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Moss v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

March 20, 2019

SAMUEL MOSS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          NOELLE C. COLLINS UNITED STATES MAGISTRATE JUDGE.

         This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner denying the application of Samuel Moss (“Plaintiff”) for Disability Insurance Benefits (“DIB”) under Title II, 42 U.S.C. § 401, et seq. Plaintiff filed a brief in support of the Complaint (Doc. 12), Defendant filed a brief in support of the Answer (Doc. 17), and Plaintiff filed a reply brief (Doc. 18). The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 8).

         I. PROCEDURAL HISTORY

         Plaintiff filed his application for DIB on September 25, 2014 (Tr. 10).[1] Plaintiff was initially denied on December 1, 2014, and he filed a Request for Hearing before an Administrative Law Judge (“ALJ”) (Tr. 164-71). After a hearing, by decision dated March 29, 2017, the ALJ found Plaintiff not disabled (Tr. 7-29). On December 5, 2017, the Appeals Council denied Plaintiff's request for review (Tr. 1-4). As such, the ALJ's decision stands as the final decision of the Commissioner.

         II. DECISION OF THE ALJ

         The ALJ determined that Plaintiff has not engaged in substantial gainful activity since the alleged onset date of July 17, 2014, through his date last insured of December 31, 2016 (Tr. 12). The ALJ further found Plaintiff has the severe impairments of diabetes mellitus; hypertension and evidence of ischemia on cardiac testing; obstructive sleep apnea; asthma with decreased pulmonary functioning on testing; degenerative joint disease of the knees with status post right knee surgery and replacement while in high school; lumbago with degenerative disc disease of the lumber and cervical spines, each with herniation; bipolar disorder; anxiety disorder with panic and agoraphobia; and obesity (Tr. 12). However, the ALJ determined that no impairment or combination of impairments met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 13-16).

         After considering the entire record, the ALJ determined Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work[2] with the following limitations (Tr. 16). He is able to lift, carry, push, and pull 10 pounds occasionally and less than 10 pounds on a more frequent basis (Id.). He is able to sit 6 out of 8 hours as well as stand or walk 2 out of 8 hours, for a combined total of 8 out of 8 hours (Id.). There is to be no ambulating over uneven surfaces, such as rutted construction sites, without an ambulation assistive device (Id.). In addition, there is to be no ambulating over slippery surfaces, such as wet shop floors or icy loading docks (Id.). Plaintiff may use a hand held assistive device for prolonged ambulation in excess of 25 meters (Id.). He may not climb ladders, ropes, or scaffolds (Id.). Plaintiff is limited to occasional postural activities of stooping, kneeling, crouching, crawling, and climbing of ramps and stairs, and he is also limited to occasional overhead reaching (Id.). There is to be no concentrated exposure to pulmonary irritants such as smoke, dusts, odors, fumes, gases, and poor ventilation (Id.). There is to be no concentrated exposure to extreme heat, extreme cold, or to extreme humidity (Id.). He must avoid hazards of dangerous unprotected heights and dangerous unprotected machinery (Id.). Plaintiff is able to understand, remember, and carry out simple tasks that are routine (Id.). He is able to use judgment in making commensurate work-related decisions (Id.). He is able to interact appropriately with the general public occasionally and superficially and away from crowds, and he is able to interact appropriately with coworkers occasionally and appropriately with supervisors (Id.). Plaintiff is limited to a reduced stress work environment defined as having to make occasional commensurate decisions and no more than occasional changes in routine in a normal work setting (Id.).

         The ALJ found Plaintiff unable to perform any past relevant work (Tr. 22). However, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including semiconductor bonder, eyewear assembler, and wafer breaker (Tr. 22-23). Thus, the ALJ concluded Plaintiff is not disabled (Tr. 24). Plaintiff appeals, arguing a lack of substantial evidence to support the Commissioner's decision (Doc. 12).

         III. LEGAL STANDARD

         Under the Social Security Act, the Commissioner has established a five-step process for determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “If a claimant fails to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as “any impairment or combination of impairments which significantly limits [claimant's] physical or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may be terminated at step two only when the claimant's impairment or combination of impairments would have no more than a minimal impact on [his or] her ability to work.'” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).

         Third, the ALJ must determine whether the claimant has an impairment which meets or equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is per se disabled without consideration of the claimant's age, education, or work history. Id.

         Fourth, the impairment must prevent the claimant from doing past relevant work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ will review a claimant's RFC and the physical and mental demands of the work the claimant has done in the past. 20 C.F.R. § 404.1520(f).

         Fifth, the severe impairment must prevent the claimant from doing any other work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the Commissioner has the burden of production to show evidence of other jobs in the national economy that can be performed by a person with the claimant's RFC. Steed, 524 F.3d at 874 n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004) (citing 68 Fed.Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate RFC remains on the claimant, even when the burden of production shifts to the Commissioner at step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ's decision, the decision must be affirmed if it is supported by substantial evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).

         It is not the job of the district court to re-weigh the evidence or review the factual record de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the quantity and quality of evidence is enough so that a reasonable mind might find it adequate to support the ALJ's conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004). Thus, an administrative decision which is supported by substantial evidence is not subject to reversal merely because substantial evidence may also support an opposite conclusion or because the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.

         To determine whether the Commissioner's final decision is supported by substantial evidence, the court is required to review the administrative record as a whole and to consider:

(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant's treating physicians;
(4) The subjective complaints of pain and description of the claimant's physical activity and impairment;
(5) The corroboration by third parties of the claimant's physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions which fairly set forth the claimant's physical impairment; and
(7) The testimony of consulting physicians.

Brand v. Sec'y of Dep't of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. ...


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