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Esping v. Berryhill

United States District Court, D. Minnesota

July 11, 2018

Kevin Esping, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          David D. Chermol and Edward C. Olson for Plaintiff.

          Bahram Samie, Assistant United States Attorney, for Defendant.

          ORDER

          FRANKLIN L. NOEL UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 WITH PREJUDICE.

         I. INTRODUCTION

         Esping 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.

         II. FINDINGS OF FACTS

         A. Background

         Esping 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.

         B. The Administrative Hearing

         An 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.

         1. VE Testimony

         The VE 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 identified.

AR 84-85.

         The VE 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. Id.

         The ALJ 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.

         2. The Commissioner's Decision

         On 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).

         The 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 ...


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