Dillon v. Colvin

Filing 21

ORDER granting 16 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 9/26/16. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
JAMES B. DILLON, JR.,
Plaintiff,
vs.

CIV. 15-5034-JLV
ORDER

CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.
Plaintiff James Dillon filed a complaint appealing from an administrative
law judge’s (“ALJ”) decision denying disability insurance benefits. (Docket 1).
Defendant denies plaintiff is entitled to benefits. (Docket 17). The court issued
a briefing schedule requiring the parties to file a joint statement of material facts
(“JSMF”). (Docket 8). The parties filed their JSMF. (Docket 13). For the
reasons stated below, plaintiff’s motion to reverse the decision of the
Commissioner (Docket 16) is granted.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 13) is incorporated by reference. Further
recitation of salient facts is incorporated in the discussion section of this
order.
On February 12, 2010, Mr. Dillon filed an application for disability
insurance (“DIB”) benefits under Title II. (Docket 13 ¶ 1). The application
alleged a disability beginning February 3, 2009, and a last insured date of
December 31, 2009. Id. On November 21, 2013, the ALJ issued a decision

finding Mr. Dillon was not disabled. Id. ¶ 3; see also Administrative Record
at pp. 11-27 (hereinafter “AR at p. ___”). On March 3, 2015, the Appeals
Council denied Mr. Dillon’s request for review and affirmed the ALJ’s decision.
(Docket 13 ¶ 3). The ALJ’s decision constitutes the final decision of the
Commissioner of the Social Security Administration. It is from this decision
which Mr. Dillon timely appeals.
The issue before the court is whether the ALJ’s decision of November
21, 2013, that Mr. Dillon was not “under a disability, as defined in the Social
Security Act, at any time from February 3, 2009, . . . through December 31,
2009,” is supported by substantial evidence in the record as a whole. (AR at
p. 27) (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).

2

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 benefits under Title II or SSI benefits under Title XVI. 20 CFR
§§ 404.1520(a) and 416.920(a).1 If the ALJ determines a claimant is not

The criteria under 20 CFR § 416.920 are the same under 20 CFR
§ 404.1520. Boyd v. Sullivan, 960 F.2d 733, 735 (8th Cir. 1992). All further
references will be to the regulations governing DIB benefits, unless otherwise
specifically indicated.
1

3

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. 12-13).
STEP ONE
At step one the ALJ determined Mr. Dillon last met the insured status
requirements of Title II on December 31, 2009. (AR at p. 14). With this finding,
the relevant time period is February 3, 2009, through December 31, 2009. Id.
After his alleged onset date, Mr. Dillon worked as a hotel clerk from May 1, 2009,
to October 3, 2009. Id. “The agency . . . determined that this was an
unsuccessful work attempt, as the work ‘was done during a period of remission
and ended due to his DIB.’ ” Id. The ALJ found Mr. Dillon had not been
engaged in substantial gainful activity during the period February 3, 2009,
through December 31, 2009. Id.
4

STEP TWO
“At the second step, [the agency] consider[s] the medical severity of your
impairment(s).” 20 CFR § 404.1520(a)(4)(ii). “It is the claimant’s burden to
establish that [her] impairment or combination of impairments are severe.”
Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). A severe impairment is
defined as one which significantly limits a physical or mental ability to do basic
work activities. 20 CFR § 404.1521. 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. “If the impairment would have no more than a minimal effect on
the claimant’s ability to work, then it does not satisfy the requirement of step
two.” Id. (citation omitted). Additionally, the impairment must have lasted at
least twelve months or be expected to result in death. See 20 CFR § 404.1509.
The ALJ found Mr. Dillon suffered from the following severe impairments:
“bi-polar disorder;2 anxiety disorder3 with panic; impulse control disorder;
diabetes mellitus; recurrent deep vein thrombosis; lumbar degenerative disease;
sleep apnea.” (AR at p. 14) (bold omitted).

Bipolar disorder, formerly called “manic depression,” is a chronic
condition involving mood swings with at least one episode of mania and repeated
episodes of depression. MedicineNet.com.
2

Anxiety disorder is a chronic condition characterized by an excessive and
persistent sense of apprehension with physical symptoms such as sweating,
palpitations, and feelings of stress. It included agoraphobia and panic
disorders. MedicineNet.com.
3

5

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. 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 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, claimant is considered disabled. If not covered by these
criteria, the analysis is not over, and the ALJ proceeds to the next step.
At step three, the ALJ found Mr. Dillon’s severe impairments did not
qualify either individually or collectively to meet or equal a listing under
Appendix 1. (AR at p. 15). Mr. Dillon challenges this finding as it relates to his
severe disability, deep vein thrombosis (“DVT”), under Listing 4.11. (Docket 16
at p. 12). Although the ALJ referenced Listing 4.00 relating to cardiovascular
impairments, he did not specifically address Listing 4.11. See AR at pp. 15-17.
Rather, the ALJ simply included this Listing in the finding “[a]fter careful review
of the medical record, the undersigned finds that his impairments do not
equal the severity of any impairment described in those sections of the Listing of
lmpairments.” Id. at p. 15.
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Listing 4.0 considers impairments to the cardiovascular system.
(Appendix 1 at 4.0). “Disorders of the veins . . . may cause impairments of the
lower extremities (peripheral vascular disease) . . . . [The agency] will evaluate
peripheral vascular disease under 4.11 or 4.12 . . . .” Id. at 4.0A(1.1)(c).
Peripheral vascular disease4 to qualify under Listing 4.0 requires:
Chronic venous insufficiency of a lower extremity with incompetency
or obstruction of the deep venous system and one of the following:
A. Extensive brawny edema 5 . . . involving at least
two-thirds of the leg between the ankle and knee or
the distal one-third of the lower extremity between
the ankle and hip.
OR
B. Superficial varicosities, stasis dermatitis, and either
recurrent ulceration or persistent ulceration that
has not healed following at least 3 months of
prescribed treatment.
Id. at 4.11.

“Peripheral vascular disease (PVD) . . . is any impairment that affects
either the arteries (peripheral arterial disease) or the veins (venous insufficiency)
in the extremities, particularly the lower extremities. The usual effect is
blockage of the flow of blood either from the heart (arterial) or back to the heart
(venous). If you have peripheral arterial disease, you may have pain in your calf
after walking a distance that goes away when you rest (intermittent
claudication); at more advanced stages, you may have pain in your calf at rest or
you may develop ulceration or gangrene. If you have venous insufficiency, you
may have swelling, varicose veins, skin pigmentation changes, or skin
ulceration.” Appendix 1 § 4.00(G)(1).
4

“Brawny edema (4.11A) is swelling that is usually dense and feels firm due
to the presence of increased connective tissue; it is also associated with
characteristic skin pigmentation changes. It is not the same thing as pitting
edema. Brawny edema generally does not pit (indent on pressure), and the
terms are not interchangeable. Pitting edema does not satisfy the requirements
of 4.11A.” Appendix 1 § 4.00(G)(3).
5

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Mr. Dillon argues on December 4, 2008, his chart noted DVT and
edema. (Docket 16 at p. 14) (referencing (Docket 13 ¶ 92) (“firm swelling of
the right lower extremity to the knee and a mottling of the entire mid-calf to
the ankle.”). He asserts that just outside the December 31, 2009, coverage
period on January 21, 2010, his emergency room record charts “moderate
skin changes, consistent with chronic venous insufficiency are present in the
distal two-thirds of the leg.” Id. (referencing Docket 13 ¶ 151).
While the December 2008 record of “firm swelling” may qualify as
brawny edema from the right ankle to the knee, the January 2010 record does
not. During the insured period of February 13, 2009, through the end of the
year, Mr. Dillon’s medical records reflect either “no edema,” edema of an
unspecified nature, or pitting edema evidenced by charting of “1+ edema.”
See AR at pp. 743-44, 753, 768, 773, 780-82, 785, 787 and 818-19. Mr.
Dillon fails to satisfy his burden of proving his condition meets or equals a
listing within Appendix 1. Johnson, 390 F.3d at 1070.
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 of the claimant’s impairments, including those which are not severe.
8

20 CFR § 404.1545(e). All of 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 his 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, 495 F.3d at
619 (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. (quoting 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).

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The ALJ developed the following RFC for Mr. Dillon:
[T]he claimant had the residual functional capacity to lift and/or
carry 20 pounds occasionally and 10 pounds frequently, stand
and/or walk (with normal breaks) for at least 2 hours in an 8-hour
workday―i.e., walk and stand for 4 hours a day, sit (with normal
breaks) for a total of about 6 hours in an 8-hour workday, was
unlimited in push and/or pull activities (including operation of hand
and/or foot controls) other than as stated for lift and/or carry,
occasionally climb ramps and stairs but should not be required to
climb ladders, ropes or scaffolds, occasionally balance, stoop, kneel,
crouch and crawl, should avoid concentrated exposure to hazards
(machinery, heights, etc.), and the claimant could understand,
remember and carry out two to three step instructions; the claimant
could respond appropriately to supervision, co-workers, and the
public on an occasional basis; within the foregoing parameters, the
claimant could make work-related judgments in a routine work
setting; and within the foregoing parameters, the claimant could
respond appropriately to work situations and changes in a typical
work setting.
(AR at pp. 17-18). In arriving at this RFC, the ALJ found:
While the claimant may have pain symptoms, the important
question is the severity of the pain, and after considering the
claimant’s statements, the medical history provided from treating
and examining doctors, and viewing the objective medical evidence
in the most favorable light to the claimant, it is concluded that the
claimant is not as restricted as he alleges. In light of his statements
that he takes no prescribed pain medication, the undersigned finds
this inconsistent with his allegations of severe, disabling pain
symptoms, which further reduces his credibility.
Furthermore, the claimant had not received the type of medical
treatment one would expect for a totally disabled individual, with the
record revealing infrequent trips to the doctor in 2009, and even
shortly thereafter, with significant gaps in the claimant’s history of
treatment, for treatment that has been essentially routine and/or
conservative in nature, with those records not supporting the
claimant’s alleged symptoms and limitations.
Id. at p. 19.

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Although the agency labeled Mr. Dillon’s effort as a hotel clerk during five
months in 2009 as a “unsuccessful work attempt,” the ALJ used this work
attempt as evidence “suggest[ing] a capacity for significant functioning in 2009.”
AR at p. 20 (referencing AR at pp. 392-99). Despite Mr. Dillon’s testimony
during the hearing that he “could ‘only lift 10 pounds at most, but he is able to
lift his 18 pound baby with some difficulty,’ ” the ALJ adopted Mr. Dillon’s work
report that he “carr[ied] hotel refrigerators to hotel rooms . . . .” to support his
conclusion. Id.
The ALJ found Mr. Dillon’s statement he was unable to work without pain
to be inconsistent with the medical history provided by the treating and
examining physicians. Id. at p. 19. The ALJ also found Mr. Dillon “had not
received the type of medical treatment one would expect for a totally disabled
individual, with the record revealing infrequent trips to the doctor in 2009, and
even shortly thereafter, with significant gaps in the claimant’s history of
treatment, for treatment that has been essentially routine and/or conservative in
nature, with those records not supporting the claimant's alleged symptoms and
limitations.” Id.
The ALJ determines the weight attributable to a claimant’s subjective
complaints, including pain, according to the framework created in Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Five Polaski factors guide the
ALJ’s credibility determination: “1) the claimant’s daily activities; 2) the

11

duration, frequency, and intensity of the pain; 3) the dosage, effectiveness,
and side effects of medication; 4) precipitating and aggravating factors; and
5) functional restrictions.” Choate, 457 F.3d at 871. The ALJ need not
mechanically discuss each of the Polaski factors. See Goff v. Barnhart, 421
F.3d 785, 791 (8th Cir. 2005). Although the ALJ can discount a claimant’s
subjective complaints for inconsistencies within the record as a whole, “the ALJ
must make express credibility findings and explain the record inconsistencies
that support those findings.” Dolph, 308 F.3d at 879. The court will not
disturb the decision of an ALJ who seriously considers but for good reason
expressly discredits a claimant’s subjective complaints. See Haggard, 175 F.3d
at 594.
Mr. Dillon’s statements must be taken in context. During an Urgent Care
Clinic examination on February 13, 2009, Mr. Dillon was experiencing pain in
his right leg “ ‘like it is going to explode’ especially when walking.” (Docket 13
¶110). Because of his condition, Mr. Dillon was hospitalized for four days. Id.
During the hospitalization he was in bedrest with his legs elevated. Id. On
February 17 at discharge “he had no complaints of pain and only slight
discomfort when walking.” Id.
Mr. Dillon presented to the Veterans Administration (“VA”) clinic on
February 24, 2009, with continued right leg complications after being on his feet
too much. Id. ¶ 111. Dr. Schwarzenbach noted “some swelling in his right leg
and redness.” Id. ¶ 112. While Mr. Dillon wanted to return to work, the doctor
12

kept him out of work for a week and upon returning to work “he is not to . . .
stand or sit more than 30 to 60 minutes. . . . [and] gradually increase activity as
he tolerates.” Id.
On March 18, 2009, Mr. Dillon “returned to the VA reporting that he
continued to try and remain off his leg as much as possible” after his
mid-February hospitalization for DVT. Id. ¶ 118. During the examination Dr.
Kaplan found Mr. Dillon’s “gait was normal, his reflexes were symmetrical, and
his extremities were unremarkable.” Id. ¶ 120.
On May 11, 2009, Dr. Kaplan saw Mr. Dillon for “right leg pain.” Id.
¶ 125. Mr. Dillon “had a swollen right calf” with a continuing diagnosis of “DVT
right lower extremity.” Id. Because his TED6 hose had worn out, Mr. Dillon
called the clinic on July 30, 2009, and requested a new pair. Id. ¶ 133. On
August 17, 2009, Mr. Dillon reported to the medical staff that “elevating his legs
helped relieve his pain.” Id. ¶ 138.
While Mr. Dillon’s 2010 medical records cannot be used to create a
qualification for benefits, they are consistent with and confirm the nature and
quality of his 2009 health. “[M]edical evidence of a claimant’s condition
subsequent to the expiration of the claimant’s insured status is relevant evidence
because it may bear upon the severity of the claimant’s condition before the

TED hose are compression stockings “used to treat swelling in the legs
and ankles, varicose veins, and spider veins. TED hose may help to prevent the
progression of serious vein problems and diseases.” (Docket 13 at p. 36 n.2).
6

13

expiration of his . . . insured status.” Basinger v. Heckler, 725 F.2d 1166, 1169
(8th Cir. 1984).
On January 21, 2010, Mr. Dillon reported to the VA clinic with “noted
moderate skin changes, consistent with chronic venous insufficiency are present
in the distal two-thirds of the leg.” Id. ¶ 151. Because of a diagnosis of
“probable venous thrombosis,” he was admitted to the VA hospital in Hot
Springs. Id. Throughout the hospitalization, Mr. Dillon’s care plan included
keeping his lower extremity elevated. See id ¶¶ 153, 155, 157-58. Upon
discharge on January 25, his condition was “improved.” Id. ¶ 160.
Throughout the year 2009, Mr. Dillon had a number of mental health
consultations. See id. ¶ 126, 141,147, 149. These consultations shared a
common theme. Mr. Dillon was observed to be “irritable with angry outbursts,
impulsive, swearing, yelling and demanding. . . . his observed affect . . . [is]
constricted . . . . decreased concentration. . . . [and] thought [process] was
positive for obsessions/compulsions.” Id. ¶ 126. Compare id. ¶¶ 147 (same)
and 149 (same).
The ALJ makes an unfair characterization of Mr. Dillon’s work report.
Mr. Dillon actually reported he carried “small refrigerators from the store room to
guest rooms. Carried item 10 to 50 feet, 3-4 times a week,” and these weighed
at most 25 pounds. (AR at p. 393). The work report noted that the “weight . . .
frequently lifted . . . [1/3 to 2/3 of the workday] . . . [was] less than 10 pounds.”
Id.
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In judging Mr. Dillon’s credibility, the ALJ chose to give little weight to Mr.
Dillon’s wife’s testimony. The ALJ declared:
While the undersigned acknowledges Mrs. Dillon as a well-meaning
individual trying to help her husband obtain benefits, her testimony
does not establish that the claimant is disabled. Since Mrs. Dillon
is not medically trained to make exacting observations as to dates,
frequencies, types and degrees of medical signs and symptoms, or of
the frequency or intensity of unusual moods or mannerisms, the
accuracy of the testimony is questionable. Moreover, by virtue of
the relationship as the claimant’s wife, Mrs. Dillon cannot be
considered a disinterested third party whose testimony would not
tend to be colored by affection for the claimant and a natural
tendency to agree with the symptoms and limitations the claimant
alleges. Most importantly, significant weight cannot be given to
Mrs. Dillon testimony because it, like the claimant’s, is simply not
consistent with the preponderance of the opinions and observations
by medical doctors in this case.
Id. at p. 25.
The court notes that family members “always have a stake in the claim”
because it is their child, spouse or other family member who is seeking Social
Security benefits. If this relationship was a valid basis for rejecting the
testimony of a family member, the regulations would specifically direct an ALJ to
disregard the statements and observations of these individuals. To the
contrary, the regulations encourage an ALJ to seek the testimony of family
members because they have the most frequent contact and exposure to the
claimant’s physical and mental impairments. See 20 CFR §§ 404.1512(b)(1)(iii)
(“Evidence includes . . . [s]tatements . . . others make about your impairment(s),
your restrictions, your daily activities, your efforts to work, or any other
statements you make to medical sources during the course of examination or
15

treatment, or to us during interviews, on applications, in letters, and in
testimony in our administrative proceedings . . . .”) and 404.1513(d)(4) (“In
addition to evidence from the acceptable medical sources . . . . we may also use
evidence from other sources to show the severity of your impairment(s) and how
it affects your ability to work. Other sources include, but are not limited to
. . . . Other non-medical sources (for example, spouses, parents and other
caregivers, siblings, other relatives, friends, neighbors, and clergy). . . .”).
Consideration of third party statements also must be considered when an ALJ is
evaluating a claimant’s pain. See 20 CFR § 404.1529(a). That regulation
provides:
In determining whether you are disabled, we consider all your
symptoms, including pain, and the extent to which your symptoms
can reasonably be accepted as consistent with the objective medical
evidence and other evidence . . . . These include statements or
reports from . . . others about your medical history, diagnosis,
prescribed treatment, daily activities, efforts to work, and any other
evidence showing how your impairment(s) and any related
symptoms affect your ability to work.
Id.
Mrs. Dillon provided both a letter and oral testimony for the ALJ’s
consideration. The letter included the following observations while her
husband was working as assistant manager at Family Dollar:
He struggled not long into it. His feet could not handle being on the
cement floor all the time if he stood to [sic] long in one position the
blood would pool and he would come home swollen and sore.
He complained that the others didn’t listen to him and he was
always stressed. He . . . was very short tempered with everyone
16

. . . . He couldn’t accomplish much at home because he sunk into a
deep depression and became pretty unreachable. . . .
He went to the doctors when the manager got back and he was very
angry when they had to put him into the hospital. The doctor said
he needed a different job where he could put his feet up. When
Family Dollar laid him off he was very angry and went into a deeper
depression.
(Docket 13 ¶ 50). Her husband’s condition did not change when he went to
work as a motel clerk.
[A]t first it was better but then the same things started happening
again. He started to stress. . . . his feet were still swelling and he
had a hard time staying awake. He was very defensive and not
willing to take care of himself because he didn’t want to seem ill or
unable to do the job. . . .
I would like a chance to answer any questions you might have or to
explain this to you in person. My husband has been in a vicious
cycle between complications from his DVT and diabetes and his
bipolar. It seems that if he has problems with his physical
condition he has so much more trouble stabilizing his mental
condition and vice versa. . . .
Id.
Mrs. Dillon testified at the November 9, 2011, administrative hearing.
She testified about what she personally observed while her husband was working
at Family Dollar during 2007-2009. (Docket 13 ¶ 52).
[When he started] he was very happy to have . . . an active job where
he was able to be more physical, and for a while there he enjoyed it,
and then slowly but surely he started to get quieter. . . . He would
come home and . . . his left leg would be extremely swollen so he
would have to prop it up, and the doctors kept telling him because I
would go to the doctor’s appointments, and they said you have to
keep that leg elevated as much as possible. So he would come
home, and he would do it. He would keep it as elevated as he could,
and when he was home I noticed that he had a harder time following
through. . . .
17

I noticed that when he would talk about work, as much as he had
enjoyed it in the beginning, it started to get harder because he would
say that because he was bipolar that they would particularly single
him out, and he felt that they weren’t happy with him because of
that. . . .
And when he finally got worse we noticed that he was getting an
ulcer on his leg and for about a week I kept telling him you’ve got to
go see the doctor, and he kept saying I can’t do that. If I take off
. . . I’m going to lose my job . . . .
Well, by the time we finally went into see the doctor they put him in
the hospital, and it was extremely severe, and he kept telling them
I’ve got to get back. . . .
He got back and . . . he was in a severe cycle of depression, and a
very, very hard time focusing, and couldn’t finish jobs that were
given to him. . . .
Id.
Regarding her husband’s employment as a motel clerk in 2009, Mrs.
Dillon testified:
[T]his is going to be great. He can keep his feet up a little bit more.
He is not going to be standing the entire time . . . it did start out well.
...
[S]lowly but, surely, he went into the depression again. He was
coming home and staying up late. His legs were still swollen . . .
[and] ended up in trouble because he would get a blood clot in his
legs, and he was more grumpy, and more edgy at home. . . . He didn’t
tell me a lot about what was going on at work.
Id. She testified her husband “would go through depression, neglect himself,
neglect portions of his job and it made it very hard for him to accomplish any one
task at home, much less hold a job. Dillon got to where he didn’t deal with
people very well, and he isolated himself.” Id. ¶ 56.

18

Failure to consider Mrs. Dillon’s testimony is contrary to the regulations.
20 CFR §§ 404.512(b)(1)(iii), 404.1513(d)(4), and 404.1529(a). The conclusion
to give her letter and testimony little or no weight is not supported by substantial
evidence and the ALJ did not provide good reasons for discounting the testimony.
Mrs. Dillon’s testimony is consistent with the medical records of her
husband’s treating health providers and with his testimony. Conditions such
as DVT, bipolar disorder and anxiety disorder are conditions commonly known to
wax and wane. It is not unexpected for an individual with these conditions to
appear and act healthy, while at other times to suffer from the extreme,
debilitating problems these physical and mental conditions cause. See Nowling
v. Colvin, 813 F.3d 1110, 1123 (8th Cir. 2016) (“the ALJ improperly accorded
great weight to [those] statements . . . indicating that Nowling demonstrated
‘improvement’ without acknowledging that Nowling’s symptoms waxed and
waned throughout the substantial period of treatment [and] without
acknowledging the unpredictable and sporadic nature of Nowling’s symptoms
. . . .”).
Prior to December 2009, Mr. Dillon was receiving VA benefits for his
bipolar condition. (Docket 13 ¶ 5). In December he applied for and received
an increase in benefits. Id. On December 10, 2009, Mr. Dillon’s VA disability
benefits increased from 70 percent to 100 percent. Id. ¶¶ 5-6. Among Mr.
Dillon’s eleven service-connected diagnoses were “bipolar disorder” and “right leg
deep vein thrombosis.” Id. ¶ 7. In addition to finding Mr. Dillon 100 percent
19

disabled, the VA determined he was entitled to special compensation because he
met the VA criteria of “housebound.”7 Id. ¶ 5. The ALJ did not reference the VA
disability decision in his denial of benefits to Mr. Dillon. Id. ¶ 6.
The regulations make clear a VA disability decision is not binding on
the Social Security Administration. “A decision by any . . . other
governmental agency about whether you are disabled . . . is based on its rules
and is not our decision about whether you are disabled . . . . [The agency]
must make a disability . . . determination based on social security law.
Therefore, a determination made by another agency that you are disabled . . .
is not binding on [the Social Security Administration].” 20 CFR § 404.1504.
Despite this caveat, the regulations also make clear the other agency decision
must be considered by an ALJ.

“Evidence includes . . . [d[ecisions by any

governmental . . . agency about whether or not you are disabled . . . .” Id. at
§ 404.1512(b)(1)(v).
The Commissioner acknowledges “[a]n ALJ must consider and may not
ignore a VA finding of disability.” (Docket 17 at p. 11) (referencing Morrison v.
Apfel, 146 F.3d 625, 628 (8th Cir. 1998)). The Commissioner argues the ALJ’s
failure to address the VA benefits ruling is not error because “the ALJ considered
“The term ‘permanently housebound’ is . . . defined as being ‘substantially
confined to such veteran’s house . . . or immediate premises due to a
service-connected disability or disabilities which it is reasonably certain will
continue through the veteran’s lifetime.’ ” Howell v. Nicholson, 19 Vet. App.
535, *4 (2006) (citing 38 CFR §3.350(i)(2)). The term is also “intended to provide
additional compensation for veterans who [are] unable to overcome their
particular disabilities and leave the house in order to earn an income as opposed
to an in ability to leave the house at all.” Id. (emphasis in original).
7

20

the medical evidence from the VA throughout his decision.” Id. (referencing
Pelkey v. Barnhart, 433 F.3d 575 (8th Cir. 2006)). The Commissioner also
argues Dr. Pelc, a consulting clinical psychologist, considered the VA records
and the ALJ “gave his opinion substantial weight.” (Docket 17 at p. 12). For
these reasons, the Commissioner asserts “the ALJ properly discussed the
evidence underlying the VA disability rating.” Id.
While Dr. Pelc may have reviewed Mr. Dillon’s VA records, he considered
only Mr. Dillon’s mental and psychological impairments and did not consider the
impact of any physical limitations in arriving at his conclusions. (Docket 13
¶ 212). Dr. Pelc did not discuss the VA disability rating or how DVT impacted
Mr. Dillon. The Commissioner’s attempt to boot-strap Dr. Pelc’s review of the
VA records into the argument that the ALJ properly considered those records is
without merit.8
In Pelkey, the ALJ did not specifically reference the claimant’s “60 percent
figure,” but “he fully considered the evidence underlying the VA’s final
conclusion that Pelkey was 60 percent disabled.” Pelkey, 433 F.3d at 579.
Additionally, the ALJ in Pelkey “discussed the rating examination,” the VA
physician’s diagnosis, and the earlier VA award of benefits based on a “20
percent disability.” Id. The court rejected Pelkey’s argument the ALJ failed to
Dr. Thomas Atkins, a second consulting clinical psychologist relied upon
by the ALJ, testified his opinions about Mr. Dillon were based only on his mental
health limitations and were without consideration of his physical limitations.
(Docket 13 ¶ 197). The only reference to the VA decision was that Dr. Atkins
agreed Mr. Dillon’s bipolar condition would tend to cause him to isolate himself
and avoid social situations. Id. ¶ 196.
8

21

follow § 404.1512(b)(1)(v) and Morrison because “the ALJ did not ignore the VA
rating but considered and discussed the underlying medical evidence contained
in the VA’s Rating Decision.” Id. at pp. 579-80. Other courts have concluded
the ALJ does not err by considering the claimant’s medical history and the VA
physician’s opinion upon which the VA disability decision is based. See Baker
v. Colvin, 620 F. App’x 550, 556 (8th Cir. 2015) (the ALJ considered the medical
history and the VA physician’s opinion); DuBois v. Barnhart, 137 F. App’x 920,
921 (8th Cir. 2005) (same).
While the ALJ may have considered the VA’s medical records, there is no
evidence he examined the rating examination, the VA disability assessment or
the VA determination that Mr. Dillon was 100 percent disabled. Morrison
required the ALJ do to more than simply review the same records which the VA
considered. “[T]he ALJ should have addressed the determination by the VA that
[claimant] is permanently and totally disabled. It is true that the ALJ does not
have to discuss every piece of evidence presented . . . . We think, however, that
the VA finding was important enough to deserve explicit attention.” Morrison,
146 F.3d at 628 (internal citations and quotation marks omitted) (emphasis
added). See also Hensley v. Colvin, No. 15-2829, 2016 WL 3878219, at *6 (8th
Cir. July 18, 2016) (“the ALJ explicitly acknowledged the VA’s disability finding”);
Rodewald v. Astrue, 455 F. App’x 725, 726 (8th Cir. 2012) (“the ALJ considered
and discussed the 100% disability rating of the Department of Veterans Affairs”)
(referencing Morrison, 146 F.3d at 628); Curtis v. Astrue, 338 F. App’x 554, 555
22

(8th Cir. 2009) (“the ALJ specifically acknowledged the VA decision, which was
based on records not before the ALJ and which, according to the VA decision,
conflicted with the examination findings in the record at issue here”); Lewis v.
Barnhart, 76 F. App’x 756, 757 (8th Cir. 2003) (“the ALJ referenced Lewis’s VA
disability status in his opinion”); Walker v. Barnhart, 50 F. App’x 799, 800 (8th
Cir. 2002) (“the ALJ adequately weighed the Department of Veterans Affairs’
disability determination”). The ALJ erred by failing to comply with the
obligation to discuss and weigh the VA disability determination. 20 CFR
§ 404.1512(b)(1)(v); Morrison, supra.
In challenging the ALJ’s RFC, Mr. Dillon argues the ALJ erred by rejecting
the opinion of Dr. Kaplan. (Docket 16 at p. 25). As Mr. Dillon’s treating
physician, Dr. Kaplan opined his patient needed to elevate his legs periodically
throughout the work day. (Docket 13 ¶ 221). Dr. Kaplan believed his opinion
was consistent with his patient’s medical condition and was medically necessary
in 2009. Id. The ALJ rejected Dr. Kaplan’s opinion because it came in the form
of a “pre-arranged statement” and was “precipitated” by Mr. Dillon’s attorney.
(AR at p. 25).
The background for the use of the letter is relevant to the analysis of the
ALJ’s rejection of Dr. Kaplan’s opinion. When Mr. Dillon’s attorney asked Dr.
Kaplan to complete a medical source statement concerning his patient’s medical
conditions and how they impacted functional capacity, the VA responded that it

23

did not “complete forms for attorneys.” (Docket 13 ¶ 221). When notified of
this situation, the ALJ did not obtain information from Dr. Kaplan directly. Id.
Once the ALJ examined the record and concluded a medical source
statement had not been received from Dr. Kaplan, it became the ALJ’s
responsibility to “develop the record fairly and fully, independent of the
claimant’s burden to press his case.” Snead v. Barthart, 360 F.3d 834, 838 (8th
Cir. 2004). While Mr. Dillon bore the burden of persuasion, the ALJ was
responsible for development of the record. Id. Here the ALJ’s failure to develop
the record is both unfair and prejudicial.
Seeking to obtain a clarification from Dr. Kaplan, Mr. Dillon’s attorney sent
the doctor a “fill in the blank questionnaire.” The pertinent text of the
questionnaire stated:
I am requesting . . . that you address one issue in this case that I
believe is significant to Mr. Dillon’s disability. Mr. Dillon testified
that as a result of his medical conditions, that he needs to elevate
his legs periodically throughout the day or his legs will swell and
become significantly painful and he has as well developed ulcers in
the past when he wasn’t able to elevate his legs when needed.
My questions to you are as follows:
1.

Is Mr. Dillon’s need to elevate his legs above his waist
level as he testified periodically throughout the day
to avoid increased swelling, consistent with his
medical condition for which you are treating him for?
_____Yes _____ No

2.

In the calendar year 2009, do you believe that it was
medically necessary for Mr. Dillon to help control his
symptoms and his swelling by elevating his legs
above his waist level periodically throughout the day
as needed? ____ Yes ____ No
24

(AR at pp. 1523-24). Dr. Kaplan checked both “yes” options, dated and signed
the letter at the place indicated for his signature. Id. If the ALJ was unwilling
to consider Dr. Kaplan’s opinions in this format, it was the ALJ’s obligation to
have the doctor complete a medical source statement. Snead, 360 F.3d at 838.
The ALJ went on and rejected Dr. Kaplan’s opinions because Mr. Dillon
“fail[ed] to make such allegation, and medical treatment records for the time
period relevant to this matter fail to support such a need . . . for such symptoms.”
(AR at p. 25). The ALJ’s conclusion is contrary to the overwhelming evidence in
the record. The medical records repeatedly include treatment involving
elevation of Mr. Dillon’s legs and he was frequently instructed to elevate his legs
whenever possible. See Docket 13 ¶¶ 60-61, 64, 97-98, 100, 103, 108, 110,
138, 153, 155 & 158.
Because Dr. Kaplan’s opinion is entitled to controlling weight, the ALJ’s
RFC which did not incorporate the doctor’s opinions is not supported by
substantial evidence. 42 U.S.C. § 405(g); Choate, 457 F.3d at 869; Howard, 255
F.3d at 580. The ALJ did not complete a proper analysis of Mr. Dillon’s RFC at
step four. Mr. Dillon’s testimony he had to elevate his right leg 5-6 times a day
for 10-15 minutes is consistent with his DVT health education, his hospital care,
and the instructions of his doctors before, during and after the insured period.
Mr. Dillon satisfied the burden of persuasion to demonstrate that his RFC must
include a proviso that he be allowed to elevate his legs above his heart 5-6 times
for 10-15 minutes per day. Stormo, 377 F.3d at 806.
25

Remand to permit the ALJ to complete the step four analysis would
normally be in order. But using the ALJ’s RFC with the additional proviso that
Mr. Dillon must elevate his legs about his heart 5-6 times for 10-15 minutes per
day makes remand on this point unnecessary.
STEP FIVE
The “burden of production shifts to the Commissioner at step five.” Id.
The ALJ found Mr. Dillon was unable to return to his past relevant work as a
hotel desk clerk. (AR at pp. 25-26). The ALJ found Mr. Dillon retained a RFC
“to perform the full range of light work9 . . . .” Id. at p. 26.
The ALJ ultimately chose to reject Mr. Dillon’s need to elevate his legs
throughout the day, because “even [if] such a need [existed] . . . [the need] would
not result in a finding of ‘disabled.’ ” (AR at p. 25). This conclusion is contrary
to the testimony of the vocational expert, Jerry Gravatt. Mr. Gravatt testified
that for each of the positions he identified as being available with the RFC found
by the ALJ—“jewelry preparer”; “bench hand, small products or jewelry
industry”; and “assembler, small products”—would not allow an individual to
recline with their feet above chest level. (Docket 13 ¶¶ 228-29). Mr. Gravatt
“Light work involves lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though
the weight lifted may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods of time.”
20 C.F.R. § 404.1567(b).
9

26

testified the individual would “have to be able to sit in a normal work chair or
work setting with the legs elevated to that level.” Id. ¶ 229. In other words,
there are no jobs available to Mr. Dillon.
The court may affirm, modify, or reverse the Commissioner’s decision,
with or without remand to the Commissioner for a rehearing. 42 U.S.C.
§ 409(g). If the court determines that the “record overwhelmingly supports a
disability finding and remand would merely delay the receipt of benefits to
which the plaintiff is entitled, reversal is appropriate.” Thompson v. Sullivan,
957 F.2d 611, 614 (8th Cir. 1992). Remand to the Commissioner is neither
necessary nor appropriate in this case. The Commissioner’s own final witness
resolves this case in favor of claimant. Mr. Dillon is disabled and entitled
to benefits. Reversal is the appropriate remedy at this juncture. Thompson,
supra.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff's motion (Docket 16) is granted and the decision
of the Commissioner of November 21, 2013, is reversed and the case is remanded
to the Commissioner for the purpose of calculating and awarding benefits to the
plaintiff James Dillon.
Dated September 26, 2016.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
27