Atchley v. Colvin

Filing 33

ORDER granting 24 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 2/28/18. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 15-5081-JLV

DUSTIN WILLIAM ATCHLEY,
Plaintiff,

ORDER

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

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.
FACTUAL AND PROCEDURAL HISTORY
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)).
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.
2

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

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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).
DISCUSSION
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

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apnea; obesity; mild degenerative changes of the lumbar spine; bipolar disorder;1
and an anxiety disorder NOS2 . . . .” 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 L2-3, 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
L3-4, 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

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.
1

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. If a diagnosis includes “NOS” that implies the
diagnosis does not fit any of the officially specified diagnoses. Further diagnosis
requires an expenditure of time that is generally deemed unreasonable for most
primary care physicians. For this reason, physicians often use this code as a
proxy for a more thorough diagnosis.
2

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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] L2-3 injury, reported five
days after onset to his treating physician on October 3, 2012[,] . . . and that these

6

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 straightleg-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.

7

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

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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 Id.at 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 basisListing 12.04 focuses upon affective disorders which are “[c]haracterized
by a disturbance of mood, accompanied by a full or partial manic or depressive
syndrome. Mood refers to a prolonged emotion that colors the whole psychic
life; it generally involves either depression or elation.” Appendix 1 Listing 12.04.
3

9

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

“Social functioning refers to your capacity to interact independently,
appropriately, effectively, and on a sustained basis with other individuals.
Social functioning includes the ability to get along with others, such as family
members, friends, neighbors, grocery clerks, landlords, or bus drivers. You
may demonstrate impaired social functioning by, for example, a history of
altercations, evictions, firings, fear of strangers, avoidance of interpersonal
relationships, or social isolation. You may exhibit strength in social functioning
by such things as your ability to initiate social contacts with others,
communicate clearly with others, or interact and actively participate in group
activities. [The agency] also need[s] to consider cooperative behaviors,
consideration for others, awareness of others’ feelings, and social maturity.
Social functioning in work situations may involve interactions with the public,
responding appropriately to persons in authority (e.g., supervisors), or
cooperative behaviors involving coworkers.” (Appendix 1 Listing 12.00(1)(C)(2)).
4

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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, and his own testimony. (Docket 25 at p. 16)
(referencing Docket 14 ¶¶ 23, 38-39, 55, 115 & 138).
The ALJ found Mr. Atchley “experienced no episodes of decompensation
which have been of extended duration.”6 (AR at p. 14). Mr. Atchley argues this

“Concentration, persistence, or pace refers to the ability to sustain
focused attention and concentration sufficiently long to permit the timely and
appropriate completion of tasks commonly found in work settings. Limitations
in concentration, persistence, or pace are best observed in work settings, but
may also be reflected by limitations in other settings. In addition, major
limitations in this area can often be assessed through clinical examination or
psychological testing. Wherever possible, however, a mental status
examination or psychological test data should be supplemented by other
available evidence.” (Appendix 1 Listing 12.00(1)(C)(3)).
5

“Episodes of decompensation are exacerbations or temporary increases in
symptoms or signs accompanied by a loss of adaptive functioning, as manifested
by difficulties in performing activities of daily living, maintaining social
relationships, or maintaining concentration, persistence, or pace. Episodes of
decompensation may be demonstrated by an exacerbation in symptoms or signs
that would ordinarily require increased treatment or a less stressful situation (or
a combination of the two). . . . The term repeated episodes of decompensation,
each of extended duration in these listings means three episodes within 1 year,
or an average of once every 4 months, each lasting for at least 2 weeks. If you
6

11

finding is faulty because the ALJ “failed to consider Atchley’s ups and downs,
consistent with his bipolar disorder . . . with episodes lasting one to three days
and occurring three to four times a month.” (Docket 25 at pp. 16-17)
(referencing Docket 14 ¶¶ 55 & 116-17). He argues the ALJ’s conclusion failed
to consider the “impact[] of back pain and shortness of breath, which seemed to
occur together and were worse one or two days a week, resulting in his getting
nothing done on those days.” Id. (referencing Docket 14 ¶ 54).
Mr. Atchley urges the court to remand his case and require the
Commissioner to evaluate whether his severe impairments in combination
qualify as “medical equivalence” in Listing 12.04. Id. at p. 17 (referencing SSR
96-6p7).
The Commissioner points out SSR 96-6p was rescinded and replaced by
SSR 17-2p8 effective March 27, 2017. (Docket 30 at p. 8 n.4). “The
Commissioner has instructed adjudicators to cite SSR 17-2p, rather than the
rescinded SSR 96-6p, even in cases filed before March 27, 2017.” Id.
(referencing Hearing and Appeals Law and Litigation Manual (HALLEX) I-5-3-30,
2017 WL 1362776, at *5 (2017)). However, the HALLEX directs that “[f]or

have experienced more frequent episodes of shorter duration or less frequent
episodes of longer duration, [the agency] must use judgment to determine if the
duration and functional effects of the episodes are of equal severity and may be
used to substitute for the listed finding in a determination of equivalence.”
(Appendix 1 Listing 12.00(1)(C)(4)).
7

SSR 96-6p, 1996 WL 374180 (July 2, 1996).

8

SSR 17-2p, 2017 WL 1105349 (March 27, 2017).
12

claim(s) filed before March 27, 2017, adjudicators must use the prior rules
throughout the entire appeals process.” HALLEX I-5-3-30, 2017 WL 1362776,
at *5. For purposes of this appeal, the court will reference SSR 96-6p, since it
was the regulation in effect and applicable to the ALJ’s analysis in Mr. Atchley’s
case.
SSR 96-6P specifically provided that “[t]he administrative law judge . . . is
responsible for deciding the ultimate legal question when a listing is met or
equaled. . . . However, longstanding policy requires that the judgment of a
physician (or psychologist) designated by the Commissioner on the issue of
equivalence on the evidence before the administrative law judge . . . must be
received into the record as expert opinion evidence and given appropriate
weight.” SSR 96-6p, 1996 WL 374180, at *3. The policy statement of the
regulation “emphasize[s]” that “[a]n updated medical expert opinion must be
obtained by the administrative law judge . . . before a decision of disability based
on medical equivalence can be made.” Id., 1996 WL 374180, at *1. This policy
is reinforced as the regulation states that “an administrative law judge and the
Appeals Council must obtain an updated medical opinion from a medical expert
. . . [w]hen additional medical evidence is received that in the opinion of the
administrative law judge . . . may change the State agency medical or
psychological consultant’s finding that the impairment(s) is not equivalent in
severity to any impairment in the Listing of Impairments.” Id., 1996 WL
374180, at *3-4.
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NON-EXAMINING, CONSULTING PSYCHOLOGISTS
Critical to the determination at step three was the ALJ’s decision to give
exclusive consideration to the opinions of the non-examining, consulting
psychologists, Dr. Stephanie Fuller and Dr. Jerome Buchkoski. (AR at p. 12).
The ALJ stated “the assessments of the DDS [Disability Determination Services]
physicians are a medical opinion that the claimant does not meet or equal any
listing of impairment.” Id. at p. 12 (referencing AR at pp. 71-82 and 84-96).
The ALJ used the term physicians to refer to the assessments by Dr. Fuller, a
psychologist; Dr. Tom Burkhart, a physician; Dr. Buchkoski, a psychologist; and
Dr. Kevin Whittle, a physician. See id. at pp. 71-82 and 84-96. Because Mr.
Atchley only challenges the ALJ’s decision as to Listing 12.04, a mental
impairment, a detailed discussion of the opinions of Dr. Burkhart and Dr.
Whittle regarding physical impairment is not necessary at this point.
Dr. Fuller conducted a records review on May 6, 2013, to assess Mr.
Atchley’s mental impairment under the “B” criteria. (Docket 14 ¶ 129; see also
AR at pp. 71-82). On August 19, 2013, Dr. Buchkoski completed a records
review and agreed with Dr. Fuller’s assessment of the “B” criteria. (Docket
14 ¶ 135; see also AR at pp. 92-94). Without specifically indicating so, the ALJ
adopted Dr. Fuller’s and Dr. Buchkoski’s findings on the “B” criteria for mental
impairment. Compare Docket 14 ¶¶ 129-133 & 135 and AR at p. 14.9
The ALJ’s table of the “ ‘B’ Criteria” indicates Mr. Atchley had “none” [no]
restrictions of his activities of daily life, but the text indicates a “mild restriction”
in this area. See AR at p. 14. The court assumes the ALJ intended his written
decision, as opposed to the table, to be his finding since that finding coincides
with the opinions of Dr. Fuller and Dr. Buchkoski.
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14

The court finds the opinions of Dr. Fuller and Dr. Buchkoski are not
entitled to substantial weight in the step three analysis. SSR 96-6p specifically
mandates that a non-examining, consulting psychologist review all of a
claimant’s records. That simply did not occur in this case. For each
psychologist, consider the following:
Dr. Fuller’s opinion of May 6, 2013, was issued before documents for
May 17, 2013, through May 2, 2014, were added to the
administrative record. See Docket 14 ¶ ¶ 44-57, 102-128 and 136;
and
Dr. Buchkoski’s opinion of August 19, 2013, was submitted before
documents for October 11, 2013, through May 2, 2014, were added
to the administrative record. See Docket 14 ¶ ¶ 47-57, 102-128
and 136.
While Dr. Fuller and Dr. Buchkoski had the benefit of the opinions of Dr.
Gilbertson (Docket 14 ¶¶ 85-100), they did not have access to any of the mental
health records of Behavior Management Systems of Rapid City, South Dakota, or
the medical records of the Community Health Center of the Black Hills of Hot
Springs, South Dakota, after May 7, 2013 and August 20, 2013, respectively.
Non-examining sources should be given less weight especially if those sources
“did not have access to relevant medical records, including relevant medical
records made after the date of evaluation.” McCoy v. Astrue, 648 F.3d 605,
616 (8th Cir. 2011) (citing Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010)).
Opinions without consideration of these records “fairly detracts from [the]
decision” of the ALJ to adopt Dr. Fuller’s and Dr. Buchkoski’s opinions. Reed,
399 F.3d at 920. Because their opinions cannot be used to resolve the step
three analysis relating to Listing 12.04, the ALJ must secure “[a]n updated
15

medical opinion . . . before a decision of disability based on medical equivalence
can be made.” SSR 96-6p, 1996 WL 374180, at *1.
Before closing this order, the court is compelled to address three
additional issues raised by Mr. Atchley. Those are the decisions of the ALJ
(1) to reject the statement of Casey Atchley; (2) to not fairly judge Mr. Atchley’s
credibility; and (3) to not give significant weight to the opinion of Janet Opoien
Twedt.
CASEY ATCHLEY
The ALJ stated: “I have considered the evidence of Casey Atchley, the
claimant’s wife . . . I cannot give full weight to it for the following reasons. This
person’s evidence is colored or influenced by friendship with or affection for the
claimant. This person’s evidence is inconsistent with the objective medical
evidence and the record as a whole. Moreover, I note that Mrs. Atchley did not
give evidence under oath.” (AR at p. 18) (referencing AR at pp. 242-52).
As the court previously noted:
[F]amily 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) . . . and
404.1513(d)(4) . . . . Consideration of third party statements also
must be considered when an ALJ is evaluating a claimant’s pain.
See 20 CFR § 404.1529(a).
Dillon v. Colvin, 210 F. Supp. 3d 1198, 1207 (D.S.D. 2016).

16

“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 treatment, or to us during interviews, on applications, in letters, and in
testimony in our administrative proceedings . . . .” 20 CFR § 404.1512(b)(1)(iii).
“In addition to evidence from the acceptable medical sources . . . . [the agency]
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). . . .” 20 CFR § 404.1513(d)(4).
Mrs. Atchley’s functional report describes in vivid detail how her
husband’s condition deteriorated over the years immediately before applying for
DIB and afterward. He used to work eight to ten hours a day, took care of the
yard, worked on their cars and went camping with the family. (Docket 14 ¶ 30).
“He was unstoppable and loved to stay busy . . . . [H]e could pay bills, count
change, handle a savings account, and use checkbook/money orders.” Id.
¶¶ 30 & 34. “[S]ince his BiPolar diagnosis these [money handling] skills have
been greatly compromised. [His] ability to run a household just isn’t the same
. . . . [H]e can do light cleaning & laundry, home repairs are difficult and can only
spend 10-15 min doing yard work . . . . [W]hen he dose [sic] dishes he must take
frequent breaks to sit–it may take him an hour or more.” Id. ¶¶ 33-34.
17

Mrs. Atchley stated her husband’s ventures away from the house are “[n]ot
often at all . . . . [H]e keeps himself so secluded and I believe it’s due to his
depression.” Id. ¶ 34. She acknowledged he was able to drive a car and shop
for groceries “once a week for 20-30 minutes. . . . He went [outside the house]
only when it’s necessary and as little as possible.” Id. ¶¶ 34 & 36 (internal
quotation marks omitted). She described him as “so moody and unpredictable
at times. He isn’t physical but can get upset easly [sic] & the next second he
could be happy. . . . Dustin is not social & dosnt [sic] take part in many social
activities, groups cause him anxiety.” Id. ¶ 37. She “believe[s] Dustin’s COPD,
BiPolar depression anxiety and back injury has [sic] taken a piece of every part of
him.” Id.
Mrs. Atchley estimated he could walk a maximum of 5 minutes before
needing to rest. Id. ¶ 38. She wrote his attention span “depends on the
minute” and “he ‘rarely’ finished what he started.” Id.

In conclusion, Mrs.

Atchley described his condition in the following manner:
Dustin is simply not the man he once was. This back has evolved
so much he can do so little physical work it causes his depression to
escalate and now he has . . . COPD to contend with. I will do
anything short of begging to see him get the help he deserves! He
has worked so hard since he was 14 years old. In the 25 years we
were together I can’t remember more than 5 or 6 days he didn’t go to
work because he was sick. He is far from being lazy and would be a
productive part of society & support himself if he could!
Id. ¶ 43.
“Conditions such as . . . bipolar disorder and anxiety disorder are
conditions commonly known to wax and wane. It is not unexpected for an
18

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.” Dillon, 210 F. Supp. 3d at 1209. Mrs. Atchley’s testimony
is consistent with the medical and psychological records of her husband’s
treating health providers and with his testimony.
Nowhere in the Social Security Act or the regulations is there a
requirement that a family member’s statement must be made under oath. For
the ALJ to reject consideration of Mrs. Atchley’s statement on these two grounds
and to then simply dismiss her statement as contrary to the objective medical
evidence and the record as a whole is contrary to the regulations and this record.
“Failure to consider [Mrs. Atchley’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 . . . testimony little or no weight is not supported by
substantial evidence and the ALJ did not provide good reasons for discounting
the testimony.” Id. In addition, the refusal of the ALJ to consider Mrs.
Atchley’s description of her husband’s activities of daily living impact the step
four analysis of establishing a residual functional capacity (“RFC”) for him.
DUSTIN ATCHLEY
As discussed above, the ALJ concluded Mr. Atchley had a mild restriction
in his activities of daily living, moderate difficulties in the area of social
functioning and concentration, persistence or pace, and no episodes of
decompensation. To arrive at these conclusions, the ALJ not only rejected Mrs.
19

Atchley’s statement, but also found Mr. Atchley’s statements not fully credible.
(AR at p. 16).
First, the ALJ stated “it was reported the claimant prepares meals, does
light household chores, drives and goes shopping.” Id. at p. 17. This report is
derived from Mrs. Atchley’s statement, which the ALJ discredited because she
was a family member and the statement was not made under oath.
Additionally, the ALJ failed to include the complete statement of Mrs. Atchley
describing the limitations her husband’s physical and mental impairments
impose on these activities of daily living. The ALJ cannot have it both ways.
The ALJ discounted Mr. Atchley’s credibility based on inconsistent
statements about illegal drug use. Id. In an April 2013 evaluation with Dr.
Jackie Gilbertson, Mr. Atchley admitted “[m]arijuana abuse began at age 14.
Dustin reports using cocaine abusively for 4 years, as well as meth for 4 to
6 years. His last use of marijuana was 3 years ago. His last use of cocaine was
4 years ago.” (AR at p. 297; see also Docket 14 ¶ 95). The ALJ found Mr.
Atchley’s hearing testimony contradicted this statement as he “testified that he
has not used any illegal drugs other than marijuana. However prior to the
hearing the claimant reported he has used cocaine . . . . In addition, the claimant
testified he last used marijuana in 2009. However, prior to the hearing, the
claimant reported he last used marijuana three years ago -- i.e., in 2010 . . . .”
(AR at p. 17) (referencing AR at p. 297).

20

Mr. Atchley’s testimony during the May 2014 hearing included the
following exchange with the ALJ about drug use:
Q.

Alcohol, street drugs play any role in not looking for work
or not being able to work?

A.

No, sir.

Q.

When did you last use alcohol?

A.

I quit drinking alcohol back around 2009 when I was
prescribed the medicines for the bipolar and the manicdepressive.

Q.

When did you last use street drugs?

A.

Street drugs haven’t been used in about the same amount
of manner [sic] 2009.

Q.

Before 2009 what were you using?

A.

Before 2009 I was a chronic drinker, and I did use some
marijuana.

Q.

Any other illegal drug or any other street drugs?

A.

No, sir.

Id. at pp. 38-39. The ALJ never went back to clarify the time period when Mr.
Atchley used cocaine or methamphetamine, whether that drug use was years ago
or during the time period 2009-2012, or until 2014, or whether the last
marijuana use was around 2009 or actually in 2010. Mr. Atchley reported to
Ms. Kautzman of Behavior Management Systems in January 2014 that he
“experimented with cocaine, cannabis, and alcohol from ages 17 to 29. . . . He
said that substance abuse was no longer an issue . . . .” (Docket 14 ¶ 124).

21

The ALJ discounted Mr. Atchley’s credibility because in a functional report
he said the maximum distance he could walk was “1 block,” while at the hearing
he testified being able to walk “2 blocks.” (AR at p. 17). In the February
2013 functional report, Mr. Atchley wrote he was able to walk “1 block” before
needing to stop and rest. Id. at p. 234. During the May 2014 hearing, Mr.
Atchley testified the farthest he could currently walk before needing to stop and
rest was two blocks. Id. at p. 55. The ALJ did not want to talk about his ability
to walk on “one of [his] bad days when [he’s] down,” but only on “a good day.” Id.
at p. 54. Was Mr. Atchley referencing a bad day when he wrote 1 block? Is this
minor variation a discrepancy without a significant difference?
The ALJ criticized Mr. Atchley about his use of oxygen [“O2”], because he
“asserted on one page that he has been prescribed oxygen, but cannot afford it
. . . . Yet on another page, the claimant said he is using oxygen in the evenings.”
Id. at p. 17 (referencing a comparison of AR at pp. 236-37). Mr. Atchley’s
statement at page nine of the administrative record “I have been prescribed
oxygen, but I can not afford it” is not dated, while his functional report at page
eight “Ive [sic] been diagnosed COPD making necessary for me to be on oxygen in
the evening” was signed on February 27, 2013. Id. These statements are not
inconsistent as one is merely declaring that he was prescribed O2, but could not
afford it, while the other statement says that as of February 27, 2013, he is using
O2 at night.

22

The record indicates Mr. Atchley was first prescribed O2 in 2012 for use at
night. (Docket 14 ¶ 80). In February 2013, he acknowledged the O2 helped
but at $50 a month he could not afford it. Id. At some point in time, Mr.
Atchley obtained financial assistance to get O2. Id. ¶ 120. Once 02 was
available to him in May 2013, Mr. Atchley reported using it at night. Id. ¶ 103.
He continued to use 02 through the remainder of the time prior to the
administrative hearing. Id. ¶¶ 120 & 123. He was using three, to three and
one-half, liters of O2 every night. Id. The ALJ’s conclusion that these
statements were inconsistent is contrary to the record and is an inappropriate
factor upon which to judge Mr. Atchley’s credibility.
The example of exaggeration used by the ALJ to discount Mr. Atchley’
creditability was “level of education.” (AR at p. 18). The ALJ noted Mr. Atchley
“understated the level of his education. The claimant testified during the
hearing that the highest grade he completed in school was the 8th grade.
However, prior to the hearing the claimant reported having completed the
9th grade . . . .” Id. (referencing AR at p. 219). Those apparent differences were
reconciled by Mr. Atchley in response to the ALJ’s questions during the hearing:
Q.

What’s the highest grade you finished in school?

A.
...
Q.

Eighth grade.

A.

Paperwork -- somebody put down on your paperwork ninth
grade. Which is correct?
I attended the ninth grade, but I did not complete it.

23

Id. at pp. 37-38. Mr. Atchley’s explanation is a fair clarification of the apparent
discrepancy. It is hardly an exaggeration and not a factor the ALJ should use to
judge credibility.
The ALJ discounted Mr. Atchley’s credibility because of an apparent
refusal on his part to cooperate with a breathing capacity test. Id. at p. 18
(referencing AR at p. 292). The phrase in question stated: “[Patient] appeared to
understand instructions, but didn’t perform maneuvers as instructed.” Id. at
p. 292 (capitalization omitted). It is unclear from this statement whether Mr.
Atchley, in fact, understood the instructions or did not perform the breathing
maneuvers as requested because of a mental or physical impairment. It is
certainly improper for the ALJ to conclude that one alternative explanation was
more probable than the other. In fact, the therapist repeated a number of the
maneuvers several times and achieved results which appeared to be valid.
(Docket 14 ¶ 84).
Finally, the ALJ challenged Mr. Atchley’s credibility on the issue of his
need to lie down during the day. The ALJ found Mr. Atchley “either overstated
or magnified the amount of time he has to lie down . . . . [he] testified that he lies
down between 60-90 minutes each day . . . [and] this has been the case since
December 2012.” (AR at p. 18). The ALJ rejected this testimony on the basis
“the medical records did not contain any such reports by any of the claimant’s
health care professionals.” Id.

24

It is undisputed Mr. Atchley suffers from chronic back pain and frequently
complained of it during clinical visits. (Docket 14 ¶¶ 12, 65, 66, 69, 73, 77,
105 & 107). Over the years, Mr. Atchley was prescribed Flexeril for muscle
spasms and Oxycodone for low back pain relief. Id. ¶¶ 8, 66, 67, 70, 74, 107 &
126. His failure to report to his doctors the need to lie down every day “is not a
severe blow to his credibility,” particularly when he consistently complained of
back pain, made many clinical visits for back pain and was given prescription
medications. Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir. 2001)
(referencing Taylor v. Chater, 118 F.3d 1274, 1277-78 (8th Cir. 1997)). “[T]he
lack of information contained in any of the reports completed by [Mr. Atchley’s]
doctors does not qualify as an inconsistency in the evidence as a whole.” Taylor,
118 F.3d at 1278.
The court concludes there are “no inconsistencies in the record that justify
finding [Mr. Atchley] not credible.” Id. The decision of the ALJ to find Mr.
Atchley not credible is unsupported by the substantial evidence in the record.
The evidence supporting Mr. Atchley’s credibility “fairly detracts from [the
Commissioner’s] decision.” Reed, 399 F.3d at 920 (quoting Haley, 258 F.3d at
747); Morse v. Shalala, 32 F.3d 1228, 1229 (8th Cir. 1994). When examined in
detail, the records support rather than contradict the testimony of Mr. Atchley.
Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Guilliams, 393 F.3d at
801-02. As a result, the court finds the ALJ’s credibility determination is not
supported by substantial evidence.
25

“It [is] the ALJ’s responsibility to determine [a claimant’s] RFC based on
all the relevant evidence, including medical records, observations of treating
physicians and others, and [the claimant’s] own description of [his] limitations.”
Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (emphasis added) (citing
20 CFR §§ 404.1545-46, 416.945-46). The decision of the ALJ to discount Mr.
Atchley’s description of his physical and mental limitations and their impact on
his activities of daily living affect the step three analysis as well as the step four
analysis in establishing a RFC.
MS. TWEDT
Ms. Twedt completed a Medical Source Statement of Ability to Do
Work-Related Activities (Mental) [“MSS-Mental Report”]. (AR at pp. 368-70).
The ALJ acknowledged he “considered the opinions of Ms. Janet Opoien Twedt.”
Id. at p. 22 (referencing AR at pp. 368-70). But the ALJ stated the “progress
notes from this source do not support her opinions. Mental status exam was
within normal limits. Just two months prior to the completion of this
assessment, it was noted the claimant reported improvement in motivation as
well as increased energy. He was found to be more animated and was
participating in family activities. There is no evidence of worsening.” Id. at
p. 24.
The ALJ chose to give “more weight to the opinions” of the non-examining,
consulting psychologists over the opinions of Ms. Twedt. Id. at p. 22. “In this
case, the treating sources . . . are not experts in the evaluation of SSA disability
26

claims. Because of this lack of knowledge of and experience in applying SSA
disability programs and their regulatory and evidentiary requirements, I give less
weight to the treating source opinions.” Id. at p. 25. Other factors the ALJ
considered were that Ms. Twedt “did not review any medical records other than
their [sic] own. . . . [her] opinions are less consistent with the longitudinal record
. . . and [her] opinions are not supported by the relevant evidence to the same
degree as the medical source opinions cited earlier in this decision.” Id. The
ALJ found “Ms. Opoien Twedt presented little relevant supporting evidence, and
provided less satisfactory supporting explanations, for the opinions given. . . .
Indeed, many of the opinions of this medical source were simply checked boxes.”
Id. Finally, the ALJ gave less weight to Ms. Twedt’s opinions because she “is
neither a psychologist nor psychiatrist, but rather a licensed mental health
professional counselor (LPC-MH), and is therefore not an acceptable medical
source.” Id.
For the reasons discussed above, the opinions of the non-examining,
consulting psychologists do not constitute substantial evidence. Kelley v.
Callahan, 133 F.3d 583, 589 (8th Cir. 1998) (“The opinion of a consulting
physician who examines a claimant once or not at all does not generally
constitute substantial evidence.”).
Furthermore, the decision of the ALJ ignores the fact Ms. Twedt is on the
staff of the Behavior Management Systems Clinic and has access to all of Mr.
Atchley’s psychological records. Ms. Twedt, in addition to having a Masters
27

Degree in social work, is a national certified counselor (“NCC”), a licensed
professional counselor - mental health (LPC-MH”), as well as a qualified mental
health provider (“QMHP”).
Totally ignored by the ALJ is the fact that Ms. Twedt’s counseling notes,
reports and recommendations were reviewed by a certified nurse practitioner,
Lisa Kautzman, who completed a psychiatric evaluation at Ms. Twedt’s request.
(AR at pp. 355). During the mental status examination she found Mr. Atchley
“knew the month and year but not the date. . . . He was able to name the current
and the former US president, do simple monetary calculations, and attempted
one of two proverbs. He was unable to complete serial 7’s or 3’s; but he was able
to count backward from 20.” (Docket 14 ¶ 125). CNP Kautzman noted “[h]is
affect was restrictive. He was pleasant and cooperative. Insight, judgment,
and impulse control were fair to guarded.” Id.
It was the Behavior Management Systems team which concluded Mr.
Atchley required a case service plan. Id. ¶ 127. In addition to the positives
noted by the ALJ above, he did not note the report also included the following
description of Mr. Atchley’s condition:
A negative outlook and occasional feelings of hopelessness are
ongoing. Dustin continues to struggle with regaining function and
with finding resources for his family . . . . Without ongoing BMS
services to address his illness, how to cope with it, and how to locate
needed services, Dustin would be at greater risk for relapse in his
symptoms control, and possible consequences, both legal and
interpersonal, that he has experienced in the past.

28

Id. ¶¶ 127-28. Contrary to the ALJ’s determination, these findings are
consistent with the longitudinal record. Id. ¶¶ 75-77, 79-82, 96, 101, 109, 111,
113 and 119.
Most disingenuous among the reasons for giving little weight to the
opinions of Ms. Twedt is the ALJ’s statement that the MSS-Mental Report she
completed was mostly “checked boxes.” (AR at p. 25). The report itself is a SSA
form which instructs the mental health professional to “check the appropriate
block to describe the individual’s restrictions in the following work-related
mental activities.” Id. at p. 368. Ms. Twedt followed the instructions by
checking the blocks she felt most appropriately described Mr. Atchley’s mental
condition, but in addition, she included a written mental diagnosis, a statement
about his major functional impairments and other diagnostic comments. Id. at
pp. 369-70. Concerning the blocks checked, the form describes the five levels of
“the individual’s ability to perform the activity” to be considered. Id. at p. 368.
What more can the ALJ expect from a mental health professional completing this
SSA form? The form itself does not ask the clinician to attach medical or clinical
records to support the findings indicated. It was not necessary for Ms. Twedt to
formally incorporate the clinical reports and diagnostic findings of the team of
mental health professionals at Behavior Management Systems. She was
entitled to rely upon the clinical and diagnostic findings and treatment provided
by these mental health care providers.

29

On remand, the ALJ is obligated to consider and weigh the opinions of Ms.
Twedt and Ms. Kautzman at step three. In addition, these opinions must be
weighed in establishing Mr. Atchley’s RFC at step four. The court trusts on
remand the Commissioner will direct an ALJ to conduct a proceeding consistent
with the requirements of the five-step sequential evaluation process for
determining whether an individual is disabled. 20 CFR § 404.1520(a)(4).
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 24) is granted.
IT IS FURTHER ORDERED that, pursuant to sentence four of 42 U.S.C.
§ 405(g), the case is remanded to the Commissioner for rehearing consistent
with this decision.
Dated February 28, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

30