United States District Court, D. Nebraska
OSCAR A. LEIVA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security; Defendant.
MEMORANDUM AND ORDER
F. ROSSITER, JR. UNITED STATES DISTRICT JUDGE.
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.
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. 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.
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.
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.
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.
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.
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.
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.
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.
did not specifically ask North how a finding that Leiva is
illiterate would impact the other work she identified during
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
Standard of Review
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).
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).
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.
Eligibility for Disability Benefits and Supplemental Security
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 ...