Short Horn v. Colvin

Filing 18

ORDER granting 13 Motion to Reverse. Signed by Chief Judge Jeffrey L. Viken on 9/26/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5067-JLV

WILLIAM SHORT HORN,
Plaintiff,

ORDER

vs.
NANCY A. BERRYHILL,1 Acting
Commissioner, Social Security
Administration,
Defendant.
INTRODUCTION

Plaintiff William Short Horn 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 7). The court issued a briefing schedule
requiring the parties to file a joint statement of material facts (“JSMF”). (Docket
9). The parties filed their JSMF. (Docket 10). The parties also filed a joint
statement of disputed facts (“JSDF”).2 (Docket 10-1). For the reasons stated

Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Fed. R. Civ. P. 25(d), Ms. Berryhill is
automatically substituted for Carolyn W. Colvin as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).
1

The court finds a majority of the JSDF are not accurate statements of the
administrative record and will not be referenced in this order.
2

below, plaintiff’s motion to reverse the decision of the Commissioner (Docket 13)
is granted.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 10) is incorporated by reference. Further
recitation of salient facts is incorporated in the discussion section of this order.
On July 28, 2009, Mr. Short Horn filed an application for supplemental
social security income (“SSI”) benefits under Title XVI, alleging an onset of
disability date of April 25, 2009.3 (Docket 10 ¶¶ 4 & 11). On June 12, 2015,
the ALJ issued a decision finding Mr. Short Horn was not disabled. Id. ¶¶ 8
& 116; see also Administrative Record at pp. 20-34 (hereinafter “AR at p.
____”). The Appeals Council denied Mr. Short Horn’s request for review and
affirmed the ALJ’s decision. (Docket 10 ¶ 8). The ALJ’s decision constitutes
the final decision of the Commissioner of the Social Security Administration.
It is from this decision which Mr. Short Horn timely appeals.
The issue before the court is whether the ALJ’s decision of June 12, 2015,
that Mr. Short Horn was not “under a disability within the meaning of the Social
Security Act since July 28, 2009, the date the application was filed [through
June 12, 2015]” is supported by substantial evidence in the record as a whole.
(AR at p. 21); 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
Mr. Short Horn previously applied for benefits in March 2007. (Docket
10 ¶ 1).
3

2

supported by substantial evidence, shall be conclusive.”) (internal quotation
marks and brackets omitted) (citing 42 U.S.C. § 405(g)).
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. The
court reviews the Commissioner’s decision to determine if an error of law was
committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). “Substantial
evidence is less than a preponderance, but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.” Cox v.
Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation
marks omitted).
The review of a decision to deny benefits is “more than an examination of
the record for the existence of substantial evidence in support of the
Commissioner’s decision . . . [the court must also] take into account whatever in
the record fairly detracts from that decision.” Reed v. Barnhart, 399 F.3d 917,
920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
2001)).
It is not the role of the court to re-weigh the evidence and, even if this court
would decide the case differently, it cannot reverse the Commissioner’s decision
if that decision is supported by good reason and is based on substantial
evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). A
3

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 SSI benefits under Title XVI. 20 CFR § 416.920(a).4 If the ALJ determines a
claimant is not disabled at any step of the process, the evaluation does not
proceed to the next step as the claimant is not disabled. Id. The five-step
sequential evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe
impairment—one that significantly limits the claimant’s physical or
mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations (if so, the claimant is
disabled without regard to age, education, and work experience); (4)
whether the claimant has the residual functional capacity to
perform . . . past relevant work; and (5) if the claimant cannot
perform the past work, the burden shifts to the Commissioner to
prove there are other jobs in the national economy the claimant can
perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). The ALJ applied the
five-step sequential evaluation required by the Social Security Administration
regulations. (AR at pp. 21-22).
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).
4

4

DISCUSSION
Plaintiff challenges the ALJ’s decision on a number of grounds. The
issues posed by him are:
1.

Whether Mr. Short Horn’s bilateral knee impairments met the
criteria of Listing 1.02;5

2.

Whether the ALJ’s assessment of opinion testimony was in
accord with the legal standard and the substantial evidence in
the record;

3.

Whether the ALJ’s assessment of Mr. Short Horn’s credibility
was in accord with the legal standard and the substantial
evidence in the record;

4.

Whether the ALJ’s assessment of residual function capacity
was in accord with the legal standard and the substantial
evidence in the record; and

5.

Whether the ALJ’s decision at step five was in accord with the
legal standard and the substantial evidence in the record.

(Docket 12 at p. 7). Plaintiff’s challenges to the ALJ’s decision will be addressed
as necessary.
1.

Whether Mr. Short Horn’s bilateral knee impairments met the
criteria of Listing 1.02
At step two, the ALJ found Mr. Short Horn had the following severe

impairments: “bilateral knee disorder, blindness in the right eye, and bilateral
elbow disorder.”

(Docket 10 ¶ 110).

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

5

20 CFR Part 404, Subpart P, Appendix 1, Listing 1.00.
5

(“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 is
conclusively presumed to be disabled.” Bowen v. Yuckert, 482 U.S. 137, 141
(1987).
The ALJ determined Mr. Short Horn did not have an impairment or
combination of impairments which met or were medically equal to one of the
impairments listed in Appendix 1. (Docket 10 ¶ 111).

The ALJ indicated he

considered Mr. Short Horn’s impairments individually and in combination, but
no treating or examining physician found equivalent severity to any listed
impairment.

Id.

Mr. Short Horn objects to the ALJ’s step three conclusion.
pp. 7-16).

(Docket 12 at

He argues the ALJ’s “failure to consider Listing 1.02—when evidence

in the record met or equaled Listing 1.02 criteria—and to state reviewable
reasons for his step three determination, deprives the reviewing court of any way
to ascertain on this record whether the ALJ’'s denial of Mr. Short Horn’s claim at
step three was supported by substantial evidence.”

Id. at p. 16.

The Commissioner counters that Mr. Short Horn “failed to satisfy his
burden of proving that he met Listing 1.02.”
6

(Docket 14 at p. 4).

The

Commissioner argues that “[t]o meet a listing, an impairment must meet all of
the listing’s specified criteria. . . . [And] Plaintiff has failed to prove he was unable
to ambulate effectively. . . . Objective medical evidence also fails to support
Plaintiff’s claim he was unable to ambulate effectively for a continuous 12
months.”6 Id. at pp. 4-5 & 7.

Finally, the Commissioner submits that “while

the ALJ did not explicitly discuss a specific listing at step three, Plaintiff failed to
show this was a harmful error . . . .”

Id. at p. 9.

By the Listing a “[m]ajor dysfunction of a joint” is
Characterized by gross anatomical deformity (e.g., subluxation,
contracture, bony or fibrous ankylosis, instability) and chronic joint
pain and stiffness with signs of limitation of motion or other
abnormal motion of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing, bony
destruction, or ankylosis of the affected joint(s).
Appendix 1, Listing 1.02 (emphasis added).

In addition to these three criteria,

the Listing also requires that there be “[i]nvolvement of one major peripheral
weight-bearing joint (i.e., . . . knee . . . ), resulting in the inability to ambulate
effectively, as defined in 1.00B2b.”

Id. at Listing 1.02A.

“Inability to ambulate effectively means an extreme limitation of the ability
to walk; i.e., an impairment(s) that interferes very seriously with the individual’s
ability to independently initiate, sustain, or complete activities.

Ineffective

ambulation is defined generally as having insufficient lower extremity

It is unclear from the Commissioner’s brief if the only contested issue at
step three is effective ambulation. (Docket 14 at pp. 4-10). For this reason, the
court is compelled to address all aspects of Listing 1.02.
6

7

functioning (see 1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper
extremities.”

Id. at Listing 1.02B2b(1).

While the list is not intended to be

exhaustive, included as examples of ineffective ambulation are the following:
[T]he inability to walk without the use of a walker, two crutches or
two canes, the inability to walk a block at a reasonable pace on
rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory
activities, such as shopping and banking, and the inability to climb
a few steps at a reasonable pace with the use of a single hand rail.
The ability to walk independently about one’s home without the use
of assistive devices does not, in and of itself, constitute effective
ambulation.
Id. at Listing 1.00(B)(2)(b)(2).
As part of the evaluation of a claimant’s inability to ambulate effectively,
the ALJ is required to consider “[p]ain [as] an important factor contributing to
functional loss.”

Id. at Listing 1.00(B)(2)(d).

“In order for pain . . . to be found

to affect an individual’s ability to perform basic work activities, medical signs . . .
must show the existence of a medically determinable impairment(s) that could
reasonably be expected to produce the pain . . . . The musculoskeletal listings
that include pain or other symptoms among their criteria also include criteria for
limitations in functioning as a result of the listed impairment, including
limitations caused by pain.”

Id.

The ALJ is reminded “[i]t is . . . important to

evaluate the intensity and persistence of such pain . . . carefully in order to
determine [its] impact on the individual’s functioning under these listings.”

8

Id.

“The inability to ambulate effectively . . . must have lasted, or be expected
to last, for at least 12 months.

For the purposes of these criteria, consideration

of the ability to perform these activities must be from a physical standpoint
alone.”

Id. at Listing 1.00(B)(2)(a).

“Because abnormal physical findings may

be intermittent, their presence over a period of time must be established by a
record of ongoing management and evaluation.”

Id. at Listing 1.00(D).

The

Listing encourages the use of medical records over a significant period of time.
“[A] longitudinal clinical record is generally important for the assessment of
severity and expected duration of an impairment unless the claim can be decided
favorably on the basis of the current evidence.”

Id. at Listing 1.00(H)(1).

A

claimant’s response to pain medication is an important part of the longitudinal
record.

“[A] pain medication may relieve an individual’s pain completely,

partially, or not at all. . . . Therefore, each case must be considered on an
individual basis, and include consideration of the effects of treatment on the
individual’s ability to function.”

Id. at Listing 1.00(I)(2).

“A specific description

of the drugs or treatment given (including surgery), dosage, frequency of
administration, and a description of the complications or response to treatment
should be obtained. . . . As such, the finding regarding the impact of treatment
must be based on a sufficient period of treatment to permit proper consideration
or judgment about future functioning.”

Id. at Listing 1.00(I)(3).

The medical examination of a claimant who uses a hand-held assistive
device requires consideration of the following:
9

When an individual with an impairment involving a lower extremity
or extremities uses a hand-held assistive device, such as a cane,
crutch or walker, examination should be with and without the use of
the assistive device unless contraindicated by the medical judgment
of a physician who has treated or examined the individual. The
individual’s ability to ambulate with and without the device provides
information as to whether, or the extent to which, the individual is
able to ambulate without assistance. The medical basis for the use
of any assistive device (e.g., instability, weakness) should be
documented. The requirement to use a hand-held assistive device
may also impact on the individual’s functional capacity by virtue of
the fact that one or both upper extremities are not available for such
activities as lifting, carrying, pushing, and pulling.
Id. at Listing 1.00(J)(4).
The ALJ is instructed to “determine whether an individual can ambulate
effectively . . . based on the medical and other evidence in the case record,
generally without developing additional evidence about the individual’s ability to
perform the specific activities listed as examples in 1.00B2b(2) . . . .”

Id.

“To

ambulate effectively, individuals must be capable of sustaining a reasonable
walking pace over a sufficient distance to be able to carry out activities of daily
living.

They must have the ability to travel without companion assistance to

and from a place of employment or school.”

Id. at Listing 1.00(B)(2)(b)(2).

In summary, the Listing requires the ALJ to determine whether all four of
the following criteria are present:
1. A gross anatomical deformity;
2. Chronic joint pain and stiffness with signs of limitation of
motion;
3. Medical imaging of joint space narrowing, bony destruction or
anklyosis; and
10

4. An inability to ambulate effectively.
Id. at Listing 1.02 and 1.02(A).

If all four criteria are satisfied, the claimant is

“presumed to be disabled.” Bowen, 482 U.S. at 141. If all four criteria are not
satisfied, the ALJ is required to continue to step four of the evaluation process.
Baker, 159 F.3d at 1143-44.
In 2008, Mr. Short Horn’s medical record began to show the presence of
knee issues.

On physical examination his right knee had a “positive

Lachman’s” test7 and a “probable anterior cruciate tear.”8 (Docket 10 ¶ 33).
In April 2010, Dr. Wessel, as a consultative physician, reviewed x-rays of
both knees and performed a physical examination.

Id. ¶ 36.

Multiple x-rays of

the right knee disclosed:
[S]evere degenerative arthritis throughout the tibial plateau, as well
as the femoral condyles. There is osteophyte formation, very
significant articular surface degenerative changes, and considerable
joint space abnormality. There is also noted to be calcifications of
the
suprapatellar
tendon,
two
calcium
circumferential
abnormalities of that. The posterior patella is quite rough with
spurs in the superior and inferior aspects.

“The Lachman test is the most reliable clinical test for diagnosing rupture
of the anterior cruciate ligament . . . . Rupture of the ACL leads to increased
anterior tibial translation coupled with tibial internal rotation.” (Docket 12 at
p. 9 n.10 (internal citation omitted).
7

An April 2015 MRI confirmed that “the posterior cruciate ligament was
buckled and the anterior cruciate ligament fibers appeared torn.” (Docket 10
¶ 102).
8

11

Id. ¶ 41.

The assessment for the right knee was “severe degenerative arthritis.”

Id. ¶ 42.

X-rays of the left knee disclosed:

[S]evere degenerative changes throughout the tibial plateau. The
medial condyle and the distal femur are very much involved with
large osteophyte formation, very rough articular surfaces, both
medial and lateral, with joint-space abnormalities. There appears
to be some calcium irregularities to the infrapatellar tendon and/or
anterior joint space near the medial epicondyle, likely osteophyte
formation.
Id.

The assessment for the left knee was “severe degenerative arthritis

changes.”

Id. ¶ 43.

On physical examination, Dr. Wessel reported that the right knee
exhibited tenderness, a positive drawer sign,9 and ligamentous instability.
¶ 37.

Id.

The left knee exhibited “grit and popping with flexion and extension,” and

a positive drawer sign.

Id.

“Dr. Wessel assessed severe degenerative arthritis

bilateral knees with evidence of some internal ligamentous abnormality . . . .”
Id. ¶ 38.
In x-rays taken of Mr. Short Horn’s right knee in June 2010, a radiologist
noted:
“[P]eaking” of the left lateral tubercle, decreased height of the medial
joint compartment, hypertrophic osteophyte formation of corners of
the femur and corners of the tibia and the junction of the femoral
condyle and distal metaphysis. Hypertrophic osteophytes involved
the patella. . . . Two large calcific bodies were in the soft tissues
anterior to the distal femoral diaphysis, and two more were in the
The drawer test involves “[t]he forward or backward sliding of the tibia
under applied stress, which indicates laxity or tear of the anterior (forward slide)
or posterior (backward slide) cruciate ligament.” (Docket 12 at p. 10 n.12)
(internal citation omitted).
9

12

region of the posterior knee joint. . . . Diagnosis: Moderate
degenerative osteoarthritis, degenerative cartilaginous disease
involving medial joint compartment, minimal chondromalacia of the
patella, effusion, and the large calcific bodies in the soft tissues.
Id. ¶ 45.

The radiologist reported there was no change from x-rays taken in May

2008.10 Id.
The next month, following an orthopedic referral to the Indian Health
Service (“IHS”) hospital in Pine Ridge, Dr. Alexander Hesquijarosa performed an
orthopedic examination of Mr. Short Horn.

Id. ¶¶ 46-47.

During the

examination, the doctor “observed a thin male with antalgic gait, with severe
osteoarthritis with bulky knees and minimal palpable joint space bilaterally.”
Id. ¶ 47.

Dr. Hesquijarosa charted “anterior-posterior severe degenerative joint

disease” and recommended bilateral knee replacements.

Id.

IHS denied a

referral for bilateral knee replacement surgery.11 (Docket 10 ¶ 66).
MRIs of both knees were taken in April 2015.

Id. ¶ 102.

The left knee

abnormalities included those previously disclosed in April 2010.

Id.

Additionally, “the posterior cruciate ligament was buckled and the anterior
cruciate ligament fibers appeared torn. . . . Bone bruising was present in the
tibial plateau.”

Id.

The right knee MRI disclosed “a joint effusion in the

patellofemoral joint space, signal consistent with bone bruising, signs of tears of
10

The May 2008 x-rays are not in the administrative record.

The court takes judicial notice of the fact that IHS is habitually
underfunded by Congress. As a result, IHS denies funding of contract services
for non-life threatening conditions of Native Americans on the Pine Ridge Indian
Reservation.
11

13

the lateral menisci, the previously seen calcific bodies in the joint and posterior
to the joint, and buckling of the posterior cruciate ligament. . . . He had an
‘intrasubstance tear,’ anterior cruciate ligament tear, multiple areas of bone
bruising, and the four loose calcific bodies.”

Id. ¶ 103.

The ALJ concluded at step three that “[n]o treating or examining physician
has identified findings equivalent in severity to the criteria of any listed
impairment.”

(AR at p. 23).

the record above.

That statement is in error based on the analysis of

Dr. Wessel, Dr. Hesquijarosa and Dr. Livermont all

unequivocally diagnosed Mr. Short Horn as suffering from bilateral knee
conditions which exhibit a “gross anatomical deformity,” with “medical imaging”
confirming “joint space narrowing, bony destruction or anklyosis.”
at Listing 1.02.

Appendix 1

These findings satisfy subpart 1 and 3 of the Listing.

Id.

Beginning with Dr. Wessel’s examination in 2010 through IHS Dr.
Livermont’s treatment of Mr. Short Horn, the medical records are replete with
references to Mr. Short Horn’s chronic pain associated with his bilateral knee
conditions.

See Docket 10 ¶¶ 36, 47, 50-54, 56-61, 64-68, 71-76, 78, 81, 84,

86, 88-91, 93 & 96-101.
Physical conditions such as those experienced by Mr. Short Horn and the
variations in his pain levels are conditions commonly known to wax and wane.
It is not unexpected for an individual with these conditions to appear and act
healthy when the medications seem to be working, while at other times to suffer
from the extreme, debilitating problems these physical conditions cause.
14

Mr.

Short Horn’s various levels of pain over this extended period of time are well
“established by a record of ongoing management and evaluation.”
at Listing 1.00(D).

Appendix 1

See also 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 . . . .”).
The medical record constitutes a “longitudinal clinical record” disclosing
“the assessment of [the] severity and expected duration” of Mr. Short Horn’s
impairments.

Appendix 1 at Listing 1.00(H)(1).

Nothing in Listing

1.00 requires that Mr. Short Horn’s pain be debilitating at all times, rather only
that it be chronic pain which lasts “for at least 12 months.”
1.00(B)(2)(a).

Id. at Listing

The record confirms Mr. Short Horn suffers “chronic joint pain

and stiffness with signs of limitation of motion or other abnormal motion of the
affected joints,” satisfying subpart 2 of the Listing.

Id. at Listing 1.02.

The only remaining question at step three is whether Mr. Short Horn
suffered an “inability to ambulate effectively.”

Id. at Listing 1.02A.

The

Commissioner argues the answer to this issue must be “no,” because “Listing
1.02 . . . requires the inability to walk without the use of an assistive device that
requires the use of both hands, such as a walker.”

(Docket 14 at p. 5).

Mr.

Short Horn counters the Commissioner incorrectly states the requirement for the
15

analysis of ineffective ambulation.

(Docket 15 at p. 2).

Mr. Short Horn

contends “Listing 1.00B provides for alternative ways to show ineffective
ambulation.”

Id.

Listing 1.00(B) does not require a finding that a claimant is unable to walk
without the use of an assistive device, such as a walker or crutches, necessarily
involving the use of both hands to qualify at step three.

That circumstance is

merely one of several non-exclusive examples suggested in the Listing.

See

Appendix 1 at Listing 1.00(B)(2) (“examples of ineffective ambulation include, but
are not limited to, the inability to walk without the use of a walker, two crutches
or two canes . . . .”). Other examples of ineffective ambulation include:
1.

[T]he inability to walk a block at a reasonable pace on rough or
uneven surfaces;

2.

[T]he inability to use standard public transportation;

3.

[T]he inability to carry out routine ambulatory activities, such
as banking and shopping; and

4.

[T]he inability to climb a few steps at a reasonable pace with
the use of a single hand rail.

Id. An “[i]nability to ambulate effectively means an extreme limitation of the
ability to walk; i.e., an impairment . . . that interferes very seriously with the
individual’s ability to independently initiate, sustain, or complete activities.” Id.
at Listing 1.00(B)(1).
Mr. Short Horn acknowledged he walked the two and one-half blocks
from his home to the Kyle IHS Clinic. (Docket 10 ¶ 28). However, that walk
16

required him to stop at the halfway point, approximately 1.25 blocks, and rest at
the Kyle convenience store. Id. The ALJ noted this activity as “he would stop
at a convenience store at the halfway point to say hi to others and then continue
walking to the clinic.” (AR at p. 24).
The ALJ’s finding is an unfair characterization of the record. First, the
parties agree that Mr. Short Horn needed to rest at the convenience store, as
opposed to simply stopping there to visit. (Docket 10 ¶ 28). Second, in a
functional report of August 2010, Mr. Short Horn stated that he did not walk to
the clinic alone, but rather someone had to accompany him. (AR at p. 373; see
also Docket 10 ¶ 21). This statement was confirmed by his mother, Myrnette
Short Horn, who wrote that her son “did not go out alone because ‘[h]is knees
give out on him.’ ” (Docket 10 ¶ 16). She observed when he walked even short
distances of 50 to 100 yards he needed to rest for 20 to 30 minutes before
proceeding. Id. ¶ 17. By Mr. Short Horn’s own account, when he did walk up
to two blocks, he had to rest for 10 minutes before being able to walk farther. Id.
¶ 21.
Having the ability to walk 1 or 2 blocks, but then requiring 10 to 30
minutes of recovery time is not consistent with the ability to walk at a
“reasonable pace.” Appendix at Listing 1.00(B)(2). Judged against the
requirement that a claimant “must be capable of sustaining a reasonable
walking pace over a sufficient distance to be able to carry out activities of daily
living,” the substantial evidence in the record compels a finding Mr. Short Horn
17

is not able “[t]o ambulate effectively.” Id. Mr. Short Horn’s inability to walk
“interferes very seriously with [his] ability to independently initiate, sustain, or
complete activities.” Id. at Listing 1.00(B)(1).
Mr. Short Horn carried his burden of proof at step three.
The ALJ erred in fact and as a matter of law.

Bowen, supra.

Smith, 982 F.2d at 311.

The

court finds Mr. Short Horn qualified at step three because his impairments,
bilateral knee disorders, met the criteria of Listing 1.02 of Appendix 1.
“The reason for [the] difference between the listings’ level of severity and
the statutory standard is that . . . the listings were designed to operate as a
presumption of disability that makes further inquiry unnecessary.”
Zebley, 493 U.S. 521, 532 (1990).

Sullivan v.

“If the claimant has an impairment that

meets the medical criteria of a listed impairment, the claimant is presumptively
disabled, and no further inquiry is necessary.”
418, 424 (8th Cir. 2003).

Shontos v. Barnhart, 328 F.3d

See also Bowen, 482 U.S. at 141. Mr. Short Horn is

disabled and entitled to benefits.

20 CFR §§ 404.1520(a)(4)(iii) and 404.1520(d).

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.”
611, 614 (8th Cir. 1992).

Thompson v. Sullivan, 957 F.2d

Remand to the Commissioner for another hearing is

neither necessary nor appropriate in this case.
18

Mr. Short Horn is disabled and

entitled to benefits.

Reversal is the appropriate remedy at this juncture.

Thompson, supra.
ORDER
In accord with the above decision, it is
ORDERED that plaintiff’s motion (Docket 13) is granted and the decision
of the Commissioner of June 12, 2015, is reversed and the case is remanded to
the Commissioner for the purpose of calculating and awarding benefits to the
plaintiff William Short Horn.
Dated September 26, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

19