United States District Court, D. Minnesota
D. Chermol and Edward C. Olson for Plaintiff.
Samie, Assistant United States Attorney, for Defendant.
FRANKLIN L. NOEL UNITED STATES MAGISTRATE JUDGE
Kevin Esping seeks judicial review of the final decision of
Nancy Berryhill the former Acting Commissioner
(“Commissioner”) of the Social Security
Administration (“SSA”), who denied his
applications for disability and disability insurance benefits
under Title II of the Social Security Act, and supplemental
security income under Title XVI of the Social Security Act.
ECF No. 1. This Court has jurisdiction over the claim
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), 28
U.S.C. § 636(c), and Rule 73 of the Federal Rules of
Civil Procedure. The parties have submitted cross motions for
summary judgement. See ECF Nos. 16 and 18. For the
reasons set forth below, the Commissioner's decision is
AFFIRMED and the case is DISMISSED
applied for disability insurance benefits on December 9,
2013, and supplemental security income on November 7, 2013.
Administrative Record [hereinafter “AR”] 19, ECF
No. 15. In both applications, Esping alleged his disability
began on November 18, 2012. AR 19. Esping's applications
were denied initially on April 1, 2014, and upon
reconsideration on November 6, 2014. Id. An
administrative hearing was held before Administrative Law
Judge (“ALJ”) Peter Kimball on November 19, 2015.
AR 19, 38-89. The ALJ found Esping was not disabled and
denied Esping's applications for disability insurance
benefits and supplemental security income on January 20,
2016. AR 16-37. On January 25, 2017, the SSA Appeals Council
denied Esping's request for review and finalized the
ALJ's decision. AR 1-6; see 20 C.F.R. §
404.981. On March 22, 2017, Esping commenced this civil
action seeking reversal of the ALJ's decision, or in the
alternative, remand for further proceedings. ECF No. 1 at 3.
FINDINGS OF FACTS
was fifty-two years old, an individual closely approaching
advanced age, when he filed his applications for disability
insurance benefits and supplemental security income. AR
231-40; 20 C.F.R. § 404.1563(d). Esping has at least a
high school education and past relevant work as a crew chief
at the Renaissance Festival. AR 28, 30, 47-49. Esping claims
the following severe impairments prevent him from securing
and maintaining competitive employment: carpal tunnel
syndrome (CTS), migraines, left and right total hip
replacement, torn rotator cuff in right shoulder, pinched
nerve, herniated disc, depression, anxiety, asthma, and
attention deficit hyperactivity disorder (ADHD). AR 22, 259.
The Administrative Hearing
administrative hearing was held on November 19, 2015. AR 38.
Attorney Carrie Burton represented Esping, who testified on
his own behalf. AR 38, 40-73. Vocational Expert
(“VE”) Beverly Solanchez, and Medical Expert
(“ME”) Joseph Hornacki also testified at the
hearing. AR 38, 40, 73-89.
testified that Esping's past relevant work as a crew
chief was more accurately described as a “parts
runner.” AR 81. The VE explained that a parts runner
typically distributes items, and stocks the kitchen at the
renaissance festival. AR 81-82. The VE also testified that
while Esping was a supervisor that he still “did the
job” himself. AR 83. The ALJ then posed the following
hypothetical to the VE:
Consider an individual of the same age, education, and
vocational academic background as the claimant and with the
following restrictions: this person would be able to lift and
carry 20 pounds occasionally and 10 pounds frequently, is
able to sit for six hours out of an eight hour day, stand
and/or walk for two hours out of an eight hour day, push and
pull as much as can lift and carry. There would be no power
gripping, twisting, or torqueing with either hand. There
would be no reaching overhead, bilaterally. There could be no
more than frequent reaching in all other directions.
There'd be no more than frequent handling or fingering on
both sides. There'd be occasional climbing of ramps and
stairs, no climbing of ladders or scaffolds, and no
balancing. And for less than one sixth of the day, the
individual would be able to stoop, kneel, croach, and crawl.
There'd be no work involving exposure to unprotected
heights or moving mechanical parts and only occasional
exposure to dust, odors, fumes, and pulmonary irritants. For
walking longer distances, more than 20 feet, a cane could be
used in the right hand. And finally, the work would, in terms
of understanding and remembering and carry out instructions,
the work would be limited to performing simple and routine
tasks. All right, based on those restrictions, could a
hypothetical individual perform the past work that's been
responded that an individual with the residual functional
capacity described in the hypothetical would not be able to
perform the past work identified in the Esping's work
history. AR 85. The VE, however, went on to identify three
unskilled jobs-as defined in the Dictionary of Occupational
Titles (“DOT”)-that existed in the national
economy that Esping could, in fact, perform. AR 85, 87. The
VE identified bench assembler, with approximately 5, 000
positions available in Minnesota; collator operator, tender,
with approximately 2, 000 positions available in Minnesota;
and electronics worker, with approximately 3, 700 positions
available in Minnesota. AR 85-87. The VE testified that each
of these jobs qualified as light work, had a sit/stand
option, and did not require any overhead reaching or walking
long distances. AR 86. The VE testified that all three jobs
fit within the RFC suggested in the first hypothetical.
then posed another hypothetical to the VE whereby the same
individual would be further limited to lifting no more than
10 pounds occasionally and less than 10 pounds frequently. AR
87. The VE opined that the second hypothetical would take the
residual functional capacity beyond light work and into the
sedentary category for lifting, and thus, under that
classification, the hypothetical person could no longer
perform the above three listed jobs nor Esping's past
relevant work. Id.
The Commissioner's Decision
January 20, 2016, the ALJ issued a decision that Esping was
not disabled and not entitled to benefits. AR 16-32. In
determining that Esping was not disabled, the ALJ followed
the five-step sequential process established by the SSA.
See 20 C.F.R. § 404.1520(a)(4).
first step in the sequential evaluation is to evaluate the
claimant's work history to see if they are engaged in
substantial gainful activity. See 20 C.F.R.
§§ 404.15071, 416.971. If the claimant has
performed substantial work activity then he is not disabled.
Id. At step one, the ALJ found that Esping had not
engaged in substantial gainful activity since November 18,
2012, the alleged onset date of his disability. AR 21. The
ALJ also noted that Esping's earning records indicated