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Vazquez v. Saul

United States District Court, D. Nebraska

November 21, 2019

JOSEFINA VAZQUEZ, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration; Defendant.

          MEMORANDUM AND ORDER

          BRIAN C. BUESCHER, UNITED STATES DISTRICT JUDGE

         Josefina Vazquez (“Petitioner”) filed her Complaint (Filing 1-2) seeking judicial review of the Commissioner's denial of her application for disability insurance benefits and partial denial of her application for supplemental security income disability benefits and moved this Court for an order reversing the Commissioner's final decision. Filing 15. The Commissioner filed a motion to affirm the agency's final decision denying benefits. Filing 17. For the reasons stated below, the Court grants the Commissioner's motion and denies Petitioner's motion.

         I. BACKGROUND[1]

         This case involves petitioner Josefina Vazquez's applications for disability insurance benefits and supplemental social security income. The case has been remanded twice and is now before the Court on a second petition for judicial review relating to the denial of benefits, as will be discussed in greater detail below. As is relevant for purposes of this case, Petitioner was born on March 25, 1963; was forty-four years of age on her amended onset date of November 30, 2007; was fifty years old at the time of the first administrative decision denying her benefits; and was fifty-four years old by the time of the administrative decision currently at issue. Tr. 169, 204, 660, 735. She was 4 feet, 8 inches tall and weighed 138 pounds at the time of her application. Tr. 221. She did not speak English well, had a sixth-grade education, and was illiterate. Tr. 220-21, 687.

         A. Procedural History

         In August of 2011, Petitioner applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. (“Title II”) and supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 401 et seq. (“Title XVI”). Tr. 169. Petitioner alleged a disability onset date of May 1, 2005. Tr. 22. Both claims were denied initially and on reconsideration. Tr. 89, 108. A hearing was held before the administrative law judge (“ALJ”) during which Petitioner amended her alleged onset date to November 30, 2007. Tr. 47-48. On May 14, 2013, the ALJ issued a decision denying Petitioner's requests, finding she was not disabled as defined by 42 U.S.C. §§ 216(i) and 223(d) between November 30, 2007, and the date of the ALJ's decision. Tr. 22, 34. The Social Security Appeals Council (“Appeals Council”) then denied her request for review of the ALJ's decision. Tr. 14.

         Petitioner then filed a complaint seeking judicial review in the United States District Court for the Northern District of Iowa (“the Iowa Court”). See Tr. 759-761. The Commissioner moved to remand, and the Iowa Court granted the Commissioner's motion. See Tr. 759-761. On remand, the Appeals Council gathered more evidence, albeit evidence lacking significant probative value, and again denied Petitioner's requests for disability benefits. See Tr. 762-765. Petitioner then moved to reopen her prior case before the Iowa Court and argued the ALJ erred by evaluating expert opinions contrary to the evidence and correct standards. Tr. 817. Ruling on Petitioner's motion and arguments, the Honorable C.J. Williams, Magistrate Judge for the Iowa Court, recommended reversing and remanding the case for further proceedings. Tr. 821-822.

         In her recommendation, Judge Williams noted the ALJ both incorrectly gave the opinion of Petitioner's psychiatrist, Rodney Dean, M.D. (“Dr. Dean”), only “some weight” and asserted that Dr. Dean's opinions were not supported by his treatment notes. Tr. 818. Finding the record generally supported Dr. Dean's opinion, Judge Williams recommended reversal and remand because Dr. Dean's opinion was entitled to controlling weight. Tr. 821. She also recommended the ALJ consider additional treatment records of Dr. Dean. Tr. 821. Judge Williams wrote:

For the reasons set forth herein, I RESPECTFULLY RECOMMEND that the Court reverse the Commissioner's determination that claimant was not disabled and remand the case for further proceedings in which the expert treating medical opinion of Dr. Dean is given controlling weight, and that judgment be entered against the Commissioner and in favor of claimant.

Tr. 821 (emphasis in original).

         The Honorable Leonard T. Strand, District Judge for the Iowa Court, accepted Judge Williams's recommendation without modification. Tr. 809. Judge Strand issued an order (“the Order”) reversing and remanding the case for further proceedings “as discussed by Judge Williams.” Tr. 809.

         On remand from the Iowa Court for a second time, the Appeals Council remanded the case for further proceedings.[2] Tr. 823, 825. After a hearing on the consolidated claims, to be discussed further below, ALJ Jan Dutton determined that Petitioner was not disabled prior to March 24, 2013 but became disabled on that date upon reaching the age of fifty and therefore changing age category. Tr. 671, 681-83, 686-87. The ALJ's June 1, 2017 decision foreclosed Petitioner's ability to obtain Title II disability insurance benefits but granted her request for supplemental security income disability benefits. The ALJ's decision was upheld by the Appeals Council on September 14, 2018, and Petitioner timely filed the present action. Tr. 653; Filing 4.

         B. Administrative Hearing

         On February 28, 2017, the ALJ held an administrative hearing on Petitioner's consolidated claims. Tr. 700. At the beginning of the hearing, the ALJ noted new evidence was now part of the file that was received into evidence. Tr. 700-03. Petitioner then testified.

         According to Petitioner, she cannot read or write in English. Tr. 710. She used to serve food at a school and then worked as a dietary aide. Tr. 710-12. Before leaving her job in 2015 as a dietary aide due to “personal problems, at home, ” Petitioner drove twenty minutes to work. Tr. 713. She suffers from depression; jogs five times a week for ten to fifteen minutes; and tries to do cooking, cleaning, and other housework. Tr. 714-15. On a scale of zero to ten with ten being suicidal, Petitioner is at a ten and has thoughts of suicide. Tr. 719-20. She also experiences headaches due to a car crash and suffers from left leg pain. Tr. 722-24.

         Ms. Deborah Determan, a vocational expert, testified that Petitioner's past relevant work included medium unskilled work as a dietary aid (DOT 319.677-014) and light unskilled work as a cafeteria service attendant (DOT 311.677-010). Tr. 727-28. She noted that an individual capable of medium work with no restrictions on standing, sitting, or walking and occasional social interaction could work as a dishwasher (DOT 318.687-101), a production line welder (DOT 819.684-101), or a hand packer (DOT 920.587-018). Tr. 729. For these occupations, she stated that incidents of work in the United States were 160, 000, 12, 000, and 11, 000 respectively. Tr. 729. Determan opined that an individual capable of light work who could stand, sit, or walk six hours in an eight-hour day and could socially interact occasionally could work as a palletizer (DOT 929.687-014), sealing and canceling machine operator (DOT 208.685-026), or housekeeper (DOT 323.687-014). Tr. 730. For these occupations, incidents of work in the United States were 11, 000, 7, 000, and 100, 000 respectively. Tr. 729.

         Finally, Determan testified that a person totally incapable of understanding or carrying out short and simple instructions would be precluded from competitive employment and missing two or more days of work each month would preclude competitive employment. Tr. 732-33.

         C. The ALJ's Findings

         An ALJ is required to follow a five-step sequential analysis to determine whether a claimant is disabled. See20 C.F.R. § 404.1520(a); see also Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (“During the five-step process, the ALJ considers (1) whether the claimant is gainfully employed, (2) whether the claimant has a severe impairment, (3) whether the impairment meets the criteria of any Social Security Income listings, (4) whether the impairment prevents the claimant from performing past relevant work, and (5) whether the impairment necessarily prevents the claimant from doing any other work.” (quoting Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004))). The ALJ must continue the analysis until the claimant is found to be “not disabled” at steps one, two, four or five, or is found to be “disabled” at step three or step five. See 20 C.F.R. § 404.1520(a).

         Step one requires the ALJ to determine whether the claimant is currently engaged in substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(i), (b). The ALJ determined Petitioner was not and had not engaged in substantial gainful activity since her alleged onset date of November 30, 2007. Tr. 673-74.

         Step two requires the ALJ to determine whether the claimant has a “severe impairment.” 20 C.F.R. § 404.1520(c). A “severe impairment” is an impairment or combination of impairments that significantly limits the claimant's ability to perform “basic work activities, ” 20 C.F.R. §§ 404.1520(a)(4)(ii) & (c), and satisfies the “duration requirement.” 20 C.F.R. § 404.1509 (“Unless your impairment is expected to result in death, it must have lasted or must be expected to last for a continuous period of at least 12 months.”). Basic work activities include “[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling”; “[c]apacities for seeing, hearing, and speaking”; “[u]nderstanding, carrying out, and remembering simple instructions”; “[u]se of judgment”; “[r]esponding appropriately to supervision, co-workers and usual work situations”; and “[d]ealing with changes in a routine work setting.” 20 C.F.R. § 404.1522. If the claimant cannot prove such an impairment, the ALJ will find that the claimant is not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). The ALJ determined Petitioner had the following severe impairments: depressive disorder, anxiety disorder, and obesity. Tr. 674.

         Step three requires the ALJ to compare the claimant's impairment or impairments to a list of impairments. See 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); see also 20 C.F.R. § 404, Subpart P, App'x 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). If the claimant has an impairment “that meets or equals one of [the] listings, ” the analysis ends and the claimant is found to be “disabled.” 20 C.F.R. §§ 404.1520(a)(4)(iii), (d). If a claimant does not suffer from a listed impairment or its equivalent, then the analysis proceeds to steps four and five. See20 C.F.R. § 404.1520(a). The ALJ determined Petitioner did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. Tr. 675.

         Step four requires the ALJ to consider the claimant's residual functional capacity (“RFC”) to determine whether the impairment or impairments prevent the claimant from engaging in “past relevant work.” See 20 C.F.R. §§ 404.1520(a)(4)(iv), (e), (f). “Past relevant work” refers to work performed by the claimant within the last fifteen years or fifteen years prior to the date that disability must be established. See20 C.F.R. § 404.1565(a) and 416.965(a). If the claimant is able to perform any past relevant work, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(iv), (f).

         In the most recent hearing, the ALJ determined that Petitioner, since May 1, 2005, had the RFC to perform light work and simple tasks consistent with entry-level work so long as she was not required to read or write in English or interact with others more than occasionally. Tr. 677 In making this determination, the ALJ considered Petitioner's claims of depression, anxiety, tiredness, headaches, and neck pain. Tr. 678. The ALJ noted Petitioner said she could not read or write in English but chose to testify at her hearings in English despite the ALJ offering the services of a translator. Tr. 678. The ALJ further noted Petitioner's earlier reports that she could care for her day-to-day needs without difficulty and could cook, wash dishes, dust, do the laundry, drive a car, transport her children to and from school, shop for groceries, and go to the bank. Tr. 678. Considering the whole record, the ALJ determined that ...


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