United States District Court, N.D. Iowa, Cedar Rapids Division
TAMI L. RICHARDSON, Plaintiff,
NANCY K. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Williams Chief United States Magistrate Judge
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.
reasons that follow, I recommend the District Court affirm
the Commissioner's decision.
the facts as set forth in the parties' Joint Statement of
Facts. (Doc. 12). Claimant was born on June 14, 1975. (AR
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.).
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).
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.
6, 2016, claimant filed a complaint in this court. (Doc.
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.
DISABILITY DETERMINATIONS AND THE BURDEN OF
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.
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);
20 C.F.R. § 404.1521(b).
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 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.
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.
THE ALJ'S FINDINGS
made the following findings at each step.
One, the ALJ found that claimant has not engaged in
substantial gainful activity since June 1, 2012, the alleged
onset date. (AR 14).
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).
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).
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.)
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).
THE SUBSTANTIAL EVIDENCE STANDARD
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 “something 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 ...