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Littlejohn v. Commissioner of Social Security

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

August 7, 2019

TRACY LITTLEJOHN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          JAMES L. GRAHAM, JUDGE

          REPORT AND RECOMMENDATION

          ELIZABETH A. PRESTON DEAVERS, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Tracy Littlejohn, 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. 15), the Commissioner's Memorandum in Opposition (ECF No. 20), and the administrative record (ECF No. 8). Plaintiff did not file a Reply. For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED and that the Commissioner's decision be AFFIRMED.

         I. BACKGROUND

         In June 2013, Plaintiff filed applications for disability insurance benefits, alleging that she had been disabled since March 7, 2012. (R. at 263-66.) Plaintiff's application was denied initially and upon reconsideration. (R. at 167-70, 173-79.) Plaintiff sought a de novo hearing before an administrative law judge. (R. at 181-82.) Administrative Law Judge (“ALJ”) Thomas L. Wang held a hearing on July 1, 2015, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 48-64.) On August 11, 2015, the ALJ issued a partially favorable decision. (R. at 141-53.) On December 19, 2016, the Appeals Council vacated the ALJ's decision, including the parts favorable to Plaintiff, and remanded the case to the ALJ for resolution of certain issues. (R. at 163-65.) The Appeals Council specifically instructed the ALJ to obtain additional evidence concerning Plaintiff's impairments; give further consideration to Plaintiff's residual functional capacity (“RFC”) and, in doing so, evaluate the treating and non-treating source opinions as well as non-examining source opinions and explain the weight given to such opinion evidence; and obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiff's occupational base with the instruction that the hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. (R. at 164.)

         Following remand, the ALJ held a hearing on June 28, 2017, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 78-91.) Eric Pruitt testified as a vocational expert (“VE”) at the hearing. (R. at 91- 104.) Following the hearing on June 28, 2017, the ALJ issued two sets of interrogatories to the VE in order to comply with the Appeals Council directive on the issue of Plaintiff's RFC. (R. at 15, 373-77, 386.) The VE provided written responses to these interrogatories. (R. at 15, 379-82, 387-88.) Although these interrogatories and VE responses were proffered to Plaintiff's counsel, thereby giving Plaintiff the opportunity to submit a written statement as to the evidence or request a supplemental hearing (R. at 15, 383-84, 389-90), her counsel did not respond or seek a supplemental hearing. (R. at 15.)

         On September 18, 2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 15-31.) On April 24, 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.

         II. ADMINISTRATIVE DECISIONS & ADDITIONAL VOCATIONAL EVIDENCE A. ALJ Decision Dated August 11, 2015

         On August 11, 2015, the ALJ issued his first decision. (R. at 140-53.) The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2017. (R. at 143.) At step one of the sequential evaluation process, [1] the ALJ found that Plaintiff had not engaged in substantially gainful activity since her alleged onset date. (R. at 143.)

         At step two, the ALJ concluded that Plaintiff had the following severe impairments: depression, rotator cuff tear bilaterally, obstructive sleep apnea, congestive heart failure, impingement and acromioclavicular joint arthrosis bilaterally, osteoarthritis, hypertension, and obesity. (R. at 143.)

         At step three of the sequential process, the ALJ 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. (R. at 144.) At step four, the ALJ assessed Plaintiff's RFC as follows:

After careful consideration of the entire record, the undersigned finds that since March 7, 2012, the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant could lift and or carry 10 pounds occasionally. The claimant can stand and or walk 6 hours out of an 8 hour work day. The claimant can sit for 6 hours of an 8 hour work day. The claimant can occasionally push or pull. The claimant can never climb ladders, ropes, or scaffolds and can never crawl. The claimant can occasionally kneel. The claimant can never reach overhead, except incidentally. The claimant can unlimitedly reach forward and to the sides. The claimant can do no commercial driving. The claimant is limited to no more than occasional exposure to extreme cold. The claimant can never use heavy machinery and can have no exposure to unprotected heights. Goal based production is measured by end result, not pace work. The claimant is limited to simple, routine, and repetitive tasks. The claimant would be off task 5 percent of the workday. The claimant would work in a low stress job, defined as only occasional changes in the work setting.

(R. at 145.)

         Relying on the VE's testimony, the ALJ determined that Plaintiff was unable to perform any past relevant work. (R. at 150.) The ALJ determined that, prior to the established disability onset date, Plaintiff was a younger individual age 45-49 but on December 29, 2014, her age category changed to an individual closely approaching advanced age. (R. at 151.) The ALJ went on to find that, prior to December 29, 2014, transferability of job skills was not material to the determination of disability because using the Medical-Vocational Rules (also known as “the Grid”) as a framework supports a finding that Plaintiff is “not disabled” whether or not she has transferable job skills. (R. at 151.) The ALJ determined that, beginning on December 29, 2014, Plaintiff had not been able to transfer job skills to other occupations. (Id.) He also determined that, prior to that date, Plaintiff's age category changed, considering Plaintiff's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. (Id.) However, the ALJ went on to find that, beginning on December 29, 2014, when Plaintiff's age category changed, considering her age, education, work experience, and residual functional capacity, there were no jobs that exist in significant numbers in the national economy that she could perform. (R. at 152.) He therefore concluded that Plaintiff was not disabled prior to December 29, 2014, but became disabled on that date and had continued to be disabled through the date of the decision. (Id.)

         B. Remand Order of the Appeals Council

         On December 19, 2016, the Appeals Council vacated the ALJ's decision dated August 11, 2015, including the parts favorable to Plaintiff, and remanded the case to the ALJ for resolution of certain issues. (R. at 163-65.) In doing so, the Appeals Council noted that the ALJ's articulated RFC “falls between two medical-vocational rules that direct opposite conclusions as of the date the claimant's age category changed” and that “it is not a foregone conclusion that a sedentary medical-vocational rule applies in this case.” (R. at 163.) The Appeals Council also identified problems with the ALJ's assessment of the opinion evidence, requiring further evaluation. (R. at 163-64.) Accordingly, the Appeals Council specifically directed, upon remand, the ALJ to do the following:

• Obtain additional evidence concerning the claimant's impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR 404.1512-1513).
• Give further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations (Social Security Ruling 96-8p). In so doing, evaluate the treating and non-treating source opinions pursuant to the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p and 96-5p and non-examining source opinions in accordance with the provisions of 20 CFR 404.1527(e) and Social Security Ruling 96-6p, and explain the weight given to such opinion evidence.
• Obtain supplemental evidence from a vocational expect to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Rulings 83-12 and 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles and its companion publication, the Selected Characteristics of Occupations (Social Security Ruling 00-4p).

(R. at 164.) The Appeals Council directed the ALJ, in compliance with the above, to offer Plaintiff an opportunity for hearing, take “any further action needed to complete the administrative record[, ]” and issue a new decision. (R. at 165.)

         C. Additional Vocational Evidence

         Following remand, the ALJ held a second administrative hearing on June 28, 2017, at which the VE testified. (R. at 75-103.) After the second hearing and in accordance with remand order of the Appeals Council, the ALJ issued a first set of written interrogatories to the VE on July 10, 2017. (R. at 15, 373-77.) The VE provided written responses to these interrogatories. (R. at 15, 379-82.) In response to a question whether there was sufficient evidence to allow him to form an opinion of Plaintiff's vocational status, the VE answered in the affirmative. ...


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