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Zortman v. Berryhill

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

May 14, 2019

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


          Mark A. Roberts, United States Magistrate Judge

         Plaintiff, Janean Marie Zortman (“Claimant”), seeks judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying her application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Sections 401-34. 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 disability insurance benefits (“DIB”). Claimant was born on December 31, 1964. (AR[1] at 40.) Claimant has a high school education. (Id. at 20.) Claimant allegedly became disabled due to a back injury. (Id. at 197.) The original alleged onset of disability date was December 1, 2014 (Id. at 70, 169-70), which Claimant later amended to be December 31, 2014, the date she turned fifty years old. (Id. at 16, 39.) Claimant filed an application for Social Security disability on March 23, 2015. (Id. at 70, 169-70.) Claimant was initially denied benefits on May 27, 2015. (Id. at 96-99.) Claimant filed for reconsideration on June 5, 2015 and the reconsideration was denied on June 18, 2015. (Id. at 100, 107-08.) Claimant filed a Request for Hearing on June 23, 2015. (Id. at 107-08.) A hearing was held in Omaha, Nebraska on April 28, 2017, where Claimant and the vocational expert both testified. (Id. at 34-69.)

         The ALJ entered an unfavorable decision on July 11, 2017. (Id. at 13-33.) On September 9, 2017, Claimant filed a Request for the Appeals Council to review the ALJ's decision. (Id. at 165-68.) The Appeals Council found there was no basis to review the ALJ's decision on March 16, 2018. (Id. at 1-3.) 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 April 6, 2018, Claimant timely filed her complaint in this Court. (Doc. 1.) All briefs were filed by October 8, 2018. On October 9, 2018, the Honorable Leonard T. Strand, Chief United States District Court Judge, referred the case to me for a Report and Recommendation.


         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 his 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 regarding Claimant's disability status.

         At step one, the ALJ found that Claimant had not engaged in substantial gainful activity since December 31, 2014, the amended alleged onset date. (AR at 18.)

         At step two, the ALJ found that Claimant suffered from “the combined ‘severe' impairment of multi-level lumbar degenerative disc disease, status post four lumbar surgeries.” (Id.)

         At step three, the ALJ found that Claimant did not have an impairment or combination of impairments that met or equaled a presumptively disabling impairment listed in the regulations. (Id. at 21.) Specifically, the ALJ considered listings 1.02 (major dysfunction of a joint) and 1.04 (disorders of the spine resulting in compromise of a nerve root or the spinal cord). (Id.)

         At step four, the ALJ found that Claimant had the RFC to perform light work with the following limitations:

[S]he cannot use ladders, ropes, or scaffolds and can perform no more than occasional balancing, stopping, kneeling, crouching, crawling, or climbing of ramps or stairs. She should avoid concentrated exposure to temperature extremes, vibration, and workplace hazards, which are defined as unprotected heights or close proximity to dangerous, moving mechanical parts. Additionally, the claimant will need to shift positions from sitting to standing or from standing to sitting every two hours for no more than five minutes without a need to leave her workstation.

(Id. at 22.) The ALJ also found that Claimant was capable of performing past relevant work as a customer service manager and as a general merchandise salesperson, as this work is not precluded by Claimant's RFC. (Id. at 26.)

         At step five, the ALJ found in the alternative that there were other jobs that existed in significant numbers in the national economy that Claimant could also perform, including cashier II, cafeteria attendant, and counter clerk. (Id. at 27.) Therefore, the ALJ concluded that Claimant was not disabled. (Id. at 28.) 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. 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 the ALJ committed reversible error by (1) improperly evaluating the opinions of Claimant's treating physicians; (2) improperly evaluating Claimant's subjective complaints; (3) failing to complete a fair hearing; and (4) relying upon a defective hypothetical. (Doc. 15 at 3-4.) I will address each of Claimant's arguments in turn.

         A. The ALJ properly evaluated the opinions of Claimant's treating physicians.

         Claimant argues that the ALJ improperly weighed the opinion evidence in her case. Specifically, Claimant takes issue with the ALJ giving controlling weight to the opinions of the state agency physicians who reviewed her record over the opinions of her treating physicians. Dr. Lukken and Dr. Garred are classified as Claimant's treating physicians because both doctors have provided Claimant with “medical treatment or evaluation” and have had “an ongoing treatment relationship” with Claimant. 20 C.F.R. § 404.1527(a)(2).

         An ALJ's RFC must ordinarily be supported by a treating or examining source opinion to be supported by substantial evidence. See Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007); Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). “It is the ALJ's function to resolve conflicts among the opinions of various treating and examining physicians.” Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001) (noting internal citations ...

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