United States District Court, N.D. Iowa, Eastern Division
LARRY C. WHITE Claimant,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Commissioner.
REPORT AND RECOMMENDATION
A. Roberts, United States Magistrate Judge
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
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 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.)
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.
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.
DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF
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).
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).
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. §
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
Bowen v. Yuckert, 482 U.S. 137, 141 (1987)
(quotation omitted) (numbers added; internal brackets
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).
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).
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
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 not engaged in
substantial gainful activity since his alleged onset date.
(AR at 12.)
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
three, the ALJ found that none of Claimant's impairments
met or equaled a presumptively disabling impairment listed in
the regulations. (Id.)
four, the ALJ found that Claimant had the RFC to perform a
full range of work at all exertional levels with the
[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.)
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.
the ALJ concluded that Claimant was not disabled.
(Id. at 19.) The disputes in this case arise in
steps four and five.
The Substantial Evidence Standard
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
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)).
Duty to Develop the Record
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) .
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).
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.
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.
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
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.)
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.)
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
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
Substantial evidence does not support the ALJ's
conclusion at step 4 regarding the ...