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Heard v. Berryhill

United States District Court, S.D. Georgia, Augusta Division

June 19, 2018

GLENDA HEARD, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, [1] Defendant.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE.

         Glenda Heard appeals the partially favorable decision of the Deputy Commissioner for Operations on her applications for Disability Insurance Benefits (“DIB”) and 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 pursuant to sentence four of 42 U.S.C. § 405(g), that the Commissioner's final decision be REVERSED and that the case be REMANDED to the Commissioner for further consideration in accordance with this opinion.

         I. BACKGROUND

         Plaintiff applied for DIB on August 15, 2013, and protectively filed for SSI on that same date, alleging a disability onset date for both applications of July 20, 2013. Tr. (“R.”), pp. 18, 229, 236. For purposes of DIB, Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2014. R. 20, 243. Although Plaintiff was forty-eight years old at the time she applied for benefits, she was fifty-one years old on the date of the administrative hearing and at the time the Administrative Law Judge (“ALJ') issued the decision currently under consideration. R. 32, 39, 43. Plaintiff applied for disability benefits based on a combination of alleged impairments, including degenerative disc disease, depression, pre diabetes, spondylosis, and nerve damage in her back. R. 264. Plaintiff completed high school, and prior to her alleged disability, Plaintiff accrued twenty-nine years of work experience as a housekeeper, cook, and short-order cook. R. 44-47, 56, 265.

         The Social Security Administration denied Plaintiff's applications initially and on reconsideration. R. 96-97, 140-41. Plaintiff then requested a hearing before an ALJ, R. 162-63, and the ALJ held a hearing on August 16, 2016. R. 39-59. At the hearing, the ALJ heard testimony from Plaintiff, who was represented by counsel, and from Mark Anderson, a Vocational Expert (“VE”). Id. The ALJ issued an unfavorable decision on August 31, 2016. R. 14-38.

         Applying the sequential process required by 20 C.F.R. §§ 404.1520 and 416.920, the ALJ found:

1. The claimant has not engaged in substantial gainful activity since her alleged onset date of July 20, 2013, through her date last insured (“DLI”) of December 31, 2014, and through the date of the administrative decision. (C.F.R. §§ 404.1571 et seq. and 416.971 et seq.).
2. The claimant has the following severe impairments since July 20, 2013: degenerative disc disease of the lumbar spine, degenerative joint disease of the bilateral knees, anxiety, depression, and obesity (20 C.F.R. §§ 404.1520(c) and 416.920(c)).
3. Since July 20, 2013, the claimant has not had 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. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
4. Since July 20, 2013, the claimant has the residual functional capacity (“RFC”) to perform sedentary work[2] as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except the claimant (1) can occasionally climb stairs and ramps; (2) can never climb ladders and scaffolds; (3) can occasionally balance, stoop, kneel, crouch and crawl; (4) must avoid concentrated exposure to hazards such as unprotected heights and moving mechanical parts; (5) must avoid concentrated exposure to industrial types of vibration; and (6) must have access to plumbed restroom facilities. Further the claimant can (1) understand, remember, and carry out simple instructions; (2) have occasional interaction with supervisors, coworkers and the public; (3) only make simple, work-related decisions; and (4) only tolerate occasional change in work location. Thus, since July 20, 2013, the claimant has been unable to perform any past relevant work (20 C.F.R. §§ 404.1565 and 416.965).
5. Prior to the established disability onset date, the claimant was a younger individual age 45-49. On June 6, 2015, the claimant's age category changed to an individual closely approaching advanced age (20 C.F.R. §§ 404.1563 and 416.964).[3] Prior to the date the claimant's age category changed to closely approaching advanced age, considering the claimant's age, education, work experience, and RFC, there were jobs that existed in significant No. in the national economy that the claimant could have performed, (20 C.F.R. §§ 404.1569, 404.1569a, 416.969, and 416.969a), including patcher, touch-up screener, and table worker. On the date the claimant's age category changed to closely approaching advanced age, considering the claimant's age, education, work experience, and RFC, there are no jobs that exist in significant No. in the national economy that the claimant could perform (20 C.F.R. §§ 404.1560(c), 404.1566, 416.960(c), and 416.966). Therefore, the claimant was not disabled prior to June 6, 2015, including at any time through her date last insured of December 31, 2104, but she became disabled on June 6, 2015, and has continued to be disabled through the date of the ALJ's decision, August 31, 2016 (20 C.F.R. §§ 404.1520(g), 416.920(g), 404.315(a), 404.320(b)).

R. 20-31.

         Plaintiff requested review by the Appeals Council (“AC”), arguing the ALJ erred by mechanically applying the Medical-Vocational Guidelines (the “Grids”) to determine Plaintiff's onset disability date at age fifty, just over five months after Plaintiff's DLI of December 31, 2014, rather than adjudicating the case as a “borderline situation, ” which would allow for consideration of an earlier disability onset date predating her last insured date. R. 352-54. When the AC denied Plaintiff's request for review, 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 that partially adverse decision.

         Plaintiff argues the Commissioner's decision is not supported by substantial evidence because the ALJ failed to determine if a borderline age situation existed, and if so, then decide whether Plaintiff's chronological age or the higher age category should be used to make the disability determination. See Pl.'s Br., doc. no. 14; Pl.'s Reply Br., doc. no. 16. The Commissioner maintains the administrative decision is supported by substantial evidence because the ALJ properly relied on the testimony of a VE to determine Plaintiff was ...


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