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Parker v. Commissioner Of Social Security

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

June 24, 2019

LEE ANN PARKER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Dlott, Judge

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge

         Plaintiff Lee Ann Parker 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 asserts three claims of error. As explained below, I conclude that the ALJ's decision should be REVERSED, because it is not supported by substantial evidence in the record as a whole.

         I. Summary of Administrative Record

         The record reflects that Plaintiff has filed applications seeking social security benefits on multiple prior occasions, all of which applications have been denied. This appears to be her first judicial appeal.

         Records pertaining to earlier applications are limited. (Tr. 130, reflecting first application filed in November 2005 and a second application filed in January 2007). Her second application was denied by an Administrative Law Judge (“ALJ”) in October 2009. (Id.; see also Tr. 107). Plaintiff filed new applications for disability insurance benefits (“DIB”) and for supplemental security income (“SSI”), which were denied by Administrative Law Judge (“ALJ”) Grippo on July 19, 2012. (Tr. 100; see also Tr. 130).

         In lieu of a judicial appeal, Plaintiff filed a new SSI application in August 2012, alleging a disability onset date beginning August 10, 2012. (Tr. 130). That application also was denied initially and upon reconsideration. Following an evidentiary hearing at which Plaintiff was represented by the same counsel appearing herein, ALJ Dillon issued an unfavorable written decision on January 10, 2014. (Tr. 100-120). The Appeals Council denied Plaintiff's request for further review. (Tr. 18, 125-129).

         Once again, Plaintiff filed a new SSI application alleging disability beginning January 11, 2014. That application again was denied initially and upon reconsideration. On January 5, 2018, Plaintiff appeared at an evidentiary hearing with counsel, and gave testimony before Administrative Law Judge (“ALJ”) Michael Schmitz; Plaintiff's significant other and a vocational expert also testified. On February 5, 2018, ALJ Schmitz issued a new adverse written decision, (Tr. 18-33), from which Plaintiff now appeals to this Court.

         Plaintiff was 39 years old when she filed her most recent application for benefits, and was within the same age “younger individual” category, at 42 years old, on the date of ALJ's Schmitz's decision. She has a high school education, and past relevant work as an automobile mechanic, a skilled job that she performed at the medium exertional level. (Tr. 32). She lives in a ranch-style house with her long-term boyfriend. (Tr. 54-55). Plaintiff testified that she became disabled after she injured her back at work in 2005. (Tr. 57; see also Tr. 20).

         The ALJ determined that Plaintiff has severe impairments of: “degenerative disc disease, herniated disc and spinal stenosis of the lumbar spine with radiculopathy and sciatica, bilateral carpal tunnel syndrome; fibromyalgia; systemic lupus erythematosus; bipolar disorder, depression, panic disorder and posttraumatic stress disorder (PTSD).” (Tr. 20). The ALJ found additional “non-severe” impairments of a “history of skin cancer, dermatitis, unspecified neoplasm and skin ulcer, mitral regurgitation, mitral valve prolapse, valvular heart disease, coronary artery disease, arteriosclerotic heart disease and palpitations, venous insufficiency, hypotension, hypertension, hyperlipidemia, hypercholesteremia, dyspnea, headache, sleep disorder, urinary incontinence, and bereavement.” (Tr. 21). Plaintiff does not dispute the ALJ's determination that none of her 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 would be entitled to a presumption of disability. (Tr.22).

         ALJ Schmitz agreed that Plaintiff cannot perform her past work. Although the prior ALJ had determined that Plaintiff retained the residual functional capacity (“RFC”) to perform only a limited range of sedentary work with standing/walking no more than 2 hours per day, (Tr. 106), ALJ Schmitz did not consider himself bound by that determination based on new and material evidence. Thus, instead of restricting Plaintiff to sedentary work, ALJ Schmitz found Plaintiff retained the RFC to perform a restricted range of light work, involving lifting up to 20 pounds, and with fewer postural limitations than determined in 2014. ALJ Schmitz excluded other physical limitations previously included in the 2014 decision, [1] but added some mental limitations as follows:

[T]he claimant could occasionally climb ramps and stairs, occasionally stoop, crouch and crawl. She could never climb ladders, ropes or scaffolds. She could frequently balance and kneel. She could occasionally reach overhead with the bilateral upper extremities but frequently reach in all other directions. She could frequently handle and finger with the bilateral upper extremities. She should avoid concentrated exposure to vibrations, and avoid all exposure to hazards such as unprotected heights, moving mechanical parts and operation of motor vehicles. She could perform simple, routine and repetitive tasks, but not at a production rate pace such as assembly line work. She could interact on an occasional basis with supervisors and coworkers in a non-public setting with incidental interaction with the general public, and should be limited to superficial contact meaning no sales, arbitration, negotiation, conflict resolution, group tasks, or management or direction of others. She could respond appropriately to occasional change in a routine work setting as long as any such changes were easily explained and/or demonstrated in advance of gradual implementation.

(Tr. 23).

         Considering Plaintiff's age, education, and RFC, and based on testimony from the vocational expert, the ALJ determined that Plaintiff could still perform a “significant number” of jobs in the national economy, including the representative jobs of ticket marker, cleaner of offices, and garment sorter. (Tr. 33). Therefore, the ALJ determined that Plaintiff was not under a disability. The Appeals Council denied Plaintiff's request for review, leaving the ALJ Schmitz's decision as the final decision of the Commissioner.

         In her judicial appeal, Plaintiff asserts that the ALJ erred: (1) by failing to defer to the opinions of her treating physicians; (2) by improperly assessing her pain and other subjective complaints; and (3) by failing to address the credibility of the testimony of her boyfriend. The undersigned agrees that the ALJ committed legal error, which prevents his decision from being affirmed by this Court.

         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 ...


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