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Luanne S. v. Berryhill

United States District Court, S.D. Indiana, New Albany Division

February 15, 2019

LUANNE S., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Debra McVicker Lynch United States Magistrate Judge

         This matter was referred to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b) for a report and recommendation as to its appropriate disposition. As addressed below, the Magistrate Judge recommends that the District Judge REVERSE AND REMAND under sentence four the decision of the Acting Commissioner of the Social Security Administration (“Commissioner”) that plaintiff Luanne S. is not disabled.


          Plaintiff Luanne S. applied in December 2007 for Disability Insurance Benefits and Supplemental Security Income benefits based on disability under Titles II and XVI, respectively, of the Social Security Act, alleging she has been disabled since December 5, 2007. Although her applications were denied initially and upon reconsideration, an administrative law judge-without holding a hearing, but based on the strength of the record-found that she was disabled as of her alleged onset date and awarded benefits. The Agency's Office of Inspector General later determined that Luanne's benefits decision likely was affected by fraud and therefore her qualification for benefits must be redetermined. There is no suggestion that Luanne was part of the fraud. Rather, the Agency's OIG investigation uncovered a fraudulent benefits scheme perpetrated by a particular attorney, several medical doctors or psychologists in cahoots with the attorney, and an administrative law judge. Because the prior benefits decision in Luanne's favor was based on a medical opinion of one of these doctors whose opinions the Agency determined could not be relied upon and because the remaining evidence did not support the decision, the Appeals Council remanded Luanne's case for a new hearing and redetermination whether she was disabled as of the date-February 6, 2009-the original ALJ decided the applications in her favor.

         A new hearing, by video, was held on December 7, 2016, before administrative law judge Robert M. Butler. (There were three attempts to hold the hearing before December 7, but each time Luanne was granted a postponement so that she could obtain counsel and medical records could be gathered.) ALJ Butler issued a decision on April 27, 2017, that Luanne was not disabled as of February 6, 2009. The Appeals Council denied review of the ALJ's decision on November 13, 2017, rendering the ALJ's decision for the Commissioner final. Luanne timely filed this civil action under 42 U.S.C. § 405(g) for review of the Commissioner's decision.

         Luanne argues that the Commissioner's decision must be reversed and remanded because the ALJ did not properly account for her moderate difficulties with concentration, persistence, and pace in his RFC or in the hypothetical to the vocational expert.

         The court will first describe the legal framework for analyzing disability claims and the court's standard of review, and then address Luanne's specific assertion of error.

         Standard for Proving Disability

         To prove disability, a claimant must show she is unable 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 twelve months.” 42 U.S.C. § 423(d)(1)(A). Luanne is disabled if her impairments are of such severity that she is not able to perform the work she previously engaged in and, if based on her age, education, and work experience, she cannot engage in any other kind of substantial gainful work that exists in significant numbers in the national economy. 42 U.S.C. § 423(d)(2)(A). The Social Security Administration has implemented these statutory standards by, in part, prescribing a five-step sequential evaluation process for determining disability. 20 C.F.R. § 404.1520.

         Step one asks if the claimant is currently engaged in substantial gainful activity; if she is, then she is not disabled. Step two asks whether the claimant's impairments, singly or in combination, are severe; if they are not, then she is not disabled. A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The third step is an analysis of whether the claimant's impairments, either singly or in combination, meet or equal the criteria of any of the conditions in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of Impairments includes medical conditions defined by criteria that the SSA has predetermined are disabling, so that if a claimant meets all of the criteria for a listed impairment or presents medical findings equal in severity to the criteria for a listed impairment, then the claimant is presumptively disabled and qualifies for benefits. 20 C.F.R. § 404.1520(a)(4)(iii).

         If the claimant's impairments do not satisfy a listing, then her residual functional capacity (RFC) is determined for purposes of steps four and five. RFC is a claimant's ability to do work on a regular and continuing basis despite her impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the fourth step, if the claimant has the RFC to perform her past relevant work, then she is not disabled. The fifth step asks whether there is work in the relevant economy that the claimant can perform, based on her vocational profile (age, work experience, and education) and RFC; if so, then she is not disabled.

         The claimant bears the burden of proof at steps one through four. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets that burden, then the Commissioner has the burden at step five to show that work exists in significant numbers in the national economy that the claimant can perform, given her vocational profile and functional capacity. 20 C.F.R. § 404.1560(c)(2); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).

         Standard for Review of the ALJ's Decision

          Judicial review of the Commissioner's (or ALJ's) factual findings is deferential. A court must affirm if no error of law occurred and if the findings are supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7thCir. 2001). Substantial evidence means evidence that a reasonable person would accept as adequate to support a conclusion. Id. The standard demands more than a scintilla of evidentiary ...

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