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Schwarz v. Berryhill

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

June 29, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          C. J. Williams Chief United States Magistrate Judge.

         Plaintiff, Daniel Schwarz (“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 under Title II of the Social Security Act, as well as his application for supplemental security income under Title XVI of the Social Security Act. Claimant contends that the Administrative Law Judge (“ALJ”) who heard his claim erred in determining that claimant was not disabled. For the reasons that follow, I recommend that the District Court reverse and remand the ALJ's decision for further proceedings consistent with this Report and Recommendation.

         I. BACKGROUND

         I adopt the facts as set forth in the parties' Joint Statement of Facts (Doc. 14) and therefore only summarize the pertinent facts here. ALJ Tom Andrews held a video hearing on September 8, 2016, and issued a decision finding claimant not disabled on November 21, 2016. (AR 22-33).[1] Claimant alleged disability beginning January 1, 1970. (AR 22). The Social Security Administration, however, determined that claimant had engaged in substantial gainful activity until July 15, 2002, and the ALJ determined that claimant had not been under a disability from the relevant date-July 15, 2002- through the date of the ALJ's decision.[2] (Id.).

         The Commissioner asserts, and claimant does not contest, that claimant was born in 1960. (Doc. 17, at 3). Claimant completed ninth grade and attended tenth grade but did not pass. (Doc. 14, at 4). Claimant twice attempted to obtain a general equivalency diploma (“GED”) but was unsuccessful both times. (Id.). At the hearing before the ALJ, claimant testified that the first time he attempted to pass the test to obtain his GED, claimant tested at the fifth grade level. (AR 48). Claimant testified that the second time he sat for the test, he tested at the third grade level. (Id.). Claimant further testified that he could read, but if “the words are difficult, [claimant doesn't] understand what they mean.” (AR 48-49). Additionally, although claimant can add and subtract, he is not able to multiply and divide. (AR 49). At some point, claimant found report cards[3] from when he attended school and discovered that his teachers noted that learning was difficult for claimant. (Id.).

         On June 16, 2017, claimant timely filed the instant complaint in this Court. (Doc. 3). By January 23, 2018, the parties had fully briefed the issues. (Docs. 16-18). On May 21, 2018, the Honorable Leonard T. Strand, Chief United States District Court Judge, referred this case to me for a Report and Recommendation.


         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. 20 C.F.R. § 416.920(a)(4)(i) If the claimant is engaged in substantial gainful activity, then the claimant is not disabled. Id. “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. Id. 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 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.

         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).


         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 engaged in substantial gainful activity after the alleged onset date. Specifically, the ALJ found that claimant had engaged in substantial gainful activity until July 15, 2002. (AR 22, 24). As such, the ALJ modified the relevant time period to begin after the date on which claimant had last engaged in substantial gainful activity. (AR 22).

         At Step Two, the ALJ found that claimant suffered from the following severe impairments: “degenerative disc disease; major depressive disorder; anxiety; borderline intellectual functioning/learning disability/adult attention deficit hyperactivity disorder; mild carpal tunnel syndrome for which he refused surgery; obesity; asthma; medically determinable left ankle impairment, status post old injury but with normal gait.” (AR 24 (internal citations omitted)). The ALJ also discussed ...

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