United States District Court, N.D. Iowa, Eastern Division
RYAN J. STERBA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
Williams Chief United States Magistrate Judge.
Ryan J. Sterba (claimant), seeks judicial review of a final
decision of the Commissioner of Social Security (the
Commissioner) denying his application for disability
insurance benefits, under Title II of the Social Security
Act, 42 U.S.C. § 401 et seq. (Act). Claimant
contended he became disabled on July 1, 2010, because of a
seizure disorder and migraine headaches. AR 233 &
The Administrative Law Judge (ALJ) found claimant had severe
impairments of migraine headaches and pervasive developmental
disorder, but found his seizure disorder was not severe
because it was controlled by medical treatment. AR 19. The
ALJ found claimant had the residual functional capacity to
perform a full range of work at all exertional levels, but
would be limited to simple and routine tasks with very few
workplace changes. AR 20. Claimant argues the ALJ erred in
determining his residual functional capacity.
reasons that follow, the Court affirms the Commissioner's
was born in 1976 and was 37 years old at the time of the
ALJ's decision. AR 36, 233. Mr. Sterba obtained his high
school diploma and attended special education. AR 36, 238,
329, 401. Claimant had past relevant work as a cleaner, food
preparation worker, sandblasting operator, warehouse worker,
and production worker. AR 24.
August 3, 2012, claimant filed his application for disability
insurance benefits. AR 16, 163-69. On October 9, 2012, the
Commissioner denied claimant's application. AR 83-86. On
January 24, 2013, the Commissioner denied claimant's
request for reconsideration. AR 89-92. On April 9, 2014, ALJ
Eric S. Basse held a hearing at which claimant,
claimant's mother, and a vocational expert testified. AR
33-70. On June 11, 2014, the ALJ found claimant was not
disabled. AR 16-25. On November 5, 2015, the Appeals Council
affirmed the ALJ's finding. AR 1-6. The ALJ's
decision thus became the final decision of the Commissioner.
20 C.F.R. § 404.981.
January 5, 2016, claimant filed a complaint in this court.
Doc. 3. The parties have briefed the issues and on August 3,
2016, this case was deemed fully submitted. Doc. 14. On the
same day, the Honorable Linda R. Reade, United States
District Court Judge, referred this case to me for a Report
and Recommendation. On August 29, 2016, with the consent of
the parties, the Honorable Judge Linda R. Reade transferred
this case to a United States Magistrate Judge for final
disposition and entry of judgment. Doc. 15.
DISABILITY DETERMINATIONS AND THE BURDEN OF
disability is defined as “the inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). An individual has a disability when, due to
his physical or mental impairments, he “is not only
unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind
of substantial gainful work which exists . . . in significant
numbers either in the region where such individual lives or
in several regions of the country.” 42 U.S.C.
§§ 423(d)(2)(A), 1382c(a)(3)(B). If the claimant is
able to do work which exists in the national economy but is
unemployed because of inability to get work, lack of
opportunities in the local area, economic conditions,
employer hiring practices, or other factors, the ALJ will
still find the claimant not disabled.
determine whether a claimant has a disability within the
meaning of the Act, the Commissioner follows the five-step
sequential evaluation process outlined in the regulations.
Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir.
2007). First, the Commissioner will consider a claimant's
work activity. If the claimant is engaged in substantial
gainful activity, then the claimant is not disabled.
“Substantial” work activity involves physical or
mental activities. Id. “Gainful”
activity is work done for pay or profit, even if the claimant
does not ultimately receive pay or profit. Id.
if the claimant is not engaged in substantial gainful
activity, then the Commissioner looks to the severity of the
claimant's physical and medical impairments. If the
impairments are not severe, then the claimant is not
disabled. An impairment is not severe if it does not
significantly limit a claimant's physical or mental
ability to perform basic work activities. Kirby, 500
F.3d at 707.
ability to do basic work activities means having the ability
and aptitude necessary to perform most jobs. 20 C.F.R. §
404.1521(b). These abilities and aptitudes include:
“(1) physical functions such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking;
(3) understanding, carrying out, and remembering simple
instructions; (4) use of judgment; (5) responding
appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work
setting.” Bowen v. Yuckert, 482 U.S. 137, 141
if the claimant has a severe impairment, then the
Commissioner will determine the medical severity of the
impairment. If the impairment meets or equals one of the
presumptively disabling impairments listed in the
regulations, then the claimant is considered disabled
regardless of age, education, and work experience. Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
if the claimant's impairment is severe, but it does not
meet or equal one of the presumptively disabling impairments,
then the Commissioner will assess the claimant's residual
functional capacity (RFC) and the demands of his past
relevant work. If the claimant can still do his past relevant
work, then he is considered not disabled. Past relevant work
is any work the claimant has done within the past 15 years of
his application that was substantial gainful activity and
lasted long enough for the claimant to learn how to do it.
“RFC is a medical question defined wholly in terms of
the claimant's physical ability to perform exertional
tasks or, in other words, what the claimant can still do
despite his or her physical or mental limitations.”
Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003)
(internal quotation omitted). The RFC is based on all
relevant medical and other evidence. Id. The
claimant is responsible for providing the evidence the
Commissioner will use to determine the RFC. Id. If a
claimant retains enough RFC to perform past relevant work,
then the claimant is not disabled. Id.
if the claimant's RFC, as determined in step four, will
not allow the claimant to perform past relevant work, then
the burden shifts to the Commissioner to show there is other
work the claimant can do given the claimant's RFC, age,
education, and work experience. Id. The Commissioner
must show not only that the claimant's RFC will allow him
or her to make the adjustment to other work, but also that
other work exists in significant numbers in the national
economy. Eichelberger v. Barnhart, 390 F.3d 584, 591
(8th Cir. 2004). If the claimant can make the adjustment,
then the Commissioner will find the claimant is not disabled.
At step five, the Commissioner has the responsibility of
developing the claimant's complete medical history before
making a determination about the existence of a disability.
Id. The burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004).
after these five steps, the ALJ has determined the claimant
is disabled, but there is medical evidence of substance use
disorders, the ALJ must decide if that substance use was a
contributing factor material to the determination of
disability. 42 U.S.C. § 423(d)(2)(C). The ALJ must then
evaluate the extent of the claimant's limitations without
the substance use. Id. If the limitations would not
be disabling, then the disorder is a contributing factor
material to determining disability and the claimant is not
THE ALJ'S FINDINGS
engaged in the five-step sequential analysis outlined above,
as reflected in his written decision.
one, the ALJ found claimant had not continuously worked at a
substantial gainful activity level since July 1, 2010. AR 18.
two, the ALJ determined claimant had the following severe
impairments: “migraine headaches, and pervasive
developmental disorder.” AR 18. The ALJ found claimant
had a seizure disorder, but found that it was not severe
because it was controlled by medical treatment. AR 19.
Nevertheless, the ALJ stated he took this non-severe
impairment into account when assessing claimant's
residual functional capacity. Id.
three, the ALJ determined claimant did not have an impairment
or a combination of impairments which met or medically
equaled the severity of a listed impairment in 20 C.F.R. Pt.
404, Subpt. P, App. 1. AR 19. The ALJ specifically considered
listing 12.10 for mental impairment, but found it ...