Jones v. Commissioner of Social Security
MEMORANDUM AND ORDER that the Commissioner's Motion to Affirm Commissioner's Decision (Filing No. 22 ) is granted. Jones's Motion (Filing No. 21 ) to reverse the Commissioner's decision is denied. A separate judgment in accordance with this Memorandum and Order will be entered this date. Ordered by Judge Robert F. Rossiter, Jr. (Copy mailed to pro se party) (JSF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
NANCY A. BERRYHILL, Acting
Commissioner of Social Security; ROBERT
K. COX, Administrative Law Judge;
JACQUELINE E. CRAWFORDAPPERSON, Vocational Expert; and
DAVID G. BUELL, Administrative Law
This matter is before the Court on plaintiff Janice Jones’s (“Jones”) Motion (Filing
No. 21) to reverse the Commissioner of Social Security’s decision and defendant
Nancy A. Berryhill’s 1 (“Commissioner”) Motion to Affirm Commissioner’s Decision
(Filing No. 22). For the reasons stated below, the Commissioner’s Motion is granted and
Jones’s Motion is denied.
Jones first filed an application for social security benefits in April of 2012 before
an administrative law judge dismissed it in January of 2013 for late filing. On April 22,
2013, Jones applied for Supplemental Security Income (“SSI”) and Retirement, Survivors
and Disability Insurance. The Commissioner denied both of the claims after determining
Jones was not disabled. Jones requested reconsideration, and, after reconsideration, the
On January 23, 2017, Nancy A. Berryhill was appointed the Acting
Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d),
Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit.
Commissioner again denied the claims. On November 7, 2013, Jones requested a hearing
in front of an Administrative Law Judge (“ALJ”).
The first hearing on October 20, 2014, was postponed after Jones’s attorney and
the ALJ began to argue. After a second hearing on January 29, 2015, a different ALJ
issued a fully favorable decision to Jones, determining she met the criteria for disability
under the Social Security Act. See 42 U.S.C. § 1382c(a)(3)(A). The Appeals Council
reviewed the case and determined the ALJ’s decision was not supported by substantial
evidence. The Appeals Council remanded the case for a third hearing. The third hearing
occurred on November 16, 2016, in front of a third ALJ. That ALJ determined Jones was
not disabled, and the Appeals Council denied Jones’s request for review.
Following the denial of her appeal, Jones filed a complaint in this Court. Jones,
proceeding pro se, claims she is disabled with an onset date of March 18, 2011. She
specifically points to a recommendation that she see a specialist for her back from Todd
Sekundiak M.D. (“Dr. Sekundiak”), and the fact that she has been unsuccessful in finding
employment as a parking-lot attendant. Jones also claims the hearing was deficient
because (1) its time changed, (2) Jones was not sworn in until halfway through the
hearing, and (3) the vocational expert (“VE”) was not present for the first part of the
hearing and gave testimony over the phone.
Jones is currently fifty-seven years old. She has an eleventh-grade education and
has been employed as a housekeeping custodian, parking-lot attendant, casino porter, and
grocery-store stocker. She has not worked in any substantial capacity since leaving
employment as a housekeeping custodian at the Nebraska Medical Center in February of
Summary of the Medical Records
On May 31, 2012, Jonathan R. Thompson, M.D. (“Dr. Thompson”) evaluated
Jones after she alleged possible tuberculosis, diffuse joint pain, and depression.
Dr. Thompson determined it was unlikely Jones had tuberculosis and Jones’s depressive
symptoms did not seem to have significantly affected her life. He found Jones had
minimal decreased range of motion in her wrists, excellent grip strength, and excellent
upper extremity strength. While she had some decreased internal rotation of her hip and
walked with a slight limp, Jones had preserved knee flexion, well-preserved ankle
flexion, and no difficulty with lower extremity muscle strength.
concluded Jones had diffuse body pain, noting tenderness in the lumbar and lower
thoracic spine with an otherwise well-preserved range of motion. He concluded Jones
“actually is quite well and based on my exam today I feel she would be able to perform
After seeing Dr. Thompson, Jones spoke with Jennifer L. Lindner, Ph.D.
(“Dr. Lindner”) who performed a psychological interview and report on Jones.
Dr. Lindner determined that Jones (1) had some issues with depression that could be
addressed by outpatient therapy and medication and (2) was capable of interacting
appropriately with coworkers and supervisors.
Jones underwent a physical exam at Immanuel Medical Center on September 20,
2012, by Robert Devin, MD (“Dr. Devin”). According to Dr. Devin, Jones appeared in
mild pain distress. He concluded, “Back exam normal, Back exam included findings of
normal inspection, range of motion normal.” The findings for upper extremity and lower
extremity were also normal. Dr. Devin noted the pain was muscular and did not appear
According to medical-progress notes from the Douglas County Health Center
Network Clinic (“Douglas County”), Jones had continued back pain and multilevel
degenerative lumbar spondylosis on January 14, 2013. Douglas County recommended
Jones attend twice-weekly physical therapy on January 25, 2013. After a mental-status
exam, Douglas County prescribed Lexapro for depression, anxiety, and irritability.
According to a physical-therapy discharge summary, on February 8, 2013, Jones
exhibited decreased hip flexion in her right and left hips, which were both rated at a three
out of five in flexibility. Jones’s self-reported pain intensity in her lumbar spine varied
between nine and ten out of ten.
On August 22, 2013, Travis Hanson, M.D. (“Dr. Hanson”) examined Jones.
Dr. Hanson reported five out of five strength throughout her musculoskeletal system. He
noted some decreased range of motion of her lumbar spine and some chronic low back
pain and tenderness in the lumbar region.
On November 22, 2013, Jayahree Paknikar, M.D. (“Dr. Paknikar”) conducted a
physical exam of Jones. Dr. Paknikar noted Jones suffered from back pain, joint pain
localized in the hip, and depression.
On December 12, 2013, Dr. Sekundiak examined Jones for chronic low-back pain
and bilateral hip pain. Dr. Sekundiak noted tenderness to palpation over the bilateral
trapezius and lower back. Jones tolerated full range of motion of bilateral hips and knees
but with some tenderness at the extreme of internal rotation of bilateral hips. The hip
pain was not significant. Dr. Sekundiak recommended aquatic physical therapy and
referred Jones to an orthopedic spine specialist.
Jones visited the Charles Drew Health Center (“Charles Drew”) on November 4,
The physician at Charles Drew recommended Jones treat her back pain by
applying compression with an ace wrap and ice for fifteen to twenty minutes three times
a day. The physician rated Jones’s musculoskeletal strength at a five out of five and
noted she used a cane to aid mobility.
Third and Final Administrative Hearing
The ALJ was unable to contact the VE, Jacqueline Crawford, when the hearing
began. The hearing went off the record for about five minutes during the ALJ’s attempt
to contact the VE. After failing, the ALJ decided to proceed with the portion of the
hearing that did not require the VE, hoping the VE would establish a connection before
the hearing’s conclusion.
Jones testified that her last employment was in 2011 when she worked as a
housekeeping custodian. Jones spoke with the ALJ about her inability to currently
receive medical care. The VE then established a telephonic connection to the hearing.
Jones explained her work history, including working as a grocery-store stocker, a
housekeeper cleaner, and as a parking-lot attendant. Jones went into detail about the
physical requirements of the various jobs she had held. At this point, Jones and the VE
took an oath because the ALJ forgot to swear them earlier. The ALJ inquired about
Jones’s current physical condition, and Jones stated that she had pain in her back, hips,
and legs and was suffering from a urinary-tract infection.
The ALJ asked Jones if she could still perform her previous work as a parking-lot
attendant. Jones replied that she did not think so because she could not stay seated or in a
small area. The ALJ asked if she would be able to perform the job if her employer
allowed her to stand and sit at will. Jones initially stated that she would do that job
before modifying her statement to “I would try to do it.” The VE testified that Jones’s
previous parking-lot attendant job was light and sedentary work as Jones performed it.
The ALJ asked the VE if a worker with the ability to perform light work and who
was capable of stooping, kneeling, crouching, and crawling occasionally could perform
any of Jones’s past relevant work. The VE testified that such a worker could perform
Jones’s past relevant work as a grocery-store stocker, housekeeping cleaner, and parkinglot attendant. The ALJ asked if a person could perform a parking-lot attendant job if
there was a need to stand a minute every half hour to stretch. The VE responded that she
had no reason to believe that would be a problem. The ALJ further inquired if such an
attendant could generally stand and sit as desired.
The VE responded that, in her
experience, employers would not care if the worker was either sitting or standing.
The ALJ asked Jones how long she could sit at a parking-lot attendant job. Jones
replied that she could probably do it for twenty minutes before needing to get up and
walk around the booth for maybe two or three minutes. The ALJ asked if Jones could
follow that schedule of sitting for twenty minutes, walking around for two or three
minutes, and then returning to sitting. Jones stated that she did not know because it
“depends on how the pain comes.” The ALJ asked the VE if employers of parking-lot
attendants would allow that. The VE wondered if the worker would be able to see if cars
were coming while the worker walked around. Jones answered that she would be able to
see if a car was coming and make it back to the booth. The VE opined that an employer
would not have a problem with that. Jones interjected that if the VE could get her that
job she would take it but that her past boss would not allow her to leave the booth.
The ALJ’s Determination
Following the hearing, the ALJ undertook the familiar five-step sequential process
for determining disability. 2
First, the ALJ determined Jones had not engaged in
substantial gainful activity since March 18, 2011, which was the alleged onset date.
Second, the ALJ categorized Jones as having the severe impairment of degenerative disc
disease of the lumbar spine but determined Jones’s anxiety and depression were not
severe. At the third step, the ALJ decided Jones did not have an impairment that met the
criteria of any Social Security Income listings. See 20 C.F.R. Part 404, Subpart P,
See 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)).
Because Jones did not have an impairment severe enough to establish disability on
the medical facts alone, the ALJ determined Jones’s residual functional capacity (“RFC”)
to evaluate if Jones was capable of performing past relevant work. Jones’s RFC allowed
her to perform sedentary work with the ability to stoop, kneel, crouch, and crawl
occasionally. Jones would also be able to perform work that allowed her to sit and leave
her workstation to stand and stretch for two or three minutes, twice per hour.
In determining Jones’s RFC, the ALJ acknowledged Jones’s degenerative disc
disease, but determined her anxiety and depression were not severe. The ALJ also
pointed to Jones’s ability to perform the following actions independently: living alone,
performing household chores, preparing meals, and operating a motor vehicle. Jones was
also able to use public transportation. The ALJ also relied on Jones’s representation that
she would be able to work as a parking-lot attendant if she was able to take breaks, and
he noted the testimony of the VE that employers would typically allow her to take those
breaks. Finally, the ALJ summarized and analyzed the submitted medical records and
The ALJ used the RFC combined with the VE’s testimony to determine Jones was
capable of performing her past relevant work as a parking-lot attendant. The ALJ also
emphasized that Jones testified she would be capable of performing that past work under
certain circumstances. Because Jones was capable of performing past relevant work, the
ALJ concluded she had not been disabled from March 18, 2011 through the date of his
decision. The Appeals Council denied review.
Standard of Review
When reviewing the decision not to award disability benefits, courts do not act as
fact-finders or substitute their judgment for the judgment of the ALJ or the
Commissioner. Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004). In reviewing an
ALJ’s decision, the district court should uphold a denial of disability benefits if the ALJ’s
conclusion rests on substantial evidence in the record as a whole. Wright v. Colvin, 789
F.3d 847, 852 (8th Cir. 2015). “Substantial evidence is less than a preponderance, but
enough that a reasonable mind might accept it as adequate to support a decision.” Id.
(quoting Juszczyk v. Astrue, 542 F.3d 626, 631 (8th Cir. 2008)). When determining
whether the evidence in the record as a whole is substantial, the Court must consider
“evidence that detracts from the Commissioner’s decision as well as evidence that
supports it.” Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007) (quoting Singh v.
Apfel, 222 F.3d 448, 451 (8th Cir. 2000)).
The RFC is “what the claimant can still do despite his or her physical or mental
limitations.” Gann v. Berryhill, 864 F.3d 947, 951 (8th Cir. 2017) (quoting Lauer v.
Apfel, 245 F.3d 700, 703 (8th Cir. 2001)). The determination of a claimant’s RFC is the
responsibility of the ALJ. Boyd v. Colvin, 831 F.3d 1015, 1020 (8th Cir. 2016). “The
ALJ must determine the claimant’s RFC based on all relevant evidence, including
medical records, observations of treating physicians and others, and [the] claimant’s own
descriptions of [her] limitations.” Gann, 864 F.3d at 951 (quoting Baldwin v. Barnhart,
349 F.3d 549, 556 (8th Cir. 2003)) (alterations in original). The claimant bears the
burden to establish an RFC that indicates disability. Goff, 421 F.3d at 790.
The ALJ relied on all the relevant evidence when determining Jones’s RFC. The
ALJ analyzed the conclusions of various treating physicians and the medical records
submitted in the case. He also carefully looked at what Jones said she was able to do.
Jones points to medical evidence about her back favorable to her; however, the ALJ
clearly considered her degenerative disc disease. The RFC was supported by substantial
“Testimony from a VE . . . based on a properly phrased hypothetical question
constitutes substantial evidence.” Milam v. Colvin, 794 F.3d 978 (8th Cir. 2015). The
VE testified parking-lot attendant employers would typically allow their employees to
walk around and stretch while performing their duties. Jones even responded that if the
VE could get her that job, she would take it. The VE additionally testified that someone
with Jones’s RFC would be able to perform her past relevant work of a housekeeping
custodian and grocery-store stocker in addition to the job of parking-lot attendant. The
ALJ’s decision that Jones was not disabled rested on substantial evidence and will not be
Jones states that she is unable to find work as a parking-lot attendant. However,
“[u]nder the Social Security regulations, the test for disability is not whether an
individual can actually get hired for a job, but whether he or she has the physical and
mental capacity to adequately perform one.” Glassman v. Sullivan, 901 F.2d 1472, 1474
(8th Cir. 1990).
Jones assigns error to the absence of the VE at the beginning of the hearing, her
presence by telephone, the changed time of the hearing, and the ALJ’s belated giving of
the oath. To show these errors were not harmless, Jones “must provide some indication
that the ALJ would have decided differently if the error had not occurred.” Byes v.
Astrue, 687 F.3d 913, 917 (8th Cir. 2012). There is no requirement that the VE be
present during the entire hearing, or that the VE appear in person. Upon reviewing the
transcript, it is clear that the VE missed nothing for which her presence was required.
The changed hearing time is also harmless because Jones was able to appear and there
was sufficient time for her testimony. The delay administering an oath to Jones in
likewise was not harmful.
Substantial evidence supported the ALJ’s conclusion that Jones could perform her
past relevant work as a parking-lot attendant.
hearing were harmless. Accordingly,
Any procedural errors related to the
IT IS ORDERED:
The Commissioner’s Motion to Affirm Commissioner’s Decision (Filing
No. 22) is granted.
Jones’s Motion (Filing No. 21) to reverse the Commissioner’s decision is
A separate judgment in accordance with this Memorandum and Order will
be entered this date.
Dated this 28th day of November, 2017.
BY THE COURT:
Robert F. Rossiter, Jr.
United States District Judge
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