United States District Court, N.D. Iowa, Cedar Rapids Division
SANDRA J. MURPHY Claimant,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
A. Roberts, United States Magistrate Judge
Sandra J. Murphy ("Claimant"), seeks judicial
review of a final decision of the Commissioner of Social
Security ("the Commissioner") denying her
application for disability insurance benefits
("DIB") under Title II of the Social Security Act,
42 U.S.C. §§ 401-34 and for Supplemental Security
Income benefits ("SSI") under Title XVI of the
Social Security Act. Claimant contends that the
Administrative Law Judge ("ALJ") erred in
determining that she was not disabled. For the reasons that
follow, I recommend that the District Court affirm the
the facts set forth in the Parties' Joint Statement of
Facts (Doc. 12) and only summarize the pertinent facts here.
This is an appeal from a denial of benefits in a case that
was reheard on remand from the U.S. District Court for the
Northern District of Iowa. On remand, the ALJ was ordered to
determine whether the opinions of Dr. Mittauer, Community
Support Worker Tanya Moyle, and Social Worker Karen Penick
were inconsistent with substantial evidence on the
(AR at 396,
was born on July 31, 1972. (Id. at 140.) Claimant
has a bachelor's degree in education. (Id. at
425.) The ALJ found Claimant "has at least a high school
education and is able to communicate in English."
(Id. at 410.) Claimant allegedly became disabled due
to mental illness on January 7, 2010 when she was 38 years
old. (Id. at 140, 181, 182.) She was 40 years old at
me time of the ALJ's original decision on September 17,
2012. (Id. at 11-22.) Claimant filed her initial
claim on December 7, 2010. (Id. at 140-41.) Claimant
was initially denied benefits on February 28, 2011. (Mat
65-84.) Claimant filed for reconsideration on April 25, 2011
and was again denied on May 26, 2011. (Id. at 85-86,
93.) Claimant filed a Request for Hearing on July 20, 2011.
(Id. at 98-99.) A hearing was held on August 22,
2012 in Cedar Rapids, Iowa, with Claimant, her attorney, ALJ
Eric Basse, and vocational expert Carma Mitchell present.
(Id. at 27-62.) Claimant and the vocational expert
both testified. (Id. at 32-62.)
issued his decision denying Claimant benefits on
September 17, 2012. (Id. at 11-22.) On November 14,
2012, Claimant filed a Request for the Appeals Council to
review the ALJ's decision. (Id. at 7.) On
October 22, 2013, the Appeals Council found there was no
basis to review the ALJ's decision. (Id. at
1-5.) On December 18, 2013, Claimant timely filed a
complaint in this Court. (No. 13-CV-141, Doc. 3.) The
Honorable Jon Smart Scoles remanded the case to the
Commissioner of Social Security on September 26, 2014. (AR at
that civil action was still pending, Claimant filed new DIB
and SSI applications on September 9, 2014. (Id. at
521.) On February 11, 2015, the Appeals Council remanded
Claimant's claim for a new hearing pursuant to the
Court's remand order and also directed the ALJ to
consolidate the remanded claim with Claimant's new
applications. (Id. at 519-23.) A video hearing was
held on August 5, 2015 with ALJ Eric Basse and vocational
expert Roger Marquardt in West Des Moines, Iowa and Claimant,
her attorney, and Community Support Worker Tanya Moyle in
Cedar Rapids, Iowa. (Id. at 422-65.) Claimant, Ms.
Moyle, and the vocational expert testified. (Id. at
425-64.) On November 17, 2015, the ALJ entered a decision
denying benefits. (Id. at 396-412.) Claimant's
counsel filed exceptions to the ALJ's decision on
December 22, 2015 and three other times before the exceptions
were made part of me record on October 6, 2017. (Id.
March 27, 2018, the Appeals Council denied review of the
ALJ's decision. (Id. at 386.) Accordingly, the
ALJ's decision stands as the final administrative ruling
in me matter and became the final decision of the
Commissioner. See 20 C.F.R. § 416.1481. On June 5, 2018,
Claimant timely filed her complaint in this Court. (Doc. 3.)
By January 8, 2019, the Parties had filed their briefs. On
January 9, 2019, the Honorable Linda R. Reade, United States
District Court Judge, referred the case to me for a Report
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 me region where such individual lives or in several
regions of die country.
42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). A
claimant is not disabled if he or she 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. Bamhart, 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 mere 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)(f). "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. Bamhart, 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),
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)(h). If the
impairments are not severe, men 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 die 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 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 die
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 or
her 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 die claimant to do other work,
but also that other work exists in substantial 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, die ALJ found that Claimant had not engaged in
substantial gainful activity since her alleged onset date.
(AR at 398.)
two, me ALJ found that Claimant suffered from the following
severe impairments: "attention deficit hyperactivity
disorder (ADHD), major depressive disorder, generalized
anxiety disorder/social phobia, personality/obsessive
compulsive disorder (eating disorder), obesity, and
obstructive sleep apnea by report." (Id. at
three, the ALJ found that none of Claimant's impairments
met or equaled a presumptively disabling impairment listed in
the regulations, specifically listings 12.02, 12.04, 12.06,
or 12.08. (Id. at 399.)
four, the ALJ found that Claimant's RFC allowed her to
perform a range of sedentary to light work as defined in 20
C.F.R. Sections 404.1567(b) and 416.967(b) because Claimant
capable of carrying/lifting twenty pounds occasionally and
ten pounds frequently, can sit for six hours of an eight hour
day, and can stand/walk for four hours of an eight hour day.
The claimant can do simple, routine, and repetitive tasks,
have no contact with, die public, and occasionally with
coworkers, and supervisors and no production rate pace.
(Id. at 400.) At step five, die ALJ found that
despite Claimant's RFC, there were jobs that existed in
"significant numbers in the national economy"
Claimant could still perform, including shipping and
receiving weigher; marker II; mail clerk, nonpostal; document
preparer; and charge account clerk. (Id. at 411.)
Therefore, the ALJ concluded that Claimant was not disabled.
(Id.) The disputes in this case arise at steps four
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. Bamhart, 459 F.3d 934, 936 (8th
Cir. 2006) (citation omitted). The decision is not outside
mat 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.
Bamhart, 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. Bamhart,
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. Bamhart, 435 F.3d 926, 930 (8rh Cir. 2006)
(citing Stormo v. Bamhart, 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. Bamhart, 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) failing to
give good reasons for the weight afforded to the opinion of
her treating psychiatrist, Dr. Mittauer, which Claimant's
argument necessarily assumes could have changed the ALJ's
conclusion at either step 3 or step 4 of die analysis, and
(2) by denying benefits as step 5 based on an RFC that was
not supported by substantial evidence in die record. In
addition, Claimant challenges the validity of the ALJ's
decision because Claimant 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 any step in the process. I
will address each of Claimant's arguments, in turn.
The ALJ properly evaluated Dr. Mittauer's Opinion.
Mittauer has been Claimant's treating psychiatrist since
April 21, 2010. Between April 2010 and June 2014, Dr.
Mittauer saw Claimant on 14 occasions. (AR at 274-75, 279-80,
285-91, 357-58, 363-64, 367-68, 377-78, 878-87.) On April 21,
2010, Dr. Mittauer diagnosed Claimant as having Major
Depressive Disorder, single-episode/severe, without psychotic
features; Attention Deficit Hyperactivity Disorder, not
otherwise specified ("NOS"); Anxiety Disorder NOS
(with panic attacks); Generalized Anxiety Disorder; Eating
Disorder NOS (impulsive over eating); and Personality
Development Disorder, NOS. (Id. at 289.) These
diagnoses have remained fairly consistent since
Claimant's first meeting with Dr. Mittauer, except that
Dr. Mittauer changed the major depressive disorder diagnosis
to "single episode (moderate), without psychotic
features" on August 6, 2010. (Id. at 280.) The
rest of Dr. Mittauer's treatment notes document either
"moderate" major depressive disorder (Id.
at 275, 358, 364, 377, 879) or "mild" major
depressive disorder (Id. at 367, 881, 883, 888.)
Claimant was eventually diagnosed with obstructive sleep
apnea and now uses a CPAP machine at night, which has
improved her sleep. (Id. at 426.)
December 31, 2011, Dr. Mittauer provided a treating source
opinion for this case. (Id. at 340-45.) The opinion
is on a form provided by Claimant's attorney and is a
fill-in-die blanks and check-box form. (Id.) At the
time Dr. Mittauer completed this opinion, he had seen
Claimant eight times.
Mittauer opined on check lists that Claimant had me following
limitations related to her abilities to perform work-related
tasks: She had no useful ability to use public
transportation, but had unlimited or very good abilities to
ask simple questions, request assistance, or be aware of
normal hazards and take appropriate precautions.
(Id. at 342-43.) Claimant had limited, but
satisfactory abilities to do the following:
• Remember work-like procedures;
• Understand and remember very short and simple
• Carry out very short and simple instructions;
• Make simple work-related decisions; and
• Adhere to basic standards of neatness and ...