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Braden v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

March 7, 2017

DONNA BRADEN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Dan Aaron Polster United States District Judge.

         Plaintiff Donna Braden (“Braden”), challenges the final decision of Defendant, Nancy A. Berryhill, Acting Commissioner of Social Security (“Commissioner”), denying her applications for a Period of Disability (“POD”) and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(I), 423, 1381 et seq. (“Act”). The Court referred the case to Magistrate Judge Jonathan D. Greenberg for preparation of a Report and Recommendation (“R & R”) pursuant to 42 U.S.C. § 405(g) and Local Rule 72.2(b). After having reviewed the parties' merit briefs and the record, Magistrate Judge Greenberg recommends that the Court vacate the Commissioner's final decision and remand the case for further proceedings. (Doc #: 18.) The Commissioner timely filed an objection to the R & R (Doc #: 19), and Braden filed a response (Doc #: 20). Having reviewed the briefs and relevant parts of the record, the Court is prepared to issue its ruling.

         I.

         In August 2012, Braden filed an application for POD and DIB, alleging a disability onset date of June 1, 2009, later amended to August 11, 2011. (Tr. 41, 70, 190, 221.) She asserted as the basis for her disability “manic depressive, bipolar, hypertension, anxiety, high blood pressure, high cholesterol.” (Id.) The applications were denied initially and upon reconsideration, and Braden requested a hearing before an administrative law judge (“ALJ”). (Tr. 41.) The ALJ held a hearing on November 13, 2014, during which Braden, represented by counsel, testified along with a vocational expert (“VE”). (Id.) On January 25, 2015, the ALJ, having reviewed the medical records, the state medical evaluations and the hearing testimony, issued a written decision finding that Braden is not disabled. (Tr. 41-56.)

         The ALJ followed the five-step sequential evaluation process for determining whether an individual is disabled. (Tr. 42 (citing 20 C.F.R. 404.152(a))) The ALJ found that Braden worked after the alleged disability onset date of August 11, 2011, but that her work activity did not rise to the level of substantial gainful activity (Step 1). (Tr. 43.) The ALJ then found that Braden had the following severe impairments: affective disorder (bipolar disorder not otherwise specified), anxiety disorder (adjustment disorder with anxiety), and borderline personality disorder (Step 2). (Tr. 44.) The ALJ found, however, that the severity of those impairments considered singly or in combination did not meet or medically equal the requirements of a listed impairment (Step 3). (Tr. 44.) The ALJ then conducted a residual functional capacity (“RFC”) analysis based on the medical records and the hearing testimony. (Tr. 46-54.) The ALJ concluded, among other things, that Braden had mild restrictions in daily living activities, moderate difficulties with social functioning and moderate difficulties with regard to concentration, persistence and pace. (Tr. 45.) Of note, the ALJ determined that,

[w]ith regard to concentration, persistence or pace, the claimant had moderate difficulties. The claimant reports difficulty with her ability to maintain concentration and has gotten confused while driving. She indicates that she sometimes hesitates when using the remote control for the television, as she doesn't immediately remember how to use it . . .. Correspondence from a friend and former co-worker of the claimant indicates that the claimant has trouble staying on task from time to time and maintaining focus . . .. The record also indicates that the claimant has had problems remembering to take her medications and her care was transferred from the Free Clinic to Beacon Health, a provider closer to her home to assist her with maintaining compliance with her medication regimen . . .. This would suggest moderate difficulty with her ability to maintain concentration, persistence and pace.

(Id. (citations to the record omitted).) At the hearing, the ALJ posed the following questions to the vocational expert to determine whether Braden could perform her past relevant work or other work existing in significant numbers in the national economy:

First off, I would like you to consider a person with the same age; education; and past work as the claimant; who can perform a full range of exertional work; and can interact occasionally; and superficially. And by superficially, I mean of a short duration for a specific purpose with both coworkers and supervisors; and should have no direct work with the general public. And by that I mean no customer service type work. This individual can perform work with no fast-pace or high production quotas. Given such a hypothetical individual, first off, would this hypothetical individual be able to perform the claimant's past work, as those occupations are either generally or actually performed?

         (Tr. 108-09.) The VE responded that the hypothetical individual would not be able to perform Braden's past work as vending attendant, prep-cook, mold machine operator, ingredient mixer or bartender. (Tr. 109.) However, the VE stated that the hypothetical individual would be able to perform representative jobs in the economy, such as cleaner, dishwasher and janitor - all of which are medium, unskilled positions. (Tr. 109-110.) The ALJ then added another limitation to the hypothetical:

I'd like you to further assume that this hypothetical individual can perform what I call low-stress work. And by that I mean no arbitration; negotiation; responsibility for the safety of others; or supervisory responsibility.

         (Tr. 110.) The VE responded that such a hypothetical individual could still perform the previously identified jobs of cleaner, dishwasher and janitor. The ALJ added another hypothetical:

I'd like you to further assume that this hypothetical individual might be off task approximately 20 percent of the time due to symptoms from anxiety and depression.

(Id.) The VE responded that there would be no jobs available for that hypothetical individual. (Tr. 111.) The ALJ then removed that limitation and posed another question:

I'd like you to further assume that this hypothetical individual might be absent from work approximately four times per month against due to ...

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