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Minney v. Berryhill

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

May 15, 2017

JENNIFER K. MINNEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          C.J. Williams Chief United States Magistrate Judge

         The claimant, Jennifer K. Minney (claimant), seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits (DIB) and Supplemental Security Income (SSI), under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (Act). Claimant contends that the Administrative Law Judge (ALJ) erred in determining she was not disabled.

         For the reasons that follow, I recommend the District Court affirm the Commissioner's decision.

         I. BACKGROUND

         Claimant was born in 1979. On February 27, 2007, the time claimant alleged she became disabled, she was 28 years old. (AR 16, 158, 165).[1] At the time of the ALJ's first decision on May 18, 2012, she was 33 years old. (AR 27). Claimant was 37 years old at the time of the ALJ's second decision on June 2, 2016. (AR 158, 1460). Claimant completed high school and had training as a phlebotomist; she had past relevant work experience as a phlebotomist, residential aid, sales clerk, laborer, salesperson, and child monitor. (AR 40, 223-24, 1459). Since the birth of her children, claimant has described herself as a homemaker and homeschools her two minor children, for whom she has served as their primary caretaker. (AR 1454-55).

         On February 23, 2010, claimant filed an application for disability benefits, alleging disability beginning on February 27, 2007, due to bipolar disorder and borderline personality disorder. (AR 16, 158, 165). The Commissioner denied claimant's application initially and upon reconsideration. (AR 16, 82, 93). On February 8, 2012, ALJ Eric S. Basse held a video hearing and on May 12, 2012, issued a decision finding claimant was not disabled. (AR 13, 16, 36).

         On April 12, 2013, claimant sought judicial review of the ALJ's decision in this Court. (Minney v. Colvin, 13-cv-0037-JSS, Doc. 16, at 2). On March 5, 2013, this Court reversed the ALJ's decision and remanded the case for further development of her treating psychiatrist Ali Safdar's opinion and with instructions that the ALJ “provide clear reasons for accepting or rejecting Dr. Safdar's opinions and support his reasons with evidence from the record.” (Id., at 23). In reversing the ALJ's decision, this Court noted that it was a “close issue, ” but found the ALJ: (1) “simply provided a generic and conclusory statement that Dr. Safdar's opinions are ‘inconsistent with [Minney's] own reports regarding her activities of daily living, '”; (2) “offer[ed] little or no discussion of Minney's activities of daily living” or explained how those activities are “inconsistent with Dr. Safdar's opinions”; (3) “failed to address, let alone offer even one single reason why Dr. Safdar's opinion on the issue of decompensation should be disregarded” as well as the opinion of Carla Levi, a counselor on Dr. Safdar's staff who also saw claimant; (4) and improperly relied on “submission of one inconsistent GAF score” as a reason “standing alone” to reject Dr. Safdar's opinions.” (Id., at 21-23).

         On April 6, 2016, the ALJ held a supplemental hearing. (AR 1441, 1472). On June 2, 2016, the ALJ issued his decision, again denying benefits. (AR 1438). After sixty days, the ALJ's decision became the final agency decision on remand. (AR 1439).

         On September 26, 2016, claimant filed a complaint in this Court. (Doc. 1). On March 8, 2017, claimant filed her brief (Doc. 10), and on April 5, 2017, the Commissioner filed her brief (Doc. 12). On April 18, 2017, the Court deemed the case ready for decision and the Honorable Leonard T. Strand, 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). 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.

         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” work activity involves significant mental or physical activities. “Gainful” activity is work done for pay or profit, even if the claimant does 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 medical 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 having the ability and aptitude necessary to perform most jobs. These abilities and aptitudes 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/her past relevant work. If the claimant can still perform past relevant work, then the claimant is considered not disabled. Past relevant work is any work the claimant has done within the past 15 years of his/her application that was substantial gainful activity and lasted long enough for the claimant to learn how to do it. A claimant's “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 citations 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. 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. 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 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 is 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).

         If after these five steps, the ALJ has determined the claimant is disabled, but there is medical evidence of substance use disorders, the ALJ must decide if that substance use was a contributing factor material to the determination of disability. 42 U.S.C. § 423(d)(2)(C). The ALJ must then evaluate the extent of the claimant's limitations without the substance use. Id. If the limitations would not be disabling, then the disorder is a contributing factor material to determining disability, and the claimant is not disabled.

         III. THE ALJ'S FINDINGS

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

         At Step One, the ALJ found claimant had not been engaged in substantial gainful activity since February 27, 2007. (AR 1443).

         At Step Two, the ALJ determined claimant had the following severe impairments: “obesity, asthma, migraines, mood disorder, major depressive disorder, bipolar affective disorder, borderline personality disorder, history of generalized ...


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