Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Daniel Levi Keener, 	)
)
Plaintiff, 	) 	REPORT AND RECOMMENDATION
)
v. 	)
)
Kilolo Kijakazi, 	)
Acting Commissioner of Social Security, 	) 	Case No.: 1:22-cv-00074
)
Defendant. 	)
The Plaintiff, Daniel Levi Keener (“Keener” or “claimant”), seeks judicial review of the
Commissioner of Social Security’s (“Commissioner”) denial of his Title II Disability Insurance
Benefits (“DIB”). This court reviews the Commissioner’s final decision pursuant to 42 U.S.C. §
405(g). Before the court is a Motion for Remand (Doc. No. 15) filed by Keener and a Motion for
Summary Judgment (Doc. No. 17) filed by the Commissioner.
I. 	BACKGROUND
Keener filed an application for Disability Insurance Benefits on April 10, 2019, with an
alleged disability onset date of November 10, 2018. (Doc. No. 13-5 at 22). Keener had a date last
insured of December 31, 2023. (Doc. No. 13-7 at 8). Keener’s application was denied upon its
initial review on August 12, 2019, and again upon reconsideration on October 24, 2019. (Doc. No.
13-4 at 4-7, 9-11). On November 19, 2019, Keener requested a hearing before an Administrative
Law Judge (“ALJ”). (Id. at 12-13). A hearing was held on September 16, 2020, with ALJ Christel
Ambuehl presiding. (Doc. No. 13-3 at 32). Keener was represented by Anthony Mannella and
Morgan Zavadil, with attorney Zavadil representing him at the hearing. (Doc. No. 13-6 at 10; Doc.
No. 13-3 at 32). Vocational Expert Kent Granat appeared telephonically. (Doc. No. 13-3 at 32). On
October 8, 2020, the ALJ issued a decision finding Keener not disabled. (Id. at 18).
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Keener filed a request for review to the Appeals Council on November 24, 2020. (Doc. No.
13-6 at 11-14). On March 4, 2022, the Appeals Council denied Keener’s request for review,
rendering the ALJ’s decision the final decision of the Commissioner. (Doc. No. 13-2 at 2-8). On
May 4, 2022, Keener filed a Complaint in this court seeking review of the Commissioner’s
decision. (Doc. No. 4).
At the time of the alleged onset disability date, Keener was 50 years of age. (Doc. No. 13-
3 at 34). At the time of the hearing, Keener was 52 years of age. (Id.). Keener has a high school
education and has worked in various capacities as a truck driver. (Id. at 35-37).
II. 	LEGAL STANDARD
Disability is defined as the “inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of not less than 12
months….” 42 U.S.C. § 423(d)(1)(A). The claimant’s impairments must be of “such severity that
he is not only unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy, regardless of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.”
42 U.S.C. § 423(d)(2)(A).
In determining whether an individual has a disability under the Social Security Act, the
Commissioner follows a five-step sequential process. See 20 C.F.R. § 404.1520(a). The five steps
include (1) a consideration of claimants work activity and whether the claimant is engaged in
substantial gainful activity; (2) whether the claimant has a severe medically determinable physical
or mental impairment meeting the duration requirement of § 404.1509; (3) whether the claimant’s
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impairment meets or is equal to an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
1; (4) a consideration of claimant’s residual functional capacity and whether the claimant can return
to their past relevant work; and (5) an assessment of claimant’s residual functional capacity, age,
education, and work experience to determine whether claimant can perform other work in the
national economy. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
Upon reviewing the record, the court may affirm, modify, or reverse the Commissioner’s
decision, with or without remanding the case for hearing. 42 U.S.C. § 405(g). To affirm, the court
must find substantial evidence appearing in the record as a whole supports the Commissioner’s
decision. Id.; see also Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989); Emerson v. Kijakazi,
No. 1:18-CR-146, 2022 WL 17403569, at *6 (D.N.D. Dec. 2, 2022). “Substantial evidence is less
than a preponderance of the evidence and is such relevant evidence as a reasonable mind would
find adequate to support the Commissioner’s conclusion.” Igo v. Colvin, 839 F.3d 724, 728 (8th
Cir. 2016) (internal quotations omitted). “If, after reviewing the record, the court finds it is possible
to draw two inconsistent positions from the evidence and one of those positions represents the
ALJ’s findings, the court must affirm the ALJ’s decision.” Dols v. Saul, 931 F.3d 741, 744 (8th Cir.
2019) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)); see Igo, 839 F.3d at 728.
The court must consider evidence which supports the Commissioner’s decision, as well as
that which detracts from it. Charette v. Saul, No. 3:18-CV-254, 2019 WL 7605835, at *2 (D.N.D.
Nov. 22, 2019); see Dols v. Saul, 931 F.3d 741, 744 (8th Cir. 2019). The court will not disturb the
ALJ’s decision unless it lies outside the available “zone of choice.” Nicola v. Astrue, 480 F.3d 885,
886 (8th Cir. 2007) (citing Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006)). An ALJ’s
decision is not outside the “zone of choice” simply because the court may have reached a different
conclusion if it were the initial fact finder. Id.
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III. 	DISCUSSION
The ALJ applied the five-step evaluation to determine whether Keener was disabled. First,
the ALJ found Keener had not engaged in substantial gainful activity since November 10, 2018,
the alleged onset disability date. (Doc. No. 13-3 at 9). Second, the ALJ determined Keener had the
following severe impairments: osteoarthritis and traumatic arthritis, left ankle; status post-bilateral
hip arthroplasties; osteoarthritis, right knee; type II diabetes mellitus; obesity; dermatochalasis,
bilateral eyes, status-post bilateral blepharoplasty; brow ptosis, bilateral eyes, status post-bilateral
browpexy; loss of visual acuity; hypertension; and dilated cardiomyopathy with left concentric
hypertrophy. (Id.). Third, the ALJ concluded Keener did not have an impairment or combination
thereof meeting or medically equal to the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. (Id. at 10). Fourth, the ALJ found Keener had the residual
functional capacity to perform light work as defined under 20 C.F.R. 404.1567(b). Specifically,
[T]he claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except that he is able to lift and/or carry 20 pounds
occasionally, 10 pounds frequently, stand and/or walk 2 hours in an 8-hour work
day, sit 6 hours in an 8-hour work day. The claimant has no limitations on push and
pull except for the limitations in lifting and carrying. The claimant can occasionally
climb ramps and stairs, never climb ladders, ropes, or scaffolds. The claimant can
occasionally balance, stoop, kneel, crouch, crawl. The claimant would need to use
his right eye for visual tasks and has normal visual acuity using the right eye. The
claimant cannot do work that requires peripheral vision on the left side. The
claimant can have no exposure to hazards. The claimant can have only occasional
exposure to atmospheric conditions, as defined in the SCO.
(Id. at 11). Keener was also found unable to perform any past relevant work. (Id. at 16). Fifth, the
ALJ considered Keener’s age, education, work experience, and residual functional capacity
(“RFC”), and determined jobs existed in significant numbers in the national economy which
Keener could perform. (Id. at 17).
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Keener now alleges that (1) the ALJ’s own findings require a determination of disability
under the Agency’s Medical-Vocational rules; and (2) the ALJ and Appeals Council were not
properly appointed and so had no legal authority to adjudicate this matter.
A. Disability Determination under Medical-Vocational Rules
Keener argues that Agency policy requires a finding of disability. Specifically, he points to
the ALJ’s determination that Keener could stand/walk for 2 hours in an 8-hour workday, which he
argues the ALJ mischaracterized as “light” RFC. (Doc. No. 16 at 5).
The Social Security Administration distinguishes between sedentary work and light work
when determining physical exertion requirements in the national economy.
Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs are sedentary if
walking and standing are required occasionally and other sedentary criteria are met.
20 C.F.R. § 404.1567(a); see also Titles II & XVI: Determining Capability to Do Other Work─ The
Medical-Vocational Rules of Appendix 2, SSR 83-10, 1983 WL 31251, at *5 (S.S.A. Jan. 1, 1983)
[hereinafter SSR 83-10] (further defining sedentary work and explaining that “periods of standing
or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting
should generally total approximately 6 hours of an 8-hour workday.”).
Light work involves lifting no more than 20 pounds at a time with frequent lifting
or carrying of objects weighing up to 10 pounds. Even though the weight lifted may
be very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling
of arm or leg controls. To be considered capable of performing a full or wide range
of light work, you must have the ability to do substantially all of these activities. If
someone can do light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity or inability
to sit for long periods of time.
20 C.F.R. § 404.1567(b); see also SRR 83-10, 1983 WL 31251, at *6 (explaining that “[s]ince
frequent lifting or carrying requires being on one’s feet up to two-thirds of a workday, the full
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range of light work requires standing or walking, off and on, for a total of approximately 6 hours
of an 8-hour workday. Sitting may occur intermittently during the remaining time. The lifting
requirement for the majority of light jobs can be accomplished with occasional, rather than
frequent, stooping.”).
The ALJ characterized Keener as having the RFC to “perform light work as defined in 20
CFR 404.1567(b) except that he is able to lift and/or carry 20 pounds occasionally, 10 pounds
frequently, stand and/or walk 2 hours in an 8-hour work day, sit 6 hours in an 8-hour work day.”
(Doc. No. 13-3 at 11). While Keener argues the ALJ was inconsistent and contradictory in its RFC
finding, he misinterprets the ALJ’s findings. A full range of light work requires standing/walking
approximately 6 hours in an 8-hour workday, while here, the ALJ found Keener has the RFC to
perform light work with limitations. Courts in this circuit have found “that a two hour standing or
walking limitation is consistent with the definition of a reduced range of light work.” Torres v.
Berryhill, No. CV 15-4416 (JRT/TNL), 2017 WL 1194198, at *3 (D. Minn. Mar. 30, 2017) (citing
cases). Accordingly, even though the ALJ determined Keener was limited in terms of his ability to
stand/walk, it is not mischaracterized as light work under the RFC.
Additionally, Keener asserts that the occupations identified by the Vocational Expert
(“VE”) are sedentary jobs rather than light, putting forth the argument that light work requires
frequent lifting and carrying, and while few seated jobs are classified as light work, they require
pushing and pulling of the arm-hand or leg-foot controls, and the “occupations identified by the
VE in this case are not occupations which involve pushing and pulling of arm-hand or leg-foot
controls.” (Doc. No. 16 at 6).
“When a [vocational expert] or [vocational specialist] provides evidence about the
requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about
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any possible conflict between that [vocational expert] or [vocational specialist] evidence and
information provided in the [Dictionary of Occupational Titles].” Pol’y Interpretation Ruling:
Titles II & XVI: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable
Occupational Info. in Disability Decisions, SSR 00-4P, 2000 WL 1898704, at *4 (S.S.A. Dec. 4,
2000). If evidence presents a conflict, the adjudicator is responsible for obtaining a reasonable
explanation for the conflict and resolving the conflict prior to relying on the evidence in
determining whether a claimant is disabled or not disabled. Id. The adjudicator must explain how
the conflict is resolved in the decision. Id. “When VE testimony conflicts with the DOT, the DOT
controls when the DOT classifications are not rebutted. The DOT classifications may be rebutted
with VE testimony which demonstrates specific jobs whether classified as light or sedentary, may
be ones that a claimant can perform.” Aaker v. Saul, No. 3:18-CV-147, 2019 WL 4899661, at *4
(D.N.D. Aug. 19, 2019) (quoting Jones v. Astrue, 619 F.3d 963, 978 (8th Cir. 2010)).
Here, the VE testified to Keener’s ability to perform the light work requirements of an
electrode cleaner (DOT# 729.687-014), circuit board assembler (DOT# 726.687-038), and
electronic inspector (DOT# 727.687-066) with a standing/walking limitation of 2 hours in an 8-
hour workday. (Doc. No. 13-3 at 17-18). He also acknowledged there was a sit/stand option for
the three jobs identified and testified they would permit reduced standing/walking. (Id. at 52).
When questioned by the ALJ whether the limitations were consistent with the DOT and SCO, the
VE testified that a job with a reduced standing/walking designation of 2-hours in an 8-hour
workday may receive a light designation in a one of three ways: “[i]t can be for the weight, up to
20 pounds. It can be standing for up to six hours. And it can actually also be for repetitive hand
movement. And in this case, this is a seated light job where people are lifting 20 pounds, but
they’re working in a seated capacity.” (Id. at 51-52) (emphasis added); cf. Aaker, 2019 WL
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4899661, at *5 (finding the VE failed to testify the identified jobs would permit standing/walking
reduced hours in an 8-hour workday and neither the ALJ nor VE acknowledged conflict between
the VE’s testimony and DOT). Because the VE demonstrated that the occupations could be
performed by Keener under a light work classification, the ALJ did not commit legal error.
Keener also argues that an award of benefits is required under the Programs Operations
Manual System (“POMS”). (Doc. No. 16 at 9). Specifically, Keener asserts that under Agency
policy he has a standing/walking capacity consistent with sedentary work rather than light work,
and the ALJ failed to explain why one Grid rule was applied over the other when his RFC fell
between two rules directing opposite conclusions. Keener further asserts that he falls between rule
202.14, which directs a finding of not disabled under light work, and rule 201.14, which directs a
finding of disabled under sedentary work. (Id.).
When external capacity falls between two rules which reach differing conclusions, POMS
states:
Determining whether a claimant is disabled is a more difficult judgment when their
exertional capacity falls in the middle of two rules and the rules direct opposite
conclusions. In this situation apply the:
 	higher-numbered rule and find the claimant not disabled if you conclude the
claimant has a slightly reduced capacity for the higher level of exertion; or
 	lower-number rule and find the claimant disabled if you conclude the
claimant has significantly reduced capacity for the higher level of exertion.
NOTE: Use the information about the sedentary, light, and medium occupational
bases found in the Medical-Vocational Quick Reference Guide in DI 25001.001 to
assist you with this adjudicative judgment. You may also use or cite information
from SSR 83-10, 83-12, 83-14, and 96-9p to support your judgment.
IMPORTANT: Always explain the basis of your conclusions.
If necessary, use the assistance of a Vocational Specialist to determine which rule
most closely approximates the claimant’s RFC and vocational factors of age,
education, and past work experience.
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POM DI 25025.015(D). When a claimant’s exertional capacity falls somewhere “in the middle”
of regulatory criteria when the Grid rules dictate two different conclusions, an ALJ should use a
vocational resource. Titles II & XVI: Capacity to Do Other Work-The Medical-Vocational Rules
As A Framework for Evaluating Exertional Limitations Within A Range of Work or Between
Ranges of Work, SSR 83-12, 1983 WL 31253 at *2-3 (S.S.A. Jan. 1, 1983). Non-exertional
restrictions may further limit a claimant’s ability to do a full range of work at any exertional
capacity. Titles II & XVI: Capability to Do Other Work–The Medical-Vocational Rules As A
Framework for Evaluating A Combination of Exertional & Nonexertional Impairments, SSR 83-
14, 1983 WL 31254 at *4-6 (S.S.A. Jan. 1, 1983).
Keener’s limitations fall between sedentary work (stand/walk 2 hours in an 8-hour
workday) and light work (lifting 20 pounds), which puts his exertional capacity in the middle of
two Grid rules. As Keener falls between two rules, the ALJ properly consulted a vocational source.
See SSR 83-12, 1983 WL 31253, at *3.
Additionally, Keener argues remand is warranted due to the ALJ failing to explain why one
Grid rule was used over the other when POMS DI 25025.015(D) requires the ALJ to always
explain the basis of their conclusions. However, here the ALJ properly provided an explanation
for Keener’s inability to perform the full range of light work due to additional limitations. The ALJ
determined:
If the claimant had the residual functional capacity to perform the full range of light
work, a finding of “not disabled” would be directed by Medical-Vocational Rule
202.14. However, the claimant’s ability to perform all or substantially all of the
requirements of this level of work has been impeded by additional limitations. To
determine 	the 	extent 	to 	which 	these 	limitations 	erode 	the 	unskilled 	light
occupational base, the Administrative Law Judge asked the vocational expert
whether jobs exist in the national economy for an individual with the claimant’s
age, education, work performance, and residual functional capacity. The vocational
expert testified that given all of these factors the individual would be able to
perform the requirements of representative conditions.
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(Doc. No. 13-3 at 17). The ALJ also considered the VE’s testimony, finding it consistent with the
DOT, as supplemented by the VE’s experience. (Id. at 18). The ALJ then determined Keener could
adjust to work existing in significant numbers in the national economy based on his age, education,
work experience and RFC, thus rendering Keener not disabled. (Id.); see also Esping v. Berryhill,
No. CV 17-872 FLN, 2018 WL 3383433, at *7 (D. Minn. July 11, 2018) (finding the ALJ complied
with POMS DI 25025.015(D) as claimant could perform light work occupations, the VE’s
explanations were reasonable and consistent with the DOT, and work existed in significant
numbers within the national economy). Therefore, the ALJ properly complied with POMS DI
25025.015(D).
B. Appointment of Administrative Law Judge and Administrative Appeals
Judges
Keener contends the Social Security Administration Administrative Law Judge (“ALJ”),
and Administrative Appeals Judges (“AAJs”) employed at the Appeals Council, were not properly
appointed by former Acting Commissioner Nancy Berryhill (“Berryhill”) nor by any subsequent
Commissioner or Acting Commissioner consistent with the provisions of the Federal Vacancies
Reform Act (“FVRA”).
During the pendency of this matter, the Eighth Circuit Court of Appeals addressed the
above-stated issue in Dahle v. Kijakazi, holding Berryhill was properly appointed as the Acting
Commissioner when she ratified the appointments of the ALJs and AAJs on July 16, 2018. Dahle
v. Kijakazi, 62 F.4th 424, 429 (8th Cir. 2023), cert. denied sub nom. Dahle v. O'Malley, 144 S. Ct.
549, 217 L. Ed. 2d 293 (2024); see also SSR 19-1P, 2019 WL 1324866, *2 (Mar. 15, 2019).
Accordingly, the court is bound by the precedent set by the Eighth Circuit and cannot overturn or
reverse their ruling. See Joshua G. v. Kijakazi, No. 22-CV-91-LRR-MAR, 2023 WL 6279534, at
*13 (N.D. Iowa July 26, 2023).
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IV. 	CONCLUSION
After considering the record as a whole, it is RECOMMENDED that Keener’s Motion for
Remand (Doc. No. 15) be DENIED, the Commissioner’s Motion for Summary Judgment (Doc.
No. 17) be GRANTED, and the decision of the Commissioner be AFFIRMED.
NOTICE OF THE RIGHT TO FILE OBJECTIONS
Pursuant to D.N.D. Civ. L.R. 72.1(D)(3), any party may object to this recommendation within
fourteen (14) days after being served with a copy of this Report and Recommendation. Failure to
file appropriate objections may result in the recommended action being taken without further
notice or opportunity to respond.
Dated this 10th day of September, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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