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Klingbeil v. Saul

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

August 16, 2019

STUART LEE KLINGBEIL, Claimant,
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Commissioner.

          REPORT AND RECOMMENDATION

          MARK A. ROBERTS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Stuart Lee Klingbeil (“Claimant”), seeks judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying his application for disability insurance benefits under Title II of the Social Security Act and Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. 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 District Court affirm in part and reverse in part 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 June 29, 1968. (AR[2] at 41.) Claimant has a high school education. (Id.) Claimant allegedly became disabled due to a stroke, a heart murmur, high blood pressure, and “no balance.” (Id. at 270.) The alleged onset of disability date was February 11, 2015. (Id. at 266.) Claimant filed applications for Social Security disability benefits and SSI on June 2, 2015. (Id. at 241-56.) Claimant was initially denied benefits on December 3, 2015. (Id. at 145-50.) Claimant filed for reconsideration on February 4, 2016 and reconsideration was denied on March 15, 2016. (Id. at 152-66.) Claimant filed a Request for Hearing on April 7, 2016. (Id. at 167-69.) On August 28, 2017, a video hearing was held with Administrative Law Judge (“ALJ”) Anthony Saragas and Vocational Expert (“VE”) Stephen Schill in Omaha, Nebraska and Claimant and his then-counsel Bryan J. Arneson in Sioux City, Iowa. (Id. at 34-76.) Claimant and the VE both testified. (Id. at 41-75.)

         The ALJ entered an unfavorable decision on November 28, 2017. (Id. at 7-22.) Claimant timely appealed the ALJ's decision and on June 29, 2018, the Appeals Council found there was no basis to review the ALJ's decision. (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 September 4, 2018, Claimant timely filed his complaint in this Court. (Doc. 4.) All briefs were filed by April 9, 2019. On April 10, 2019, the Honorable Leonard T. Strand, Chief 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 February 11, 2015, his alleged onset date. (AR at 12.)

         At step two, the ALJ found that Claimant had the following severe impairments: “hypertension, coronary artery disease, status-post cerebral vascular accident, obesity, hyperlipidemia, chronic kidney disease, history of intracranial hemorrhage and cranial meningioma, depression, panic disorder, anxiety, post-traumatic stress disorder (PTSD), and mild neurocognitive disorder.” (Id.) The ALJ also found that Claimant had the following nonsevere impairments: psoriasis and gastroesophageal reflux. (Id. at 13.)

         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.) Specifically, the ALJ considered listings 6.05, 12.02, 12.04, and 12.06 (chronic kidney failure; neurocognitive disorders; depressive, bipolar, and related disorders; and anxiety and obsessive compulsive disorders). (Id. at 13-15.)

         The ALJ also opined that there are no listing criteria for obesity impairments and that Claimant's “obesity is not attended with the specific clinical signs and diagnostic findings required to meet or equal the requirements set forth in the listings found in any musculoskeletal, respiratory, or cardiovascular body system listing affected by obesity.” (Id. at 13.) Similarly, the ALJ opined that

[w]hile there is not a specific Listing for hypertension or hyperlipidemia, the Listing in 4.00(H)(1) and (H)(7) notes that hypertension and hyperlipidemia, because of their systemic nature, will be evaluated by reference to specific body systems affected under these Listings. . . . There is no evidence in the medical file of a specific body system so affected as to meet a listing. Therefore, the claimant's hypertension and hyperlipidemia do not meet any Listing.

(Id.) At step four, the ALJ found that Claimant had the RFC to perform a reduced range of sedentary work with the following restrictions:

[H]e can occasionally balance, stoop, kneel, crouch, crawl or climb ramps or stairs; and he must not climb ladders, ropes or scaffolds. He must not be around workplace hazards, such as moving mechanical parts or unprotected heights; and should not have exposure to extreme temperatures or pulmonary irritants, such as dusts, odors, gasses, or fumes. He should not perform more than frequent fingering, feeling and handling with the left non-dominant upper extremity. In addition, he can do no more than occasional pushing or pulling or operation of foot controls with the lower left extremity. He is limited to no more than frequent visual accommodation or sharp focus. Further, he would require a cane for ambulation. Mentally, he would be limited to simple routine repetitive tasks and instructions. He can have no more than occasional social interaction with coworkers, supervisors and the public; and can have only occasional changes in the workplace environment or routine. Lastly, he cannot engage in assembly line, fast-paced, high production, quota type work.

(Id. at 15.) The ALJ also found that Claimant was not capable of performing his past relevant work as a janitor, kitchen supervisor, machine operator, and trainer. (Id. at 20.)

         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 perform, including addresser, document preparer, and polisher of eye frames. (Id. at 21.) Therefore, the ALJ concluded that Claimant was not disabled. (Id. at 22.)

         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 the ALJ committed reversible error by (A) improperly weighing the opinion of Claimant's treating physician, Dr. Meis; (B) improperly evaluating Claimant's credibility; and (C) relying on a hypothetical that was not supported by the record. (Doc. 13 at 1.) I will address each of Claimant's arguments in the order presented. The weight the ALJ gave Dr. Meis's opinion and how the ALJ weighed Claimant's subjective complaints was reflected in the hypothetical presented to the VE.

         A. The ALJ properly evaluated the opinion of Claimant's treating physician.

         Claimant argues that the ALJ improperly weighed the opinion evidence in his case. Specifically, Claimant takes issue with the ALJ giving little weight to Dr. Meis's opinion, while giving great weight and partial weight to other opinions in the record. The following physicians provided medical opinions in this case.

         1. Dr. Steven Meis

         Dr. Meis has been Claimant's primary care physician for over twenty years. (AR at 1148.) On March 4, 2106, Dr. Meis wrote a “To Whom it May Concern” letter stating that Claimant had “uncontrolled hypertension, with subsequent hemorrhagic stroke. The stroke has resulted in significant disability, with difficulty with ambulation, memory problems, and increased anxiety and depression symptoms.” (Id. at 1147.) Dr. Meis also stated that “[a]t this point, he is unable to return to work and it is uncertain if he ever will be able to recoup his losses from the stroke.” (Id.)

         On August 1, 2017, Dr. Meis completed a check-box, fill-in-the-blank form opinion stating that Claimant has all of the following symptoms: “balance problems, poor coordination, loss of manual dexterity, weakness, slight paralysis, unstable walking, falling spells, numbness or tingling, pain, fatigue, vertigo/dizziness, headaches, difficulty remembering, confusion, depression, emotional lability, difficulty solving problems, problems with judgment, double or blurred vision, and speech/communication difficulties.” (Id. at 1148.) In Dr. Meis's opinion, Claimant's maximum ability to stand and walk during an 8-hour workday would be about two hours, Claimant's maximum ability to sit at one time is ten-to-fifteen minutes, and Claimant's ability to stand at one time is five-to-ten minutes. (Id. at 1149.)

         According to Dr. Meis, Claimant is limited to lifting and carrying up to ten pounds occasionally and up to 50 pounds rarely. (Id. at 1150.) Dr. Meis opined that Claimant could never twist, crouch/squat, or climb ladders; could occasionally climb stairs; and would have significant limitations with reaching, handling and fingering with his left hand and arm. (Id.) Dr. Meis also opined that Claimant had environmental restrictions related to heat, cold, humidity, fumes, and dust. (Id.) Based on these restrictions, Dr. Meis concluded that Claimant was capable of low stress work, that he was likely to be “off task” 25% or more of a typical work day due to his impairments, and that Claimant would likely miss on average more than four days of work a month. (Id. at 1151.) Dr. Meis provided no support or citations to medical records for any of his conclusions. The only note Dr. Meis wrote was when asked to describe other limitations that would affect Claimant's ability to work at a regular job on a sustained basis. Dr. Meis wrote: “High levels of Anxiety . . . memory and task management poor with increased stress due to above.” (Id.)

         The ALJ gave Dr. Meis's opinion little weight. Dr. Meis's opinion will be discussed below.

         2. Consulting Psychologist Anthony T. Larson, Psy.D., L.P.

         On November 19, 2015, Dr. Larson examined Claimant to help determine his eligibility for benefits. Dr. Larson found that Claimant's depression and anxiety screenings were both positive and that Claimant reported symptoms that corresponded to both of these conditions. (Id. at 929.) In relevant part, Dr. Larson diagnosed Claimant with major depressive disorder, a panic disorder, PTSD related to a car accident, generalized anxiety disorder, and mild vascular neurocognitive disorder. (Id. at 929-30.)

         Dr. Larson opined that Claimant's anxiety and cognitive issues are most likely to be problematic in the workplace. (Id. at 931.) However, Dr. Larson also opined that Claimant “should be able to understand and carry out instructions, interact appropriately with others, exercise proper judgment, and remain flexible in the workplace.” (Id.)

         The ALJ gave Dr. Larson's opinion “great weight” because Dr. Larson's opinion was “consistent with ...


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