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Atchley v. Berryhill

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

February 28, 2018

NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.




         Plaintiff 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.


         The parties' JSMF (Docket 14) is incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order.

         On 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.

         The 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)).


         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 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).


         STEP ONE

         At step 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).

         STEP TWO

         At step 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;[1] and an anxiety disorder NOS[2] . . . .” Id. (bold omitted). Mr. Atchley does not challenge these findings. (Dockets 25 & 31).

         Before 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.

         The 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.

         In 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 ¶ 69).

         The 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.

         On 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.

         The ALJ 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.

         STEP THREE

         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). 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.

         At this 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).

         Mr. 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.[3] 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)).

         Mr. 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).

         The ALJ 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).

         In the area of social function, [4] 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 ¶ 113).

         With respect to concentration, persistence or pace, [5] 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, ...

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