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Bohr v. Berryhill

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

September 7, 2017

GERALD G. BOHR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          C.J. WILLIAMS, CHIEF UNITED STATES MAGISTRATE JUDGE.

         The claimant, Gerald G. Bohr (Claimant), seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his application for disability and disability insurance benefits (DIB), 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 he 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 and therefore only summarize the pertinent facts here. (Doc. 11). Claimant was born in August 1968 and was therefore 46 years old at the time of the ALJ's decision. (AR 11, 218).[1]Claimant has a high school education and attended college for three years. (AR 27, 243). The ALJ concluded that Claimant is unable to perform past relevant work. (AR 26).

         On July 8, 2013, Claimant protectively filed an application for disability and disability insurance benefits alleging a disability onset date of August 1, 2010. (AR 11). The ALJ found Claimant was disabled due to degenerative disc bilateral knees, status-post total knee replacement; osteoarthritis; obesity; and depression. (AR 13).

         The Social Security Administration denied Claimant's disability application initially and on reconsideration. (AR 11). On June 26, 2015, ALJ Julie K. Bruntz found Claimant was not disabled. (AR 28). Claimant requested timely review of the ALJ's decision and the Appeals Council denied review on July 28, 2016. (AR 1-3, 5). The ALJ's decision, thus, became the final decision of the Commissioner. 20 C.F.R. § 404.981.

         On September 20, 2016, Claimant filed a complaint in this Court. (Doc. 3). Between March and April 2017, the parties briefed the issues. (Docs. 12, 13). On April 18, 2017, this Court deemed this case fully submitted and ready for decision. (Doc. 14). On the same day, the Honorable Leonard T. Strand, Chief United States District Court Judge, referred this case to United States Magistrate Judge Kelly Mahoney; on June 22, 2017, this case was reassigned to the undersigned, Chief United States Magistrate Judge C.J. Williams for a Report and Recommendation.

         II. DISABILITY DETERMINATIONS AND 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 his physical or mental impairments, he “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), 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 his past relevant work. If the claimant can still do his past relevant work, then he is considered not disabled. Past relevant work is any work the claimant performed within the fifteen years prior to his 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 his [ ] 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 him 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).

         Where a claimant has been found to be disabled by a different administrative agency, the ALJ considering the claimant's application for benefits from the Social Security Administration should consider the other agency's finding of disability, but is not bound by the findings of another agency. 20 C.F.R. § 1504; Pelkey v. Barnhart, 433 F.3d 575, 579 (8th Cir. 2006); Jenkins v. Chater, 76 F.3d 231, 233 (8th Cir. 1996) (“This court has held that a disability determination by the Veterans Administration is not binding on the ALJ.” (internal citations omitted)). The ALJ should, however, give the VA's finding “explicit attention.” Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998). Furthermore, the disability standards set forth by the Department of Veterans Affairs and by the Social Security Administration are not identical. Jenkins, 76 F.3d at 233 (“Notwithstanding the finding of disability by another agency, the ALJ's determination that [Claimant] is not disabled under the regulations set forth by the Social Security Administration is supported by strong evidence in the record as a whole.”).

         III. THE ALJ'S FINDINGS

         The ALJ made the following findings at each step:

         At Step One, the ALJ found Claimant had not engaged in substantial gainful activity since August 1, 2010, the alleged onset date. (AR 13).

         At Step Two, the ALJ found Claimant had the severe impairments of “degenerative disc disease bilateral knees, status post-total knee replacement; osteoarthritis; obesity; and depression.” (AR 13).

         At Step Three, the ALJ found that none of Claimant's impairments equaled a presumptively disabling impairment listed ...


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