United States District Court, N.D. Iowa, Cedar Rapids Division
DAWN Y. KIELLY, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
WILLIAMS, CHIEF UNITED STATES MAGISTRATE JUDGE
plaintiff, Dawn Y. Kielly (claimant), seeks judicial review
of a final decision of the Commissioner of Social Security
(Commissioner) denying claimant's application for
disability insurance benefits (DIB) and supplemental security
income (SSI) under Title II and XVI of the Social Security
Act (Act), 42 U.S.C. §§ 405(g), 423, 1383(c)(3).
For the reasons that follow, the Court affirms the
addition to the record, the Court also relies on the
parties' Joint Statement of Facts (Doc. 11). Claimant was
born in 1966. AR 48. She was enrolled in Kirkwood Community
College where she studied computer sciences, but never
completed her schooling, nor obtained a degree. AR 48-49.
Claimant has past work as a taxicab dispatcher at Yellow Cab
and taking incoming calls for Medicare and Medicaid and other
work. AR 13, 26, 50-51, 417. Claimant's applications for
DIB (filed October 30, 2012) and SSI (filed November 19,
2012) had a protective filing date of October 25, 2012. AR
10, 309-324, 502, and Doc. 11, at 2. Claimant alleged a
disability onset date of October 17, 2011. AR 10, 62. She
contends she is disabled due to the following impairments:
osteoarthritis of the knees, left shoulder, and spine;
obesity; a history of a lumbar fusion with degenerative disc
disease of the lumbar and the cervical spine; a partial
thickness tear of the Achilles tendon; a major depressive
disorder; and a generalized anxiety disorder/post-traumatic
stress disorder; asthma/allergies; excised masses; fatty
liver; obstructive sleep apnea with restless leg syndrome;
fibromyalgia. AR 14. The Commissioner denied her claims on May
1, 2013, and denied review on October 4, 2013. AR 10, 172-80,
185-197. She then requested a hearing before an
Administrative Law Judge (ALJ) on October 17, 2013. AR 10,
ALJ, Tela L. Gatewood, conducted a video hearing on December
29, 2014, at which claimant, her attorney, and vocational
expert, Vanessa May, testified. AR 43. On August 6, 2015, the
ALJ issued a decision denying claimant's claims. AR 7-35.
Claimant sought review from the Appeals Council, which denied
her request on December 23, 2015. AR 1. The ALJ's
decision thus became the final decision of the Commissioner.
filed a complaint (Doc. 3) with this Court on February 19, 2016,
seeking review of the ALJ's decision. On April 15, 2016,
with the consent of the parties (Doc. 7), the Honorable Linda
R. Reade transferred this case to a United States magistrate
judge for final disposition and entry of judgment. The
parties have briefed the issues, and the matter is now fully
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
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. “Gainful” activity is work
done for pay or profit, even if the claimant did not
ultimately receive pay or profit.
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.
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).
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 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.
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.
THE ALJ'S FINDINGS
made the following findings at each step.
One, evaluating claimant's work attempts after her
alleged onset date, the ALJ found that claimant had not
engaged in substantial gainful activity since October 17,
2011 (the alleged onset date). AR 13-14.
Two, ALJ found that claimant had severe impairments of
osteoarthritis in her knees, left shoulder, and spine;
obesity; a history of a lumbar fusion with degenerative disc
of the lumbar and cervical spine; a partial thickness tear of
the Achilles tendon; a major depressive disorder; and a
generalized anxiety disorder/post-traumatic stress disorder.
AR 14. The ALJ found the following impairments were