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Michael N. v. Berryhill

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

March 30, 2019

MICHAEL N., [1]Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          AMENDED ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Plaintiff Michael N. 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). The Commissioner denies plaintiff is entitled to benefits. (Docket 10). The court issued a briefing schedule requiring the parties to file a joint statement of material facts (“JSMF”). (Docket 12). The parties filed their JSMF. (Docket 15). For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner is granted.

         FACTUAL AND PROCEDURAL HISTORY

         The parties' JSMF (Docket 15) is incorporated by reference. Further recitation of salient facts is incorporated in the discussion section of this order. On April 24, 2014, plaintiff filed an application for disability insurance benefits (“DIB”). Id. ¶ 1. He alleged an onset of disability date of September 4, 2010. Id. On July 25, 2016, an administrative law judge (“ALJ”) issued a decision finding plaintiff was not disabled. Id. ¶ 5; see also Administrative Record at pp. 19-37 (hereinafter “AR at p. __”). The Appeals Council denied plaintiff's request for review and affirmed the ALJ's decision. (Docket 15 ¶ 7). The ALJ's decision constitutes the final decision of the Commissioner of the Social Security Administration. It is from this decision which plaintiff timely appeals.

         The issue before the court is whether the ALJ's decision of July 25, 2016, that plaintiff “has not been under a disability within the meaning of the Social Security Act from September 4, 2010, through [July 25, 2016]” is supported by substantial evidence in the record as a whole. (AR at p. 37) (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)).

         STANDARD OF REVIEW

         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. 20-21).

         STEP ONE

         At step one, the ALJ determined plaintiff had “not [been] engaged in substantial gainful activity since September 4, 2010, the alleged onset date.” (AR at p. 21; see also Docket 15 ¶ 10).

         STEP TWO

         At step two, the ALJ must decide whether the claimant has a medically determinable impairment that is severe or a combination of impairments that are severe. 20 CFR § 404.1520(c). A medically determinable impairment can only be established by an acceptable medical source. 20 CFR § 404.1513(a). Accepted medical sources include, among others, licensed physicians. Id. “It is the claimant's burden to establish that [his] impairment or combination of impairments are severe.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).

         The regulations describe “severe impairment” in the negative. “An impairment or combination of impairments is not severe if it does not significantly limit your physical or mental ability to do basic work activities.” 20 CFR § 404.1521(a). An impairment is not severe, however, if it “amounts to only a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities.” Kirby, 500 F.3d at 707. Thus, a severe impairment is one which significantly limits a claimant's physical or mental ability to do basic work activities.

         The ALJ identified plaintiff suffered from the following severe impairments: “lumbar degenerative disk disease (DDD) with history of lumbar fusion with chronic right L5 radiculopathy; and myofascial pain disorder and internal derangement bilaterally of the temporal mandibular joints.” (Docket 15 ¶ 11). The ALJ found plaintiff suffered from the following impairments which were not severe: “borderline obesity, adjustment disorder with mixed anxiety and depressed mood, and pain disorder associated with psychological factors and a general medical condition.” Id. ¶ 12. Plaintiff does not challenge these findings. (Dockets 18 & 20).

         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. At this step the ALJ determined plaintiff's severe impairments did not meet or equal a listing under Appendix 1. (Docket 15 ¶ 13). Plaintiff does not challenge this finding. (Dockets 18 & 20).

         STEP FOUR

         Before considering step four of the evaluation process, the ALJ is required to determine a claimant's residual functional capacity (“RFC”). 20 CFR § 404.1520(e). RFC is a claimant's ability to do physical and mental work activities on a sustained basis despite any limitations from his impairments. 20 CFR §§ 404.1545(a)(1). In making this finding, the ALJ must consider all the claimant's impairments, including those which are not severe. 20 CFR § 404.1545(e). All the relevant medical and non-medical evidence in the record must be considered. 20 CFR §§ 404.1520(e) and 404.1545.

         “The ALJ should determine a claimant's RFC based on all the relevant evidence, including the medical records, observations of treating physicians and others, and an individual's own description of [her] limitations.” Lacroix v. Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)); see also Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (because RFC is a medical question, the ALJ's decision must be supported by some medical evidence of a claimant's ability to function in the workplace, but the ALJ may consider non-medical evidence as well); Guilliams, 393 F.3d at 803 (“RFC is a medical question, and an ALJ's finding must be supported by some medical evidence.”). The ALJ “still ‘bears the primary responsibility for assessing a claimant's residual functional capacity based on all relevant evidence.' ” Id. (citing Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000)).

         “In determining RFC, the ALJ must consider the effects of the combination of both physical and mental impairments.” Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004) (citing Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003)). As stated earlier in this discussion, a severe impairment is one which significantly limits an individual's physical or mental ability to do basic work activities. 20 CFR § 404.1521(a).

         Relevant to this appeal, the ALJ determined plaintiff retained the RFC to perform “light work . . . except that [he] can lift/carry ten pounds frequently and ten pounds occasionally; can occasionally climb ladders, ropes, or scaffolds; and can occasionally stoop, kneel, crouch, crawl, or balance.”[2] (Docket 15 ¶ 14). Plaintiff challenges this finding. (Docket 18). Plaintiff argues the RFC is not valid because “the ALJ's adverse credibility assessment is [not] supported by substantial evidence.” Id. at p. 1 (capitalization and bold omitted). He contends “[d]espite Plaintiff's cooperation with extensive medical care and treatment, all of his [board-certified specialists] . . . have given residual functional capacities that would place Plaintiff at a less than sedentary level of work at less than full time.” Id. at pp. 2-3. Plaintiff submits rejecting these “treating and examining physicians' opinions constitute error of law.” Id. at p. 1 (bold omitted). The court will separately address plaintiff's challenges.

         1. WHETHER THE ALJ'S ADVERSE CREDIBILITY ASSESSMENT IS SUPPORTED BY SUBSTANTIAL EVIDENCE

         A. Plaintiff's Credibility

         Addressing plaintiff's credibility, the ALJ found:

[C]laimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.

(AR at p. 25). Stated another way, the ALJ discounted plaintiff's credibility with the following statement:

[T]he objective medical evidence shows the claimant's back surgery was successful with good fusion and minimal residual spine problems. He complains of ongoing severe pain, but he is regularly in no or only mild distress and he is able to ambulate and transition independently. Additionally, the claimant reports 70 percent improvement with his spinal cord stimulator and the record shows that the claimant remains active including driving to his daughter's softball games.

Id. at p. 32.

         Plaintiff argues the ALJ did not “specifically discuss [the] Polaski[3] factors or provide evidence supporting his conclusory rejection of Plaintiff's credibility.” (Docket 18 at p. 8). Plaintiff contends the ALJ did not “discuss Plaintiff's prior work record. The ALJ rejects observations by third parties and treating and examining physicians regarding Plaintiff's pain, using the very same conclusory paragraph that was repeated eight times throughout the decision.” Id. He submits “[t]he ALJ does not address Plaintiff's long-standing narcotic pain and other medication use and does not discuss the dosage, effectiveness and side effects of the medication in his credibility analysis.” Id. at p. 9. Plaintiff argues “[w]hile the ALJ recites Plaintiff testimony with respect to his daily activity, duration, frequency and intensity of the pain precipitating and aggravating factors, he rejects it in a conclusory statement with little to no evidence supporting the same.” Id. at pp. 8-9.

         The Commissioner argues “the ALJ is not required to explicitly discuss each [Polaski] factor.” (Docket 19 at p. 3) (referencing Buckner v. Apfel, 646 F.3d 549, 558 (8th Cir. 2011) (citing Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005)). The Commissioner contends “the ALJ's inferences need only be reasonable because ‘[t]he credibility of a claimant's subjective testimony is primarily for the ALJ to decide, not the courts.' ” Id. at pp. 3-4 (citing Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001)).

         The Commissioner asserts the ALJ noted:

1. [T]he objective medical evidence showed Plaintiff's back surgery had been successful with good fusion and minimal residual spine problems. Id. at p. 4 (referencing AR at p. 35).
2. [A]lthough Plaintiff complained of ongoing severe pain, he regularly was in no or only mild distress and could ambulate and transition independently. Id. (referencing AR at p. 35).
3. Plaintiff reported experiencing a 70 percent improvement in his pain with his spinal cord stimulator. Id. (referencing AR at p. 35).
4. Plaintiff was able to continue to participate in activities such as driving, attending his daughter's softball games, and throwing darts on a darts team. Id. (referencing AR at pp. 30 & 35; Docket 15 ¶ 17).

         The Commissioner argues an ALJ may consider a claimant's activities “in evaluating the credibility of the claimant's subjective allegations, and they may constitute some evidence supporting the ALJ's RFC assessment.” Id. at p. 5 (referencing Ponder v. Colvin, 770 F.3d 1190, 1195-96 (8th Cir. 2014). The Commissioner asserts “[a]lthough Plaintiff's treatment did not eliminate his pain entirely, ‘the crucial question is not whether [the claimant] experienced pain, but whether [the claimant's] credible subjective complaints prevent him from performing any type of work.' ” Id. (citing Gregg v. Barnhart, 354 F.3d 710, 713-14 (8th Cir. 2003)). The Commissioner argues the ALJ's findings “contradict[] [plaintiff's] claim that his pain was so severe and limiting as to render him completely disabled and unable to perform any type of work.” Id. The Commissioner concludes “[b]ecause the ALJ's inferences were reasonable, and he provided good reason for finding the record did not support the severity of symptoms and limitations Plaintiff alleged, the Court should defer to the ALJ's credibility finding and dismiss Plaintiff's argument challenging it.” Id. at pp. 5-6.

         Plaintiff's reply argues “[t]he record in this case is substantially different from the Ponder case.” (Docket 20 at p. 4). Plaintiff submits:

[H]e treated consistently for his back injury and debilitating pain following his fusion surgery. His complaints are well documented throughout his longstanding treating physician, a board-certified physician specially trained and experienced in treating non-surgical chronic pain, Dr. Christopher Dietrich's medical records.
Plaintiff had some variations in his levels of pain and his physical function, that is consistent and expected with his chronic pain syndrome and failed back surgery, and consistent with his testimony that he has good days and bad days.

Id. Plaintiff asserts his “treating physicians have given specific opinions with respect to plaintiff's limitations and ability to function as a result of his severe and chronic pain and his failed back surgery. . . . All of the treating physicians have opined that plaintiff would be unable to sustain an eight-hour day, five day a week schedule with his debilitating pain and severe medical conditions.” Id. at p. 5 (internal reference omitted).

         Under Polaski and subsequent cases, an ALJ is required to consider the following:

The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints. The adjudicator must give full consideration to all of the evidence presented relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:
1. the claimant's daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication; [and]
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant's subjective complaints solely on the basis of personal observations. Subjective complaints may be discounted if there are inconsistencies in the evidence as a whole.

Polaski, 739 F.2d at 1322 (emphasis omitted). An ALJ is not required to explicitly address each factor. There must be an analysis of those areas particularly relevant to each case. Buckner, 646 F.3d at 558.

         The ALJ discussed plaintiff's work activities during the period 2010-2012 which “did not rise to the level of substantial gainful activity.” (AR at p. 21). Part of this period was before plaintiff's September 4, 2010, injury with the remainder being his effort at light duty work to see if he could return to fulltime employment. Those efforts, working only a couple hours a day were unsuccessful because of plaintiff's pain in his back and legs. (Docket 15 ¶ 32). The ALJ only made passing reference to this work effort and did not give plaintiff any credit for trying to come back from his injury.

         Troubling to the court is the ALJ's declaration of the four areas which diminished plaintiff's complaints of subjective pain and impacted his credibility. Each of those must be separately addressed.

         1. The objective medical evidence showed Plaintiff's back surgery had been successful with good fusion and minimal residual spine problems.

         This statement by the ALJ is factually accurate but it fails to recognize the true status of plaintiff's post-surgery condition. It is true that board-certified neurosurgeon Dr. Tim Watt found plaintiff's lumbar fusion and decompression surgery to be a structural success. Id. ¶ 135. However, Dr. Watt deferred to Dr. Dietrich, a board-certified physiatrist and another of plaintiff's treating pain physicians, as to any nerve damage and resulting pain. Id. ¶ 80.

         Dr. Dietrich treated plaintiff 40 times over the course of six years. Id. ¶¶ 76 & 77. The record is very clear about Dr. Dietrich's medical opinions as to plaintiff's condition. Those opinions are summarized as follows:

1. While Dr. Watt's surgery successfully “decompressed the nerve, the nerves were damaged and the damage is permanent.” The nerves have “died” off or they were “damaged in a fashion ...

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