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Sexton v. Berryhill

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

April 3, 2019

DONNY J. SEXTON, Claimant,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          MARK A. ROBERTS, UNITED STATES MAGISTRATE JUDGE

         Donny J. Sexton (“Claimant”), seeks judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying his 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 he 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. 13) and only summarize the pertinent facts 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 1, 1989. (AR[1] at 209.) Claimant has an eleventh-grade education. (Id. at 50.) The ALJ found Claimant “has a limited education and is able to communicate in English.” (Id. at 34.) Claimant allegedly became disabled due to mental illness on January 1, 2009, when he was 19-years-old. (Id. at 26.) He filed his initial claim for DIB on January 9, 2015. (Id. at 209.) He filed his initial claim for SSI benefits on January 29, 2015. (Id. at 222.) Claimant was initially denied benefits on both claims on May 4, 2015. (Id. at 125, 129.) Claimant filed for reconsideration on June 4, 2015 and was again denied on July 1, 2015. (Id. at 137, 140, 149.) Claimant filed a Request for Hearing on July 16, 2015. (Id. at 160.) A telephonic hearing was held on May 17, 2017 with Claimant and his counsel in Iowa and ALJ Christina Mein and a vocational expert in Topeka, Kansas. (Id. at 44.)

         The ALJ issued her decision denying Claimant benefits on June 28, 2017. (Id. at 23-42.) On July 31, 2017, Claimant filed a Request for the Appeals Council to review the ALJ’s decision. (Id. at 208.) On November 27, 2017, the Appeals Council found there was no reason to review the ALJ’s decision. (Id. at 1.) 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. 4.) By December 4, 2018, the parties had filed their briefs and 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 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. 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 the following:

(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 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 the 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, the ALJ found that Claimant had not engaged in substantial gainful activity since January 1, 2009, the alleged onset date of disability.[2] (AR at 28.)

         At step two, the ALJ found that Claimant had the following severe impairments: generalized anxiety disorder, major depression, panic disorder, and personality disorder. (Id. at 29.) In addition, the ALJ found that Claimant had some non-severe impairments including a non-epileptic seizure disorder and substance abuse. (Id.)

         At step three, the ALJ found that none of Claimant’s impairments met or equaled a presumptively disabling impairment in the listings. (Id.) 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 29-30.)

         At step four, the ALJ found Claimant had no past relevant work (Id. at 34), but had the RFC to perform a full range of work at all exertional levels, but with the following nonexertional limitations:

[T]he claimant cannot work at unprotected heights, hazardous machinery or standing bodies of water. He can perform three to four-step tasks that are simple, repetitive and routine. The claimant cannot interact with the public, but can occasionally interact with co-workers and supervisors.

(Id. at 30-31.)

         At step five, the ALJ found there were jobs that existed in significant numbers in the national economy that Claimant could still perform with his RFC, including counter supply worker, stubber,[3] and linen room attendant. (Id. at 35.) Therefore, the ALJ concluded that Claimant was not disabled. (Id.)

         B. Relevant Medical Evidence

         1. Claimant’s history of in-patient treatment

         On January 27, 2015, Claimant was admitted to the emergency room for an attempted suicide attempt by hanging. (AR at 396.) Claimant denied a suicide attempt and argued the mark on his neck was from a 2007 suicide attempt. (Id.) The physician who saw Claimant at the time noted, however, that the markings on Claimant’s neck were “clearly from tonight, not 7 years ago” and stated that Claimant was “unreliable, unpredictable, and untrustworthy.” (Id. at 398.) Claimant was admitted to the hospital. (Id.) Claimant insisted on being discharged later that day, and was discharged after he was considered to no longer be at significant risk of suicidal behavior. (Id. at 393.) Claimant testified at the hearing that he has tried to hang himself at other times. (Id. at 59.)

         After being admitted to the hospital on March 25, 2016, a mental health commitment order was issued out of Dubuque County on March 28, 2016, ordering Claimant “committed for a complete psychiatric evaluation and appropriate treatment at a suitable facility” due to his danger to himself. (Id. at 449-50.) Claimant had stopped taking his medication, had been feeling increasingly depressed, and had started drinking to the point of passing out. (Id. at 21.) Claimant then started a fight with his brother, wanting his brother to take his life, which led to his arrest and wounds on Claimant’s wrist and hand. (Id.) Claimant was discharged April 1, 2016 with new medications. (Id. at 19.)

         2. Licensed Master Social Worker Claire Hunt

         On January 29, 2015, one day after leaving the hospital for his attempted suicide-by-hanging, Claimant saw Claire Hunt at Hillcrest Family Services, the counseling center where he would receive most of his outpatient treatment for the relevant time period. (Id. at 417.) Ms. Hunt determined that Claimant had poor insight and judgment, a blunted affect, and a depressed/anxious mood, but intact memory. (Id.) Claimant saw Ms. Hunt four more times during 2015 (Id. at 405-12, 424, 461-62), and by August 2015, Ms. Hunt noted that Claimant seemed to be doing better. Claimant had a normal affect, a stable mood, normal speech, and was attentive. (Id. at 462.) Ms. Hunt noted that Claimant’s insight, judgment, and memory were intact. (Id.) Claimant was feeling less depressed and had not been feeling suicidal. (Id.) Ms. Hunt noted Claimant was making “limited progress.” (Id.)

         3. Psychiatric and Mental Health Nurse Practitioner Elizabeth Brimeyer

         On April 3, 2015, Claimant saw Elizabeth Brimeyer at Summit Outpatient Healthcare for psychiatric medication management. (Id. at 437.) Ms. Brimeyer noted although Claimant was attentive, he had slow thought processes, poor to fair judgment and insight as to his mental health needs, and that he self-medicated with alcohol. (Id. at 440-41.) Ms. Brimeyer diagnosed Claimant with depression, anxiety, and panic attacks. (Id. at 441.) She prescribed Prozac and Lorazepam. (Id.)

         On May 19, 2015, Claimant returned to Ms. Brimeyer for psychiatric medication management. (Id. at 445.) In April, Ms. Brimeyer had added Seroquel to Claimant’s regimen, and he complained that while it helped him sleep, it also made him too tired. (Id.) He had been off all medications for a week at the time of the May appointment. (Id. at 446.) Ms. Brimeyer made Claimant sign a “no harm” contract promising not to hurt himself before their next meeting, switched Claimant to Abilify, and decreased his Prozac dosage. (Id.)

         4. Dr. Thomas Anderegg

         On April 9, 2015, Dr. Thomas R. Anderegg, saw Claimant for a consultative psychological examination on the referral of Disability Determination Services. (Id. at 418-21.) In part, Dr. Anderegg opined that Claimant would require “some supervision in order to carry out instructions reliably until they were well learned.” (Id. at 420.) Dr. Anderegg’s opinion will be more fully discussed below. See infra Part III.A.1.

         5. Dr. Mark Mittauer

         On September 8, 2015, Claimant began psychiatric medication management at Hillcrest with Dr. Mark Mittauer. (Id. at 463.) Dr. Mittauer diagnosed Claimant with major depressive disorder, single episode, severe, without psychotic features; panic disorder with agoraphobia; generalized anxiety disorder; cannabis abuse in remission; and alcohol abuse versus dependence in remission. (Id. at 464.) Dr. Mittauer prescribed Venlafaxine, Zolpidem, and Hydroxyzine and recommended that Claimant “exercise, pursue fun activities, and do things with friends.” (Id. at 465.) Dr. Mittauer’s notes say that Claimant should follow up in “3 weeks or as needed.” (Id.) There is no indication in the record that Claimant returned to Hillcrest for medication management until January 2016.

         6. Psychiatric and Mental Health Nurse Practitioner Dieter Boxmann

         On January 27, 2016, Claimant saw Mr. Boxmann for psychiatric medication management. (Id. at 467.) Mr. Boxmann noted Claimant avoided going places because he feared having a panic attack or a seizure. (Id. at 468.) Mr. Boxmann diagnosed Claimant with major depressive disorder, recurrent, severe; panic disorder with agoraphobia; generalized anxiety disorder; cannabis abuse in remission; alcohol abuse in remission; possible conversion disorder (pseudoseizures). (Id.) Mr. Boxmann prescribed Clonazepam, Sertraline, and Quetiapine. (Id. at 469.) Claimant had been off Prozac for about ...


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