Folkers v. Saul

• Decision Date: 30 August 2019
• Docket Number: No. 18-CV-77-LTS,18-CV-77-LTS
• Parties: CATHY A. FOLKERS, Claimant, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of Iowa

CATHY A. FOLKERS, Claimant, v. ANDREW M. SAUL,Commissioner of Social Security,¹ Defendant.

No. 18-CV-77-LTS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CEDAR RAPIDS DIVISION

August 30, 2019

REPORT AND RECOMMENDATION

Plaintiff Cathy A. Folkers ("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 and for Supplemental Security Income benefits ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. Sections 1381-85. 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 in part and reverse and remand the Commissioner's decision in part.

I. BACKGROUND

I adopt the facts set forth in the Parties' Joint Statement of Facts (Doc. 13) and only summarize the pertinent facts here. Claimant was born on November 26, 1964. (AR² at 316.) Claimant is a high school graduate. (Id. at 351.) She allegedly became disabled due to crushed vertebrae, severe depression, disc degeneration, "no cartilage in knees," TMJ, arthritis in her hips and neck, and suspected fibromyalgia.³ (Id. at 350.) Claimant's alleged onset of disability date was February 1, 2009. (Id. at 316, 318.) Claimant filed applications for Social Security disability benefits and SSI on September 8, 2014. (Id. at 316-23.) Claimant's claims were originally denied on December 12, 2014. (Id. at 197-205.) Reconsideration was denied on March 17, 2015. (Id. at 212-29.) Claimant filed a Request for Hearing on April 8, 2015. (Id. at 231-32.) A video hearing was held on March 16, 2017 with Claimant and her attorney, Phillip Seidl, in Cedar Rapids, Iowa and ALJ Gerald Meyr, vocational expert ("VE") Amy Salva, and hearing reporter Judy Deere in Kansas City, Missouri. (Id. at 64-101.) Claimant and the VE testified. (Id. at 71-99.)

The ALJ entered an unfavorable decision on June 26, 2017. (Id. at 11-26.) On August 25, 2017, Claimant filed a Request for the Appeals Council to review the ALJ's decision. (Id. at 309-15.) On May 23, 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 July 30, 2018, Claimant timely filed her complaint in this Court. (Doc. 3.) All briefs were filed by May 30, 2019. On that same date, 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

Before the ALJ began his five-step analysis, he noted that on February 8, 2012, ALJ Jo Ann L. Draper found Claimant not disabled after conducting a hearing on Claimant's previous disability claim. (AR at 10.) By alleging a disability onset date prior to February 8, 2012, Claimant was impliedly requesting the ALJ to reopen and revise that decision. (Id. at 10-11.) The ALJ found no basis upon which to do so. (Id. at 11.) Therefore, the ALJ held that the relevant time period for his decision was from February 8, 2012 onward.⁴ (Id.)

The ALJ made the following findings at each step of the five-step process regarding Claimant's disability status.

At step one, the ALJ found that Claimant had not engaged in substantial gainful activity since February 1, 2009, the alleged onset date. (Id. at 13.)

At step two, the ALJ found that Claimant suffered from the following severe impairments: "degenerative disk disease of the cervical spine; osteoarthritis of hip and right knee; lumbago; major depressive disorder; adjustment disorder; generalized anxiety disorder; post-traumatic stress disorder; emphysematous changes⁵; basilar subsegmental atelectasis; and reactive airway disease." (Id.) (abbreviations omitted). The ALJ also found that Claimant's "goiter, hypothyroidism, temporomandibular joint disorder, tinnitus, Eustachian tube dysfunction, abdominal pain, diverticulitis of sigmoid colon; hypertension; thyromegaly, otitis media, bronchitis, restless leg syndrome, congestive heart failure, and substance abuse disorder" were nonsevere impairments. (Id. at 13-14) (abbreviations omitted.)

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 14.) Specifically, the ALJ considered Claimant's osteoarthritis under listing 1.02 (major dysfunction of a joint(s)); degenerative disc disease under listing 1.04 (disorders of the spine); breathing problems under listing 3.00 (respiratory disorders); and mental impairments under listings 12.04 (depressive, bipolar, and...