United States District Court, D. Nebraska
MEMORANDUM AND ORDER
C. BUESCHER, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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
Tr. 821 (emphasis in original).
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.
remand from the Iowa Court for a second time, the Appeals
Council remanded the case for further
proceedings. 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.
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.
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.
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.
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.
The ALJ's Findings
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).
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.
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.
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.
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).
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