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Owens v. Berryhill

United States District Court, N.D. Iowa, Cedar Rapids Division

May 7, 2018

TRACY L. OWENS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          C.J. WILLIAMS CHIEF UNITED STATES MAGISTRATE JUDGE

         Tracy L. Owens (“claimant”) seeks judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Claimant contends that the Administrative Law Judge (“ALJ”) erred in determining that she was not disabled. For the following reasons, I respectfully recommend that the District Court reverse and remand 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. 15). Claimant was born in 1964, and alleged a disability onset date of June 20, 2013, making her forty-eight years old on the alleged disability onset date. (AR 12, 25).[1] Claimant graduated from high school in 1982 and received her radiation therapy license in 1985. (AR 22).

         The Social Security Administration denied the claim initially and on reconsideration. (AR 96-99, 102-11). ALJ Henry Hamilton held a hearing on the matter and issued a decision denying the claim on March 24, 2016. (AR 12-26). On June 6, 2017, the Appeals Council denied review. (AR 1-4). The ALJ's decision therefore became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.

         On July 28, 2017, claimant timely filed the instant complaint in this Court. (Doc. 3). Between January and February 2018, the parties briefed the issues. On February 28, 2018, the Court deemed this case ready for decision, and the Honorable Leonard T. Strand, Chief United States District Judge, referred this case to me for a Report and Recommendation.

         II. DISABILITY DETERMINATIONS AND THE 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 her 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 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.).

         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. 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.

         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); see also 20 C.F.R. 404.1521 (2015).

         Third, 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).

         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. 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 her 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.

         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. 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 her 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).

         III. THE ALJ's FINDINGS

         The ALJ made the following findings at each step with regard to claimant's disability status:

         At Step One, the ALJ found that claimant had not engaged in substantial gainful activity since her alleged onset date. (AR 14).

         At Step Two, the ALJ found that claimant suffered from the following severe impairments: “diabetes mellitus; narcolepsy with cataplexy; chronic kidney disease sta[g]e 3-4; and major depressive disorder, moderate.” (Id.).

         At Step Three, the ALJ found that none of claimant's impairment met or equaled a presumptively disabling impairment listed in the regulations. (AR 15).

         At Step Four, the ALJ determined that claimant had the residual functional capacity (“RFC”) to perform light work,

such that she could lift and/or carry 20 pounds occasionally and 10 pounds frequently. The claimant can sit for up to six hours of an eight hour workday and stand and/or walk for up to six hours of an eight hour workday. Her ability to push and/or pull, including the operation of hand and foot controls, is unlimited within the above weight limits. The claimant can occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds. She can occasionally balance, stoop, kneel, crouch and crawl. The claimant can never operate a motor vehicle. She is limited to simple, routine, repetitive tasks involving only simple work-related decisions. The claimant's time off task can be accommodated by normal breaks.

(AR 15). Based on the ALJ's RFC assessment, the ALJ determined that claimant was unable to perform her past relevant work. (AR 25).

At Step Five, the ALJ found that, despite claimant's RFC, there were jobs that existed in significant numbers in the national economy that claimant could perform, including routing clerk, mail clerk, and folder. (AR 25-26). Therefore, the ALJ concluded that claimant was not disabled. (AR 26).

         IV. THE SUBSTANTIAL EVIDENCE STANDARD

         The Commissioner's decision must be affirmed “if it is supported by substantial evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . ..”). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion.” Lewis, 353 F.3d at 645 (internal quotation marks omitted). The Eighth Circuit Court of Appeals explains the standard as ‚Äúsomething less than the weight of the evidence . . . [that] allows for the possibility of drawing two inconsistent conclusions[;] thus it embodies a zone of choice within which ...


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