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Whalen v. Berryhill

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

March 9, 2017

FLORICE WHALEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          C.J. Williams Chief United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff, Florice Whalen (claimant), seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et. seq. Claimant alleged she was disabled because of a torn right shoulder rotator cuff. Although the Administrative Law Judge (ALJ) found claimant had severe impairments consisting of right shoulder degenerative joint disease with residuals of surgery, mood disorder, degenerative disc disease of the cervical spine, and asthma (AR 12), [1] he found claimant had the residual functional capacity to perform light work with certain exertional and nonexertional limitations. (AR 14). Therefore, the ALJ found claimant was not disabled. (AR 21). Claimant contends the ALJ erred when he improperly: (1) weighed the opinion of claimant's treating physician; (2) assessed claimant's credibility; and (3) relied upon vocational expert testimony elicited in response to an incomplete hypothetical question. (Doc. 16). For the reasons that follow, the Commissioner's decision is affirmed.

         II. FACTUAL BACKGROUND

         Claimant was born in 1965 and was forty-six years old at the time of her application. (AR 249, 298). Claimant completed high school. (AR 303). Claimant reported past work as a child care provider, a ham trimmer, a home care provider, a housekeeper, and an airport ramp operator (loaded and unloaded airplanes). (AR 35, 303). Claimant initially alleged she became disabled on October 12, 2007, (AR 249), but at the hearing she amended the alleged date of the onset of her disability to December 5, 2012. (AR 33).

         III. PROCEDURAL BACKGROUND

         On December 5, 2012, claimant filed her application for disability benefits. (AR 249-57). The Commissioner denied claimant's application initially and upon reconsideration. (AR 136, 154). Claimant then requested a hearing before an ALJ. On September 3, 2014, ALJ David G. Buell conducted a hearing; claimant appeared in person and testified, as did Randall Harding, a vocational expert. (AR 28-70). On September 18, 2014, the ALJ issued a decision denying claimant's application. (AR 10-21). On December 11, 2015, the Appeals Council denied claimant's request for review (AR 1-3), leaving the ALJ's decision as the final decision of the Commissioner.

         On February 11, 2016, claimant filed a complaint in this Court seeking review of the Commissioner's decision. (Doc. 5). On April 25, 2016, with the consent of the parties, United States District Court Chief Judge Linda R. Reade transferred this case to a United States Magistrate Judge for final disposition and entry of judgment. (Doc. 14). The parties have now briefed the issues, and on August 31, 2016, the Court deemed this matter fully submitted and ready for decision. (Doc. 18).

         IV. DISABILITY DETERMINATOINS 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); accord 42 U.S.C. § 1382c(a)(3)(A), 20 C.F.R. § 416.905(a). A claimant has a disability when the claimant 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).

         To determine whether a claimant has a disability within the meaning of the Social Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (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. 20 C.F.R. § 416.920(a)(4)(i).

         Second, if the claimant is not engaged in substantial gainful activity, the Commissioner looks to see “whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight abnormality that would not significantly limit the claimant's physical or mental ability to do basic work activities.” Kirby, 500 F.3d at 707; see also 20 C.F.R. §§ 416.920(c), 416.921(a).

         The ability to do basic work activities is defined as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include: “(1) [p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) [c]apacities for seeing, hearing, and speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions; (4) [u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers and usual work situations; and (6) [d]ealing with changes in a routine work setting.” 20 C.F.R. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “The sequential evaluation process may be terminated at step two only when the claimant's impairment or combination of impairments would have no more than a minimal impact on her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks and citation omitted).

         Third, if the claimant has a severe impairment, then the Commissioner will consider 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. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see 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) to determine the claimant's “ability to meet the physical, mental, sensory and other requirements” of the claimant's past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “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 marks and citation omitted); see also 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the Commissioner will use to make a finding as to the claimant's RFC, but the Commissioner is responsible for developing the claimant's “complete medical history, including arranging for a consultative examination(s) if necessary, and making every reasonable effort to help [the claimant] get medical reports from [the claimant's] own medical sources.” 20 C.F.R. § 416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other evidence listed in the regulations. Id. If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(iv).

         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 that there is other work that the claimant can do, given the claimant's RFC, and his or her age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358 n.5 (8th Cir. 2000). The Commissioner must show not only that the claimant's RFC will allow the claimant to make an 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); 20 C.F.R. § 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant numbers in the national economy, then the Commissioner will find the claimant is not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner will find that the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). At step five, even though the burden of production shifts to the Commissioner, the burden of persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).

         V. THE ALJ'S FINDINGS

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

         At step one, the ALJ found claimant was not gainfully employed and had not engaged in substantial gainful activity since December 5, 2012. (AR 12).

         At step two, the ALJ determined claimant had the following severe impairments: right shoulder degenerative joint disease with residuals of surgery; mood disorder; degenerative disc disease of the cervical spine; and asthma. (AR 12).

         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 ...


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