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Patton v. Berryhill

United States District Court, D. South Dakota, Western Division

February 28, 2018

MAYDA J. PATTON, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         On September 5, 2006, plaintiff Mayda J. Patton applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) pursuant to Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-83f (2006), respectively. (Administrative Record, pp. 12, 101-07).[2] Following an adverse decision, Ms. Patton timely filed her complaint in district court. (Docket 1). On November 28, 2011, the court entered an order vacating the decision of the Commissioner and remanding Ms. Patton's case for a new hearing. (Docket 32). The court retained jurisdiction pursuant to sentence six of 42 U.S.C. § 405(g). Id. at p. 12. On July 8, 2016, the Commissioner filed a motion to reopen the case. (Docket 91). The Commissioner reported that on January 13, 2016, an administrative law judge (“ALJ”) “issued a partially favorable decision, finding [Ms. Patton] disabled beginning December 29, 2014, for purposes of DIB and SSI.” (Docket 92 ¶ 4). The court granted the motion to reopen the case. (Docket 95). Ms. Patton filed a motion seeking reversal of the decision of the Commissioner and requesting an order for calculation and payment of benefits. (Docket 99). Ms. Patton seeks DIB and SSI benefits for the time period August 8, 2006, through December 28, 2014, and asks the court to require the Commissioner to compute benefits.[3] (Docket 100). For the reasons stated below, plaintiff's motion to reverse the decision of the Commissioner is granted in part.

         STANDARD OF REVIEW

         The Commissioner's findings must be upheld if they are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001). The court reviews the Commissioner's decision to determine if an error of law was committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). “Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation marks omitted).

         The review of a decision to deny benefits is “more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision . . . [the court must also] take into account whatever in the record fairly detracts from that decision.” Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001)).

         It is not the role of the court to re-weigh the evidence and, even if this court would decide the case differently, it cannot reverse the Commissioner's decision if that decision is supported by good reason and is based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). A reviewing court may not reverse the Commissioner's decision “ ‘merely because substantial evidence would have supported an opposite decision.' ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)). Issues of law are reviewed de novo with deference given to the Commissioner's construction of the Social Security Act. See Smith, 982 F.2d at 311.

         The Social Security Administration established a five-step sequential evaluation process for determining whether an individual is disabled and entitled to SSI benefits under Title XVI. 20 CFR § 416.920(a).[4] If the ALJ determines a claimant is not disabled at any step of the process, the evaluation does not proceed to the next step as the claimant is not disabled. Id. The five-step sequential evaluation process is:

(1) whether the claimant is presently engaged in a “substantial gainful activity”; (2) whether the claimant has a severe impairment-one that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations (if so, the claimant is disabled without regard to age, education, and work experience); (4) whether the claimant has the residual functional capacity to perform . . . past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove there are other jobs in the national economy the claimant can perform.

Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998). Each of the ALJs involved in Ms. Patton's case applied the five-step sequential evaluation required by the Social Security Administration regulations.[5]

         FACTUAL AND PROCEDURAL HISTORY

         On June 8, 2016, the Commissioner moved “to reopen . . . the case in accordance with sentence six of 42 U.S.C. § 405(g).” (Docket 91). Ms. Patton filed a motion seeking to reverse in part the decision of the Commissioner and requested an order for calculation and payment of benefits. (Docket 99). The court granted the Commissioner's motion and established a briefing schedule. (Docket 95). The parties filed their joint statement of material facts (“JSMF”). (Docket 98 at pp. 1-161). The parties' JSMF are incorporated by reference. The parties also filed a joint statement of disputed facts (“JSDF”).[6] (Docket 98-1).

         Ms. Patton's case has a long and protracted history. The court will identify the principal steps along the way in this nearly 12-year-old case.

         On September 5, 2006, Ms. Patton applied for DIB and SSI benefits. (Docket 98 ¶ 1). On April 2, 2009, ALJ #1 found at step one that Ms. Patton had “not engaged in substantial gainful activity since August 8, 2006 . . . .” (AR at p. 15) (bold omitted). At step two, ALJ #1 found she had “the following severe impairments: memory impairment with borderline intellectual functioning;[7]depressive syndrome;[8] diabetes mellitus; asthma . . . .” Id. (bold omitted). At step four, ALJ #1 found Ms. Patton had “the physical residual functional capacity to perform light work[9] . . . [and] the mental residual functional capacity [“RFC”]to perform simple repetitive, routine, unskilled work with no assembly line and no quota or pace requirements.” Id. at p. 17 (bold omitted); see also Docket 98 ¶ 9. ALJ #1 found Ms. Patton was “capable of performing past relevant work as a fast food worker[10] and Cashier II . . . . [and] not under a disability . . . from August 8, 2006 through [April 2, 2009].” (AR at p. 20). Following an adverse decision, Ms. Patton timely filed her complaint in district court. (Docket 1).

         On November 28, 2011, the court entered an order vacating the decision of the Commissioner and remanding for new hearing. (Docket 32). In summary, the court remanded the case to the Commissioner because ALJ #1 failed to request and consider approximately one hundred pages of Ms. Patton's medical records. Id. at p. 11. The court retained jurisdiction “pursuant to sentence six of 42 U.S.C. § 405(g).” Id. at p. 12. The court required the Commissioner to “file [] status report[s] . . . as to the progress of the case on remand.”[11] (Docket 34).

         Following remand, ALJ #2 conducted a hearing on December 19, 2012, at which two medical experts testified. (Docket 98 ¶ 15). ALJ #2 issued an unfavorable decision on January 17, 2013. Id. ¶ 31. At step one, ALJ #2 again found that Ms. Patton had “not engaged in substantial gainful activity since August 8, 2006 . . . .” (AR at p. 626) (bold omitted). At step two, ALJ #2 found Ms. Patton had “the following severe impairments: diabetes, mild degenerative disk disease of the lumbar spine, a history of right knee surgery, obesity, asthma, hypertension, depression and borderline intellectual functioning . . . .” Id. at p. 627 (bold omitted). ALJ #2 found at step four, Ms. Patton had “the residual functional capacity to perform sedentary work[12] . . . and can understand, remember and carry out simple instructions.” Id. at p. 630. However, at step five, ALJ #2 found Ms. Patton retained the capacity to “perform light jobs.” (Docket 98 ¶ 33) (emphasis in original) (referencing AR at p. 644). The “representative occupations” consisted of the following:

[C]ashier II . . . with 100, 000 such jobs in the U.S. and 4, 000 South Dakota, with a 25% erosion in the incidence of such jobs due to the claimant's restrictions; merchandise marker . . . with 700, 000 such jobs in the U.S. and 2, 200 in South Dakota; and collator operator . . . with 50, 000 such jobs in the U.S. and 100 in South Dakota.

(AR at p. 644).

         Ms. Patton timely filed exceptions with the Appeals Council. (Docket 98 ¶ 34). On May 7, 2013, “the Appeals Council assume[d] jurisdiction for further administrative proceedings on the issue identified by the District Court.” (Docket 41-1 at p. 3).[13] The Appeals Council vacated the decision of ALJ #2 and remanded Ms. Patton's case to an ALJ to resolve the following issue:

The step 5 conclusion is not supported by substantial evidence. In finding the claimant capable of performing jobs that exist in significant numbers in the national economy, the decision cited representative occupations that exceed the claimant's residual functional capacity. In the residual functional capacity, the hearing decision found the claimant capable of, in part, lifting up to 10 pounds and standing and/or walking for 2 hours in an 8-hour workday. (Decision, page 8). However, all three of the representative occupations (cashier II, merchandise marker, and collator operator) are performed at the light exertional level. In fact, an audit of the hearing recording reveals that the vocational expert provided these jobs in response to the first hypothetical that described an individual who can, in part, lift and carry 20 pounds occasionally, 10 pounds frequently, and stand/walk for 6 hours in an 8-hour workday. When posed with a hypothetical consistent with the claimant's residual functional capacity, the vocational expert testified that an individual could not perform any of the jobs noted above. Further evaluation is required.

Id. at pp. 3-4. The Appeals Council ordered on remand that an ALJ develop the following:

Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base . . . . The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966). . . .

Id. at p. 4. The ALJ was directed to offer Ms. Patton “the opportunity for a hearing, take any further action needed to complete the administrative record and issue a new decision.” Id.

         On July 12, 2013, ALJ #2 issued an unfavorable decision.[14] (Docket 98 ¶ 38). ALJ #2 again found that Ms. Patton had “not engaged in substantial gainful activity since August 8, 2006 . . . .” (AR at p. 666) (bold omitted). ALJ #2 found Ms. Patton had the same severe impairments as contained in ALJ #2's earlier decision. Id.; see id. at p. 627. ALJ #2 again found Ms. Patton had “the residual functional capacity to perform sedentary work . . . and can understand, remember and carry out only simple instructions.” (AR at p. 670). ALJ #2 found Ms. Patton was not disabled because she could perform the following sedentary jobs: microfilm document preparer “of which 100, 000 jobs exist in the national economy;” addresser, “of which 20, 000 jobs exist in the national economy;” and sack repairer “of which 12, 000 jobs exist in the national economy.” Id. at p. 684; see also Docket 98 ¶ 38.

         Ms. Patton timely appealed to the Appeals Council. (Docket 98 ¶ 39). Plaintiff's counsel also referred Ms. Patton “to a vocational evaluation center to assess her ability to perform the sedentary jobs [ALJ #2] found [she] could do.” Id. ¶ 40. On August 7, 2013, Ms. Patton submitted the results of the vocational testing to the Appeals Council. Id. ¶ 42.

         On January 2, 2014, the Appeals Council again assumed jurisdiction of Ms. Patton's case. Id. ¶ 43; AR at p. 702. The order of the Appeals Council identified two areas of concern. (AR at pp. 702-03; see also Docket 98 ¶ 43). The first area of concern was that Ms. Patton's vocational testing “using the standardized SAGE battery suggested ‘difficulty with sustained repetitive activities using hands and performing job tasks requiring these abilities, particularly within tight time constraints . . . .' ” (Docket 98 ¶ 44) (referencing AR at p. 702). These results were concerning because the test occurred “less than one month after [ALJ #2's] decision and was ‘material to the step five finding.' ” Id. (referencing AR at p. 702). The second concern was that ALJ #2 identified three jobs in the national economy but did not reference the testimony of the vocational expert which identified the number of South Dakota positions available for each of those jobs: microfilm document preparer, 200; addresser, 100; and sack repairer, 50. Id. ¶ 45; see also AR at pp. 931-32. The Appeals Council found these South Dakota numbers were not significant. (Docket 98 ¶ 46). The Appeals Council concluded: “Although the number of national jobs appears to represent a significant number of jobs, the number of local jobs identified does not appear to represent a significant number of jobs. Accordingly, further evaluation as to whether a significant number of other jobs exist is necessary.” (AR at p. 703).

         On remand, the Appeals Council directed a newly assigned ALJ, among other things, to “[o]btain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base . . . . [and] ask the vocational expert to identify examples of appropriate jobs and state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966).” Id.

         A third remand hearing was held on April 3, 2014. (Docket 98 ¶ 47). On June 18, 2014, ALJ #3 issued an unfavorable decision. Id. ¶ 48. At step one, ALJ #3 found Ms. Patton had “not engaged in substantial gainful activity since August 8, 2006 . . . .” (AR at p. 433) (bold omitted). At step two, ALJ #3 found:

[Ms. Patton had] the following severe impairments: obesity . . .; insulin-dependent diabetes mellitus; reactive airways disease (with components of asthma, episodic bronchitis and allergies); mild degenerative changes, lumbar spine, . . . with clinical presentations of left-side sciatica and mild facet arthrosis (considered severe only when viewed in combination with obesity); osteoporosis; history of fracture of the superior pole of the right patella (status post open reduction, internal fixation (12/10)); major depression; recurrent, mild; dysthymia;[15] anxiety disorder; and borderline intellectual functioning . . . .

Id. at p. 435 (bold omitted).

         ALJ #3 found Ms. Patton had “the residual functional capacity to perform less than the full range of light work [with physical limitations] . . . . [and] [m]entally . . . retains the capacity to understand, remember, and carry out short, simple instructions; interact appropriately with supervisors, co-workers and the public on a frequent basis; respond appropriately to changes in a routine work setting; and make judgments on simple work-related decisions.” (AR at p. 439) (bold omitted).

         ALJ #3 found Ms. Patton not disabled because she retained the capacity to perform “work that exists in . . . the national economy.” Id. at p. 451. ALJ #3 identified those representative light occupations as:

Mail clerk, with “50, 000 positions nationally, ” and “1200 to 1500 positions regionally”;[16]
Tanning salon attendant, with “20, 000-30, 000 [positions] nationally, ” and “500 [positions] regionally”; and
Small products assembler, with “75, 000 [positions] nationally” and “3000 [positions] regionally.”

Id.

         Ms. Patton appealed the decision of ALJ #3 to the Appeals Council. (Docket 98 ¶ 50). For a third time, on August 25, 2014, the Appeals Council assumed jurisdiction of Ms. Patton's case. (AR at p. 396). The remand order of the Appeals Council identified two errors by ALJ #3. First, the “decision did not evaluate the opinion of . . . Dr. Mark Farber . . . [who testified Ms. Patton was] ‘restricted' to sedentary work[17] . . . . The January 17, 2013 and July 12, 2013 decisions gave Dr. Farber's opinion great weight and assessed a sedentary residual functional capacity . . . .” Id. at pp. 395-96[18] (references to the administrative record omitted). Second, even though ALJ #3 found Ms. Patton's “severe mental impairments include borderline intellectual functioning . . . the Administrative Law Judge did not pose a hypothetical question to the vocational expert that assumed the individual with borderline intellectual functioning . . . .” Id. at p. 395 (references to the administrative record omitted).

         On remand, the Appeals Council directed the ALJ to “evaluate the opinion of Dr. Farber . . . . [and] [t]he hypothetical questions [to a vocational expert] should reflect the specific capacity/limitations established by the record . . . . [and] ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566 and 416.966).” Id.

         On March 11, 2015, ALJ #4 presided over a fourth remand hearing. (Docket 98 ¶ 55). The vocational expert testified “a single job matched the hypothetical RFC for sedentary work requiring ‘low-level' math, manual and finger dexterity: Surveillance System Monitor, . . . with ‘regional jobs or within the state of South Dakota' numbering 43.” Id. ¶ 56.

         On March 25, 2015, at step two, ALJ #4 found Ms. Patton “had the following severe impairments: (1) Borderline intellectual functioning; (2) Obesity; (3) Degenerative disc disease of the lumbar spine with left sciatica; and (4) Fractured right patella, status post repair in December 2010 . . . .” (AR at p. 2057) (citations and bold omitted). At step four, ALJ #4 found “since August 8, 2006, ” Ms. Patton had a “residual functional capacity to perform sedentary work . . . . Furthermore, when considering the borderline intellectual functioning despite a history of semi-skilled work activities, the sedentary work activities should involve a SVP[19] of only one or two.” (AR at p. 2062). At step five, finding Ms. Patton had an “inability to perform past relevant work, ” ALJ #4 “relied on Medical-Vocational Rule 201.28 to find that Patton was capable of performing a significant number of other jobs from August 8, 2006, to December 29, 2014 . . . .” (Docket 98 ¶ 60).

         ALJ #4 found that as of Ms. Patton's 50th birthday her “age category changed to an individual closely approaching advanced age.” (AR at p. 2070) (citing 20 CFR § 404.1563 and § 416.963). Based on that ruling, ALJ #4 found that “considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant could perform . . . .” Id. at ...


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