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Abbett v. Berryhill

United States District Court, N.D. Indiana, Fort Wayne Division

June 18, 2018

JENNIFER LEE ABBETT, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         Plaintiff Jennifer Lee Abbett seeks review of the final decision of the Commissioner of the Social Security Administration (Commissioner) denying her disability and disability insurance benefits as well as supplemental security income. The Plaintiff argues that the Commissioner wrongfully denied her Social Security benefits and erred by failing to utilize the correct analysis for terminating previously awarded benefits, failing to properly develop the record in light of the Plaintiff's non-attorney representation, and failing to adequately develop a logical bridge from the evidence to the Plaintiff's residual functional capacity.

         BACKGROUND

         On October 31, 2009, the Plaintiff was awarded disability benefits beginning in August 2009. (R. 285.) By letter dated January 18, 2013, the Commissioner notified the Plaintiff that she had not properly returned requested information. (R. 284.) The letter informed the Plaintiff that she had until January 2014 to submit the requested application, and if the Plaintiff failed to do so, she would have to file a new application if she wanted her benefits to resume. (Id.) The Commissioner ceased remitting benefits to the Plaintiff as of August 1, 2013, finding that she was no longer disabled as of May 2013. (R. 170.) The Plaintiff did not appeal this decision.

         Rather, on October 8, 2013, the Plaintiff filed a Title II application for disability and disability insurance benefits, as well as a Title XVI application for supplemental security income, again alleging disability beginning February 25, 2009. (R. 16.) She later amended her alleged onset date to May 13, 2013. (R. 297.) Her claims were denied initially on December 9, 2013, and upon reconsideration on February 20, 2014. (Id.) On September 10, 2015, the Plaintiff appeared with a non-attorney representative and testified at a video hearing before an administrative law judge (ALJ). (Id.) Thomas A. Gusloff, an impartial vocational expert (VE), also appeared. (Id.) On March 28, 2017, the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied the Plaintiff's request for review. (R. 1-4.)

         On May 29, 2017, the Plaintiff filed this claim in federal court against the Acting Commissioner of the Social Security Administration.

         ANALYSIS

         A. Whether an Eight-Step Inquiry Was Necessary

         Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which 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), 1382c(a)(3)(A). To be found disabled, a claimant must demonstrate that her physical or mental limitations prevent her from doing not only her previous work, but also any other kind of gainful employment that exists in the national economy, considering her age, education, and work experience. §§ 423(d)(2)(A), 1382c(a)(3)(B).

         Generally, an ALJ conducts a five-step inquiry in deciding whether to grant or deny benefits. 20 C.F.R. §§ 404.1520, 416.920. The first step is to determine whether the claimant no longer engages in substantial gainful activity (SGA). Id. In step two, the ALJ determines whether the claimant has a severe impairment limiting her ability to do basic work activities under §§ 404.1520(c), 416.920(c). Step three requires the ALJ to “consider the medical severity of [the] impairment” to determine whether the impairment “meets or equals one of [the] listings in appendix 1 . . . .” §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant's impairment(s), considered singly or in combination with other impairments, rise to this level, there is a presumption of disability “without considering [the claimant's] age, education, and work experience.” §§ 404.1520(d), 416.920(d). But, if the impairment(s), either singly or in combination, fall short, the ALJ must proceed to step four and examine the claimant's “residual functional capacity” (RFC)-the types of things she can still do physically, despite her limitations-to determine whether she can perform “past relevant work, ” §§ 404.1520(a)(4)(iv), 416.920(A)(4)(iv), or whether the claimant can “make an adjustment to other work” given the claimant's “age, education, and work experience.” §§ 404.1520(a)(4)(v). 416.920(a)(4)(v).

         However, in the case of cessation of benefits that were previously awarded to a claimant, an ALJ must instead conduct an eight-step inquiry, although this inquiry incorporates the familiar five-step approach described above. 42 U.S.C. § 423(f). In step one, the ALJ must determine if the claimant is engaged in SGA. If so, the claimant is not disabled. At step two, the ALJ determines whether the claimant has a severe impairment limiting her ability to do basic work activities under §§ 404.1520(c) and 416.920(c). Step three requires the ALJ to determine whether medical improvement has occurred. If so, step four requires the ALJ to determine whether the medical improvement is related to the claimant's ability to work. In step five, the ALJ determines whether an exception under 20 C.F.R. § 404.1594(d) or (e) applies. In step six, if the ALJ has determined that the medical improvement is related to the claimant's ability to work, the ALJ then determines whether the claimant's current impairments in combination are severe. If so, in step seven, the ALJ assesses the claimant's RFC. Finally, in step eight, the ALJ determines whether the claimant can “make an adjustment to other work” given the claimant's “age, education, and work experience.”

         The Plaintiff's first and second assignments of error are premised on her assertion that the ALJ should have analyzed her case as a cessation of benefits rather than a new application for benefits. The Court disagrees with her premise. By letter dated May 8, 2013, the Plaintiff was advised of the Commissioner's determination that she was no longer disabled. In that same letter, the Plaintiff was advised that she had sixty days within which to appeal the Commissioner's decision or she would have to file a new application. (R. 170.) She did not appeal within that time frame. Rather, she filed new applications on October 8, 2013, well beyond the sixty-day period, and amended her alleged onset date to a point in time after the Commissioner's determination that she was no longer disabled. In Truelove v. Berryhill, the plaintiff argued that “the ALJ erred in not conducting the eight-step improvement analysis for the continuing disability benefits period.” No. 1:17cv265, 2018 WL 1376705, at *4 (N.D. Ind. Mar. 19, 2018). The court rejected the plaintiff's argument, finding that “[a]t issue before the ALJ was the SSI application the Plaintiff filed in 2013-not an appeal of the disability cessation.” Id.; see also White v. Sullivan, 901 F.2d 94, 95-96 (8th Cir. 1990) (finding no jurisdiction to review termination decision when ALJ did not reopen it during proceedings as to a subsequent application for benefits). So too here. There is no indication that the ALJ re-opened the cessation determination. Instead, what was before the ALJ was the Plaintiff's new applications. Therefore, the Court cannot say that the ALJ should have used the eight-step framework for the cessation of benefits.

         The Plaintiff asserts that the ALJ should have noted, and explored, the illogical amended onset date. Specifically, the Plaintiff asserts that it does not make sense that she would allege an onset date of May 13, 2013, when she had already been determined to be disabled through August 2013. This is not an accurate representation of the record. The Commissioner advised the Plaintiff that she would receive payments through August 2013, but explicitly determined that the Plaintiff was no longer disabled as of May 2013. Contrary to the Plaintiff's argument, this does not amount to a determination that the Plaintiff was found to be disabled through August 2013. Thus, the Court finds nothing illogical about the Plaintiff's amended alleged onset date and, in fact, finds it to be entirely consistent with the procedural history of this case.

         The Plaintiff further asserts that her amendment to her alleged onset date was ineffective because she was represented by a non-attorney representative and therefore could not have made an intelligent decision regarding the amendment. Specifically, the Plaintiff asserts that, due to her non-attorney representative, she did not understand that she was waiving her rights to have her applications evaluated under the more comprehensive, eight-step framework rather than the five-step framework. But, as the Court has already determined, the Plaintiff would not have been entitled to the eight-step framework in the first place, regardless of her alleged onset date. See Anderson v. Heckler, 805 F.2d 801, 804-05 ...


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