Long v. Social Security Administration

Filing 15

MEMORANDUM OPINION AND ORDER reversing the ruling of the Commissioner and remanding the matter for a proper development of the record. This is a sentence four remand within the meaning of 42 U.S.C. § 405(g). Signed by Magistrate Judge Beth Deere on 10/26/10. (hph)

Long v. Social Security Administration

Doc. 15

IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS J O N E S B O R O DIVISION R H O N D A JEAN LONG PLAINTIFF

V.

CASE NO.: 3:09CV00163 BD

M I C H A E L J. ASTRUE, Commissioner, Social Security Administration

DEFENDANT

M E M O R A N D U M OPINION AND ORDER P la in tiff Rhonda Jean Long brings this action for review of a final decision of the C o m m is s io n e r of the Social Security Administration ("Commissioner") denying her claim fo r Disability Insurance benefits ("DIB") under Title II of the Social Security Act (the " A c t" ) and Supplemental Security income ("SSI") under Title XVI of the Act. I. P r o c e d u r a l History: P la in tiff filed her applications for DIB and SSI on March 30, 2007. (Tr. 92-97) Plaintiff alleges that she became disabled on November 1, 2006. (Tr. 92, 95) She claims d is a b ility due to seizures, migraine headaches, and pain in her left shoulder. (Tr. 28, 120) The ALJ held a hearing on May 14, 2009. (Tr. 16) On July 22, 2009, the ALJ is su e d a decision denying Plaintiff benefits. (Tr. 7-15) The Plaintiff requested review, b u t the Appeals Council denied the request. (Tr. 1-3) Accordingly, the ALJ's decision b e c a m e the Commissioner's final decision for purposes of judicial review.

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II.

B ackground: P la in tiff was 28 years old at the time of the hearing. (Tr. 13) She had graduated

fro m high school (Tr. 20) and had past relevant work as a certified nurse assistant. (Tr. 2 2 ) She also had past work experience as a cashier, packer, and assembler. (Tr. 21-23) At the time of the hearing, Plaintiff lived with her husband and three children. (Tr. 20) III. F in d in g s of the ALJ: T h e ALJ followed the required five-step sequence to determine: (1) whether the c la im a n t was engaged in substantial gainful activity; (2) if not, whether the claimant had a s e v e re impairment; (3) if so, whether the impairment (or combination of impairments) m e t or equaled an impairment listed in the Listing of Impairments in Appendix 1, Subpart P , 20 C.F.R. Part 404 (a "Listing"); (4) if not, whether the impairment (or combination of im p a irm e n ts) prevented the claimant from doing past relevant work; and (5) if so, w h e th e r the impairment (or combination of impairments) prevented the claimant from p e rfo rm in g any other jobs available in significant numbers in the national economy. 20 C .F .R . §§ 404.1520(a)-(g) (2005), 416.920(a)-(g) (2005). The ALJ found that Plaintiff met the insured status requirements of the Act th ro u g h December 31, 2010 (Tr. 9) and found that Plaintiff had not engaged in substantial g a in fu l activity since November 1, 2006, her alleged onset date. (Tr. 9) The ALJ also found that Plaintiff has the following severe impairments: seizure d is o rd e r, migraine headaches, and mild deformity of the left humeral head. (Tr. 14) The A L J determined, however, that Plaintiff did not have a "listed" impairment or 2

combination of impairments. (Tr. 11) The ALJ determined that Plaintiff did not have the re s id u a l functional capacity ("RFC") to perform her past relevant work as a certified n u rs e assistant (Tr. 13), but found she had the RFC to perform light work, reduced by the a b ility to reach overhead only occasionally with the left-upper extremity and a need to a v o id hazards such as climbing ladders, ropes or scaffolds, unprotected heights, and d a n g e ro u s moving machinery. (Tr. 11) Based on the testimony of a vocational expert (" V E " ), the ALJ found Plaintiff could perform work as a cashier. The VE testified that th e re were a significant number of cashier jobs available in the national economy. (Tr. 1 4 ) The ALJ concluded Plaintiff was not disabled. IV . A n a ly s is : A. S ta n d a r d of Review

In reviewing the Commissioner's decision, this Court must determine whether th e re is substantial evidence in the administrative record to support the decision. 42 U .S .C . § 405(g). "Substantial evidence is evidence that a reasonable mind would find a d e q u a te to support the ALJ's conclusion." Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2 0 0 7 ). In reviewing the record as a whole, the Court "must consider the evidence which d e tra c ts from the Commissioner's decision, as well as the evidence in support of the d e c is io n ," but the decision cannot be reversed, "simply because some evidence supports a c o n c lu s io n other than that of the Commissioner." Pelkey v. Barhart, 433 F.3d 575, 578 (8 th Cir. 2006).

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B.

T h e ALJ's Duty to Develop the Record

P la in tiff argues that the ALJ erred by not fully developing the record with respect to her ability to perform jobs that exist in the national economy. Specifically, Plaintiff c la im s the ALJ should have allowed her to present testimony regarding her limitations th a t make her unable to perform work as a cashier. A social security hearing is a non-adversarial proceeding, and the ALJ has a duty to fully develop the record. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). "Well-settled precedent confirms that the ALJ bears a responsibility to develop the record fa irly and fully, independent of the claimant's burden to press his case." Snead v. B a rn h a r t, 360 F.3d 834, 838 (8th Cir. 2004). This is true even when the claimant is re p re se n te d by counsel at the administrative hearing. Id. The ALJ must "act neutrally in d e v e lo p in g the record." Id. (citing Richardson v. Perales, 402 U.S. 389, 410, 91 S.Ct. 1 4 2 0 (1971) ("The social security hearing examiner, furthermore, does not act as counsel. H e acts as an examiner charged with developing the facts."); Battles v. Shalala, 36 F.3d 4 3 , 44 (8th Cir. 1994) (noting that the Commissioner and claimants' counsel both share th e goal of assuring that disabled claimants receive benefits)). A t the hearing, Plaintiff's counsel asked Plaintiff about her past work experience. Plaintiff testified that from March to November, 2001, she worked as a cashier at a gas s ta tio n with a small convenience store. (Tr. 23) Later in the hearing, Plaintiff's counsel o ffe re d to elicit further testimony from the Plaintiff about her cashier experience. He a s k e d the ALJ, "[d]o we need to go into her work as a cashier to show she's unable to still 4

do that type of work?" (Tr. 33) The ALJ replied, "[n]o," at which point the attorney p a s s e d the witness, and the ALJ began questioning Plaintiff's husband. (Tr. 33) After Plaintiff and her husband had testified, the ALJ questioned a VE who te s tifie d that, for Plaintiff's previous work as a cashier, "the exertional level is light. The s k ill level is SVP three. That's semi-skilled. The DOT number is 211.462-014." (Tr. 37) After the VE reviewed all of Plaintiff's prior work experiences, the ALJ presented the fo llo w in g hypothetical: Q ­ assume that the person is 28 years of age with a high school e d u c a tio n and the past relevant work experience you just d e s c rib e d ; however, when answering the questions, I re v ie w e d the file in this matter and the earnings as a cashier d o not meet the requirements for substantial gainful activity. The only earnings that would meet that requirement was her e a rn in g s as a CNA. Okay. And assume the person can perform no greater than light w o rk as defined in the regulations and can - - could never c lim b , could occasionally reach overhead with the left upper e x tre m ity only, could avoid - - or must avoid even moderate e x p o s u re to heights and dangerous moving machinery. Based o n those restrictions, could such a person do the claimant's p a s t work? No. Would there be other jobs in the national or regional economy th a t such a person could perform? Yes, there are other jobs. The one I'll have to go to that's the m o s t obvious that would fall within that hypothetical are th o s e folks that work as cashiers. The - - at the light level - th e exertional level of light, the skill level is an SVP two. The 5

A Q

A Q

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title - - I'm sorry, the title of the cashier is cashier II. I'll get th e m in the right order in a minute. The - - as I said, cashier II, light - Q A Light, SVP two. - - SVP two. And the DOT is 211.462-010. ... Q Now, if we use all those same restrictions; however, the p e rs o n could perform no greater than sedentary work as d e fin e d in the regulations, would there be any such - - any jo b s for that person in the national or regional economy? I'd have to stay with the cashier group. That is at the semis k ille d level. That's primarily an SVP three and at the s e d e n ta ry level

A

(T r. 37-39) In his opinion, the ALJ relied on the VE's testimony that an individual with P la in tiff's age, education, work experience and residual functional capacity could perform th e requirements of "representative unskilled occupations such as a cashier," and that th e re are cashier jobs available in the national economy. (Tr. 14) Based on the VE's te s tim o n y , the ALJ concluded that Plaintiff was not disabled. The ALJ failed to fully develop the record with respect to Plaintiff's limitations. B e c a u se the ALJ did not allow Plaintiff to testify about limitations that she alleged would p re v e n t her from working as a cashier, the hypothetical question posed by the ALJ, which le d to the VE's conclusion that the hypothetical individual could perform work as a c a s h ie r, fell short of reflecting the Plaintiff's impairments. Baker v. Apfel, 159 F.3d 1140, 6

1145 (8th Cir. 1998) (hypothetical questions are inadequate when they do not fairly re fle c t the claimant's impairments and capabilities) (citing Greene v.Sullivan, 923 F.2d 9 9 , 101 (8th Cir. 1991)). Plaintiff's counsel's question to the ALJ, asking whether he should elicit testimony a b o u t Plaintiff's inability to return to work as a cashier, should have alerted the ALJ and th e VE to the fact that Plaintiff might have had limitations that would prevent her from w o rk in g as a cashier. The ALJ failed to fully develop the record as to Plaintiff's lim ita tio n s , and, in turn, the Commissioner failed to carry his burden of showing Plaintiff is qualified to perform jobs that exist in the economy. See Battles v. Shalala, 36 F.3d 43, 4 5 (8th Cir. 1994) (ALJ failed to fully and fairly develop the record where hearing lasted te n minutes, ALJ asked no questions, and counsel's questions did not address the c la im a n t's mental capacity to work). Accordingly, the case must be remanded for proper d e v e lo p m e n t of the record. See Highfill v. Bowen, 832 F.2d 112, 115 (8th Cir. 1987) (" [u ]n fa irn e s s or prejudice resulting from an incomplete record - weather because of lack o f counsel or lack of diligence on the ALJ's part - requires a remand"). V. C o n c lu s io n : T h e Court has reviewed all of the evidence in the record. Having concluded the A L J failed to fully develop the record on Plaintiff's limitations, there is not substantial e v id e n c e in the record as a whole to support the Commissioner's conclusion that Plaintiff is capable of making a successful adjustment to work that exists in significant numbers in th e national economy. 7

Therefore, the ruling of the Commissioner must be reversed and the matter re m a n d e d for a proper development of the record. This is a "sentence four" remand w ith in the meaning of 42 U.S.C. § 405(g). IT IS SO ORDERED, this 26th day of October, 2010.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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