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Anderson v. Berryhill

United States District Court, S.D. Alabama, Southern Division

May 16, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Kristi J. Anderson brings this action, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (“the Commissioner”) denying her claim for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income (“SSI”), based on disability, under Title XVI of the Act. The parties have consented to the exercise of jurisdiction by the Magistrate Judge, pursuant to 28 U.S.C. § 636(c), for all proceedings in this Court. (Doc. 21 (“In accordance with the provisions of 28 U.S.C. 636(c) and Fed.R.Civ.P. 73, the parties in this case consent to have a United States Magistrate Judge conduct any and all proceedings in this case, … order the entry of a final judgment, and conduct all post-judgment proceedings.”)). See also Doc. 23. Upon consideration of the administrative record, Anderson's brief, the Commissioner's brief, and the arguments made at the hearing on May 9, 2018 before the undersigned Magistrate Judge, it is determined that the Commissioner's decision denying benefits should be affirmed.[1]


         Anderson applied for DIB, under Title II of the Act, 42 U.S.C. §§ 423-425, and for SSI, based on disability, under Title XVI of the Act, 42 U.S.C. §§ 1381-1383d, on August 12, 2014, alleging disability beginning on April 25, 2014. (Tr. 200, 207). Her application was denied at the initial level of administrative review on December 18, 2014. (Tr. 135-39). On December 29, 2014, Anderson requested a hearing by an Administrative Law Judge (ALJ). (Tr. 144). After a hearing was held on June 15, 2016, the ALJ issued an unfavorable decision finding that Anderson was not under a disability from the date the application was filed through the date of the decision, September 2, 2016. (Tr. 17-33). Anderson appealed the ALJ's decision to the Appeals Council, and, on June 21, 2017, the Appeals Council denied her request for review of the ALJ's decision, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 1 -6).

         After exhausting her administrative remedies, Anderson sought judicial review in this Court, pursuant to 42 U.S.C. §§ 405(g) and 1383(c). (Doc. 1). The Commissioner filed an answer and the social security transcript on November 2, 2017. (Docs. 12, 13). Both parties filed briefs setting forth their respective positions. (Docs. 15, 16). Oral argument was held on May 9, 2018. (Doc. 22). The case is now ripe for decision.


         Anderson alleges that the ALJ's decision to deny her benefits is in error for the following reason:

1. The ALJ erred by failing to properly evaluate whether her impairment is of a severity to meet or equal Listing 12.05B. (Doc. 15 at p. 1).


         Anderson was born on May 3, 1967, and was 47 years old at the time she filed her claim for benefits. (Tr. 200). Anderson initially alleged disability due to back problems, hearing loss in her left ear, hand problems, depression, insomnia, and restless leg syndrome. (Tr. 235). At the hearing, in addition to these limitations, she also alleged that tendonitis in her hip and being slow, mentally and physically, keep her from being able to work. (Tr. 52). Anderson graduated from high school with a regular diploma in 1985, but was in special education classes in some subjects. (Tr. 44, 236). At the time she filed her application, she was working part-time at a fast food restaurant as a cook, but she was terminated from that employment between the date of filing her application and testifying at the hearing before the ALJ. (Tr. 45-46, 236-37). She has previously worked at fast food restaurants as a cook and stocker, at carnivals as a game booth and ride attendant, and at Dollar Tree as a stocker. (Tr. 46-52). At the time of the hearing, Anderson was living with and taking care of her husband who had stage four cancer. (Tr. 40-42). Anderson handles her own personal care, she cooks several times per week for herself and her husband, she does household chores, she helps her husband get up and assists him walking, she walks to the grocery story about two miles from her apartment and back with her husband just about every morning, and she pays bills with her husband. (Tr. 41-43, 67-69). She does not have a driver's license because no one has ever taught her to drive and she doesn't have a car. (Tr. 42-43). She enjoys seek and find books, reading her Bible, and attending and volunteering at her church. (Tr. 69, 71). She testified that the only problem she has getting along with people is when they nag her and that she has no problems maintaining attention or following directions. (Tr. 70-71). She further testified that other than getting irritated with people who nag, there are no other ways her mental issues keep her from being able to work. (Tr. 71). After conducting the hearing, the ALJ made a determination that Anderson had not been under a disability during the relevant time period, and thus, was not entitled to benefits. (Tr. 17-31).


         After considering all of the evidence, the ALJ made the following findings that are relevant to the issues presented in his November 2, 2016 decision:

3. The claimant has the following severe impairments: borderline intellectual functioning, affective disorder, back pain, chronic pain syndrome, and hearing loss in the left ear (20 CFR 414.1520(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).
* * *Listing 12.05 is not met. While a full scale IQ of 57 was assessed by a psychological evaluation performed in 2012, there is no indication in the document it was deemed a valid score. 1F. Importantly, that examiner opined the claimant could do simple type work like “restaurant work” or “cleaning and laundry.” 1F. Another psychological evaluation was performed in 2013 and found a full scale IQ of 64. 13F. The provider noted that the claimant reported a history of special education classes. However, the claimant testified she graduated with a regular diploma. While the claimant has an IQ between 60 and 70, she has not established deficits in adaptive functioning sufficient to meet listing 12.05. She reportedly doesn't drive, but can handle finances, worked, takes care of her husband who has cancer and is on disability, cleans the house, and reads. She walks four miles to the store, picks her husband up and carries him around, and volunteers at her church. She has worked with money at her previous ...

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