidence
taken ‘but only upon a showing that there is new
evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a
prior proceeding.' ” Hepp v. Astrue, 511
F.3d 798, 808 (8th Cir. 2008) (quoting 42 U.S.C. §
405(g)). “To be material, new evidence must be
non-cumulative, relevant, and probative of the claimant's
condition for the time period for which benefits were denied,
and there must be a reasonable likelihood that it would have
changed the Secretary's determination.” Woolf
v. Shalala, 3 F.3d 1210, 1215 (8th Cir. 1993).
“Good cause does not exist when the claimant had the
opportunity to obtain the new evidence before the
administrative record closed but failed to do so without
providing a sufficient explanation.” Hepp, 511
F.3d at 808.
October 3, 2012, Dr. Van Egeraat found Mr. Atchley's
“back was tender to palpation. He had normal lumbar
range of motion and negative straight-leg-raising test
bilaterally. . . . He had normal range of motion in all
joints tested in the upper and lower extremities. His motor
and sensory examination was intact in both upper and lower
extremities. His deep tendon reflexes were normal.”
(Docket 14 ¶ 70). Because Mr. Atchley complained of low
back pain, “Dr. Van Egeraat assessed lumbar
radiculopathy” and ordered spinal x-rays. Id.
¶ 71. Those x-rays showed only “mild degenerative
changes in the lumbar spine [when compared to earlier
x-rays], nothing acute.” Id. ¶ 72.
concluded Mr. Atchley had a severe impairment of “mild
degenerative changes of the lumbar spine.” (AR at p.
11) (bold omitted). The court is not convinced the 2016 MRI
relates to Mr. Atchley's condition during the period
under review by the ALJ, particularly the October 2012
incident which Mr. Atchley asserts is tied to the MRI and its
findings. While Mr. Atchley could not have presented the MRI
report until after its creation in October 2016, the court
finds no good cause exists under § 405(g) warranting a
remand to the Commissioner. Mr. Atchley's request to
remand his case to the Commissioner on this basis is denied.
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). A claimant has the
burden of proving an impairment or combination of impairments
meet or equals a listing within Appendix 1. Johnson v.
Barnhart, 390 F.3d 1067, 1070 (8th Cir. 2004). If not
covered by these criteria, the analysis is not over, and the
ALJ proceeds to the next step.
step the ALJ determined plaintiff's severe impairments
did not meet or equal a listing under Appendix 1. (AR at p.
12). Mr. Atchley challenges the ALJ's decision. (Docket
25 at pp. 12-17).
Atchley argues the ALJ should have considered the combination
of his severe impairments as medically equal to the paragraph
“B” criteria of Listing 12.04. Id.at p.
14. The “paragraph B” criteria for Listing 12.04
assesses “functional limitations” in
“[a]ctivities of daily living; social functioning;
concentration, persistence, or pace; and episodes of
decompensation.” (Appendix 1 Listing 12.00(1)(C)).
Atchley claims the ALJ improperly only considered Mr.
Atchley's impairments separately, but not in combination.
(Docket 25 at p. 14). In addition, Mr. Atchley argues the ALJ
“failed to consider whether the effects of sleep apnea
impacted on the ‘B' criteria.” Id.
Finally, Mr. Atchley submits “[t]he ALJ assessed the
‘B' criteria . . . without acknowledging the
substantial evidence of Atchley's inability to perform
tasks on any kind of sustained basis-a crucial element in the
assessment of mental impairments . . . and medical
equivalency.” Id. at p. 15 (referencing AR at
p. 13 and Appendix 1 Listing 12.00F.2).
found no restrictions of activities of daily living. (AR at
p. 14). Mr. Atchley argues this finding is contrary to the
substantial evidence in the record. (Docket 25 at p. 15)
(referencing Docket 14 ¶¶ 17-19, 33, 36, 46, 54,
100, 109 & 113).
area of social function,  the ALJ found Mr. Atchley had
“moderate difficulties.” (AR at p. 14). The ALJ
found “[t]here is minimal evidence of communicative
deficits in the record or difficulty interacting with others;
however, the claimant reports depression, anxiety, and mood
swings.” Id. Mr. Atchley argues his social
functioning is “so impaired that he could not be around
people on a sustained basis.” (Docket 25 at p. 15)
(referencing Docket 14 ¶¶ 21, 25, 34, 36-37, 40
& 98). Mr. Atchley contends the ALJ failed to properly
consider the mental status examination by his therapist,
Janet Opoien Twedt, in October 2013, in which she described
him “as guarded, minimally cooperative, with direct and
unblinking eye contact, flat affect and minimal
speech.” Id. at p. 16 (referencing Docket 14
respect to concentration, persistence or pace,  the ALJ found Mr.
Atchley “has moderate difficulties. . . . because of
mental symptoms. . . . [but] claimant's cognitive skills
are adequate.” (AR at p. 14). Mr. Atchley asserts the
ALJ erred by failing to properly consider Ms. Twedt's
report, the statement of Mr. Atchley spouse, Casey Atchley,