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Dillman v. Commissioner of Social Security

United States District Court, Sixth Circuit

May 24, 2013

GEORGE DILLMAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION [1] THAT: (1) THE ALJ'S NON-DISABILITY FINDING BE FOUND UNSUPPORTED BY SUBSTANTIAL EVIDENCE, AND REVERSED; (2) THIS MATTER BE REMANDED TO THE COMMISSIONER UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g) FOR PROCEEDINGS CONSISTENT WITH THIS OPINION; AND (3) THIS CASE BE CLOSED

MICHAEL J. NEWMAN, Magistrate Judge.

This is a Social Security disability benefits appeal brought pursuant to 42 U.S.C. § 405(g) and § 1383(c). At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" within the meaning of the Social Security Act and therefore unentitled to Disability Insurance Benefits ("DIB") and/or Supplemental Security Income ("SSI").

This case is before the Court upon Plaintiff's Statement of Errors (doc. 7), the Commissioner's Memorandum in Opposition (doc. 13), Plaintiff's Reply (doc. 14), the administrative record (doc. 6), [2] and the record as a whole.

I. BACKGROUND

A. Procedural History

Plaintiff applied for DIB and SSI on October 25, 2006, alleging a disability onset date of May 23, 2003. PageID 58, 209-16. Plaintiff claims he is disabled due to impairments in his lower back, neck and right arm/shoulder, as well as post-traumatic stress disorder ("PTSD") and depression. See PageID 60, 230, 245, 257, 271, 292, 301-04, 315. These impairments arise out of injuries he sustained in an accident on May 23, 2003, when the truck he was driving rolled over. See PageID 352-69.

Following initial denials of his application, administrative hearings were conducted before ALJ Amelia Lombardo on September 21, 2009 and July 13, 2010. PageID 76-119. On August 11, 2010, the ALJ issued a written decision, concluding that Plaintiff was not disabled. PageID 58-72. Specifically, the ALJ's "Findings, " which represent the rationale of her decision, were as follows:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2008;
2. The claimant has not engaged in substantial gainful activity since May 23, 2003, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq. );
3. The claimant has the following severe impairments: osteoarthritis of the lumbar spine; cervical degenerative disc disease; right shoulder degenerative joint disease; depression; and post-traumatic stress disorder ("PTSD") (20 CFR 404.1520(c) and 416.920(c));
4. The claimant does not have an impairment or combination of impairments that meets or medically equals 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);
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity ["RFC"] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following additional limitations: limited to lifting 15 pounds frequently and 10 pounds occasionally; no overhead lifting with the right upper extremity; no repetitive or frequent use of the right upper extremity; no climbing ladders, ropes, or scaffolds; occasional pushing and pulling with right upper extremity; no crawling or kneeling; and unskilled work with minimal contacts with the general public;[3]
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965);
7. The claimant was born [in] 1960 and was 43 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963);
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964);
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);
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, 404.1569(a), 416.969, and 416.969(a)); and
11. The claimant has not been under a disability, as defined in the Social Security Act, from May 23, 2003, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

PageID 61-72 (brackets and footnote added).

Thereafter, the Appeals Council denied Plaintiff's request for review, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 50-52. See Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Plaintiff then timely filed this appeal on June 15, 2012. Doc. 1.

B. Plaintiff's Hearing Testimony

At the September 21, 2009 administrative hearing, Plaintiff testified that he has pain in his neck, which is aggravated when he moves it, especially when he drives. PageID 81. Plaintiff also has pain in his right arm and shoulder when he uses them. Id. Plaintiff further experiences pain and numbness from his right wrist to his neck and, accordingly, has difficulty using his right hand. PageID ...


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