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Kesterson v. Berryhill

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

May 1, 2019

MICHELLE ANN KESTERSON, Claimant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          Mark A. Roberts, United States Magistrate Judge

         Michelle Ann Kesterson (“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 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. 13) and only summarize the pertinent facts here. This is an appeal from a denial of a request for disability insurance benefits (“DIB”).

         Claimant was born on August 22, 1979. (AR[1] at 121.) Claimant is a high school graduate. (Id. at 90.) The ALJ found Claimant “has at least a high school education and is able to communicate in English.” (Id. at 22.) Claimant allegedly became disabled due to neck and shoulder injuries and depression on July 24, 2012 when she was 32-years-old. (Id. at 121.) She was 38-years-old at the time of the ALJ's original decision on October 12, 2017. (Id. at 8-29.) Claimant filed her claim on May 22, 2015. (Id. at 121.) Claimant was initially denied benefits on September 17, 2015. (Id. at 121-35.) Claimant filed for reconsideration on October 28, 2015, and was again denied on November 18, 2015. (Id. at 156-60.) Claimant filed a Request for Hearing on December 2, 2015. (Id. at 162.) A video hearing was held on June 15, 2017 with Claimant; her attorney, Corbett Ludeman; and a hearing reporter in Waterloo, Iowa and vocational expert Vanessa May and ALJ Julie K. Bruntz in West Des Moines, Iowa. (Id. at 84-120.) Claimant and the vocational expert both testified. (Id. at 89-120.)

         The ALJ issued her decision denying Claimant benefits on October 12, 2017. (Id. at 11-29.) On November 27, 2017, Claimant filed a Request for the Appeals Council to review the ALJ's decision. (Id. at 221.) On May 18, 2018, the Appeals Council found there was no basis 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 July 23, 2018, Claimant timely filed a complaint in this Court. (Doc. 3.) On March 27, 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 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

(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 her alleged disability onset date. (AR at 14.) Claimant did attempt to return to work several times since her alleged disability onset date, but those attempts proved unsuccessful. (Id.)

         At step two, the ALJ found that Claimant suffered from the following severe impairments: methamphetamine abuse and cervical degenerative disc disease. (Id.) The ALJ also found that Claimant suffered from the following non-severe impairments: hand/foot impairments and depression. (Id.)

         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 in 20 C.F.R. Part 404, Subpart P, Appendix 1, Adult Mental Health Listings. (Id. at 14-15.)

         At step four, the ALJ found that when considering all Claimant's impairments, including substance abuse,

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) in that the claimant can occasionally as [sic] lift/carry 20 pounds, 10 pounds frequently, and can stand and or walk for sit [sic] hours out of an eight hour work day, and sit for six hours out of an eight hour day. The claimant retains the ability to push and pull, including operation of foot controls, frequently within these weights for hand controls, and with no limits on foot controls within these weights. She can frequently climb ramps and stairs, but never climb ladders, ropes, scaffolds. She can frequently balance and stoop, and occasionally kneel, crouch, and crawl. She can occasionally lift overhead with the left upper extremity and occasionally reach in front or laterally on the left. Due to substance abuse, she would be off task 20% of day and miss two or more days per month.

(Id. at 15-16.) Based on this RFC, the ALJ found at step four that Claimant could not perform her past relevant work, and found at step five that Claimant could not perform any other work that existed in significant numbers in the national economy. (Id. at 22-23.)

         However, absent substance abuse, the ALJ found that Claimant had the following RFC:

[T]he claimant would have the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) in that the claimant can occasionally as [sic] lift/carry 20 pounds, 10 pounds frequently, can stand and or walk for six hours in an eight hour day and sit for six hours each of an eight hour day. The claimant retains the ability to push and pull, including operation of foot controls, frequently within these weights for hand controls and has no limits on foot controls within these weights. She can frequently climb ramps and stairs, but never climb ladders, ropes, scaffolds. She can frequently balance and stoop, and occasionally kneel, crouch, and crawl. She can occasionally lift overhead with the left upper extremity and occasionally reach in front or laterally on the left.

(Id. at 24.) The ALJ concluded at step four that with this RFC, Claimant would be able to perform her past relevant work as a retail store manager. (Id. at 27-28.) The ALJ further found at step five that alternative work that Claimant could perform existed in significant numbers in the national economy as a photocopy machine operator, mail clerk, or laundry sorter. (Id. at 29.) 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).

         III. DISCUSSION

         Claimant alleges that her case must be remanded because (1) the ALJ committed reversible error by failing to weigh Dr. Luke's opinion, which also led to the ALJ improperly weighing Dr. Neiman's opinion and then to the ALJ adopting an incorrect RFC, and (2) the ALJ was not properly appointed under Lucia v. SEC, 138 S.Ct. 2044 (2018). I will address each of Claimant's arguments in turn.

         A. Claimant's Injury and Relevant Medical Evidence

         1. Claimant's injury

         Claimant worked at Aldi grocery stores beginning in 1997. (AR at 234-37, 258.) Claimant sustained what she describes as a “repetitive work injury” in 2011. (Id. at 92-94, 301.) At the time of her alleged onset of disability date, Claimant was the manager of an Aldi store and was required to unload stock and lift and carry heavy trays of merchandise, which she found increasingly difficult to do because of neck and shoulder problems. (Id. at 93.) Claimant eventually had three surgeries to repair the problems, but was dismissed from her position at Aldi because she still could not perform the essential duties of her job. (Id. at 94, 240.)

         2. Dr. Chad Abernathy

         Dr. Chad Abernathy was Claimant's treating surgeon. (AR at 609-10.) In June 2014, he performed a C5-6 discectomy and fusion and removed C4-5 hardware from a previous procedure Claimant had undergone. (Id.) On July 30, 2014, Dr. Abernathy wrote Claimant a prescription to “occupational medicine” for the therapists in that office “to determine work ability.” (Id. at 627.) On the same date, he wrote another prescription stating that Claimant could “return to work based on occupational med[icine's] recommendations.” (Id. at 626.) As will be discussed below, the parties do not agree as to whether Dr. Abernathy provided an opinion on Claimant's functional limitations.

         3. Physical Therapist Jill Kuyava

         On September 30, 2014, Ms. Jill Kuyava conducted Claimant's functional capacity evaluation (“FCE”) for “occupational medicine.” (Id. at 631-42.) Ms. Kuyava concluded that Claimant could perform work with the following limitations:

• Waist to floor lifting-45 lbs., occasionally
• Waist to crown lifting-25 lbs., occasionally
• Bilateral carrying-40 lbs., occasionally
• Left unilateral carrying-25 lbs., occasionally
• Forward reaching-Frequently
• Overhead reaching-Frequently
• Sustained work overhead-Occasionally

(Id. at 631.)

         4. Dr. Lloyd John Luke

         Dr. Lloyd John Luke is the Director of Occupational Health Services at Unity Point Health Occupational Health Services. He saw Claimant on September 11, 2014 “for the purpose of writing work restrictions for her.” (Id. at 681.) In a September 12, 2014 letter addressed to Jenifer Vargo at Aldi Foods, Inc., Dr. Luke documented the following restrictions: “No lifting below knee or above shoulder level [and] [n]o gripping, twisting or lifting or with left arm outstretched.” (Id.) Dr. Luke stated that these were temporary restrictions, that he had ordered an FCE that he expected to be “accomplished within the next two weeks, ” and that he would adjust his restrictions based on the outcome of that FCE. (Id.) On October 7, 2014, Dr. Luke again evaluated Claimant, this time for the purpose of “writing permanent work restrictions.” (Id. at 682.) In conjunction with this evaluation, Dr. Luke reviewed Ms. Kuyava's September 30, ...


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