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Wieden v. Saul

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

July 25, 2019

JACOB R. WIEDEN, Plaintiff,
ANDREW M. SAUL[1], Commissioner of Social Security, Defendant.


          Mark A. Roberts, United States Magistrate Judge

         Plaintiff, Jacob R. Wieden (“Claimant”), seeks judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying his application for supplemental security income benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et. seq. 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 ALJ's decision be reversed and the case remanded for reconsideration consistent with this Order.

         I. BACKGROUND

         I adopt the parties' Joint Statement of Facts (Doc. 11) and therefore only summarize them here. I point to additional facts in the record where they are relevant to this Report and Recommendation. This is an appeal from a denial of a request for supplemental security income (“SSI”) benefits. Claimant was born on January 22, 1997. (AR[2] at 11.) He completed high school. (Id. at 33.) Claimant's Application for Supplemental Security Income alleges he has been unable to work since his date of birth and lists as the basis for his disability “most likely depression and anxiety disorders.” (Id. at 243-44.)

         The claim was filed on January 5, 2015. (Id. at 44.) Claimant was initially denied benefits on May 7, 2015. (Id. at 159.) Upon reconsideration, his claim was denied. (Id. at 173.) On May 25, 2017, ALJ Michael D. Burrichter held a hearing and on October 4, 2017, issued an unfavorable decision holding Claimant was not disabled. (Id. at 74-113.)

         At the May 25, 2017 hearing, Claimant was represented by counsel. (Id. at 75.) The ALJ received testimony from Claimant, Andrea Lansing (i.e., Claimant's residential and post-residential therapist) and a vocational expert Jerry Beltramo. Their testimony is discussed in the Statement of Facts (Doc. 11) and below.

         A. Claimant's History of Mental Health Issues

         The record is replete with evidence of Claimant's struggles with anger and behavioral problems since he was a kindergartner. (AR at 474.) His disruptive behavior in middle school resulted in a Behavior Intervention Plan. (Id. at 316-21.) He was placed in foster care in 2012, but was removed following his assaultive behavior toward his foster parents. (Id. at 341.) He was placed in a licensed foster group home by an order of a juvenile court on June 13, 2013 (i.e., at age 16 and one-half). (Id. at 343.) Claimant received his first psychiatric assessment and consultations at Lutheran Services in Iowa in August 2013. (Id. at 475-76.) The unnamed evaluator noted Claimant's multiple behavioral problems, as well as his difficulty with depression and anxiety, and ultimately diagnosed him with dysthymia and anxiety disorder not otherwise specified. (Id.)

The child was placed at Bremwood Lutheran Children's Home in Waverly Iowa, on June 27, 2013. He has progressed to Level 4.8 and will soon transition to pre-independent living in the Exodus program he is attending public school and receiving above average grades. He seeks to graduate from high school and attend college. The child has successful home visits, however, there is no plan to return him home after discharge from foster group care but rather to progress to supervised apartment living.

(Id. at 338.)

         In June 2014 (i.e., when he was approximately 17 and one-half years of age), Claimant showed some progress, although he still struggled in the group home environment with chores and other job-related tasks. (Id. at 443.) Despite these ongoing struggles, Claimant was discharged into Supervised Apartment Living on December 1, 2014 having “completed his residential treatment goals.” (Id. at 477.) Nevertheless, the record details his continued struggles with aggressive behavioral problems, as well as his difficulties with his mood disorder, anxiety disorder and depressive disorder, even in this controlled atmosphere. (Id. at 478.)

         Claimant was evaluated by Paul M. Conditt, Psy.D. on November 20, 2014. Dr. Conditt noted, “Jacob Wieden is a 17-year-old young man who will age out of the foster care system in January when he turns 18.” (Id. at 456.) Among other diagnoses, Dr. Conditt noted anxiety disorder and “need for residential placement.” (Id. at 457.) Dr. Conditt's opinions are is discussed in the ALJ's decision. (Id. at 20-21.)

         Dr. Marvin Piburn, is Claimant's treating psychiatrist. The ALJ's decision to give his opinion only partial weight is the basis for Claimant's only substantive objection to the ALJ's ruling. The ALJ explained his decision to afford Dr. Piburn's opinion only partial weight as follows:

[I]n particular, they are not consistent with the educational assessment at Exhibit 7E which, while supportive of limitations does not indicate limitations as extreme as those assessed by Dr. Piburn. It is inconsistent with the assessment in Exhibit 2F, which was grossly normal and indicated that the claimant would have the abilities to attend college. Likewise, it is inconsistent with the claimant's own testimony. As discussed further below, the claimant testified that he is picky with regard to jobs and that there are several jobs that he would not do. He also described himself as “basically a lazy person.” Given all of these factors, Dr. Piburn's opinion has been given only partial weight.

(Id. at 31.) Exhibit 2F is Dr. Conditt's report described above. Exhibit 7E is the educational assessment prepared by Kevin McRae in March 2015. Thus, both were created before Claimant turned 18 and “aged out” of the foster care system and the structured living environments that had enabled him to function and held out some hope Claimant could even attend college. (Id. at 457.) The educational assessment does supply some support for Dr. Piburn's concerns:

Anxiety disorder - panic attacks - has to sometimes leave school in order to de-escalate. . . . Jacob becomes physically agitated as he becomes anxious. He often was to leave a particular class or setting if he is more anxious due to peer comments or perceived social pressure. He often takes peer comments out of context and creates problems where none exist. . . . Jacob is a very bright student with a profound anxiety disorder. He has trouble forming lasting relationships with peers and sometimes seeks attention from adults via his anxiety. Jacob's anxiety is pervasive and occurs in all settings.

(Id. at 380-81) (emphasis added). Notably, Dr. Conditt's report is mostly concerned with Claimant's academic performance and intelligence. (Id. at 446-58.) The purpose of Dr. Conditt's evaluation was “to determine what supports [Claimant would] need” when he age[d] out of the foster care system.” (Id. at 456.) Dr. Conditt noted on Axis IV of the DSM-IV diagnosis, “need for residential placement.” (Id. at 457.) “Axis IV refers to psychosocial and environmental problems that may affect the diagnosis, treatment, and prognosis of mental health disorders.” Am. Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 29 (4th ed. 1994).

         B. The ALJ's Decision

         The ALJ's decision analyzed Claimant's disability and entitlement to benefits both as a child and as an adult. (Id. at 12-15.) The ALJ found that prior to reaching age 18, Claimant at the following severe impairments: obesity[3]; depression/bipolar disorder; anxiety with panic; and borderline personality disorder. (Id. at 16.) He also found that Claimant did not meet any of the listed impairments for children, nor did his impairments medically equal any of those listed impairments. Then, having determined that Claimant did not have an impairment or combination of impairments that functionally equaled the listings (Id. at 17-26), he concluded that Claimant was not disabled before the age of 18. (Id. at 26.)

         While the ALJ determined that Claimant did not have new impairments since becoming an adult, he did conclude the previously-identified impairments remained severe. (Id. at 26-27), but did not meet or medically equal any listed impairments for adults. (Id. at 27-28.)[4] Ultimately, the ALJ determined Claimant was not disabled as an adult. (Id. at 34.)

         The ALJ issued his decision denying Claimant benefits on October 4, 2017. (Id. at 11-35.) On October 24 2017, Claimant filed a Request for the Appeals Council to review the ALJ's decision. (Id. at 240.) On May 15, 2018, the Appeals Council found there was no reason to review the ALJ's decision. (Id. at 1-6.) 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 13 2018, Claimant timely filed the instant complaint in this Court. (Doc. 4.) By February 15, 2019, 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.


         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 the claimant's 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. Claimant's ...

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