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Rose v. Berryhill

United States District Court, N.D. Alabama, Jasper Division

June 18, 2019

PAMELA SUE ROSE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          LILES C. BURKE UNITED STATES DISTRICT JUDGE.

         On January 6, 2018, plaintiff filed a complaint seeking judicial review of an adverse final decision of the Commissioner of the Social Security Administration (“the Commissioner”) pursuant to 42 U.S.C. § 405(g) (Doc. 1). Defendant filed an answer on April 30, 2018 (Doc. 8). On August 13, 2018, plaintiff filed a brief in support (Doc. 15). On September 12, 2018, the Commissioner filed a Brief in Support of Commissioner's Decision (Doc. 16). Plaintiff filed a reply on September 20, 2018 (Doc. 17). The parties presented oral arguments on June 10, 2019. Therefore, this matter is ripe for review. For the reasons stated below, the final decision of the Commissioner is reversed and remanded.

         I. BACKGROUND

         On August 16, 2012, plaintiff filed application for disability benefits under Title II, alleging an onset date of June 30, 2011. (Tr. 138). Her first hearing was a video hearing in Jasper, Alabama on December 12, 2013.[1] The Administrative Law Judge (ALJ), Bruce W. Mackenzie, found that she was not disabled from her onset of June 30, 2011 thru the date of the decision April 29, 2014. (Tr. 147). The Appeals Council reversed and remanded this decision on November 17, 2015. (Tr. 154). Specifically, the Appeals Council remanded the decision for the ALJ to accomplish the following:

• Further evaluate the claimant's mental impairments in accordance with the special technique described in 20 CFR 404.1520a, documenting application of the technique in the decision by providing specific findings and appropriate rationale for each of the functional areas described in 20 CFR 404.1520a(c).
• Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR 404.1545 as well as Social Security Rulings 85-16 and 96-8p).
• Obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).
• Determine whether the claimant has a medically determined substance abuse disorder. If it is determined that the claimant has a substance abuse disorder, the Administrative Law Judge will then determine whether the claimant is disabled based upon all impairments, including the substance abuse disorder. If it is determined that the claimant is disabled, the Administrative Law Judge will then determine if the substance abuse disorder is material to the finding of disability (Social Security Ruling 13-2p).

(Tr. 153-154). Subsequently, the ALJ held a second hearing on March 12, 2016.

         Alabama.[2] (Tr. 10-19). Prior to this hearing the Plaintiff amended her onset date to September 5, 2013. (Tr. 280). On June 27, 2016 the ALJ issued the current decision. (Tr. 10-19). In doing so, the ALJ engaged in the five-step sequential evaluation process promulgated by the Commissioner to determine whether an individual is disabled. (Id. at 12-219). The ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2016. (Id. at 12).
2. The claimant has not engaged in substantial gainful activity since September 5, 2013, the amended alleged onset date (20 CFR 404.1571 et seq.) (Id.).
3. The claimant has the following severe impairments: major depressive disorder, single episode continuous, moderate; generalized anxiety disorder; polysubstance dependence in reported moderate term remission; obstructive sleep apnea; history of headache disorder; history of lumbar spine disc degeneration; history of cervical protrusion at ¶ 5-6; cervicalgia; and post-traumatic stress disorder (20 CFR 404.1520(c)) (Id.).
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 and 404.1526). (Id. at 13).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can frequently climb ramps and stairs but never climb ladders or scaffolds. She can frequently stoop, crouch, kneel and crawl. The claimant should never be exposed to unprotected heights, dangerous machinery, dangerous tools, hazardous processes or operate commercial motor vehicles. The undersigned further finds that the claimant person could only remember short simple instructions and would be unable to deal with detailed or complex instructions. She could do simple routine repetitive tasks but would be unable to do detailed or complex tasks. She would be limited to making simple work related decisions. The claimant should have no more than occasional interaction with the general public but could have frequent interaction with co-workers and supervisors. She would be able to accept constructive non-confrontational criticism, work in small group settings and be able to accept changes in the work place setting if introduced gradually and infrequently. She would be w1able to perform assembly line work with production rate pace but could perform other goal-oriented work. In addition to normal workday breaks, she would be off-task about five percent of an eight-hour workday, in non-consecutive minutes. (Id. at 14).
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565). (Id. at 18).[3]
7. The claimant was born on November 5, 1962 and was 50 years old, which is defined as an individual closely approaching advanced age, on the amended alleged onset date (20 CFR 404.1563). (Id.).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564). (Id.).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2) (Id.).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)) (Id.).
11. The claimant has not been under a disability, as defined in the Social Security Act, from September 5, 2013, the amended alleged onset date, through the date of this decision (20 CFR 404.1520(g)). (Id. at 19).

         Plaintiff requested a second review by the Appeals Council, which was denied on November 15, 2017. (Tr. 1). At that point, the ALJ's decision became the final decision of the Commissioner. Henry v. Comm'r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015). Plaintiff then filed this action on September 28, 2017. (Doc. 1).

         II. DISCUSSION

         The Social Security Act authorizes payment of disability insurance benefits and supplemental social security income to persons with disabilities. 42 U.S.C. §§ 423, 1381 (2012). The law defines disability as the “inability to do 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.” 20 C.F.R. §§ 404.1505(a), 416.905(a).[4]

         A. Standard of Review

         The Court must determine whether the Commissioner's decision is supported by substantial evidence and whether the correct legal standards were applied. Winschel v. Comm'r of Social Sec., 631 F.3d 1176, 1178 (11th Cir. 2011). “Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” Id. (internal citation and quotation marks omitted). “This limited review precludes deciding the facts anew, making credibility determinations, or re-weighing the evidence.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). Thus, while the Court must scrutinize the record as a whole, the Court must affirm if the decision is supported by substantial evidence, even if the evidence preponderates against the Commissioner's findings. Henry v. Comm'r of Soc. Sec., 802 F.3d 1264 (11th Cir. 2015); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

         B. Five-Step ...


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