United States District Court, N.D. Iowa, Eastern Division
CARL E. WATERS, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
K.E. Mahoney, United States Magistrate Judge
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.
suffers from cardiac problems, obesity, and diabetes. AR
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.
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.
the hearing, the ALJ issued a written opinion following the
familiar five-step process outlined in the regulations to
determine whether Waters was disabled. 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.
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.
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).
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.
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
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 ...