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Farlow v. Commissioner of Social Security

United States District Court, S.D. Ohio, Western Division

February 20, 2018

NICOLE D. FARLOW, Plaintiff,

          Barrett, J.



         Plaintiff Nicole Farlow filed this Social Security appeal in order to challenge the Defendant's finding that she is not disabled. See 42 U.S.C. §405(g). Proceeding through counsel, Plaintiff presents several claims of error for this Court's review. As explained below, I conclude that the ALJ's finding of non-disability should be REVERSED, because it is not supported by substantial evidence in the record as a whole.

         I. Summary of Administrative Record

         Prior to filing the 2013 Supplemental Security Income (“SSI”) application that forms the basis for this judicial appeal, Plaintiff filed several unsuccessful applications for SSI benefits, including in 2005, 2006, and 2010. (Tr. 199). The 2005 and 2006 applications appear to have been denied at the initial stage and not appealed. (Id.)

         Plaintiff's 2010 application alleged that her disability began on May 1, 2005. After that application was denied initially and on reconsideration, Plaintiff sought an evidentiary hearing before ALJ Dwight Wilkerson. In a written decision dated November 9, 2012, ALJ Wilkerson found that Plaintiff had severe impairments of borderline intellectual functioning, an anxiety disorder, and obesity, but nevertheless remained capable of a reduced level of light work. (Tr. 155, 157). Plaintiff filed no appeal of ALJ Wilkerson's adverse decision.

         On February 22, 2013, Plaintiff filed another SSI application, continuing to allege disability beginning May 1, 2005.[1] After that claim also was denied initially and upon reconsideration, Plaintiff again requested an evidentiary hearing before an ALJ. On December 2, 2015, Plaintiff appeared and testified at a hearing before ALJ Thuy-Anh T Nguyen; a vocational expert also testified. On January 7, 2016, ALJ Nguyen issued another adverse written decision, in which she concluded that Plaintiff is not disabled. (Tr. 77-91). Plaintiff filed an appeal and submitted new evidence, but the Appeals Council denied further review, leaving ALJ Nguyen's decision as the final decision of the Commissioner.

         At 33 years of age at the time of her second hearing, the ALJ determined that Plaintiff was still a younger individual. Plaintiff completed high school and obtained an associate's degree from a college program. She is single, has no children, and lives with her parents. She testified she has no current income, and that her most recent part-time job was working as a substitute aid. (Tr. 111-12).

         ALJ Nguyen determined that the Plaintiff has severe impairments of “left hip status post hip replacement, bilateral hearing loss status post bilateral tympanoplasty, diabetes mellitus, asthma, obesity, anxiety disorder, borderline intellectual functioning, and a history of attention deficit hyperactivity disorder (ADHD). (Tr. 79). However, the ALJ determined that none of Plaintiff's impairments, either alone or in combination, met or medically equaled any Listing in 20 C.F.R. Part 404, Subpart P, Appendix 1, such that Plaintiff was entitled to a presumption of disability. (Tr. 84).

         Although ALJ Nguyen found new and material evidence of increased physical limitations since the November 2012 adverse decision, she found no new and material evidence regarding Plaintiff's mental impairments. Despite the added physical limitations, the ALJ determined that Plaintiff retains the residual functional capacity (“RFC”) to perform a restricted range of sedentary work, subject to additional non-exertional limitations. Specifically, the ALJ determined that Plaintiff: (1) can only frequently pull/push with the lower left extremity; (2) can occasionally climb ramps and stairs but never ladders, ropes, or scaffolds; (3) can occasionally balance, stoop, and crouch but can do no kneeling or crawling; (4) cannot work in noisy or very noisy environments; (5) must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation, and all exposure to hazardous machinery and unprotected heights; (6) can perform simple, routine, repetitive work and is limited to low stress jobs; (7) is able to follow simple instructions where only short-term concentration is required; (8) cannot perform fast-paced work or work involving strict production quotas; (9) requires a hand held assistive device to ambulate or stand, and (10) would be off task for 8% of the workday. (Tr. 86).

         Considering Plaintiff's age, education, work experience and RFC, and based on testimony from the vocational expert, the ALJ found that Plaintiff could still perform a significant number of jobs in the national economy including an assembler, an inspector, or a packer. Therefore, the ALJ determined that Plaintiff was not under a disability.

         In her appeal to this Court, Plaintiff argues that the ALJ erred when she: (1) improperly evaluated the medical opinion evidence, including by failing to adopt limitations pertaining to absenteeism; (2) failed to find Plaintiff meets or equals Listing 1.02; (3) failed to find her pain complaints to be fully credible; and (4) failed to provide an appropriate hypothetical to the vocational expert than encompassed all of Plaintiff's limitations. As a final and alternative claim of error, Plaintiff argues that this case should be remanded under sentence six, for review of new and material evidence.

         Although several of Plaintiff's claims would not require reversal standing alone, I conclude that the ALJ committed reversible error in her evaluation of the medical opinion evidence. As a result, I recommend remand for further development of the record under sentence four.

         II. Analysis

         A. Judicial Standard of Review

         To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C. §1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or mental impairments that are both “medically determinable” and severe enough to prevent the applicant from (1) performing his or her past job and (2) engaging in “substantial gainful activity” that is available in the regional or national economies. See Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).

         When a court is asked to review the Commissioner's denial of benefits, the court's first inquiry is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation omitted). In conducting this review, the court should consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, then that finding must be affirmed, even if substantial evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion.... The substantial evidence standard presupposes that there is a ‘zone of choice' within which the Secretary may proceed without interference from the courts. If the Secretary's decision is supported by substantial evidence, a reviewing court must affirm.

Id. (citations omitted).

         In considering an application for supplemental security income or for disability benefits, the Social Security Agency is guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial gainful activity; at Step 2, the Commissioner determines if one or more of the claimant's impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant's impairments, singly or in combination, meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner determines whether or not the claimant can still perform his or her past relevant work; and finally, at Step 5, if it is established that claimant can no longer perform his or her past relevant work, the burden of proof shifts to the agency to determine whether a significant number of other jobs which the claimant can perform exist in the national economy. See Combs v. Com'r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.

         A plaintiff bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job. 42 U.S.C. § 423(d)(1)(A).

         B. Relevant Medical Evidence

         As ALJ Nguyen acknowledged, Plaintiff's physical condition deteriorated significantly after the November 2012 denial of her most recent SSI claim. In the unappealed November 2012 decision, Plaintiff was found to have no severe physical impairments other than borderline intellectual functioning and obesity. At that time, Plaintiff was 5 foot 6 inches, and weighed 325 pounds. (Tr. 155). Although ALJ Wilkerson noted that Plaintiff had submitted some evidence of asthma (controlled with inhalers), well-controlled diabetes mellitus, and some hearing loss, as well as recurrent kidney stones, none of those impairments were severe at that time. (Tr. 156).

         Two state consulting physicians reviewed Plaintiff's records after ALJ Wilkerson's adverse decision, in connection with Plaintiff's new 2013 SSI application. On June 29, 2013, Dr. Morrell determined that ALJ Wilkerson's physical RFC findings were not binding, based upon Plaintiff's submission of new and material physical evidence dated January 2013, involving mild arthritis with acerabular over-coverage in her left hip, as well as recent ear surgery. (Tr. 193). On December 5, 2013, a second consultant, Dr. Hughes, noted similar evidence, and that Plaintiff's diabetes had become less controlled beginning in February 2013 through the date of his review. (Tr. 208-209).

         Thus, by the date of her second hearing in December 2015, Plaintiff had increased symptoms from her diabetes mellitus, asthma, [2] and bilateral hearing loss, sufficient to demonstrate that all three conditions should be considered as “severe” impairments. (Tr. 79). On January 7, 2013, Plaintiff underwent tympanoplasty (reconstruction of the eardrum) on her left ear, and in March 2013, she underwent a similar surgical procedure on her right ear. (Tr. 81). As of February 2015, she required hearing aids. Her weight, at 319 pounds, was relatively stable, (see id.) although the record reflects periodic fluctuation. (See Tr. 2215-2216, noting weight of 341 pounds).

         The most significant change in Plaintiff's physical condition between the 2012 decision and the December 2015 hearing was the addition of severe orthopedic complaints relating her left hip. As noted by the reviewing consultants, Plaintiff's complaints began around January 16, 2013, when Plaintiff was found to have only “mild” arthritis in left hip. (Tr. 81, citing Tr. 1006). Two years later in January 2015, she began treatment with an orthopedist, Dr. Choudhury; she received an injection on January 29, ...

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