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Richardson v. Berryhill

United States District Court, N.D. Iowa, Cedar Rapids Division

April 27, 2017

TAMI L. RICHARDSON, Plaintiff,
v.
NANCY K. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          C.J. Williams Chief United States Magistrate Judge

         The claimant, Tami Lynn Richardson (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 affirm the Commissioner's decision.

         I. BACKGROUND

         I adopt the facts as set forth in the parties' Joint Statement of Facts. (Doc. 12). Claimant was born on June 14, 1975. (AR 31).[1] Claimant has past work as an administrative assistant, assembly worker, income maintenance worker, machine operator, and stock room attendant. (AR 17, 205). Claimant was 36 years old at the time of her alleged disability onset date, which is defined under 20 C.F.R. § 404.1563 as a younger individual (AR 21). Claimant has a high school education and is able to communicate in English. (Id.).

         On May 9, 2013, claimant protectively filed an application for disability benefits alleging a disability onset date of June 1, 2012. (AR 158). She claimed she was disabled due to major depressive disorder; anxiety disorder not otherwise specified; borderline personality disorder; gastroesophageal reflux disease; history of foot fracture; and reported irritable bowel syndrome. (AR 14-15, 205).

         The Social Security Administration denied claimant's disability application initially (AR 93-96) as well as on reconsideration (103-06). Claimant filed a request for a hearing before an Administrative Law Judge (ALJ). On November 6, 2014, ALJ Eric S. Basse conducted a video hearing at which claimant and a vocational expert testified. (AR 29-65). Claimant's attorney submitted additional medical evidence post-hearing, which the ALJ considered. (AR 63, 503-08-additional evidence on the topics of irritable bowel syndrome and diarrhea episodes). On March 24, 2015, the ALJ found claimant was not disabled. (AR 22). On May 4, 2016, the Appeals Council affirmed the ALJ's finding. (AR 1). The ALJ's decision, thus, became the final decision of the Commissioner. 20 C.F.R. § 404.981.

         On July 6, 2016, claimant filed a complaint in this court. (Doc. 3)[2]. The parties have briefed the issues, and this case was deemed fully submitted. (Doc. 18). On April 3, 2017, the Honorable Linda R. Reade, 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), 1382c(a)(3)(A). An individual has a disability when, due to her physical or mental impairments, she “is not only unable to do h[er] previous work but cannot, considering h[er] 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. “Gainful” activity is work done for pay or profit, even if the claimant did not ultimately receive pay or profit.

         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); 20 C.F.R. § 404.1521(b).

         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 her past relevant work. If the claimant can still do her past relevant work then she is considered not disabled. Past relevant work is any work the claimant performed within the past fifteen years of her 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 [ ] her physical or mental limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (citations and internal quotation marks 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 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 made the following findings at each step.

         At Step One, the ALJ found that claimant has not engaged in substantial gainful activity since June 1, 2012, the alleged onset date. (AR 14).

         At Step Two, the ALJ found that claimant has the severe impairments of major depressive disorder, anxiety disorder not otherwise specified, and borderline personality disorder. (AR 14). The ALJ found claimant has the non-severe impairments of gastroesophageal reflux disease, history of foot fracture, and reported irritable bowel syndrome (IBS). (AR 15).

         At Step Three, the ALJ found that none of the claimant's impairments equaled a presumptively disabling impairment listed in the relevant regulations. (AR 15-16). The ALJ explicitly mentioned and discussed Listings 12.04, 12.06, and 12.08. (AR 15).

         At Step Four, the ALJ found claimant had the following RFC:

[Can] perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can perform simple, routine, and repetitive tasks with occasional workplace changes. She can have no public interaction, and occasional interaction with supervisors and coworkers, but generally solitary tasks. The claimant can perform no tandem work with other coworkers and cannot work at a production rate pace.

(AR 16). Also, the ALJ determined that claimant cannot perform her past work. (AR 21.)

         Finally, at Step Five, the ALJ found that an individual with claimant's age, education, and RFC could perform the following jobs-marker, mail clerk, and insert mach[ine] oper[ator]-that exist in significant numbers in the national economy. (AR 21).

         IV. THE SUBSTANTIAL EVIDENCE STANDARD

         The Commissioner's decision must be affirmed “if it is supported by substantial evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . ..”). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The Eighth Circuit Court of Appeals explains the standard as ‚Äúsomething less than the weight of the evidence and [that] allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the ...


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