Ostrander v. Berryhill

Filing 24

ORDER re 5 SOCIAL SECURITY COMPLAINT filed by plaintiff Diana Marie Ostrander. The decision of the Commissioner is reversed and remanded as set forth herein. Signed on 1/27/2018 by Magistrate Judge Willie J. Epps, Jr. (Epps, Willie)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DIANA MARIE OSTRANDER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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No. 4:17-cv-4028-WJE

ORDER
Plaintiff Diana Marie Ostrander seeks judicial review1 of a final administrative decision
of the Commissioner of Social Security (the Commissioner) denying her disability insurance
benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq, and
Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381 et seq.

Ms. Ostrander contends that the administrative record (AR) does not

contain substantial evidence to support the Commissioner’s decision that she was not disabled
during the relevant period. For the reasons that follow, the Commissioner’s decision will be
reversed and remanded for further consideration and development of the record.
Background
Ms. Ostrander has previously worked in the food industry at both Wendy’s and Sonic
Drive-In, where she was both a carhop and manager. AR 16-17. Ms. Ostrander filed her
application for DIB and SSI on July 8, 2014, alleging a disability onset date of June 13, 2014.
AR 14.

She contends that she is disabled primarily due to the mental impairment of

schizophrenia, which causes her to suffer from auditory and visual hallucinations and paranoia.
AR 20. Ms. Ostrander’s claims were initially denied on September 17, 2014. AR 14. She then
requested a hearing before an Administrative Law Judge (ALJ). ALJ Stephan Bell held a
hearing on February 5, 2016, in Columbia, Missouri. AR 14. Ms. Ostrander was represented by
counsel at the hearing. AR 14. The ALJ issued a decision on March 1, 2016, in which Ms.
Ostrander’s claim was denied. AR 14-26. Ms. Ostrander sought review by the Appeals Council,

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With the consent of the parties, this case was assigned to the United States Magistrate
Judge pursuant to the provisions of 28 U.S.C. § 636(c).

which denied review on December 20, 2016. AR 1-3. Thus, the ALJ’s decision stands as the
final decision of the Commissioner.
On February 27, 2017, Ms. Ostrander filed a complaint (Doc. 5) in this Court seeking
review of the Commissioner’s decision. The case was originally assigned to United States
Magistrate Judge Matt J. Whitworth. The case was reassigned to the undersigned (Doc. 15) on
August 31, 2017. The parties, shortly thereafter and within 14 days, consented to the exercise of
jurisdiction (Doc. 17) by the undersigned. The parties have fully briefed the issues and an oral
argument was held on January 23, 2018.
Disability Determination and the Burden of Proof
Under the authority of the Social Security Act, the Social Security Administration has
established a five-step sequential evaluation process for determining whether an individual is
disabled. 20 C.F.R.  §§ 404.1520(a) and 416.920(a); See Kirby v. Astrue, 500 F.3d 705, 707 (8th
Cir. 2007). The steps are followed in order. If it is determined that the claimant is or is not
disabled at a particular step of the evaluation process, the evaluation then will not go on to the
next step.
At step one, the Commissioner must determine whether the claimant is engaging in
substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). Substantial
gainful activity (SGA) is defined as work activity that is both substantial and gainful.
“Substantial work activity” is work activity that involves doing significant physical or mental
activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is work that is usually done for pay
or profit, whether or not a profit is realized. 20 C.F.R. § 404.1572(b). If the claimant is engaged
in SGA, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i).
If the claimant is not engaging in SGA, the analysis proceeds to the second step.
At step two, the Commissioner must determine whether the claimant has a medically
determinable severe impairment that significantly limits the claimant’s physical or mental ability
to perform basic work activities. Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). An
impairment or combination of impairments is not severe when medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability to work. Kirby, 500 F.3d. at 707; 20 C.F.R.
§§ 404.1521 and 416.921. If the claimant does not have a severe medically determinable

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impairment or combination of impairments, the claimant is not disabled. If the claimant has a
severe impairment or combination of impairments, the analysis proceeds to the third step.
At step three, the Commissioner must determine whether the claimant’s impairment or
combination of impairments is of a severity to meet or medically equal the criteria of an
impairment listed in 20 C.F.R. Part 404, Subpart P appendix 1. 20 C.F.R. §§ 404.1520(d),
404.1525, 404.1526. If the claimant’s impairment or combination of impairments is of a severity
to meet or medically equal the criteria of a listing and meets the duration requirement, the
claimant is disabled. If it does not, the analysis proceeds to the next step.
At step four, the Commissioner will assess the claimant’s residual functional capacity
(RFC) to determine the claimant’s ability to do physical and mental work activities on a
sustained basis despite limitations from claimant’s impairments. 20 C.F.R. §§ 404.1520(a(4)(iv),
404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4). The claimant is responsible for providing
evidence to the Commissioner, but the Commissioner is responsible for developing the
claimant’s complete medical history, arranging for consultative examination, and assisting
claimant with gathering other medical evidence. 20 C.F.R. §§ 404.1545(a)(3) and 416.945(a)(3).
If a claimant retains the RFC to perform past relevant work, then the claimant is not disabled. If
the claimant is unable to do any past relevant work or does not have any past relevant work, the
analysis proceeds to the fifth and last step.
At step five, if the claimant’s RFC will not allow the claimant to perform past relevant
work, then the burden shifts to the Commissioner to determine whether the claimant is able to do
any other work considering claimant’s RFC, age, education, and work experience.

If the

claimant is able to do other work, the claimant is not disabled. If the claimant is not able to do
other work and meets the duration requirement, the claimant is disabled. Although the claimant
generally continues to have the burden of proving disability at this step, a limited burden of
going forward with the evidence shifts to the Commissioner. In order to support a finding that a
claimant is not disabled at this step, the Commissioner is responsible for providing evidence that
demonstrates that other work exists in significant numbers in the national economy that the
claimant can do given the RFC, age, education, and work experience. 20 C.F.R. §§ 404.1512(g),
404.1560(c), 416.912(g) and 416.960(c); (Doc. 5).

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The ALJ’s Findings
The ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through June
30, 2018.
2. The claimant has not engaged in substantial gainful activity since June 13, 2014, the alleged
onset date. (20 CFR 404.1571 et seq. and 413.971 et seq.).
3. The claimant has the following severe impairment: schizophrenia. (20 CFR 404.1520(c) and
416.920(c)).
4. The claimant does not have an impairment or combination of impairments that 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, 404.1526, 416.920(d), 416.925, and 416.926).
5. The claimant has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: never be exposed to
unprotected heights or moving mechanical parts; occasionally operate a motor vehicle as a
job duty; limited to simple, routine tasks and simple work-related decisions; and could
occasionally interact with supervisors, coworkers, and the public.
6. The claimant is unable to perform any past relevant work. (20 CFR 404.1565 and 416.965).
7. The claimant was born on March 10, 1981, and was 33 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date. (20 CFR 404.1563 and
416.963).
8. The claimant has at least a high school education and is able to communicate in English. (20
CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills. (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national economy that the claimant can
perform. (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from June
13, 2014, through the date of this decision. (20 CFR 404.1520(g) and 416.920(g)).
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Standard of Review
The Eighth Circuit has set forth the standard for the federal courts’ judicial review of
denial of benefits, as follows:
Our role on review is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Substantial evidence is less than a
preponderance, but is enough that a reasonable mind would find it adequate to support
the Commissioner’s conclusion. In determining whether existing evidence is substantial,
we consider evidence that detracts from the Commissioner’s decision as well as evidence
that supports it. As long as substantial evidence in the record supports the
Commissioner’s decision, we may not reverse it because substantial evidence exists in
the record that would have supported a contrary outcome or because we would have
decided the case differently.
Baker v. Barnhart, 457 F.3d 882, 892 (8th Cir. 2006).
The claimant has the initial burden of establishing the existence of a disability as defined
by 42 U.S.C. § 423(d)(1). See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). To meet the
statutory definition, “the claimant must show (1) that he has a medically determinable physical
or mental impairment which will either last for at least twelve months or result in death, (2) that
he is unable to engage in any substantial gainful activity, and (3) that this inability is the result of
his impairment.” McMillian v. Schweiker, 697 F.2d 215, 220 (8th Cir. 1983).
When reviewing the record to determine if there is substantial evidence to support the
administrative decision, the court considers the educational background, work history and
present age of the claimant; subjective complaints of pain or other impairments; claimant’s
description of physical activities and capabilities; the medical opinions given by treating and
examining physicians; the corroboration by third parties of claimant’s impairments; and the
testimony of vocational experts when based upon proper hypothetical questions that fairly set
forth the claimant’s impairments. McMillian, 697 F.2d at 221.
Discussion
Ms. Ostrander primarily asserts remand is proper in this instance for two reasons: (1) the
ALJ failed to adequately account for Ms. Ostrander’s moderate limitations in concentration,
persistence, or pace when determining her RFC; and (2) the ALJ did not properly weigh the
medical opinion evidence of record. The Government has responded in opposition asserting that
substantial evidence supports the determinations made by the ALJ, and therefore affirmance is
proper. After consideration of the parties’ arguments and a full review of the record, this Court

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finds the decision of the ALJ is not supported by substantial evidence on the record as a whole,
and should be reversed and remanded for further consideration and development of the record.
Ms. Ostrander alleges the ALJ failed to adequately account for her moderate limitations
in concentration, persistence, or pace when determining her RFC. Specifically, she alleges that
the ALJ limited only the complexity of the task Ms. Ostrander could perform, but did not
incorporate limitations for her ability to timely and appropriately complete work tasks.
At step three of the sequential analysis, when considering the paragraph B criteria, the
ALJ stated, “[t]he evidence in the record, including the testimony of the claimant at the hearing,
shows that the claimant has some difficulty in sustaining focus, attention, and concentration
sufficiently long enough to permit the timely and appropriate completion of tasks commonly
found in work settings.” AR 19. However, when determining Ms. Ostrander’s RFC, the ALJ
only limited her to “simple, routine tasks and simple work-related decisions.” AR 20.
Here, the Court finds the ALJ failed to adequately account for Ms. Ostrander’s moderate
limitations in concentration, persistence, or pace, in that the ALJ failed to include limitations for
her ability to timely and appropriately complete tasks commonly found in work settings, an area
in which the ALJ clearly found Ms. Ostrander had limitations. See Porter v. Colvin, No.4:14CV-00813-NKL, 2015 WL 3843268, at *7 (W.D. Mo. June 22, 2015) (“While the RFC
accommodates for Porter’s need for ‘simple, repetitive and routine tasks,’ it does not say
anything about her limited ability to complete tasks in a reasonable timeframe. As the ALJ
clearly found this limitation to be significant, it should have been included in the RFC…”).
Therefore, the Court finds that substantial evidence on the record as a whole does not
support the determinations made by the ALJ. The Court further finds that remand is proper in
this instance so that the record can be more fully developed as it relates to Ms. Ostrander’s
moderate limitations in concentration, persistence, or pace, her ability complete tasks in a timely
and appropriate manner, and the effect these limitations might have on her ability to sustain full
time employment.
Conclusion
For the reasons set forth herein, and those stated on the record during the January 23,
2018 oral argument, the Court finds that the Commissioner’s determination that Ms. Ostrander
was not disabled is not supported by substantial evidence on the record as a whole, and is

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therefore reversed and remanded for further consideration and development of the record.
Judgment shall be entered in favor of Plaintiff and against Defendant.
Accordingly,
IT IS, THEREFORE, ORDERED that the decision of the Commissioner is reversed and
remanded for further consideration and development of the record as set forth herein.
Dated this 27th day of January, 2018, at Jefferson City, Missouri.

WILLIE J. EPPS, JR.
United States Magistrate Judge

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