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Vallecillo v. Saul

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

July 25, 2019

CRISTINA VALLECILLO, Claimant,
v.
ANDREW M. SAUL, Commissioner of Social Security, [1]Defendant.

          REPORT AND RECOMMENDATION

          Mark A. Roberts, United States Magistrate Judge.

         Plaintiff, 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 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. Claimant was born on December 14, 1955. (AR[2] 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 178-204.)

         The ALJ 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.

         On June 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.

         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 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 November 9, 2012, the alleged onset date. (AR at 136.)

         At step two, the ALJ found that Claimant suffered from the following severe impairments: obesity, retinopathy, uveitis, glaucoma, cataracts, retinal edema, and osteoarthritis of both hands.[3] (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 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.)

         At step 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.)

         At step 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. (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 (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.)

         A. The ALJ properly explained his reasons for assigning no weight to the bending and lifting restrictions in Dr. Folk's opinion.

         Claimant's 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 this case.

         1. Dr. James Folk

         Dr. 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.[4] (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.”[5] (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, ...


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