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Looney v. Colvin

United States District Court, S.D. West Virginia, Charleston Division

November 9, 2016

CINDY L. LOONEY O/B/O MICHAEL ALLEN LOONEY, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PROPOSED FINDINGS AND RECOMMENDATION

          Omar J. Aboulhosn United States Magistrate Judge

         This is an action seeking review of the final decision of the Acting Commissioner of Social Security denying the Plaintiff's application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. By Order entered March 4, 2016 (Document No. 3.), this case was referred to the undersigned United States Magistrate Judge to consider the pleadings and evidence, and to submit Proposed Findings of Fact and Recommendation for disposition, all pursuant to 28 U.S.C. § 636(b)(1)(B). Presently pending before the Court are the parties' cross-Motions for Judgment on the Pleadings. (Document Nos. 8 and 9.)

         The Plaintiff, Cindy L. Looney (hereinafter referred to as “Mrs. Looney”), on behalf of her husband, Michael Allen Looney (hereinafter referred to as “Claimant”), is a substitute party in this matter since his death.[1] Claimant protectively filed his application for Title II benefits on March 21, 2013, alleging disability since November 1, 2011[2] due to major depression, anxiety, bipolar, high blood pressure, high cholesterol, and diabetes.[3] (Tr. at 159, 165, 188.) His claim was denied on April 22, 2013 (Tr. at 93-97.) and again upon reconsideration on September 11, 2013. (Tr. at 102-108.) Thereafter, Claimant filed a written request for hearing on October 9, 2013. (Tr. at 109-110.) By letter dated September 5, 2014, Mrs. Looney amended the alleged onset date to February 17, 2014. (Tr. at 13, 178.) An administrative hearing was held on October 9, 2014 before Administrative Law Judge (“ALJ”) John T. Molleur. (Tr. at 30-64.) The ALJ heard the testimonies of Mrs. Looney (Tr. at 38-59.) and Vocational Expert (“VE”) Nancy Shapero. (Tr. at 59-63.) On October 23, 2014, the ALJ entered a decision finding Claimant was disabled as of February 18, 2014. (Tr. at 13-29.)

         The ALJ's decision became the final decision of the Commissioner on January 12, 2016 when the Appeals Council denied Claimant's Request for Review. (Tr. at 1-6.) On March 3, 2016, Claimant timely brought the present action seeking judicial review of the administrative decision pursuant to 42 U.S.C. § 405(g). (Document No. 1.) Standard Under 42 U.S.C. § 423(d)(5) and § 1382c(a)(3)(H)(i), a claimant for disability benefits has the burden of proving a disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable impairment which can be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. § 423(d)(1)(A).

         The Social Security Regulations establish a “sequential evaluation” for the adjudication of disability claims. 20 C.F.R. §§ 404.1520, 416.920. If an individual is found “not disabled” at any step, further inquiry is unnecessary. Id. §§ 404.1520(a), 416.920(a). The first inquiry under the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. §§ 404.1520(b), 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from a severe impairment. Id. §§ 404.1520(c), 416.920(c). If a severe impairment is present, the third inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1 to Subpart P of the Administrative Regulations No. 4. Id. §§ 404.1520(d), 416.920(d). If it does, the claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether the claimant's impairments prevent the performance of past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). By satisfying inquiry four, the claimant establishes a prima facie case of disability. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth and final inquiry: whether the claimant is able to perform other forms of substantial gainful activity, considering claimant's remaining physical and mental capacities and claimant's age, education and prior work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g). The Commissioner must show two things: (1) that the claimant, considering claimant's age, education, work experience, skills and physical shortcomings, has the capacity to perform an alternative job, and (2) that this specific job exists in the national economy. McLamore v. Weinberger, 538 F.2d 572, 574 (4th Cir. 1976).

         When a claimant alleges a mental impairment, the Social Security Administration “must follow a special technique at every level in the administrative review process.” 20 C.F.R. §§ 404.1520a(a) and 416.920a(a). First, the SSA evaluates the claimant's pertinent symptoms, signs and laboratory findings to determine whether the claimant has a medically determinable mental impairment and documents its findings if the claimant is determined to have such an impairment. Second, the SSA rates and documents the degree of functional limitation resulting from the impairment according to criteria as specified in 20 C.F.R. §§ 404.1520a(c) and 416.920a(c). Those sections provide as follows:

(c) Rating the degree of functional limitation. (1) Assessment of functional limitations is a complex and highly individualized process that requires us to consider multiple issues and all relevant evidence to obtain a longitudinal picture of your overall degree of functional limitation. We will consider all relevant and available clinical signs and laboratory findings, the effects of your symptoms, and how your functioning may be affected by factors including, but not limited to, chronic mental disorders, structured settings, medication and other treatment.
(2) We will rate the degree of your functional limitation based on the extent to which your impairment(s) interferes with your ability to function independently, appropriately, effectively, and on a sustained basis. Thus, we will consider such factors as the quality and level of your overall functional performance, any episodic limitations, the amount of supervision or assistance you require, and the settings in which you are able to function. See 12.00C through 12.00H of the Listing of Impairments in appendix 1 to this subpart for more information about the factors we consider when we rate the degree of your functional limitation.
(3) We have identified four broad functional areas in which we will rate the degree of your functional limitation: Activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. See 12.00C of the Listings of Impairments.
(4) When we rate the degree of limitation in the first three functional areas (activities of daily living, social functioning; and concentration, persistence, or pace), we will use the following five-point scale: None, mild, moderate, marked, and extreme. When we rate the degree of limitation in the fourth functional area (episodes of decompensation), we will use the following four-point scale: None, one or two, three, four or more. The last point on each scale represents a degree of limitation that is incompatible with the ability to do any gainful activity.

         Third, after rating the degree of functional limitation from the claimant's impairment(s), the SSA determines their severity. A rating of “none” or “mild” in the first three functional areas (activities of daily living; social functioning; and concentration, persistence, or pace) and “none” in the fourth (episodes of decompensation) will yield a finding that the impairment(s) is/are not severe unless evidence indicates more than minimal limitation in the claimant's ability to do basic work activities. 20 C.F.R. §§ 404.1520a(d)(1) and 416.920a(d)(1).[4] Fourth, if the claimant's impairment(s) is/are deemed severe, the SSA compares the medical findings about the severe impairment(s) and the rating and degree and functional limitation to the criteria of the appropriate listed mental disorder to determine if the severe impairment(s) meet or are equal to a listed mental disorder. 20 C.F.R. §§ 404.1520a(d)(2) and 416.920a(d)(2). Finally, if the SSA finds that the claimant has a severe mental impairment(s) which neither meets nor equals a listed mental disorder, the SSA assesses the claimant's RFC. 20 C.F.R. §§ 404.1520a(d)(3) and 416.920a(d)(3). The Regulation further specifies how the findings and conclusion reached in applying the technique must be documented at the ALJ and Appeals Council levels as follows:

At the administrative law judge hearing and the Appeals Council levels, the written decision issued by the administrative law judge and the Appeals Council must incorporate the pertinent findings and conclusions based on the technique. The decision must show the significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s). The decision must include a specific finding as to the degree of limitation in each of the functional areas described in paragraph (c) of this section.

20 C.F.R. §§ 404.1520a(e)(4) and 416.920a(e)(4).

         In this particular case, the ALJ determined that Claimant last met the requirements for insured worker status through December 31, 2017. (Tr. at 15, Finding No. 1.) Moreover, the ALJ determined that Claimant satisfied the first inquiry because he had not engaged in substantial gainful activity since the alleged onset date. (Id., Finding No. 2.) Under the second inquiry, the ALJ found that Claimant suffered from the following severe impairments since the alleged onset date of disability, February 17, 2012: bipolar disorder, diabetes, and anxiety. (Tr. at 16, Finding No. 3.) Beginning on the established onset date of disability, February 18, 2014, the ALJ found that Claimant had the following severe impairments: bipolar disorder, diabetes, anxiety, and carpal tunnel syndrome. (Id.) At the third inquiry, the ALJ concluded that since the alleged onset date of disability, February 17, 2012, Claimant's impairments did not meet or equal the level of severity of any listing in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id., Finding No. 4.)

         The ALJ found that prior to February 18, 2014, “the date the claimant became disabled”, he had a residual functional capacity (“RFC”) to perform medium work as defined in the regulations

except he was able to perform all postural activities only frequently. There should have been no concentrated exposure to extremes of temperature, vibrations, dusts, fumes, gases, poor ventilations, noxious odors, or other lung irritants. Interactions with members of the general public should have been on a brief and incidental basis only. Such a person was also limited to no more than occasional decision making or changes in the work setting. (Tr. at 18, Finding No. 5.)

         The ALJ then found that beginning on February 18, 2014, Claimant had an RFC to perform medium work

except he was able to perform all postural activities only frequently. There should have been no concentrated exposure to extremes of temperature, vibrations, dusts, fumes, gases, poor ventilations, noxious odors, or other lung irritants. Interactions with members of the general public should have been on a brief and incidental basis only. Such a person was also limited to no more than occasional decision making or changes in the work setting. Such a person would also have been expected to be absent on the average of two to three days a month. (Tr. at 22, Finding No. 6.)

         At step four, the ALJ found that since February 17, 2012, Claimant was incapable of performing past relevant work. (Tr. at 23, Finding No. 7.) At step five of the analysis, the ALJ found that prior to the established disability onset date [February 18, 2014], Claimant was an individual of advanced age. (Id., Finding No. 8.) The ALJ found that Claimant had at least a high school education, and could communicate in English. (Id., Finding No. 9.) Employing the Medical-Vocational Rules as a framework, the ALJ determined that Claimant was not disabled prior to February 18, 2014, that transferability of job skills was immaterial to the determination of disability, as Claimant's age, education, work experience, and residual functional capacity indicated that there were other jobs existing in significant numbers in the national economy that Claimant could perform (Id., Finding Nos. 10 and 11.); however, beginning on February 18, 2014, the ALJ found that Claimant had not been able to transfer job skills to other occupations, as considering his age, education, work experience, and residual functional capacity, no jobs existed in significant numbers in the national economy that Claimant could have performed. (Id., Finding No. 10; Tr. at 24, Finding No. 12.)

         On this basis, the ALJ found Claimant was not disabled prior to February 18, 2014, but became disabled on that date and was disabled through August 7, 2014, the date of his death. (Tr. at 25, Finding No. 13.)

         Scope of Review

         The sole issue before this Court is whether the final decision of the Commissioner denying the claim is supported by substantial evidence. In Blalock v. Richardson, substantial evidence was defined as:

evidence which a reasoning mind would accept as sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.'

Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). Additionally, the Commissioner, not the Court, is charged with resolving conflicts in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Nevertheless, the Courts “must not abdicate their traditional functions; they cannot escape their duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).

         A careful review of the record reveals the decision of the Commissioner is not supported by substantial evidence.

         Issue on Appeal

         This appeal concerns whether the ALJ's determination of the “established disability onset date” of February 18, 2014 was arbitrary, which Mrs. Looney also states effectively eliminated any disbursement of a retroactive award to her under the five-month waiting period. (Document No. 8.) The undersigned considered all evidence of record pertaining to the arguments concerning the ALJ's determination of Claimant's established disability onset date and discusses it below.

         Claimant's Background

         He was born on April 18, 1956, making him 55 years old on the alleged onset date, defined as a “person of advanced age” by the Regulations. (Tr. at 23.); See 20 C.F.R. § 404.1563(e); Claimant had at least a high school education, having obtained his GED in 1998. (Tr. at 189.) His work history includes employment as a cable installer, a technician, and a technical agent. (Id.) During the pendency of this proceeding, Claimant ...


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