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Music v. Berryhill

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

March 9, 2017

SEMKA MUSIC, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          C. J. Williams, Chief United States Magistrate Judge

         The claimant, Semka Music (claimant), seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits, under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Claimant contends that the Administrative Law Judge (ALJ) erred in determining that she was not disabled.

         For the reasons that follow, I recommend the District Court reverse and remand the Commissioner's decision.

         I. BACKGROUND

         Claimant was born on October 25, 1974, in Bosnia, and was 37 years old at the time of her alleged disability onset date. (AR 12-21, 29, 53).[1] Claimant completed eight years of schooling in Bosnia, and finished her G.E.D. in the United States. (AR 30). At the time of the ALJ hearing, claimant testified that she was married with four children (ages 22, 21, 14, and one-month old); and she resided with her one-month old child, her spouse, and her sister and her sister's husband and their 21 year-old son. (AR 30). Claimant has worked as a cook in a gas station, sanding cabinets, as a textile worker, cook, meat packer, housekeeper and an Avon sales person. (AR 31-35).

         On June 12, 2012, claimant filed an application for disability benefits, alleging disability beginning December 21, 2011. (AR 157). Claimant claimed she was disabled due to lupus. (AR 206).

         On August 22, 2012, the Commissioner denied claimant's application (AR 91-94), and on November 20, 2012, denied her request for reconsideration. (AR 96-99). On December 11, 2013, an ALJ convened a video hearing at which claimant and a vocational expert testified. (AR 11-21). On January 9, 2015, the ALJ found claimant was not disabled. (Id.). On March 22, 2016, the Appeals Council affirmed the ALJ's finding. (AR 1-4). The ALJ's decision, thus, became the final decision of the Commissioner. 20 C.F.R. § 404.981.

         On May 19, 2016, claimant filed a complaint in this court. (Doc. 3). The parties have briefed the issues, and on December 28, 2016, this case was deemed fully submitted. (Doc. 16). On the same day, the Honorable Linda R. Reade, Chief United States District Court Judge, referred this case to me for a Report and Recommendation.

         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); 20 C.F.R. § 404.1505. An individual has a disability when, due to his/her physical or mental impairments, he/she “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). 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. 20 C.F.R. § 404.1566(c)(1)-(8).

         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 (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” activity involves significant mental or physical activities. 20 C.F.R. § 404.1572(a). “Gainful” activity is work done for pay or profit, even if the claimant does not ultimately receive pay or profit. 20 C.F.R. § 404.1572(b).

         Second, if the claimant is not engaged in substantial gainful activity, then the Commissioner looks to the severity of the claimant's physical and mental 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 the ability and aptitude necessary to perform most jobs. These 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 performed within the past fifteen 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. 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.

         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. 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 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. The burden of persuasion to prove disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).

         III. 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 had not engaged in substantial gainful activity since December 21, 2011, the date of alleged onset of disability. (AR 14).

         At Step Two, the ALJ determined claimant had severe systemic lupus erythematosus. The ALJ found claimant had four other medically determinable physical impairments that were not “severe” within the meaning of the Commissioner's Regulations: a cut on her arm with an episode of ...


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