Ahmetovic v. Berryhill

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in accordance with this Memorandum and Order. A separate Judgment will accompany this Order. Signed by Magistrate Judge Noelle C. Collins on June 4, 2018. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

KIRAM AHMETOVIC,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:17-CV-02164-NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Kiram Ahmetovic (“Plaintiff”) for disability
insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§
401, et seq. Plaintiff filed a brief in support of the Complaint (Doc. 13), Defendant filed a brief
in support of the Answer (Doc. 20), and Plaintiff filed a reply brief (Doc. 21). The Parties have
consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to Title
28 U.S.C. § 636(c) (Doc. 10).
I. PROCEDURAL HISTORY
Plaintiff filed his application for DIB on January 21, 2014 (Tr. 135-41). Plaintiff was
initially denied on June 24, 2014, and he filed a Request for Hearing before an Administrative
Law Judge (“ALJ”) (Tr. 78-84). After a hearing, by decision dated June 17, 2016, the ALJ found
Plaintiff not disabled (Tr. 15-27). On June 14, 2017, the Appeals Council issued a decision
denying Plaintiff’s request for review (Tr. 1-6). As such, the ALJ’s decision stands as the final
decision of the Commissioner.

II. DECISION OF THE ALJ
The ALJ determined that Plaintiff has not engaged in substantial gainful activity since
November 15, 2013, the alleged onset date (Tr. 17). The ALJ found that Plaintiff has the
following medically determinable impairments: right-side epicondylitis, obesity, and depression,
but that no impairment or combination of impairments meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525, and 404.1526) (Tr. 17-18).1 The ALJ demined Plaintiff has the residual functional
capacity to perform medium work2 except he can frequently use the bilateral upper extremities
and he cannot have any close interaction with the public or with coworkers (Tr. 21). The ALJ
found that Plaintiff is unable to perform any past relevant work but that there are jobs that exist
in significant numbers in the national economy that the claimant can perform including laundry
worker (DOT #361.684-014) and laborer (DOT #922.687-058) (Tr. 26-27). In doing so, the ALJ
determined that Plaintiff has a high school education and is able to communicate in English (Tr.
26). Thus, the ALJ found that Plaintiff does not have a severe impairment or combination of
impairments, and has therefore not been under a disability from November 15, 2013, through the
date of the decision, June 17, 2016 (Tr. 17, 27).
III. LEGAL STANDARD
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is

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“Right-side epicondylitis” appears to be a misstatement by the ALJ, as the medical records
indicate Plaintiff’s impairment is to his left elbow (Tr. 501-06, 525, 561, 565, 567).
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“Medium work involves lifting no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 C.F.R. 404.1567(c).
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determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may
be terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.’” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).
If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is
per se disabled without consideration of the claimant’s age, education, or work history. Id.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step
four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the claimant has
done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the

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Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874
n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The
ultimate burden of persuasion to prove disability, however, remains with the claimant.” Young v.
Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d 926, 931
n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate
RFC remains on the claimant, even when the burden of production shifts to the Commissioner at
step five.”). Even if a court finds that there is a preponderance of the evidence against the ALJ’s
decision, the decision must be affirmed if it is supported by substantial evidence. Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “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). See also Cox v.
Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the
quantity and quality of evidence is enough so that a reasonable mind might find it adequate to
support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of
the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
Thus, an administrative decision which is supported by substantial evidence is not subject to
reversal merely because substantial evidence may also support an opposite conclusion or because
the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.

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To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical activity
and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions which
fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
IV. DISCUSSION
In his appeal of the Commissioner’s decision, Plaintiff raises two issues. First, Plaintiff
argues the ALJ erred in failing to articulate consideration of the specific functional impairments
found by the state-agency medical expert, despite finding those opinions entitled to “great
weight” (Doc. 13 at 6). Second, Plaintiff asserts that the ALJ erred in finding Plaintiff able to
communicate in English (Id. at 10). Because the ALJ erred in finding Plaintiff had the ability to
communicate in English and erred in concluding there were jobs in the national economy
Plaintiff could obtain, the Court will address these issues alone.
The ALJ determined Plaintiff had the ability to communicate in English for two reasons.
First, because a form filled out by a Social Security employee included a checked box stating
Plaintiff could “speak and understand English” (Tr. 26). Second, the ALJ inferred that
Plaintiff’s prior employment required him to use English (Id.).

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According to the Program Operations Manual System (POMS) DI 25015.010(C)(1)(b), a
“person is unable to communicate in English when he or she cannot speak, understand, read, or
write a simple message in English.” “Although the POMS is a policy and procedure manual that
employees of the Department of Health & Human Services use in evaluating Social Security
claims and does not have the force and effect of law, it is nevertheless persuasive . . . . The
POMS explains the meaning of Social Security Act terms as well as the meaning intended by
terms appearing within the regulations.” Davis v. Sec’y of Health & Human Servs., 867 F.2d
336, 340 (6th Cir. 1989) (internal citations omitted).
In this case, the record clearly establishes Plaintiff “cannot speak, understand, read, or
write a simple message in English.” All of the medical records indicate Plaintiff had no ability to
communicate in English, and he only communicated in Bosnian (Tr. 352) (“accompanied by his
son . . . who was also his translator . . . patient speaks Bosnian”); (Tr. 353, 391) (“patient is
Bosnian-speaking and has no understanding of English”); (Tr. 355, 415) (unable to go over
treatment options lacking a translator); (Tr. 358, 418) (“[t]ranslator present”); (Tr. 368, 428)
(“Patient does not speak English. Nihada used as Bosnian translator.”); (Tr. 383) (“accompanied
by his daughter that acted as the interpreter”); (Tr. 390, 595) (son translating); (Tr. 477) (unable
to speak English); (Tr. 492) (translator present); (Tr. 577) (“does not speak English and was
accompanied by an interpreter”); (Tr. 596) (“does not speak English…interpretation through
daughter in law”); (Tr. 600, 640, 646) (daughter-in-law translating); (Tr. 621, 627, 630, 633-34,
636, 639, 644) (daughter translating). In fact, the only time Plaintiff was able to communicate
with a medical professional himself was with Dr. Kerich, who is Bosnian (Tr. 43). Further,
Plaintiff testified through an interpreter during his hearing with the ALJ (Tr. 32, 34-36). And,
Plaintiff’s education was obtained entirely in Bosnia (Tr. 37-38).

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The Plaintiff’s work history also indicates he was unable to, and did not need to,
communicate in English in his former work. The ALJ opined Plaintiff “has a past work history
in an environment that was likely primarily English speaking” (Tr. 26). However, nothing in the
record indicates Plaintiff communicated in English is his prior employment. In Plaintiff’s Work
History Report, he indicated he “cleaned the floor with machines,” carried “trash bags outside of
building to the dumpster,” worked as a “packaging tools machine operator” where he carried
“paper rolls to the machine and from the machine to the pallet,” and “carried heavy ads to and
from machines” (Tr. 208, 210, 211). He also indicated he never wrote reports or completed
forms (Tr. 208-11). The ALJ did not inquire at the hearing about Plaintiff’s use of English in his
past employment, and he assumes Plaintiff’s ability in error (Tr. 15-27). See, e.g., Altamirano v.
Colvin, No. ED CV 12–1862–PLA, 2013 WL 3863956, at *13-14 (C.D. Cal. July 24, 2013)
(“[T]he Court does not find that plaintiff’s ability to scan and label items based on ‘English
orders’ convincingly indicates that she was untruthful about her English speaking abilities” . . .
especially when “[t]he work history report further indicates that plaintiff did not ‘do any writing’
or ‘complete reports’ as part of this job.”).
Finally, the form filled out by the Social Security employee is unpersuasive in
establishing that Plaintiff could communicate in English. This form was created when Plaintiff
applied for Social Security benefits with his son Samedin Ahmetovic as his sworn interpreter
(Tr. 134). The employee noted Plaintiff did “not speak any English, son Samedin Ahmetovic
had to interpret” (Tr. 169-70). The employee was the one to enter the responses on the form, and
he did not obtain a signature from either Plaintiff or his son (Tr. 179-89). The employee put
“Yes” for the question “Can you speak and understand English?” and “No” for the questions
“Can you read and understand English?” and “Can you write more than your name in English?”

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(Tr. 179). This marking of “Yes” is an isolated occurrence and appears to be a typographical
mistake rather than an admission by Plaintiff of his English-speaking ability. Because the record
provides sufficient evidence to show Plaintiff could not communicate in English, the Court finds
the ALJ’s finding to the contrary was in error.
Even if the ALJ was correct in his finding that Plaintiff could “communicate” in English,
Plaintiff’s undisputed inability to read English eliminates all of the jobs the vocational expert
(“VE”) testified an individual with Plaintiff’s age, education, work experience, and residual
functional capacity would be able to perform.
At Plaintiff’s hearing, the ALJ asked the VE whether a claimant of Plaintiff’s age,
education, work experience, and RFC, including his limitations regarding lifting restrictions,
standing and sitting needs, and restrictions on close interactions with the public and co-workers,
could perform work in the national economy (Tr. 55-56). The VE opined Plaintiff could work as
a laundry worker (DOT #361.684-014) or laborer store (DOT #922.687-058) (Tr. 57). After
inquiry by Plaintiff’s attorney, the VE testified the job of “laborer store” would be precluded if
Plaintiff did not have the ability to read in English (Tr. 60). The VE was not asked if the job of
laundry worker would be precluded if Plaintiff lacked the ability to read English (Id.).
At step five of the sequential analysis, the Commissioner has the burden to establish that
a claimant maintains the RFC to perform a significant number of jobs within the national
economy. Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001). When, as is the case
here, a claimant has nonexertional limitations, vocational expert testimony is required for the
Commissioner to carry her burden. Id. In questioning the VE, an ALJ must pose a hypothetical
question which properly captures the concrete consequences of the claimant’s deficiencies. Hunt
v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001). “A vocational expert’s testimony based on a

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properly phrased hypothetical question constitutes substantial evidence.” Goff, 421 F.3d at 794.
However, the VE’s opinion is not binding on the ALJ[;] the ALJ must weigh a VE’s opinion
along with all other evidence. HALLEX I-2-5-48 (S.S.A.), 1994 WL 637379 (last updated Jun.
16, 2016). In this case, the Court finds the Commissioner has not met this burden.
Plaintiff did not meet the required DOT language ability for these occupations. Both
laundry worker and “laborer store” require the same “language” ability (Level 1):
Reading: Recognize meaning of 2,500 (two-or three-syllable words. Read at rate of 95120 words per minute. Compare similarities and differences between words and between
series of numbers.
Writing: Print simple sentences containing subject, verb, and object, and series of
numbers names, and addresses.
Speaking: Speak simple sentences, using normal word order, and present and past tenses.
DOT: laborer, stores, 922.687-058, 1991 WL 688132 (4th ed. Rev. 1991); DOT: laundry worker
361.684-014, 1991 WL 672983 (4th ed. Rev. 1991). As established above, there is no evidence
Plaintiff could read, write, or speak English. Even if the Court were to accept the ALJ’s
determination that Plaintiff could speak English, it is clearly established in the record that
Plaintiff could not read English. The ALJ concluded in his opinion Plaintiff “cannot read or
write more than his name in English” (Tr. 26). Even the form the ALJ credited to determined
Plaintiff could “communicate” in English stated Plaintiff could not read in English (Tr. 179).
Therefore, the ALJ’s reliance on the VE’s testimony is unjustified because Plaintiff does
not meet the requirements for the other jobs recommended by the VE and the VE never clarified
the deviation in the jobs’ requirements and Plaintiff’s abilities. Welsh v. Colvin, 765 F.3d 926,
930 (8th Cir. 2014) (“When an ALJ has posed a hypothetical that accurately reflects his RFC
finding, questioned the VE about any apparent inconsistencies with the relevant DOT job

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descriptions, and explained his decision to credit the VE's testimony, the ALJ has complied with
SSR 00–4p, and we review his decision under the deferential substantial evidence standard.”).
In sum, the ALJ erred in finding Plaintiff had the ability to communicate in English and
erred in concluding there were jobs in the national economy Plaintiff could obtain. Thus,
remand is required.
V. CONCLUSION
For the foregoing reasons, the Court finds the ALJ’s decision was not based on
substantial evidence in the record as a whole. Though the Court does not make an ultimate
determination regarding Plaintiff’s disability, the Court finds this case should be reversed and
remanded. On remand, the ALJ is directed to reconsider Plaintiff’s ability to communicate in
English; to provide the vocational expert with a hypothetical question that captures the concrete
consequences of Plaintiff’s limitations based on the evidence as a whole; and proceed with the
next steps of the sequential evaluation process.
IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in
accordance with this Memorandum and Order.
A separate Judgment will accompany this Order.
Dated this 4th day of June, 2018.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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