United States District Court, N.D. Iowa, Eastern Division
GERALD G. BOHR, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
WILLIAMS, CHIEF UNITED STATES MAGISTRATE JUDGE.
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.
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 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).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).
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).
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.
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
DISABILITY DETERMINATIONS AND BURDEN OF PROOF
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.
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 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.
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.
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.”).
THE ALJ'S FINDINGS
made the following findings at each step:
One, the ALJ found Claimant had not engaged in substantial
gainful activity since August 1, 2010, the alleged onset
date. (AR 13).
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).
Three, the ALJ found that none of Claimant's impairments
equaled a presumptively disabling impairment listed ...