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Dole v. Berryhill

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

March 30, 2019

GARY DOLE, Plaintiff,
NANCY BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.




         On January 29, 2018, claimant Gary Dole filed a complaint appearing the final decision of Nancy A. Berryhill, the acting Commissioner of the Social Security Administration, finding him not disabled. (Doc. 1). Defendant denies claimant is entitled to benefits. (Doc. 7). The court issued a briefing schedule requiring the parties to file a joint statement of materials facts (“JSMF”). (Doc. 9). For the reasons stated below, claimant's motion to reverse the decision of the Commissioner (Doc. 13) is denied.


         The parties' JSMF (Docket 10) is incorporated by reference. Further recitation of the salient facts is incorporated in the discussion section of this order.

         On March 15, 2015, Mr. Dole filed an application for Social Security disability benefits alleging an onset of disability date of April 1, 2014. (Doc. 10 at ¶ 1). The claims were denied initially and on reconsideration, and Mr. Dole filed a written request for a hearing. (Id.). An evidentiary hearing was held on December 2, 2016. (Id. at ¶ 2). On February 15, 2017, the ALJ issued a written decision denying benefits. (Id. at ¶ 3; see also AR p. 13-23).[1] Mr. Dole subsequently sought appellate review; his request was denied, making the decision of the ALJ final. (Id. at ¶ 3). It is from this decision that Mr. Dole timely appeals.

         The issue before this court is whether the ALJ's decision of February 15, 2017, that Mr. Dole was not “under a disability, as defined in the Social Security Act, from April 1, 2014, through [February 15, 2017]” is supported by substantial evidence on the record as a whole. (AR at p. 23); see also Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001).


         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, 901 (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 benefits under Title XVI. 20 CFR § 416.920(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); see also Boyd v. Sullivan, 960 F.2d 733, 735 (8th Cir. 1992) (the criteria under 20 CFR § 416.920 are the same under 20 CFR § 404.1520 for disability insurance benefits). The ALJ applied the five-step sequential evaluation required by the Social Security Administration regulations. (AR at pp. 15-23). At step three of the evaluation, the ALJ found that Mr. Dole does not have an impairment or combination of impairments that meets or medically exceeds the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found Mr. Dole is unable to perform past work; however, at step five, the ALJ found there are jobs that exist in significant numbers in the national economy that Mr. Dole can perform. Thus, the ALJ found that Mr. Dole is not disabled. (AR at p. 23).


         Mr. Dole identifies the following issues: (1) whether Mr. Dole meets Social Security listing 104A; (2) whether treating Doctor Trevor Anderson's opinions regarding Mr. Dole's condition should have been accepted; (3) whether Mr. Dole's credibility should have been accepted; and (4) whether the case should be reversed and remanded for calculation of benefits. The court will discuss each issue in turn.

         STEP ONE

         At step one, the ALJ determined claimant “had not [been] engaged in substantial gainful activity since April 1, 2014, the alleged onset date” of disability. (AR at p. 15).

         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 ...

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