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Ferguson v. Commissioner of Social Security

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

August 30, 2019

DEBORAH ANN FERGUSON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          BARRETT, J.

          REPORT AND RECOMMENDATION

          KAREN L. LITKOVITZ, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Deborah Ann Ferguson brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying plaintiffs application for Child's Disability Insurance Benefits (DIB). This matter is before the Court on plaintiffs Statement of Errors (Doc. 11), the Commissioner's response in opposition (Doc. 16), and plaintiffs reply (Doc. 17).

         I. Procedural Background

         Plaintiff was born in 1956 and turned 22 in January 1978. She has a high school education. She has not worked in competitive employment in the relevant past. Plaintiff filed her application for DIB in May 2015, alleging disability since her birth due to Incontinentia Pigmenti - unusual skin pigmentation; health issues related to developmental abnormalities and congenital deformities; and breathing complications. The application was denied initially and upon reconsideration. Plaintiff then requested and was granted a de novo hearing before administrative law judge (ALJ) Mark Hockensmith. On September 6, 2017, the ALJ issued a decision denying plaintiffs DIB application. Plaintiffs request for review by the Appeals Council was denied, making the decision of the ALJ the final administrative decision of the Commissioner.

         II. Analysis

         A. Legal Framework for Disability Determinations

         Child's benefits based on disability are provided for under 42 U.S.C. § 402(d). A claimant may be entitled to DIB if she is at least 18 years old and has a disability that began before she turned 22 years old. 20 C.F.R. § 404.350(a)(5). See also Miller v. Shalala, 859 F.Supp. 297, 298 (S.D. Ohio 1994) (quoting 42 U.S.C. § 402(d)(1)(B)(ii)) (a requirement for DIB is that the claimant be "under a disability . .. which began before [s]he attained the age of 22. ."). To qualify for DIB, a claimant must suffer from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). The impairment must render the claimant unable to engage in the work previously performed or in any other substantial gainful employment that exists in the national economy. 42 U.S.C. § 423(d)(2).

         To establish eligibility for retroactive child's DIB, the claimant must show that she "has been 'able to work at the substantial gainful activity level'" as defined under 20 C.F.R. § 404.1572. Cardew v. Comm'r of Soc. Sec, 896 F.3d 742, 746 (6th Cir. 2018). The claimant must make a showing of "continuous disability" by establishing: (1) that she "was disabled on or before [her] birthday (here, the twenty-second birthday); and (2) that such disability continue[d] to the date of the application." Id. at 300 (citing Futernick v. Richardson, 484 F.2d 647 (6th Cir. 1973)). See also Baker v. Bamhart, 101 Fed.Appx. 992, 993 (6th Cir. 2004) ("To satisfy the requirements of child insurance benefits, [the claimant] must establish .. . that she was disabled as a child or that she is disabled as an adult and that she was continuously disabled from the date of her twenty-second birthday . .. through the date that she applied for benefits.") (citing 42 U.S.C. § 402(d)(1); Futernick, 484 F.2d at 648).

         Regulations promulgated by the Commissioner establish a five-step sequential evaluation process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or mental impairment - i.e., an impairment that significantly limits his or her physical or mental ability to do basic work activities - the claimant is not disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the listings in Appendix 1 to Subpart P of the regulations and meets the duration requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not disabled. If the claimant cannot make an adjustment to other work, the claimant is disabled.

Rabbers v. Comm'r of Soc. Sec, 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps of the sequential evaluation process. Id; Wilson v. Comm'r of Soc. Sec, 378 F.3d 541, 548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform the relevant previous employment, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful employment and that such employment exists in the national economy. Rubbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999).

         B. The Administrative Law Judge's Findings

         The ALJ applied the sequential evaluation process and made the following findings of fact and conclusions of law:

1. [Plaintiff] was born [in].. . 1956. She attained age 22 [in] January 1978 (20 CFR 404.102 and 404.350(a)(5)).
2. [Plaintiff] did not perform substantial gainful activity in the relevant past (20 CFR 404.1571, et seq.).
3. Prior to attaining age 22, [plaintiff] had the following severe impairments: aberrant right subclavian artery, left eye blindness, incontinentia pigmenti, slight developmental delay (20 CFR 404.1520(c)).
4. Prior to attaining age 22, [plaintiff] did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. Prior to attaining age 22, [plaintiff] had the residual functional capacity to perform a full range of work at all exertional levels subject to the following non-exertional limitations: (1) no climbing of ladders, ropes, or scaffolds; (2) no work at unprotected heights or with dangerous machinery; (3) no driving; (4) no requirement to read fine print as a part of essential job duties; (5) no need for peripheral vision as part of essential job duties; (6) limited to simple, routine tasks; (7) limited to a static work environment with few ...

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