United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
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.
AND PROCEDURAL HISTORY
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
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)).
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. 20-21).
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).
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).
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
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).
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 &
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.
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.
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).
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.” (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
WHETHER THE ALJ'S ADVERSE CREDIBILITY ASSESSMENT IS
SUPPORTED BY SUBSTANTIAL EVIDENCE
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
(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
Id. at p. 32.
argues the ALJ did not “specifically discuss [the]
Polaski 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.
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)).
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
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
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.
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
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;
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
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.
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.
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
1. The objective medical evidence showed Plaintiff's back
surgery had been successful with good fusion and minimal
residual spine problems.
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.
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
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