United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
BRIAN K. EPPS, Magistrate Judge.
Brenda Hodge appeals the decision of the Acting Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under the Social Security Act. Upon consideration of the briefs, the record evidence, and the relevant statutory and case law, the Court REPORTS and RECOMMENDS that the Commissioner's final decision be AFFIRMED, that this civil action be CLOSED, and that a final judgment be ENTERED in favor of the Commissioner.
Plaintiff applied for SSI on April 3, 2008, alleging a disability onset date of that same day. Tr. ("R."), pp. 204-06. Prior to the current application, Plaintiff had also applied for SSI in September 1995, November 1998, August 2001, October 2002, and July 2004. R. 34. The Social Security Administration denied Plaintiff's current application initially and on reconsideration. R. 113-14. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), R. 139-40, and the ALJ held a hearing on November 17, 2009. R. 50-70. On March 29, 2010, the ALJ issued an unfavorable decision. R. 115-28. On January 3, 2011, the Appeals Council ("AC") vacated the ALJ's March 29th decision and remanded the case for further proceedings. R. 129-31. A new ALJ held another hearing on October 26, 2011. R. 71-112. At the hearing, the ALJ heard testimony from Plaintiff, who was represented by counsel, and Dennis Conroy, a Vocational Expert ("VE"). Id . On December 2, 2011, the ALJ issued an unfavorable decision. R. 31-49.
Applying the sequential process required by 20 C.F.R. § 416.920, the ALJ found:
1. The claimant has not engaged in substantial gainful activity since April 3, 2008, the application date (20 C.F.R. § 416.971 et seq. ).
2. The claimant has the following severe impairments: depression; anxiety; polysubstance abuse; and partially torn rotator cuff (20 C.F.R. § 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, and 416.926).
4. The claimant has the residual functional capacity ("RFC") to perform medium work as defined in 20 C.F.R. § 416.967(c) except her partially torn rotator cuff limits her to work activities that never require climbing ladders, ropes, or scaffolding. She can individually sit, stand, walk, push and/or pull for at least six of eight hours each eight-hour workday. She can lift/carry fifty pounds occasionally (up to 1/3 of an eight-hour workday) and twenty-five pounds frequently (up to 2/3 of an eight-hour workday). She can individually reach overhead with her left upper extremity and crawl for no more than 1/3 of an eight-hour workday.
The claimant's depression, anxiety, and polysubstance abuse limits her to performing work activities with a specific vocational preparation of 1-3. While her concentration may drift for up to 1/3 of an eight-hour workday if the work is repetitive, routine, or boring, she can pay enough attention to details to meet the general productivity requirements of the job(s) within the same workday. Even though her pace might be disrupted once or twice a week, she will still be able to perform assigned tasks by the end of the same workday. Her social interaction with the public, supervisors, and coworkers should be limited to no more than 1/3 of an eight-hour workday although she can work in close proximity with them throughout the entire workday. She is better off working with things rather than people. Although she may be late going to work or returning from a scheduled work break by up to fifteen minutes per time and it will occur once or twice a week, she will still complete assigned tasks within the same workday. She should avoid constantly changing or fluid work environments. She should not be required to set independent work goals. The claimant is unable to perform any past relevant work. (20 C.F.R. § 416.965).
5. Considering the claimant's age, education, work experience, RFC, and the testimony of the VE, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. §§ 416.969 and 416.969(a)), including stock checker apparel, marker, and hand packager, all unskilled, light exertional level work. Therefore, the claimant has not been under a disability, as defined in the Social Security Act, since April 3, 2008, the date the application was filed (20 C.F.R. § 416.920(g)).
Two aspects of the RFC require further explanation. First, "medium work" is defined as work that "involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary work." 20 C.F.R. § 416.967(c). Second, using the skill level definitions in 20 C.F.R. § 416.968(a), the Dictionary of Occupational Titles lists a specific vocational preparation (SVP) time for unskilled work of 1-2 and semi-skilled work of 3-4. See SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000). Thus, in assigning Plaintiff an RFC restricting her to work activities with an SVP no greater than 1-3, the ALJ limited Plaintiff to unskilled and semi-skilled work. As detailed herein, all of the jobs identified as available for Plaintiff were at the unskilled level. R. 44.
When the AC denied Plaintiff's request for review of the new decision issued after remand, R. 1-6, the Commissioner's decision became "final" for the purpose of judicial review. 42 U.S.C. § 405(g). Plaintiff then filed this civil action requesting reversal or remand of the adverse decision. Plaintiff argues that the Commissioner's decision is not supported by substantial evidence because the ALJ did not find that Plaintiff's borderline intellectual functioning ("BIF") was a severe impairment. (See doc. no. 12 ("Pl.'s Br.").) The Commissioner ...