United States District Court, N.D. Iowa, Eastern Division
REPORT AND RECOMMENDATION
A. Roberts, United States Magistrate Judge.
Cristina Vallecillo (“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.
Claimant was born on December 14, 1955. (AR at 295.) Claimant
is a high school graduate and attended two years of college.
(Id. at 327.) Claimant allegedly became disabled due
to visual impairments, diabetes, arthritis in her hands, and
asthma. (Id. at 207.) Claimant's alleged onset
of disability date was November 9, 2012. (Id. 295.)
Claimant filed an application for Social Security disability
benefits on January 8, 2015. (Id.) She filed an
application for supplemental security income on January 5,
2015. (Id. at 242.) Claimant was initially denied
benefits on February 5, 2015 and February 23, 2015.
(Id. at 206-15, 242.) Reconsideration was denied on
July 22, 2015. (Id. at 134.) Claimant filed a
Request for Hearing on August 13, 2015. (Id. at
240-41.) A telephonic hearing was held on May 23, 2017 with
ALJ Gerald Meyr and a vocational expert (“VE”) in
Kansas City, Missouri and Claimant, her counsel, and a
hearing reporter in Waterloo, Iowa. (Id. at 173-205,
259.) Claimant and the VE both testified. (Id. at
entered an unfavorable decision on December 7, 2017.
(Id. at 131-50.) On January 18, 2018, Claimant filed
a Request for the Appeals Council to review the ALJ's
decision. (Id. at 292-94.) The Appeals Council found
there was no basis to review the ALJ's decision on April
24, 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.
13, 2018, Claimant timely filed her complaint in this Court.
(Doc. 4.) All briefs were filed by January 23, 2019. On
January 23, 2019, the Honorable Charles J. Williams, United
States District Court Judge, referred the case to me for a
Report and Recommendation.
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 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).
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).
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. §
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
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 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).
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
The ALJ'S Findings
made the following findings at each step regarding
Claimant's disability status.
one, the ALJ found that Claimant had not engaged in
substantial gainful activity since November 9, 2012, the
alleged onset date. (AR at 136.)
two, the ALJ found that Claimant suffered from the following
severe impairments: obesity, retinopathy, uveitis, glaucoma,
cataracts, retinal edema, and osteoarthritis of both
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 137.) Specifically, the ALJ considered the
claimant's retinopathy under listing 2.02 for loss of
central visual acuity and claimant's joint impairment
(osteoarthritis) under listing 1.02 for major dysfunction of
a joint. (Id. at 138.)
four, the ALJ found that Claimant had the RFC to perform
medium work with the following limitations:
The claimant can never climb ladders, ropes, or scaffolds.
The claimant's handling of objects, which is gross
manipulation, is limited to frequently with the bilateral
upper extremities. The claimant's fingering, which is
fine manipulation of objects no smaller than the size of a
paper clip, is limited to bilaterally and frequently with the
upper extremities. The claimant's feeling is limited to
bilaterally and frequently with the upper extremities. The
claimant should avoid any exposure to unshielded moving
mechanical parts, should have no operation of commercial
vehicles and should have no exposure to unprotected heights.
The claimant should have no exposure to chemicals. The
claimant is limited to occupations that would require
occasional near and far acuity including depth perception.
(Id.) The ALJ noted that he was limiting
Claimant's RFC to the medium level base, in part, because
of “testimony about lifting putting pressure on
[Claimant's] eyes.” (Id. at 142.) The ALJ
also found that Claimant was not capable of performing any of
her past relevant work. (Id. at 143.)
five, the ALJ found that there were jobs that existed in
significant numbers in the national economy that Claimant
could perform, including counter supply worker, linen room
attendant, and change house attendant. (Id. at 144.)
Therefore, the ALJ concluded that Claimant was not disabled.
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. 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
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)).
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. 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).
(1) alleges the ALJ committed reversible error by failing to
give good reasons for assigning no weight to the bending and
lifting restrictions in the opinion of Claimant's
treating ophthalmologist and (2) challenges the validity of
the ALJ's decision because she contends the ALJ was not
properly appointed under Lucia v. SEC, 138 S.Ct.
2044 (2018). (Doc. 13 at 1.)
The ALJ properly explained his reasons for assigning no
weight to the bending and lifting restrictions in Dr.
argument is a narrow one. Dr. Folk's lifting and bending
restrictions comprise only part of his opinion. Claimant does
not take issue with how the ALJ weighed the rest of Dr.
Folk's opinion or with any other part of the ALJ's
RFC. The following physicians provided medical opinions in
Dr. James Folk
James Folk is Claimant's treating ophthalmologist. (Doc.
13 at 4.) Dr. Folk began treating Claimant on November 9,
2012 and wrote his opinion on April 19, 2017. In relevant
part, Dr. Folk stated that Claimant was diagnosed with
diabetic macular edema in both eyes, that her prognosis was
guarded, that her symptom was blurred vision, and that the
best visual acuity correction she achieved was 20/60 in her
right eye and 20/100 in her left eye. (AR at 834.) Dr. Folk opined
that Claimant can occasionally perform work activities
involving “near [visual] acuity, ” “far
[visual] acuity, ” and depth perception. (Id.
at 835.) Dr. Folk further opined that Claimant can never
perform work activities involving “[visual]
accommodation.” (Id.) Dr. Folk further opined
that Claimant was capable of avoiding ordinary work hazards,
“such as boxes on the floor, doors ajar, [and]
approaching people or vehicles, ” and that she could
work with large objects. (Id.) In addition, Dr. Folk
opined that Claimant could lift and carry 20 pounds in a
competitive work situation, but did not fill out the portion
of the form that asked him to check how often she could do
this (i.e., never, rarely, ...