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Sterba v. Berryhill

United States District Court, N.D. Iowa, Eastern Division

March 8, 2017

RYAN J. STERBA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          C.J. Williams Chief United States Magistrate Judge.

         Claimant, 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 & 237.[1] 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.

         For the reasons that follow, the Court affirms the Commissioner's decision.

         I. BACKGROUND

         Claimant 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.

         On 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.

         On 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.

         II. DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

         A 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.

         To 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.

         Second, 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.

         The 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 (1987).

         Third, 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).

         Fourth, 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.

         Fifth, 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).

         If 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 disabled.

         III. THE ALJ'S FINDINGS

         The ALJ engaged in the five-step sequential analysis outlined above, as reflected in his written decision.

         At step one, the ALJ found claimant had not continuously worked at a substantial gainful activity level since July 1, 2010. AR 18.

         At step 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.

         At step 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 ...


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