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Leiva v. Berryhill

United States District Court, D. Nebraska

July 24, 2019

OSCAR A. LEIVA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.

          MEMORANDUM AND ORDER

          ROBERT F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE.

         Plaintiff Oscar A. Leiva (“Leiva”) seeks judicial review of the final decision of defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“Commissioner”), denying Leiva's claims for disability benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 401 et seq., and for supplemental security income under Title XVI of the Act, 42 U.S.C. § 1381 et seq. Now pending before the Court are Leiva's Motion for an Order Reversing the Commissioner's Decision (Filing No. 14) and the Commissioner's Motion to Affirm Commissioner's Decision (Filing No. 19). For the reasons below, the Court reverses the Commissioner's denial of benefits and remands for further review.

         I. BACKGROUND

         Leiva was born in 1975. The administrative law judge (“ALJ”) assigned to Leiva's case found he is illiterate but able to communicate in English, though Spanish is his first language.[1] Leiva worked as a painter until his alleged disability onset date of October 1, 2014. He protectively applied for disability benefits on March 26, 2015, and for supplemental security income on March 23, 2015, alleging disability due to back pain and depression.

         The Social Security Administration (“SSA”) denied both claims initially on July 29, 2015, and on reconsideration on November 23, 2015. Leiva requested a hearing. At the hearing on September 7, 2017, Leiva and impartial vocational expert Kimberley North (“North”) gave sworn testimony. Leiva was represented by counsel and testified without an interpreter. North participated in the hearing by telephone. Both Leiva's counsel and the ALJ questioned both witnesses.

         At the hearing, Leiva testified he does not read and write well and the highest level he attained in school was the fifth grade. In 2010, Leiva injured his back in a car accident when the car he was in was struck from behind. He was not wearing a seatbelt. Leiva began to have pain a year later. He saw a doctor but continued to work. While working as a painter for Pierson Painting, Leiva again injured his back when he fell off a ladder. Leiva worked as a painter on his own for a year but has not worked for pay since 2014. Leiva testified he tried to kill himself in 2015 by driving into a tree.

         Leiva reported he takes medications for back pain, anxiety, and high blood pressure. Leiva stated he saw Margarita Rodriguez Escobar, M.D. (“Dr. Rodriguez”) for primary care every month for about two-and-a-half years.

         When asked about his limitations, Leiva testified he cannot stay in one position and has to move every ten minutes. He explained he is only able to sleep a couple of hours per night and sometimes sleeps for a half hour twice during the day because his medication makes him tired. Leiva reported some soreness in his hands in the morning from arthritis but stated cold water helped his hands return to normal. Leiva said he could use his hands to use zippers and buttons and could lift a gallon of milk but not heavy things.

         Describing his typical day, Leiva testified he gets up in the morning to tell his two children to get ready for school. After his children leave, Leiva takes the dog outside and sits on the porch. After a while he goes back in, alternating between the house and the porch “all day long.” Leiva watches some television and looks for news on his phone. Leiva does not leave the house to attend his children's soccer games because traveling in the car and potholes in the street cause him back pain. Leiva feels safer in the house.

         In a Daily Activities and Symptoms Report, Leiva stated his daily activities include attending church every Sunday, handling his own money, following a treatment program, and watching football/soccer games on television for ninety minutes.

         After Leiva finished testifying, the ALJ presented some hypothetical situations to North. In his first hypothetical, the ALJ asked North to assume someone of Leiva's age, education, and work experience. He also had her assume a person limited to sedentary work generally involving “lifting and carrying no more than ten pounds occasionally, less than ten pounds frequently, standing and walking up to two hours, sitting six or more hours in an eight-hour work day” with “stooping and balancing . . . on an occasional basis.” Given those limitations, North testified the hypothetical person would not be able to perform the past work North identified. North testified, however, that there were other jobs that would fall within those limitations, namely, document preparer, addresser, and call-out operator. Based on her professional experience, North explained the off-task tolerance in those jobs was ten to fifteen percent.

         The ALJ did not specifically ask North how a finding that Leiva is illiterate would impact the other work she identified during the hearing.

         On January 18, 2018, the ALJ determined Leiva is not disabled under the Act because he is capable of performing “jobs that exist in significant numbers in the national economy.” Leiva appealed, and on July 27, 2018, the Appeals Council denied review, making the ALJ's decision the Commissioner's final decision in his case. See, e.g., Combs v. Berryhill, 878 F.3d 642, 645 (8th Cir. 2017). Leiva seeks judicial review of that decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. DISCUSSION

         A. Standard of Review

         Section 405(g) entitles a claimant who has unsuccessfully completed the administrative-review process to judicial review of the Commissioner's final decision in federal court. See Smith v. Berryhill, 587 U.S.,, 139 S.Ct. 1765, 1772-73 (2019). In conducting that review, the Court does “not reweigh the evidence, ” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003), or retry the issues de novo, see Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009). The Court must affirm the Commissioner's decision if the “denial of benefits complies with the relevant legal requirements and is supported by substantial evidence in the record as a whole.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).

         The threshold for substantial evidence “is not high.” Biestek v. Berryhill, 587 U.S.___, ___, 139 S.Ct. 1148, 1154 (2019) (noting the Supreme Court has famously described it as “more than a mere scintilla” (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))). “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).

         “In considering whether existing evidence is substantial, [the Court] consider[s] evidence that detracts from the Commissioner's decision as well as evidence that supports it.” Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000). Even where a claimant has counsel, “the ALJ bears a responsibility to develop the record fairly and fully, independent of the claimant's burden to press his case.” Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). “If, after review, [the Court] find[s] it possible to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, [the Court] must affirm the denial of benefits.” Wiese, 552 F.3d at 730 (quoting Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996)).

         B. Eligibility for Disability Benefits and Supplemental Security Income

         Under the Act, Leiva must be disabled to qualify for disability benefits and supplemental security income. 42 U.S.C. §§ 423(a)(1)(E), 1382(a)(1). To prove he is disabled, Leiva must show he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. §§ 423(d)(1)(A), 1382c(a)(3)(A). Leiva is disabled under the Act “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his ...


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