United States District Court, N.D. Iowa, Cedar Rapids Division
DELISA M. WARE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Williams, Chief United States Magistrate Judge.
Delisa M. Ware (“claimant”), seeks judicial
review of a final decision of the Commissioner of Social
Security (“the Commissioner”) denying her
application for disability insurance benefits and
supplemental security income under the Social Security Act.
She contends that the Administrative Law Judge (ALJ) who
heard her claim erred in determining that she was not
disabled. For the reasons that follow, I recommend that the
District Court reverse the
Commissioner's decision and remand the case for further
the facts set forth in the parties' Joint Statement of
Facts and therefore only summarize the pertinent facts here.
(Doc. 13). Claimant was born in May 1970, making her
forty-three years old when she allegedly became disabled and
forty-six years old at the time of the ALJ's decision.
(AR 28, 30). Claimant graduated from high school and
earned an associate's degree. (Id.). Her past
relevant work included fast food manager and production
March 11, 2014, claimant filed an application for disability
insurance benefits. (AR 22; Doc. 13, at 1). She alleged a
disability onset date of December 18, 2013. (Id.).
The Social Security Administration denied the instant claim
initially and on reconsideration. (AR 144-54, 157-69). On
April 20, 2016, Administrative Law Judge Eric S. Basse held a
hearing on the matter. (AR 36-70). Claimant offered testimony
and was represented by counsel. (Id.). Testimony was
also heard from Julie Svec, a vocational expert. (AR 62-68).
On June 1, 2016, the ALJ issued a decision denying the claim.
(AR 22-30). On May 23, 2017, the Appeals Council denied
review. (AR 1-5). The ALJ's decision therefore became the
final decision of the Commissioner. See 20 C.F.R.
August 2, 2017, claimant timely filed the instant complaint
in this Court. (Doc. 3). By January 22, 2018, the parties had
filed their briefs. (Docs. 14-16). On January 23, 2018, the
Court deemed the case fully submitted and ready for decision.
The Honorable Leonard T. Strand, Chief United States District
Judge, referred this case to me 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 Social Security 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. 20 C.F.R. § 416.920(a)(4)(i).
“Substantial” work activity involves physical or
mental activities. (Id. § 404.1572).
“Gainful” activity is work done for pay or
profit, even if the claimant did not ultimately receive pay
or profit. (Id.).
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. Id.
§ 416.920(a)(4)(ii). 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 do 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);
see also 20 C.F.R. 404.1521 (2015).
if the claimant has a severe impairment, then the
Commissioner will determine the medical severity of the
impairment. 20 C.F.R. § 416.920(a)(4)(iii). 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. 20 C.F.R. § 416.920(a)(4)(iv). If the
claimant can still do his past relevant work, then he is
considered not disabled. (Id.). 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. (Id. § 416.960(b)). “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 .
. . her physical or mental limitations.” Lewis v.
Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal
quotation marks omitted). The RFC is based on all relevant
evidence. The claimant is responsible for providing the
evidence the Commissioner will use to determine the RFC.
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th
Cir. 2004). 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. 20 C.F.R. §§
416.920(a)(4)(v), 416.960(c)(2). 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, 390 F.3d at 591. 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 fairly and fully developing the record
before making a determination about the existence of a
disability. Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir. 2004). The burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004).
THE ALJ'S FINDINGS
made the following findings at each step with regard to
claimant's disability status:
One, the ALJ found that claimant had not engaged in
substantial gainful activity during the period from her
alleged onset date through her date last insured. (AR 24).
Two, the ALJ found that claimant suffered from the following
severe impairments: “cervical degenerative disc
disease, status-post fusion; mild lumbar degenerative disc
disease; fibromyalgia syndrome; schizophrenia; status-post
right shoulder rotator cuff tear; a history of drug abuse;
and asthma by report.” (AR 25). The ALJ also noted that
other impairments were mentioned in the record (including
osteoarthritis of the right knee, and abdominal pain and
constipation), but found these were non-severe in nature.
Three, the ALJ found that none of claimant's impairments
met or equaled a presumptively disabling impairment listed in
the regulations. (AR 25-26).
Four, the ALJ found that claimant retained the RFC required
to perform light work, subject to the ...