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Waters v. Berryhill

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

July 10, 2017

CARL E. WATERS, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Kelly K.E. Mahoney, United States Magistrate Judge

         Plaintiff Carl Waters seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his applications for disability insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434, and supplemental security income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385. Waters argues that the administrative law judge (ALJ), Eric S. Basse, erred in evaluating whether his impairments met or equaled Listing 4.02 and in discounting some of his subjective complaints when determining his residual functioning capacity (RFC). I recommend affirming the ALJ's decision.

         I. BACKGROUND[2]

         Waters suffers from cardiac problems, obesity, and diabetes. AR 11.[3] Because he takes his diabetes medications only some of the time due to financial restraints, he also suffers from nerve damage in his hands and feet-called peripheral neuropathy-that causes tingling and numbness. AR 11, 14, 40-41, 71, 479-80.

         Waters filed applications for DI and SSI benefits in March 2012, alleging disability beginning on June 20, 2010. AR 66, 76. After both applications were denied initially and on reconsideration, Waters requested a hearing before an ALJ. AR 65-93, 114. The ALJ held a video hearing on October 29, 2014, at which Waters and a vocational expert testified. AR 22-23. Waters testified that he has no problems with sitting, but he can walk only for a few minutes before he needs a break due to fatigue and shortness of breath. AR 28, 32, 41-42. He walks his dog every day for thirty minutes but testified that he must stop and rest four or five times during the course of the walk. AR 28, 41. He testified that almost all activities make him feel fatigued, including lifting things, climbing stairs, and bending over. AR 28. He is able to do housework such as dishes, laundry, and dusting, but he testified that he paces himself and works for a few minutes at a time. AR 32. Waters is able to shop at small convenience stores. AR 37-38. He testified that he has a breathing machine that he uses when he feels short of breath (usually at least once a day), and treatment takes seven to ten minutes. AR 39-40. Waters testified that the numbness and tingling in his fingers and feet make it difficult to lift things and to stand. AR 42-43. Waters estimated that he uses the computer for an hour every day, usually reading things on social media. AR 48-49.

         After the hearing, the ALJ issued a written opinion following the familiar five-step process outlined in the regulations to determine whether Waters was disabled.[4] AR 9-17. The ALJ found that Waters's impairments did not meet or equal the listing for chronic heart failure, Listing 4.02. AR 12. To evaluate whether Waters could perform his past work or other work, the ALJ determined Waters's RFC, or “‘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) (quoting Bradshaw v. Heckler, 810 F.2d 786, 790 (8th Cir. 1987)). The ALJ found that Waters can occasionally climb, balance, stoop, kneel, crouch, crawl, and lift things weighing no more than ten pounds. AR 12 (finding that Waters can perform sedentary work with some exceptions); 20 C.F.R. §§ 404.1567(a), 416.967(a) (defining sedentary work). The ALJ did not fully credit Waters's testimony, finding that he can occasionally stand and walk. Id. The ALJ also found that Waters “must avoid concentrated exposure to heat, cold, and humidity” and that he “is limited to frequent handling and fingering of his upper extremities bilaterally.” AR 12.

         Ultimately, the ALJ found that a significant number of jobs existed that Waters could perform and thus, that Waters was not disabled. AR 16-17. Waters appealed the ALJ's decision, and the Appeals Council denied his request for review on May 18, 2016. AR 1-3. The ALJ's decision is therefore the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Waters filed a timely complaint in this court, seeking judicial review of the Commissioner's decision (Doc. 3). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 15, 16), and the Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa, referred this case to me for a Report and Recommendation.

         II. DISCUSSION

         A court must affirm the ALJ's decision if it “is supported by substantial evidence in the record as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Kirby, 500 F.3d at 707. The court “do[es] not reweigh the evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). If, after reviewing the evidence, “it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ's] findings, [the court] must affirm the decision.” Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         Waters argues that the ALJ erred during step three of the disability analysis because he used the wrong legal standard in determining whether Waters's impairments met or equaled Listing 4.02. Waters also argues that the ALJ erred in determining RFC, as he did not give a good reason for discrediting Waters's subjective complaints. I will address each of these arguments in turn.

         A. Listing 4.02

         During the third step of the disability determination, the ALJ considers whether the claimant's impairment or combination of impairments meets or equals one of the listings of presumptively disabling impairments set forth at 20 C.F.R. part 404, subpart P, appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant's impairments meet or equal a listing, that ends the inquiry: the claimant is disabled and entitled to benefits. Sullivan v. Zebley, 493 U.S. 521, 532 (1990). Waters argues that the ALJ erred in determining that his impairments do not meet or equal Listing 4.02 for chronic heart failure.

         To meet Listing 4.02, the claimant's impairments must satisfy both the “paragraph A” and “paragraph B” requirements. 20 C.F.R. pt. 404, subpt. P, app. 1 § 4.02. The ALJ correctly found that Waters's consistent ejection fraction of less than 30% meets the requirements of paragraph A. 20 C.F.R. pt. 404, subpt. P, app. 1 § 4.02(A)(1); AR 12, 412, 427, 471, 568. Paragraph B requires, as relevant here:

Three of more separate episodes of acute congestive heart failure within a consecutive 12-month period . . ., with evidence of fluid retention . . . from clinical and imaging assessments at the time of the episodes, requiring acute extended physician intervention such as hospitalization or emergency room ...

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