United States District Court, N.D. Iowa, Eastern Division
MEG A. VOLKER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Williams Chief United States Magistrate Judge
Meg A. Volker (“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. Claimant contends that the
Administrative Law Judge (“ALJ”) who heard her
claim erred in determining that claimant was not disabled.
reasons that follow, I recommend that the District Court
affirm the ALJ's decision.
the facts set forth in the parties' Joint Statement of
Facts (Doc. 12) and therefore only summarize the pertinent
alleged she became disabled on May 24, 2012. (AR
The ALJ found that claimant last met the insured status
requirement of the Social Security Act on December 31, 2015.
(AR 12). Claimant was forty-seven years old when she
allegedly became disabled and was fifty-one years old on the
date last insured. (AR 17). Claimant completed high school,
earned a college degree in elementary education, and worked
as a teacher. (AR 17; Doc. 12, at 7).
3, 2010, claimant filed an application for disability and
disability insurance benefits. (AR 101). That claim was
ultimately denied and claimant was determined not to be
disabled. (AR 101-08). The Court has no record of claimant
appealing that decision to this Court. On February 10, 2014,
claimant filed a new application for disability and
disability insurance benefits. (AR 11). The Social Security
Administration denied the claim initially and on
reconsideration. (AR 118-39). Claimant now appeals this
second decision. On October 6, 2015, an ALJ held a hearing on
the matter. (AR 11). On March 14, 2016, ALJ Eric S. Basse
issued a decision finding claimant was not disabled. (AR
11-19). On March 8, 2017, the Appeals Council denied review.
(AR 1-6). The ALJ's decision therefore became the final
decision of the Commissioner. See 20 C.F.R. §
9, 2017, claimant timely filed the instant complaint in this
Court. (Doc. 2). By November 28, 2017, the parties had fully
briefed the issues. (Docs. 13, 15). On December 13, 2017, the
Court deemed this case fully submitted and ready for
decision. On the same day, the Honorable Leonard T. Strand,
Chief United States District Court Judge, referred this case
to a United States Magistrate Judge for a Report and
DISABILITY DETERMINATIONS AND THE BURDEN OF
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, “[she] is not only
unable to do [her] previous work but cannot, considering
[her] 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 her past
relevant work. 20 C.F.R. § 416.920(a)(4)(iv). If the
claimant can still do her past relevant work, then she 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.
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).