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White v. Berryhill

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

February 12, 2019

LARRY C. WHITE Claimant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Commissioner.

          REPORT AND RECOMMENDATION

          Mark A. Roberts, United States Magistrate Judge

         Claimant, Larry C. White (“Claimant”), seeks judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying his application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. Claimant contends that the Administrative Law Judge (“ALJ”) erred in determining that he was not disabled. For the reasons that follow, I recommend that the District Court reverse and remand the Commissioner's decision.

         I. BACKGROUND

         I adopt the facts set forth in the Parties' Joint Statement of Facts (Doc. 10) and only summarize the pertinent facts here. This is an appeal from a denial of disability insurance benefits (“DIB”). Claimant was born on April 15, 1970. (AR[1] at 138.) Claimant started tenth grade, but did not finish. (Id. at 29-30.) The ALJ found Claimant “has a limited education and is able to communicate in English.” (Id. at 17.) Claimant allegedly became disabled due to various disc and joint diseases and problems on December 18, 2013 when he was 43 years old. (Id. at 138, 171.) He was 46 years old at the time of the ALJ's original decision. (Id. at 7-25.) Claimant filed his initial claim on September 25, 2014. (Id. at 138-39). Claimant was initially denied benefits on December 30, 2014. (Id. at 71-74.) Claimant filed for reconsideration on January 18, 2015 and was again denied on February 4, 2015. (Id. at 75, 77-80.) Claimant filed a Request for Hearing on February 27, 2015. A video hearing was held on February 14, 2017 with Claimant; his attorney; and hearing monitor, Ann Zimba, in Waterloo, Iowa and ALJ Ray Souza and a vocational expert in Kansas City, Missouri. (Id. at 28-49, 82-83.) Claimant and the vocational expert both testified. (Id. at 29-48.)

         The ALJ issued his decision denying Claimant benefits on March 22, 2017. (Id. at 7-19.) On May 4, 2017, Claimant filed a Request for the Appeals Council to review the ALJ's decision. (Id. at 128-37.) On December 5, 2017, the Appeals Council found there was no basis to review the ALJ's decision. (Id. at 1-5.) Accordingly, the ALJ's decision stands as the final administrative ruling in the matter and became the final decision of the Commissioner. See 20 C.F.R. § 416.1481.

         On January 29, 2018, Claimant timely filed his complaint in this Court. (Doc. 1.) By October 1, 2018, the Parties had filed their briefs. On October 2, 2018, the Honorable Leonard T. Strand, Chief United States District Court Judge, referred the case to me for a Report and Recommendation.

         II. DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

         A disability is 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). A claimant has a disability when, due to physical or mental impairments, the claimant

is not only unable to do [the claimant's] previous work but cannot, considering [the claimant's] 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). A claimant is not disabled if he is able to do work that exists in the national economy, but is unemployed due to an inability to find work, lack of options in the local area, technological changes in a particular industry, economic downturns, employer hiring practices, or other factors. 20 C.F.R. § 404.1566(c).

         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. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). At steps one through four, the claimant has the burden to prove he or she is disabled; at step five, the burden shifts to the Commissioner to prove there are jobs available in the national economy. Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009).

         At step one, the ALJ will consider whether a claimant is engaged in “substantial gainful activity.” Id. If so, the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i). “Substantial activity is significant physical or mental work that is done on a full- or part-time basis. Gainful activity is simply work that is done for compensation.” Dukes v. Barnhart, 436 F.3d 923, 927 (8th Cir. 2006) (citing Comstock v. Chater, 91 F.3d 1143, 1145 (8th Cir. 1996); 20 C.F.R. § 416.972(a), (b)).

         If the claimant is not engaged in substantial gainful activity, at step two, the ALJ decides if the claimant's impairments are severe. 20 C.F.R. § 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.” Id. § 416.920(c). 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) (quotation omitted) (numbers added; internal brackets omitted).

         If the claimant has a severe impairment, at step three, the ALJ 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 impairments listed in the regulations (“the listings”), then “the claimant is presumptively disabled without regard to age, education, and work experience.” Tate v. Apfel, 167 F.3d 1191, 1196 (8th Cir. 1999).

         If the claimant's impairment is severe, but it does not meet or equal an impairment in the listings, at step four, the ALJ will assess the claimant's residual functional capacity (“RFC”) and the demands of the claimant's past relevant work. 20 C.F.R. § 416.920(a)(4)(iv). RFC is what the claimant can still do despite his limitations. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005) (citing 20 C.F.R. §§ 404.1545(a), 416.945(a)). RFC is based on all relevant evidence and 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). “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. 20 C.F.R. § 416.960(b)(1). If a claimant retains enough RFC to perform past relevant work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).

         At step five, if the claimant's RFC 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. Id. Pts. 416.920(a)(4)(v), 416.960(c)(2). The ALJ must show not only that the claimant's RFC will allow the claimant to do other work, but also that other work exists in significant numbers in the national economy. Eichelberger, 390 F.3d at 591 (citation omitted).

         A. 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 his alleged onset date. (AR at 12.)

         At step two, the ALJ found that Claimant suffered from the following severe impairments: “degenerative disc disease of the lumbar spine status/post multilevel laminectomies and surgical fusion at ¶ 5-S1; degenerative joint disease of the right hip; degenerative joint disease of the right knee; degenerative joint disease of the shoulders; and degenerative disc disease of the cervical spine.” (Id. at 13.)

         At step three, the ALJ found that none of Claimant's impairments met or equaled a presumptively disabling impairment listed in the regulations. (Id.)

         At step four, the ALJ found that Claimant had the RFC to perform a full range of work at all exertional levels with the following limitations:

[He] has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) in that he can lift, carry, push and/or pull 10 pounds occasionally and less than 10 pounds frequently; he can stand for 2 hours in a typical 8-hour workday; he can walk for up to 2 hours in a typical 8-hour workday; and he can sit 6 hours in a typical 8-hour workday. However, he must be able to sit or stand alternatively, at will, provided he is not off task more than 10% of the work period. He can occasionally reach overhead, bilaterally; and he is limited to no more than frequent handling and fingering, bilaterally. He can only occasionally stoop, kneel, crouch, crawl and/or climb ramps and stairs; he can never climb ladders, ropes or scaffolds; he can never work in excessive vibration or extreme cold; and he can never work around unshielded, moving machinery or exposed to unprotected heights. In addition, the claimant is limited to jobs that can be performed while using a hand-held assistive device for uneven terrain or prolonged ambulation; and he is able to understand, remember and carry out only simple and routine instructions and tasks consistent with SVP levels 1 and 2-type jobs as a result of medication side effects.

(Id. at 13-14.)

         At step five, the ALJ found that despite Claimant's RFC, there were jobs that existed in significant numbers in the national economy Claimant could still perform, including semiconductor bonder, ampule sealer, and document preparer. (Id. at 17-18.)

         Therefore, the ALJ concluded that Claimant was not disabled. (Id. at 19.) The disputes in this case arise in steps four and five.

         B. The Substantial Evidence Standard

         The ALJ's decision must be affirmed “if it is supported by substantial evidence on the record as a whole.” Moore, 572 F.3d at 522. “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). The court cannot disturb an ALJ's decision unless it falls outside this available “zone of choice” within which the ALJ can decide the case. Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (citation omitted). The decision is not outside that zone of choice simply because the court might have reached a different decision. Id. (citing Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001)); Moore, 572 F.3d at 522 (holding that the court cannot reverse an ALJ's decision merely because substantial evidence would have supported an opposite decision).

         In determining whether the Commissioner's decision meets this standard, the court considers all the evidence in the record, but does not reweigh the evidence. Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). A court considers both evidence that supports the ALJ's decision and evidence that detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court must “search the record for evidence contradicting the [ALJ's] decision and give that evidence appropriate weight when determining whether the overall evidence in support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).

         C. Duty to Develop the Record

          The administrative hearing is a non-adversarial proceeding, and the ALJ has a duty to “fully develop the record.” Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006) (citing Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). Because the ALJ has no interest in denying Social Security benefits, the ALJ must act neutrally in developing the record. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 410 (1971)); Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994) (opining that “[t]he goals of the [ALJ] and the advocates should be the same: that deserving claimants who apply for benefits receive justice”) (quoting Sears v. Bowen, 840 F.2d 394, 402 (7th Cir.1988)) (bracketed information added) .

         III. DISCUSSION

         Claimant alleges the ALJ committed reversible error in (1) determining that Claimant can perform work that exists in significant numbers in the national economy; (2) determining that Claimant would not be off task more than ten percent of the time; and (3) failing to fully develop the record by rejecting all medical opinion evidence and failing to obtain a consultative examination. Finally, Claimant challenges the validity of the ALJ's decision because he contends the ALJ was not properly appointed under Lucia v. SEC, 138 S.Ct. 2044 (2018).

         After conducting a thorough review of the administrative record, I find that the ALJ did not err at steps 1-3 of the five-step evaluation process. I will address each of Claimant's arguments, in turn.

         A. The record supports the ALJ's conclusion at step 5 that Claimant can perform other work in significant numbers in the economy if Claimant would be off task no more than ten percent of the time.

         I first note that the Commissioner concedes an error by the ALJ regarding the work available in the national economy that Claimant can perform. The Commissioner concedes that because of limitations on overhead reaching, only the semiconductor bonder's job represents work Claimant could perform. In other words, the Commissioner concedes a discrepancy between the vocational expert's testimony, the ALJ's hypothetical question, and the Dictionary of Occupational Titles entries for ampule sealer and document preparer. (Doc. 15 at 5 n.3.) Nevertheless, the Commissioner contends that the 55, 000 semiconductor bonder positions that are available and that Claimant can perform represents a significant number of jobs. Welsh v. Colvin, 765 F.3d 926, 930 (8th Cir. 2014) held that 36, 000 jobs constituted a significant number of jobs. Therefore, I recommend that the Court accept the ALJ's conclusion that a significant number of jobs exist in the national economy, even without the ampule sealer and document preparer positions.

         Claimant argues, however, that the record is unclear whether any jobs exist that he could perform because there was some confusion about the hypothetical questions posed to the vocational expert and the responses to those questions. The ALJ included the following restriction in his first hypothetical, “ . . . with a sit/stand option allowing the person to sit or stand alternatively at will provided the person is not off task by more than 10 percent of the work period. . . .” (AR at 45.)

         In response to this hypothetical, the vocational expert stated Claimant could not perform his past work, but identified the three jobs referenced above. The ALJ modified the hypothetical as follows, “Same individual, same limitations except that the person would be off task by more than 10 percent of the work period in addition to regularly-scheduled breaks, lunches, or bathroom and water breaks. Would that preclude work at all exertional levels?” The vocational expert replied, “In my opinion, 10 percent is the limit and would preclude all work.” (Id. at 46.)

         Contrary to Claimant's conclusion, I find there was no confusion regarding the limitations in these hypotheticals. The first hypothetical posited a limitation of no more than 10 percent off task, which prompted the list of jobs discussed above. The second hypothetical asked if the same individual was off task for more than 10 percent of the time. The vocational expert's testimony is clear, especially in the context of the exchange with the ALJ: the vocational expert believed there was work available with a sit/stand option allowing the person to sit or stand alternatively at will provided the person is not off task for more than 10 percent of the work period. However, above 10 percent, there was no work available.

         This exchange forms the background for the real gravamen of Claimant's appeal, discussed below, regarding whether Claimant would, in fact, be off task more than 10 percent of the time.

         B. Substantial evidence does not support the ALJ's conclusion at step 4 regarding the ...


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