United States District Court, N.D. Iowa, Eastern Division
REPORT AND RECOMMENDATION
Williams Chief United States Magistrate Judge.
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
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). 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. (Id.).
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 from when he attended school
and discovered that his teachers noted that learning was
difficult for claimant. (Id.).
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
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, “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. 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.
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.
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).
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 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).
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 ...