Moody v. Commissioner of Social Security
Filing
14
ORDER & OPINION entered by Judge Joe Billy McDade on 3/28/2017: IT IS ORDERED that Plaintiff's Motion for Summary Judgment (Doc. 8 ) is GRANTED. The Court REVERSES the judgment of the Commissioner and REMANDS the case back to the Commissioner for further proceedings consistent with this Opinion and Order. The Court DENIES Defendant's Motion for Summary Affirmance. IT IS SO ORDERED. CASE TERMINATED. (SEE FULL WRITTEN ORDER & OPINION) (JRK, ilcd)
E-FILED
Tuesday, 28 March, 2017 02:43:25 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
PAULETTE ALANE MOODY,
Plaintiff,
v.
NANCY BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No. 1:15-cv-01449-JBM
ORDER & OPINION
This matter is before the Court on Plaintiff Paulette Moody’s Motion for
Summary Judgment (Doc. 8) and Defendant Nancy Berryhill’s Motion for Summary
Affirmance (Doc. 12). For the reasons explained below, Plaintiff’s motion is granted
and Defendant’s motion is denied. Because the ALJ erred in not assessing Plaintiff’s
borderline age, his decision is vacated and the matter is remanded to the
Commissioner for further proceedings consistent with this Order & Opinion.
I. PROCEDURAL BACKGROUND
On September 24, 2012, Plaintiff filed a Title II application for a period of
disability and disability insurance benefits. (R. at 9).2 Plaintiff alleged that her
disability began on July 1, 2007. (R. at 9). Plaintiff’s date of last insured was June 30,
2011 (R. at 11). The Social Security Administration initially denied Plaintiff’s
Nancy A. Berryhill became the Acting Commissioner of Social Security on January
23, 2017. The previous Commissioner was Carolyn W. Colvin.
2 Citation to R. at ___ refers to the page in the certified transcript of the entire record
of proceedings provided by the Social Security Administration.
1
application on November 30, 2012, and did so again on reconsideration on March 15,
2013. (R. at 9). On March 27, 2013, Plaintiff requested a hearing before an ALJ. (R.
at 9). On June 11, 2014, the ALJ held a video hearing where the Plaintiff, who was
represented by an attorney, and a Vocational Expert both testified. (R. at 9-23).
On June 26, 2014, the ALJ issued a decision finding that Plaintiff was not
disabled, and thus not eligible for disability insurance benefits. (R. at 23). On
September 3, 2015, the Social Security Administration Appeals Council denied
Plaintiff’s request for a review. (R. at 1-3). In doing so, it made the ALJ’s decision the
final decision of the Commissioner of Social Security. Plaintiff then filed her
Complaint (Doc. 1) with this Court on November 3, 2015.
II. FACTUAL AND MEDICAL HISTORY
Plaintiff was born on October 5, 1956. (R. at 21). She was approximately 54
years and 9 months old at the time of her date of last insured.3 Plaintiff alleges
disability because of degenerative disorders in her knees, obesity, and an affective
disorder. Because the ALJ sufficiently summarizes and addresses the factual details
of Plaintiff’s medical history and because they are not pertinent to the Court’s
Opinion, the Court will not repeat them here. (R. at 9-23).
Plaintiff alleges disability from significant bilateral knee pain caused by
degenerative disorders within her knees and obesity. She also alleges disability
caused by an affective disorder, specifically bipolar disorder, which primarily
manifested itself as depression. Plaintiff alleges that the combination of impairments
Plaintiff’s date of last insured was June 30, 2011. Therefore, Plaintiff was 54 years,
8 months, and 25 days old on the Plaintiff’s date of last insured.
3
2
significantly limited her ability to engage in work related activity during the period
at issue.
On June 11, 2014, Plaintiff had a hearing before the ALJ. (R. at 28-57). During
the hearing, the ALJ sought testimony both from Plaintiff and from a Vocational
Expert. (R. at 28-57). On June 26, 2014, the ALJ denied Plaintiff’s application for a
period of disability and disability insurance benefits. (R. at 23). The ALJ found that
Plaintiff’s impairments, or combination of impairments, did not met or medically
equal 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, and 404.1526).
Furthermore, the ALJ found that Plaintiff had the residual functional capacity
to perform “light” exertional work with some defined limitations. Specifically, the ALJ
found:
“After careful consideration of the entire record, the undersigned finds
that, through the date last insured, the claimant had the residual
functional capacity to perform light work as defined in 20 C.F.R.
404.1567(b) except that she could not climb ladders, ropes, or scaffolds
and could perform other postural functions only occasionally; she needed
to avoid exposure to environmental hazards, such as unprotected
heights and dangerous machinery; the claimant was limited to the
performance of simple and repetitive tasks that involved little or no
change in work routine, no interaction with the general public, and
occasional interaction with coworkers and supervisors.”
(R. at 14).
The ALJ then had to determine whether Plaintiff was disabled or not based on
her residual functional capacity, age, education, and work experience, in conjunction
with the Medical-Vocational Guidelines (“the Grid”). 20 C.F.R. Part 404, Subpart P,
App’x 2. (R. at 22). The ALJ determined that on her date of last insured, Plaintiff was
“54 years old, which is defined as an individual closely approaching advanced age.”
3
(R. at 21) (citing 20 C.F.R. § 404.1563(d)). The ALJ also determined that Plaintiff had
completed at least a high school education. (R. at 21). However, the ALJ did not
determine the transferability of job skills, because the Grid supported a finding of
“not disabled” regardless of if Plaintiff had transferable job skills. (R. at 21).
Under the Grid, the ALJ found that Plaintiff would be considered “not
disabled.” (R. at 22). However, because the Plaintiff had limitations on her functional
ability to perform “light” work, the ALJ consulted with a vocational expert to
determine whether there would be jobs available in the national economy that
Plaintiff could perform. (R. at 22). The vocational expert testified that Plaintiff would
be able to perform the occupation of either 1) a maid or housekeeping cleaner or 2) a
production-related inspector. (R. at 22). Because there were jobs that Plaintiff could
perform, the ALJ determined that a finding of “not disabled” was appropriate and
denied Plaintiff’s application for disability and disability benefits. (R. at 23).
III. LEGAL STANDARD
The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
“The standard of review that governs decisions in disability-benefit cases is
deferential.” Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). When a claimant
seeks judicial review of an ALJ’s decision to deny benefits, this Court must only
“determine whether [the ALJ’s decision] was supported by substantial evidence or is
the result of an error of law.” Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004). “The
findings of the [Commissioner] as to any fact, if supported by substantial evidence,
shall be conclusive.” 42 U.S.C. § 405(g). “Substantial evidence, ‘although more than a
mere scintilla of proof, is no more than such relevant evidence as a reasonable mind
4
might accept as adequate to support a conclusion.’” Kepple v. Massanari, 268 F.3d
513, 516 (7th Cir. 2001) (citations omitted).
To determine whether the ALJ’s decision is supported by substantial evidence,
this Court will review the entire administrative record, but will not “reweigh the
evidence, resolve conflicts, decide questions of credibility, or substitute [its] own
judgment for that of the Commissioner.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir.
2000). While this Court must ensure that the ALJ “build[s] an accurate and logical
bridge from the evidence to [her] conclusion,” he need not address every piece of
evidence. Clifford, 227 F.3d at 872. The Court will remand the case only where the
decision “lacks evidentiary support or is so poorly articulated as to prevent
meaningful review.” Steele v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
To be entitled to disability benefits under the Social Security Act, a claimant
must prove he is unable to “engage in any substantial gainful activity by reason of
any
medically
determinable
physical
or
mental
impairment.”
42
U.S.C.
§ 423(d)(1)(A). The Commissioner must make factual determinations in assessing the
claimant’s ability to engage in substantial gainful activity. See 42 U.S.C. § 405(b)(1).
The Commissioner applies a five-step sequential analysis to determine whether the
claimant is entitled to benefits. 20 C.F.R. § 404.1520; see also Maggard v. Apfel, 167
F.3d 376, 378 (7th Cir. 1999). The claimant has the burden to prove disability through
step four of the analysis, i.e., he must demonstrate an impairment that is of sufficient
severity to preclude him from pursuing his past work. McNeil v. Califano, 614 F.2d
142, 145 (7th Cir. 1980). If the plaintiff has carried his burden for the first four steps,
the burden shifts to the Commissioner at step five. Id.
5
In the first step, a threshold determination is made as to whether the claimant
is presently involved in a substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If
the claimant is not under such employment, the Commissioner of Social Security
proceeds to the next step. Id. At the second step, the Commissioner evaluates the
severity and duration of the impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the
claimant has an impairment that significantly limits his physical or mental ability to
do basic work activities, the Commissioner will proceed to the next step. 20 C.F.R. §
404.1520(c). If the claimant’s impairments, considered in combination, are not severe,
he is not disabled and the inquiry ends. Id. At the third step, the Commissioner
compares the claimant’s impairments to a list of impairments considered severe
enough to preclude any gainful work; if the elements of one of the Listings are met or
equaled, the claimant is eligible for benefits. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R.
Part 404, Subpart P, App’x. 1.
If the claimant does not qualify under one of the listed impairments, the
Commissioner proceeds to the fourth and fifth steps, after making a finding as to the
claimant’s residual functional capacity. 20 C.F.R. § 404.1520(e). At the fourth step,
the claimant’s residual functional capacity is evaluated to determine whether he can
pursue his past work. 20 C.F.R. §§ 404.1520(a)(4)(iv). If he cannot, then, at step five,
the Commissioner evaluates the claimant’s ability to perform other work available in
the
economy,
again
using
his
residual
§ 404.1520(a)(4)(v).
6
functional
capacity.
20
C.F.R.
IV. DISCUSSION
Plaintiff raises numerous issues in her Memorandum in Support of Motion for
Summary Judgment (Doc. 20), some of which overlap or are not stated clearly.
Plaintiff has the responsibility of identifying the specific findings of the ALJ which
are contrary to law, citing “to the record by page number the factual evidence which
supports” her position, as well as the “statute, regulation or case law under which the
Commissioner allegedly erred.” Local Rule 8.1(D). Despite this requirement,
Plaintiff’s lengthy brief is unclear and confusing, and frequently does not clearly
identify the problematic findings or legal support. The Court “cannot fill the void by
crafting arguments and performing the necessary legal research.” Anderson v.
Hardman, 241 F.3d 544, 545 (7th Cir. 2001). This rule applies to pro se plaintiffs, but
should be even more true when, as here, a plaintiff is represented by counsel, albeit
shabbily. Thus, although the Court attempted to construe the numerous claims and
assess them accordingly, the Court did not create arguments for Plaintiff. To the
extent arguments were missed, the Court reminds Plaintiff and Plaintiff’s counsel
that “perfunctory and undeveloped arguments, and arguments that are unsupported
by pertinent authority, are waived.” United States v. Berkowitz, 927 F.2d 1376, 1384
(7th Cir. 1991).
The Court was able to identify the following arguments: 1) that the ALJ erred
in not addressing Plaintiff’s borderline age when using the Grid in step five; 2) that
the ALJ erred by not addressing the Plaintiff’s 2008 MRI; 3) that the ALJ erred by
determining that Plaintiff could perform “light” work when her previous work was
“sedentary”; and 4) that the ALJ erred in disregarding Plaintiff’s and her husband’s
7
testimony about her health. The Court finds that the ALJ erred in not identifying
whether he had considered Plaintiff’s borderline age, therefore, the Court remands
the matter for further proceedings consistent with this Order and Opinion.
A. BORDERLINE AGE
The ALJ erred in failing to identify whether he considered Plaintiff’s borderline
age when using the Grid to determine whether Plaintiff was disabled or not. “The
Grids reflect the Social Security Administration’s determination that certain
combinations of age, education, work experience, and exertional limitations direct a
finding of either disabled or not disabled at step five of the disability analysis.”
Figueroa v. Astrue, 848 F. Supp. 2d 894, 895 (N.D. Ill. 2012) (citing 20 C.F.R. §
404.1569; 20 C.F.R. Pt. 404, Subpart P., App’x 2 § 200.00(a); Haynes v. Barnhart, 416
F.3d 621, 627-30 (7th Cir. 2005)).
When using the Grid and considering an individual’s age, the Social Security
Administration has promulgated the following regulation:
“We will use each of the age categories that applies to you during the
period for which we must determine if you are disabled. We will not
apply the age categories mechanically in a borderline situation. If you
are within a few days to a few months of reaching an older age category,
and using the older age category would result in a determination or
decision that you are disabled, we will consider whether to use the older
age category after evaluating the overall impact of all the factors of your
case.”
20 C.F.R. § 404.1563(b) (emphasis added). Therefore, § 404.1563(b) prevents the
Commissioner from mechanically applying the age categories if an individual is
within a few months of reaching a new category. However, § 404.1563(b) does not
provide further guidance about how it is to be applied and what is required of an ALJ
in order to show that they did not “mechanically apply” the age categories.
8
This has created a disagreement among the Circuit Courts of Appeal as to the
requirements of § 404.1563(b). Figueroa, 848 F. Supp. 2d at 896-99 (explaining
disagreement between Circuit Courts); see also Anderson v. Astrue, 2011 U.S. Dist.
LEXIS 62862, at *39-40 (N.D. Ill. June 13, 2011); Pelech v. Colvin, No. 14-C-7021,
2016 U.S. Dist. LEXIS 21215, at * 21-22 (N.D. Ill. Feb. 22, 2016).
The Courts of Appeal for the Third and Tenth Circuits have held “that an ALJ
must show in his decision that he has performed the analysis required in a borderline
age situation.” Anderson, 2011 U.S. Dist. LEXIS 62862, at *36-37 (citing Daniels v.
Apfel, 154 F.3d 1129, 1136 (10th Cir. 1998); Kane v. Heckler, 776 F.2d 1130, 1132-34
(3d Cir. 1985)). Therefore, these courts require “that ‘ALJs must provide some record
of their thought process regarding the requirements of § 404.1563(b).’” Id. (citations
omitted). The courts require that an ALJ show he performed the analysis in order to
assure that the ALJ considered the borderline age situation in a non-mechanical
manner.
However, the Courts of Appeal for the Sixth, Ninth, and Eleventh Circuits have
rejected “the argument that borderline-age regulations are applied mechanically in
violation of § 404.1563 when the ALJ fails to explicitly indicate that consideration
was given to the claimant’s age status.” Id. at *37-39 (citing Bowie v. Comm’r of Soc.
Sec., 539 F.3d 395, 399 (6th Cir. 2008); Lockwood v. Comm’r Soc. Sec. Admin., 616
F.3d 1068 (9th Cir. 2010), cert. denied, 131 S. Ct. 2882 (2011); Miller v. Comm’r of
Soc. Sec., 241 F. App’x 631, 635 (11th Cir. 2006)). These courts have declined to
require ALJs to explain their borderline age determination because “‘nothing in §
404.1563’s language obligates an ALJ to address a claimant’s borderline age situation
9
in his opinion or explain his thought process in arriving at a particular category.’” Id.
at *38 (citing Bowie, 539 F.3d at 401-03).
The United States Court of Appeals for the Seventh Circuit has not addressed
the issue of what § 404.1563(b) requires of an ALJ; however, this Court is assured
that it is more than what the ALJ provided in this case, which was nothing. The Court
is persuaded by the logic of the Courts of Appeal for the Third and Tenth Circuits, as
well as that of our sister district, the Northern District of Illinois, in finding that the
ALJ must, at minimum, identify that there was a borderline age situation before
determining which age category to use. See Anderson, 2011 U.S. Dist. LEXIS 62862,
at *37 (“Multiple courts in this district have expressly adopted the Tenth Circuit’s
approach in Daniels.”). Without an acknowledgment that there was a borderline age
situation, the ALJ’s opinion only shows a mechanical application of the age
categories, which § 404.1563(b) forbids. Furthermore, even the circuits that do not
require an explanation, acknowledge that “ALJs must provide enough detail to show
that their decisions are supported by substantial evidence.” Id. at *40 (citing Bowie,
539 F.3d at 400).
Therefore, the Court agrees with the Northern District of Illinois’s explanation
for requiring an ALJ to identify and explain borderline age determinations.
“Moreover, without some minimal explanation of how a choice has been
made, it would seem difficult if not impossible for there to be meaningful
review of the age category determination. Indeed, it would appear to be
impossible to determine whether there had even been the required
exercise of discretion . . . [and furthermore] the ALJ would have abused
that discretion by failing to exercise it. Indeed, in all contexts, failure to
exercise discretion, however uncanalized that discretion, is, itself, an
abuse of discretion. Further, the Seventh Circuit has long required that
an ALJ build a ‘logical bridge’ between the evidence and the ALJ’s
10
conclusion so that the claimant may be afforded meaningful review of
the Commissioner’s ultimate findings.”
Figueroa, 848 F. Supp. 2d at 900 (citations omitted).
Therefore, the ALJ must identify that there is a borderline age situation and
then determine, based on the evidence, which of the available age categories is
appropriate. In doing so, the ALJ must build a logical bridge from his evidence to the
age categorization that he applies.
As applied to this case, the ALJ made no mention of the borderline age
situation; therefore, the Court is unable to conduct meaningful review as to whether
the ALJ considered the borderline age situation mechanically or not. On June 30,
2011, which is Plaintiff’s date of last insured, Plaintiff was 54 years, 8 months, and
25 days old.4 The ALJ declared that an individual of 54 years age would be defined
as an “individual closely approaching advanced age.” (R. at 21). However, as Plaintiff
argues, the ALJ did not acknowledge that Plaintiff was within months of being 55
years old. Those who are 55 years old or older are considered “individuals of advanced
age.” 20 C.F.R. § 404.1563.
The age category that the ALJ uses is important because it is one of the four
factors used to determine whether an individual is disabled under the Grid. The ALJ
Although § 404.1563(b) does not define precisely how many months a “few months”
is, the Court is satisfied that because Plaintiff was three months and five days away
from her birthday that she is within a “few months.” See Young v. Barnhart, 287 F.
Supp. 2d 905, 913 (N.D. Ill. 2003) (remanding a borderline age claimant who was four
and one-half months away from the next age category); Graham v. Massanari, No.
00-C-4469, 2001 U.S. Dist. LEXIS 6415, at *8 (N.D. Ill. May 9, 2001) (remanding a
borderline age situation where the Plaintiff was four and one-half months away from
turning fifty); Freundt v. Massanari, No. 00-C-4456, 2001 U.S. Dist. LEXIS 18063, at
*19 (N.D. Ill. Nov. 2, 2001) (remanding a borderline age situation where Plaintiff was
six months and twelve days away from turning fifty).
4
11
assessed that Plaintiff was capable of “light” work with functional restrictions,
therefore the ALJ used Grid Table 2 to help him determine whether Plaintiff was
disabled at step five. The ALJ found that Plaintiff was not disabled because she was
an “individual closely approaching advanced age” with a high school degree.
Therefore, under Rules 202.13, 202.14, and 202.15 Plaintiff would be considered “not
disabled.” The ALJ did not determine whether Plaintiff’s skills were transferrable
because it did not alter the “not disabled” categorization. (R. at 21).
However, if Plaintiff were considered to be an “individual of advanced age,”
then it would change the portion of Grid Table 2 that the ALJ applied. As an
“individual of advanced age,” Plaintiff could be categorized as “disabled” under Rules
202.04 and 202.06, if the ALJ finds that her previous work experience was unskilled
or that the skills were not transferable. Therefore, the ALJ’s categorization of
Plaintiff’s age is important to her determination of disability. Because of this, the
Court cannot find that the ALJ’s error was harmless. Therefore, a remand is
appropriate.
The Court is not pronouncing that the ALJ’s use of an “individual approaching
advanced age” was an error or that that ALJ must find consider Plaintiff an
“individual of advanced age.” Rather, the Court is merely requiring the ALJ to
identify that he considered the borderline age issue and provide some explanation,
however brief, in order to build a logical bridge for judicial review. See Anderson, 2011
U.S. Dist. LEXIS 62862, at *42; Pelech, 2016 U.S. Dist. LEXIS 21215, at *25.
12
B. OTHER ARGUMENTS
In light of the remand, the Court finds it unnecessary to address Plaintiff’s
additional arguments. See, e.g., Wallace v. Colvin, 193 F. Supp. 3d 939, 951 (N.D. Ill.
2016) (“Having found that this case must be remanded . . . , the Court will only briefly
comment on the remaining issues.”); Hudson v. Astrue, No. 08-C-3242, 2009 U.S. Dist.
LEXIS 75102, at * 39 n. 6 (N.D. Ill. Aug. 24, 2009) (“In light of this remand order, we
find it unnecessary to address the other arguments that plaintiff has raised.”).
However, the Court will address one of the arguments.
Plaintiff contends that the ALJ erred in declaring that Plaintiff was capable of
performing “light” exertional work when her work history consisted only of
“sedentary” tasks. Although it appears that the ALJ considered Plaintiff’s prior work
experience to be “light” exertional work, and not “sedentary,” this is not clear. The
ALJ is required to build an accurate and logical bridge from the evidence to his
conclusion. Clifford, 227 F.3d at 872. Therefore, the Court advises that the ALJ take
the opportunity on remand to develop this logical bridge.
V. CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiff’s Motion for
Summary Judgment (Doc. 8). The Court REVERSES the judgment of the
Commissioner and REMANDS the case back to the Commissioner for further
proceedings consistent with this Opinion and Order. The Court DENIES Defendant’s
Motion for Summary Affirmance.
IT IS SO ORDERED. CASE TERMINATED.
13
Entered this _28th_ day of March, 2017.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?