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Carter v. Commissioner of Social Security

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

August 2, 2019

CARRIE E. CARTER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JAMES L. GRAHAM, JUDGE

          REPORT AND RECOMMENDATION

          Elizabeth P. Deavers, Chief Magistrate Judge

         Plaintiff, Carrie E. Carter, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 13), the Commissioner's Memorandum in Opposition (ECF No. 19), Plaintiff's Reply (ECF No. 20), and the administrative record (ECF No. 10). For the reasons that follow, it is RECOMMENDED that the decision of the Commissioner be REVERSED and that this action be REMANDED under Sentence Four of § 405(g).

         I. BACKGROUND

         On March 21, 2011, Plaintiff filed her first application for disability insurance benefits. (R. at 14, 89.) Plaintiff's first application was denied initially and upon reconsideration. (Id.) Following a de novo video hearing before an administrative law judge (“ALJ”) Charles J. Arnold at which Plaintiff, who was represented by counsel appeared and testified, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 14, 86-100.) On January 23, 2014, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 14.) Plaintiff timely commenced an action in this Court, Carpenter v. Colvin, No. 2:14-cv-244, which affirmed the Commissioner's decision and dismissed the action on December 2, 2014. (R. at 150-52.)[1]

         Plaintiff filed her second application (the instant application) for disability insurance benefits on March 7, 2014, alleging disability since October 18, 2010. (R. at 222-25.) Plaintiff's application denied initially and upon reconsideration. (R. at 154-62, 164-70.) Plaintiff sought a de novo hearing before an administrative law judge. (R. at 171-72.) ALJ Jeannine Lesperance held a hearing on September 15, 2016, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 38-85.) On February 15, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 14-31.) On January 16, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-5.) Plaintiff then timely commenced the instant action.

         III. MEDICAL RECORDS

         On June 21, 2014, Karen Terry, Ph.D., a state-agency physician, reviewed Plaintiff's medical record. (R. at 116-18.) Dr. Terry opined that Plaintiff was not significantly limited in her abilities to remember locations and work-like procedures and to understand and remember very short and simple instructions, to perform activities within a schedule, maintain regular attendance, and to be punctual within customary tolerances, to sustain an ordinary routine without special supervision, and ability to make simple work-related decisions. (R. at 116-17.) Plaintiff was moderately limited in her ability to maintain attention and concentration for extended periods and to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Id.) However, Plaintiff was markedly limited in her ability to understand and remember detailed instructions. (R. at 116.) Dr. Terry stated that Plaintiff's ability to work in coordination with or in proximity to others without being distracted by them was not ratable on available evidence. (R. at 117.) According to Dr. Terry, Plaintiff exhibited some short-term memory difficulty; her concentration was variable and she “put forth minimal effort on mental status tasks.” (Id.) Plaintiff could complete simple, routine tasks that do not involve extended periods of sustained attention /concentration or more than daily planning and do not have fast-paced performance or strict production quota requirements and at times may need some assistance when initially performing new tasks. (Id.)

         As to her social interaction limitations, Dr. Terry found that Plaintiff was not significantly limited in her abilities to interact appropriately with the general public, to ask simple questions or request assistance, and ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. (Id.) Dr. Terry determined that Plaintiff was moderately limited in her abilities to accept instructions and respond appropriately to criticism from supervisors and to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (Id.) According to Dr. Terry, Plaintiff therefore can relate to others on a superficial level but “should not be required to influence others to follow instructions, demands[, ] or handle criticism.” (Id.)

         As to her adaptative limitations, Dr. Terry concluded that Plaintiff was not significantly limited in her abilities to travel in unfamiliar places or use public transportation or to set realistic goals or make plans independently of others. (R. at 117-18.) Plaintiff was moderately limited in her ability to respond appropriately to changes in the work setting. (R. at 117.) There was no evidence Plaintiff was limited in her ability to be aware of normal hazards and take appropriate precautions. (Id.) According to Dr. Terry, Plaintiff can complete tasks where there is no more than occasional change; and when change occurs it can be explained in simple terms. (R. at 118.)

         On October 29, 2014, Patricia Semmelman, Ph.D., reviewed the medical record upon reconsideration. (R. at 132.) Dr. Semmelman stated as follows: “ALJ ruling was transferred to the Federal Appeals level on 2-14 and on 4-2-14 the case was closed with a disposition issued. The MRFC [mental residual functional capacity] given is an adopt of the ALJ MRFC dated 11/30/12. The MRFC is being adopted under AR 98-4.” (Id.)

         IV. ADMINISTRATIVE DECISIONS

         A. Decision dated November 30, 2012

          On November 30, 2012, ALJ Arnold issued his decision regarding Plaintiff's first application. (R. at 89-100.) ALJ Arnold found that Plaintiff met the insured status requirement of the Social Security Act through December 31, 2015. (R. at 91.) At step one of the sequential evaluation process, [2] ALJ Arnold found that Plaintiff had not engaged in substantially gainful activity since October 18, 2010, the alleged onset date. (Id.)

         At step two, ALJ Arnold concluded that Plaintiff had the following severe impairments: status post carpal tunnel release surgery of the light hand, lumbar degenerative changes, depression, and anxiety. (R. at 91.)

         At step three of the sequential process, ALJ Arnold concluded that that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. ...


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