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Murphy v. Berryhill

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

March 12, 2019

SANDRA J. MURPHY Claimant,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Mark A. Roberts, United States Magistrate Judge

         Claimant, 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 Commissioner's decision.

         I. BACKGROUND

         I adopt 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 record.[1] (AR[2] at 396, 517-18.)

         Claimant 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.)

         The ALJ 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 518.)

         While 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. at 708.)

         On 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 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 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).

         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. 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).

         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)(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), (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)(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 setting.

Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (quotation omitted) (numbers added; internal brackets omitted).

         If die 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 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).

         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 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 (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, die ALJ found that Claimant had not engaged in substantial gainful activity since her alleged onset date. (AR at 398.)

         At step 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 398-99.)

         At step 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.)

         At step 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 is

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 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. 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 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. 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)).

         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. 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).

         III. DISCUSSION

         Claimant 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).

         After 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.

         A. The ALJ properly evaluated Dr. Mittauer's Opinion.

         Dr. 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.)

         On 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.

         Dr. 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 instructions;
• Carry out very short and simple instructions;
• Make simple work-related decisions; and
• Adhere to basic standards of neatness and ...

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