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Hankins v. Berryhill

United States District Court, D. Utah

September 27, 2017

DARRYL W. HANKINS, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM DECISION AND ORDER

          PAUL M. WARNER CHIEF UNITED STATES MAGISTRATE JUDGE

         Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties consented to have Chief United States Magistrate Judge Paul M. Warner conduct all proceedings in this case, including trial, entry of final judgment, and all post-judgment proceedings.[2] Plaintiff Darryl W. Hankins (“Plaintiff”), pursuant to 42 U.S.C. § 405(g), seeks judicial review of the determination of the Acting Commissioner of Social Security (“Commissioner”) that he is entitled to disability benefits only after October 7, 2013, and not for the period from March 30, 2011, through October 7, 2013. After careful review of the administrative record, the parties' briefs, and the relevant law, the court finds no reversible legal error and concludes that the Commissioner's decision is supported by substantial evidence. The decision is therefore AFFIRMED.

         BACKGROUND

         On November 6, 2009, Plaintiff first filed an application for Social Security disability insurance benefits, alleging disability beginning June 1, 2009.[3] On July 29, 2011, the Social Security Administration's Administrative Law Judge (“ALJ”) Mark R. Dawson (“ALJ Dawson”) denied Plaintiff's application, finding that Plaintiff was not disabled.[4] On July 17, 2013, the Social Security Appeals Council granted Plaintiff's Request for Review of ALJ Dawson's decision, vacated the hearing decision, and remanded the case for further proceedings.[5] A n e w hearing was held on November 20, 2013, before ALJ Robin L. Henrie (hereinafter, the “ALJ”).[6]On January 31, 2014, the ALJ issued a decision finding that Plaintiff was disabled beginning on October 7, 2013.[7] Plaintiff filed a Request for Review of the ALJ's decision on March 18, 2014 (the “2014 Request for Review”).[8] In the 2014 Request for Review, Plaintiff amended his date of onset of disability to March 30, 2011, and requested review only of that part of the ALJ's decision finding that Plaintiff was not disabled between March 30, 2011, and October 7, 2013.[9]

         The Appeals Council denied the 2014 Request for Review.[10] Accordingly, the ALJ's decision is the final disposition of the Commissioner and is ripe for judicial review. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981.

         Plaintiff was 50 years old when he first claimed disability due to generalized osteoarthritis; limited movement in bending and lifting; cramping in hands, feet, and calves; inability to move quickly; and severe, constant pain in all joints, hip, and spine.[11] On March 30, 2011, the amended date of onset of disability, Plaintiff was 52 years old. Plaintiff has past relevant work as a sider.[12]

         At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since October 7, 2013, and has done no work since he sold his rock and gem store in 2011.[13] At step two, the ALJ recognized that Plaintiff has the severe impairments of degenerative disc disease of the lumbar spine and degenerative joint disease of the hips.[14] At step three, the ALJ concluded that Plaintiff did not meet a listing.[15] In assessing Palintiff's residual functional capacity (“RFC”), the ALJ found that Plaintiff had the RFC to perform the full range of light, unskilled work, but such work could not have required:

1. Lifting more than 5-8.5 pounds at a time, on more than an occasional basis (where occasional means from very little to up to 1/3rd of the day);
2. Lifting and carrying articles weighing more than 3-5 pounds, on more than an occasional basis;
3. Standing or walking more than 30 minutes at one time, nor more than 6 total hours in an 8 hour day, with a cane option for walking;
4. Sitting more than 30 minutes at one time, nor more than 2 total hours in an 8 hour day;
5. More than occasional stooping, bending, twisting, or squatting;
6. Working on the floor (e.g. no kneeling, crawling, or crouching);
7. Ascending or descending full flights of stairs (but a few steps up or down not precluded);
8. Overhead lifting or overhead reaching;
9. More than frequent reaching, frequent handling, frequent fingering, or any duties requiring feeling;
10. Working in other than a clean, climate controlled environment, in particular no work in the sun;
11. Working around dangerous unprotected heights, machinery or chemicals;
12. Working in an area without a restroom nearby for quick access and claimant must have the option to take the maximum number of restroom breaks allowed;
13. Working at more than a low stress level, where low stress level means a low production level, no working with the general public, only occasional contact with supervisors and co-workers, and only occasional changes in a routine work setting;
14. Working at more than a low concentration level; and
15. Any foot control work duties.[16]

         The ALJ also noted that with respect to the standing/walking and sitting requirements, “claimant would have required the option to make the postural changes noted above . . . thus there must have been an option to perform work duties while standing/walking or sitting[.]”[17]Moreover, the ALJ explained that the low stress and low concentration limitations were due to the effects of pain on Plaintiff's body.[18]

         The ALJ concluded at step four that since June 1, 2009, Plaintiff could not perform his past relevant work.[19] At step five, the ALJ concluded that “[p]rior to October 7, 2017 . . . considering the [Plaintiff's] age, education, work experience, and [RFC], there were jobs that existed in significant numbers in the national economy that the [Plaintiff] could have performed. . . .”[20] However, on October 7, 2013, Plaintiff's age category changed.[21] The ALJ concluded that beginning on that date “considering the [Plaintiff's] age, education, work experience, and [RFC], there [were] no jobs that exist in significant numbers in the national economy that the [Plaintiff] could perform.”[22] Therefore, the ALJ found that beginning on October 7, 2013, Plaintiff became disabled.[23]

         On July 22, 2015, Plaintiff filed his complaint in this case.[24] On August 4, 2016, the Commissioner filed an answer and a copy of the administrative record.[25] Plaintiff filed his opening brief on March 15, 207.[26] The Commissioner filed an answer brief on May 8, 2017.[27]Plaintiff did not file a reply brief.

         STANDARDS OF REVIEW

         The court “review[s] the Commissioner's decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quoting Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005)). The Commissioner's findings, “if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (quotations and citation omitted). In reviewing the ALJ's decision, the court cannot “reweigh the evidence” or “substitute” its judgment for that of the ALJ. Madrid v. Barnhart, 447 F.3d 788, 790 (10th Cir. 2006) (quotations and citations omitted). “[F]ailure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (quotations and citation omitted).

         A five-step evaluation process has been established for determining whether a claimant is disabled. See 20 C.F.R. § 416.920(a)(4)(i)-(v); see also Williams v. Bowen, 844 F.2d 748, 750- 51 (10th Cir. 1988) (discussing the five step process). If a determination can be made at any one of the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. See 20 C.F.R. § 416.920(a)(4). The five step sequential disability determination is as follows:

1. If the claimant is performing substantial gainful work she is not disabled.
2. If the claimant is not performing substantial gainful work, her impairment(s) must be severe before she can be found to be disabled.
3. If claimant is not performing substantial gainful work and has a severe impairment(s) that has lasted or is expected to last for a continuous period of at least twelve months, and her impairment(s) meets or medically equals a listed impairment contained in [20 C.F.R. § 404, Part P, Appendix 1], the claimant is presumed disabled without further inquiry.
4. If the claimant's impairment(s) does not prevent her from doing her past relevant work, she is not disabled.
5. Even if the claimant's impairment(s) prevent her from performing her past relevant work, if other work exists in significant numbers in the national economy that accommodates her [RFC] and vocational factors, she is not disabled.

Martin v. Barnhart, 470 F.Supp.2d 1324, 1326-27 (D. Utah 2006); see 20 C.F.R. § 416.920(a)(4)(i)-(v); Williams, 844 F.2d at 750-51. The claimant bears the burden of proof beginning with step one and ending with step four. See Williams, 844 F.2d at 750-51; Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360 (10th Cir. 1993). At step five, the burden of proof shifts to the Commissioner to establish “whether the claimant has the [RFC] . . .to perform other work in the national economy in view of his [or her] age, education, ...


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