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Hill v. Berryhill

United States District Court, N.D. Iowa, Cedar Rapids Division

February 20, 2019

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


          Mark A. Roberts, United States Magistrate Judge.

         Plaintiff, Lisa Marie Hill (“Claimant”), seeks judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for disability and supplemental 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 she was not disabled. For the reasons that follow, the ALJ's decision is reversed and the case is remanded for reconsideration consistent with this Order.

         I. BACKGROUND

         I adopt the Parties' Joint Statement of Facts (Doc. 13) and therefore only summarize them here. This is an appeal from a denial of a request for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits. Claimant was born on August 10, 1967. (AR[1] at 194.) She has a GED and attended some college. (Id. at 35.) Claimant alleges she has been disabled since January 4, 2013 due to anxiety, depression, and post-traumatic stress disorder (“PTSD”) that is the result of childhood abuse. (Doc. 13 ¶ 1.) She filed her initial claim on November 20, 2014. (Id.) Claimant was initially denied benefits on January 15, 2015. (AR at 106.) Claimant filed for reconsideration on January 29, 2015 and was again denied on April 3, 2015. (Id. at 111, 115-18.) Claimant filed a Request for Hearing on May 27, 2015. A video hearing was held on February 6, 2017 with Claimant and her counsel in Cedar Rapids, Iowa and ALJ Janice E. Barnes-Williams and a vocational expert in Kansas City, Missouri. (Id. at 29-55, 121.)

         The ALJ issued her decision denying Claimant benefits on March 1, 2017. (Id. at 12-28.) On May 4, 2017, Claimant filed a Request for the Appeals Council to review the ALJ's decision. (Id. at 193, 292-95.) On November 27, 2017, the Appeals Council found there was no reason to review the ALJ's decision. (Id. at 1-9.) 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 19, 2018, Claimant timely filed the instant complaint in this Court. (Doc. 3.) On February 16, 2018, the Parties consented to have the case decided by a Magistrate Judge. (Doc. 7.) The case was originally assigned to the Honorable C.J. Williams and was reassigned to me on September 17, 2018. On December 18, 2018, the case was fully submitted and ready for decision.


         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 the claimant 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 or her 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 the claimant's 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. §§ 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 January 4, 2013, the alleged onset date of disability. (AR at 17.)

         At step two, the ALJ found that Claimant had the following severe impairments: generalized anxiety disorder, major depressive disorder, and post-traumatic stress disorder. (Id.) In addition, the ALJ found that Claimant had some non-severe impairments including obesity, arthritis, and headaches, but that those impairments were controlled by medications. (Id. at 17-18.)

         At step three, the ALJ found that none of Claimant's impairments met or equaled a presumptively disabling impairment in the listings. (Id. at 18.) Specifically, the ALJ considered the “paragraph B criteria” and “paragraph C criteria” of two broad categories of mental disorders, listings 12.04 (depressive, bipolar and related disorders) and 12.06 (anxiety and obsessive-compulsive disorders). (Id. at 18-19.)

         At step four, the ALJ found Claimant was unable to perform any past relevant work, but had the RFC to perform a full range of work at all exertional levels, but with the following nonexertional limitations:

limited to simple, routine and repetitive tasks, which may require detailed instructions but do not involve complex tasks; in a work environment free of fast paced production requirements; involving only simple, work-related decisions; with few, if any, work place changes; no work involving public interaction; can work around co-workers but with only occasional interaction with co-workers and supervisors.

(Id. at 19.)

         At step five, the ALJ found that there were jobs that existed in significant numbers in the national economy that Claimant could still perform with her RFC, including order filler, assembler, and production helper. (Id. at 23.) Therefore, the ALJ concluded that Claimant was not disabled. (Id.)

         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) .


         Claimant alleges that remand is necessary for the following reasons: (1) the ALJ failed to properly address whether Claimant satisfied the requirements of Listings 12.04 and 12.06(B) and (C); (2) the ALJ improperly evaluated her treating psychiatrist's opinion; and (3) the ALJ improperly evaluated Claimant's subjective complaints. (Docs. 21, 27.)

         After conducting a thorough review of the administrative record, the Court finds that the ALJ did not err at steps 1 and 2 of the five-step evaluation process. The Court will address each of Claimant's arguments, in turn.

         A. The claim must be remanded to properly assess at step 3 whether Claimant satisfies the requirements of listings 12.04 and 12.06 (B) and (C).

         Claimant bases her disability claim on two mental disorders, depression under listing 12.04 and anxiety under listing 12.06. The ALJ found at step 3 that none of Claimant's impairments met or equaled a presumptively disabling impairment in the listings. (AR at 18.)

         i. Paragraph B Criteria

         To meet the paragraph B criteria, Claimant's impairments have to result in an “extreme limitation in one, or marked limitation of two, [paragraph B criteria] of mental functioning.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(F)(2). The paragraph B criteria are (1) Understand, remember, or apply information; (2) Interact with others; (3) Concentrate, persist, or maintain pace; and (4) Adapt or manage oneself. Id. § 12.00(E). Claimant makes arguments related only to her ability to interact with others. Accordingly, for Claimant to prevail regarding the paragraph B criteria, her limitations must be extreme on the five-point scale of limitations.[2] Id. § 12.00(F)(2)(e). An extreme limitation means that a claimant is unable to interact with others “independently, appropriately, effectively, and on a sustained basis.” Id.

         The “interact with others” area of mental functioning refers to a claimant's ability to “relate to and work with supervisors, co-workers, and the public.” Id. § 12.00(E)(2). Examples include, among other things, “cooperating with others . . .; handling conflicts with others; stating own point of view; initiating or sustaining conversation; understanding and responding to social cues. . .; responding to requests, suggestions, criticism, correction, and challenges; and keeping social interactions free of excessive [] sensitivity . . . or suspiciousness.” Id.

         In relevant part, the ALJ found that Claimant had moderate limitations in interacting with others, which was evidenced by Claimant's tendency to isolate from others; her terror of being around strangers; her commitment to shopping during the day only when absolutely necessary, preferring to shop at night when there are fewer people around; and belonging to no social groups or clubs. (AR at 18.) The ALJ offset these limitations with the fact that Claimant is in a long-term relationship and that she maintains contact with her children via computer and text messages. (Id.)

         Claimant argues that the ALJ's support for her decision is misplaced because an ability to maintain a long-term relationship with her boyfriend and an ability to send emails and text messages to her children while in a supportive home environment “with tolerant family members, and with the flexibility to stay in her room when she does not feel like interacting” is irrelevant to Claimant's abilities to “relate and work with supervisors, co-workers, and the public” and a “determination of employment functionality” because Claimant can control “the manner and time” in which she wants to send emails. (Docs. 21 at 8; 27 at 2.) Specifically, Claimant argues that the ALJ failed to consider information in the record that is more relevant to Claimant's ability to work than is her ability to maintain relationships with her family members and boyfriend.

         Claimant also avers that the ALJ selectively chose statements from the observations of her treating psychiatrist, Dr. Kija Weldon, instead of considering all the medical evidence as required by the Rules. (Doc. 27 at 4) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(2)(a)(i)(j) (“We will consider all relevant medical evidence about your disorder [including]. . . .Your reported symptoms. . .; Your clinical course, including changes in your medication . . . and the time required for therapeutic effectiveness; [and] . . . Observations and descriptions of how you function during examinations or therapy.”) Specifically, Claimant takes issue with the Commissioner's reliance on Claimant's ability to be cooperative with her psychiatrist and psychologist and have normal speech and eye contact during those appointments, noting that the records the Commissioner cites also contain evidence and clinical notes that support Claimant's claim that she is unable to interact successfully in public and with people outside her family. (Doc. 27 at 4) (citing Doc. 22 at 6.)

         The record documents Claimant's difficulties interacting with other people, even sometimes members of her family. (AR at 41-42, 240, 335, 359, 375-76.) The record also documents Claimant's terror of being around people; anxiety attacks when in public; avoidance of crowds; lower anxiety when she is at home, and Claimant's discussion of these issues with Dr. Weldon, and her psychologist, Christine Rogers Cork. (Id. at 38, 231, 239, 319, 320, 359-62, 366-68, 374, 376, 378, 380, 383.)

         Dr. Weldon also noted that during her meetings with Claimant, Claimant was occasionally “fidgety, ” “tearful, ” or “slow” in her psychomotor activities[3] (Id. at 320, 324, 359, 361); sometimes disheveled in her appearance (Id. at 335, 359, 361, 362, 363, 365, 374, 378); and had a restricted affect[4] (Id. at 334, 335, 359, 361, 362, 364-68, 374, 376).

         The Commissioner responds that despite having anxiety and depression, Claimant was able to discuss ways to set boundaries with her daughter when that was an issue and to successfully implement strategies learned in therapy, which the Commissioner argues reflects her ability to state her point of view and handle conflict. (citing Id. at 330, 369, 380.) The Commissioner also notes that Claimant enjoyed a trip to Las Vegas in January 2015 and a night out in March 2015, both with her boyfriend. (Id. at 21, 331, 381.) In addition, the Commissioner argues that Claimant was able to work for years outside the home with both her conditions until she left her job in 2013 to help her daughter, who was having a difficult pregnancy. (Id. at 221, 323.)

         The Court finds that one page cited by the Commissioner says that Claimant was able to set boundaries with her daughter. (Id. at 380.) The other two cited pages say Claimant and her healthcare providers discussed setting boundaries. (Id. at 330, 369.) However, Claimant's boundary-setting success was apparently short-lived because three, seven, and eight months later, Dr. Weldon listed “daughter” as a stressor in Claimant's life. (Id. at 366, 367, 374.) Nine and twelve months after apparently setting boundaries, Claimant and Dr. Weldon discussed her stressful relationship with her daughter, ways to handle their disputes, and ways to improve her “command.” (Id. at 363, 365.) In September 2016, Dr. Weldon again listed “daughter” as a stressor in Claimant's life. (Id. at 359.) Therefore, in spite of seemingly setting boundaries one month, Claimant was apparently unable to maintain those boundaries and stress was a continuing feature of her relationship with her daughter.

         In addition, while the record indicates that Claimant enjoyed her time in Las Vegas, it also shows she was so nervous before the trip that she needed medications to get on the plane and that the trip exacerbated her mental health symptoms to the point that she needed to change medications when she returned home. (Id. at 318-19, 335.) Moreover, Claimant was with her boyfriend on this trip. Enjoying time away with a trusted loved one is different from going to work alone every day and is also consistent with Claimant's claim that she lives in a structured environment where her boyfriend and daughter try to limit times that Claimant has to leave the house alone. The trip to Las Vegas in January 2015 was the first and last vacation Claimant took since her alleged onset of disability date.

         The Court finds the Commissioner's reliance on a single trip over two years before the hearing misplaced because this reliance ignores the bulk of the evidence in the record that Claimant does not leave her home for fear of having to deal with strangers. She isolates herself at home and, other than the Las Vegas trip and the one date night in March 2015, the record demonstrates that the only other times Claimant leaves the house are to go to the doctor or grocery shop, something she tries to do after midnight when the crowds are smaller. (Id. at 40.) Dr. Weldon stated that Claimant suffers anxiety about even attending her doctor appointments during the day. (Id. at 383.) The record is replete with doctor notes regarding Claimant's anxieties about interacting with the public; Claimant is even fidgety and nervous during some of her appointments with Dr. Weldon. She was so nervous during the administrative hearing for this case that her leg was shaking up and down uncontrollably. (Id. at 39.)

         Thus, in spite of the two instances cited by the Commissioner wherein Claimant dealt with the outside world, the record as a whole indicates that Claimant is isolated, fearful, unable to interact with the public, and incapable of exerting herself in a meaningful way that has any lasting consequences. This case is similar to Yawitz v. Weinberger. In Yawitz, the Eighth Circuit reversed the decision of the ALJ determining that the claimant was not disabled and could engage in substantial gainful activity. 498 F.2d 956, 961 (8th Cir. 1974). The ALJ in Yawitz only relied on evidence that the claimant drove and went on occasional camping trips in a camper bus he was restoring himself, while “totally ignor[ing]” the bulk of evidence concerning the limited amount of driving the claimant actually did; the frequent number of days the claimant and his wife could not travel due to claimant's ...

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