Bruce v. Berryhill

• Citation: 294 F.Supp.3d 346
• Decision Date: 14 January 2018
• Docket Number: CIVIL ACTION NO. 17–2896
• Parties: Thomas BRUCE v. Nancy A. BERRYHILL, Acting Commissioner of Social Security Administration
• Court: U.S. District Court — Eastern District of Pennsylvania

294 F.Supp.3d 346

Thomas BRUCE

v.Nancy A. BERRYHILL, Acting Commissioner of Social Security Administration

CIVIL ACTION NO. 17–2896

United States District Court, E.D. Pennsylvania.

Signed January 14, 2018

Filed February 15, 2018

Jonathan M. Stein, Community Legal Services, Inc., Robert J. Lukens, Philadelphia, PA, for Thomas M. Bruce

Andrew C. Lynch, Dina White Griffin, M. Jared Littman, Office of the General Counsel Region III, S.S.A., Philadelphia, PA, for Nancy Berryhill

ORDER

R. BARCLAY SURRICK, J.

AND NOW, this 14^th day of February, 2018, upon consideration of Plaintiff's Brief and Statement of Issues in Support of Request for Review, defendant's Response to Request for Review of Plaintiff, and plaintiff's reply thereto, and after review of the Report and Recommendation of United States Magistrate Judge Thomas J. Rueter, it is hereby

ORDERED

1. The Report and Recommendation is APPROVEDand ADOPTED.

2. Plaintiff's Request for Review is GRANTED, and the decision of the Commissioner of the Social Security Administration is REVERSEDto the extent that the matter is REMANDEDto the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with United States Magistrate Judge Thomas J. Rueter's Report and Recommendation.

3. Judgment is entered in favor of plaintiff, reversing the decision of the Commissioner for the purpose of this remand only.

REPORT AND RECOMMENDATION

THOMAS J. RUETER, United States Magistrate Judge

Plaintiff, Thomas Bruce, filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claim for supplemental security income ("SSI") under Title XVI of the Social Security Act ("Act").

Plaintiff filed a Brief and Statement of Issues in Support of Request for Review ("Pl.'s Br."), defendant filed a Response to Plaintiff's Request for Review ("Def.'s Br.") and plaintiff filed a reply thereto ("Pl.'s Reply"). For the reasons set forth below, this court recommends that plaintiff's Request for Review be GRANTED .

I. FACTUAL AND PROCEDURAL HISTORY

In July 2012, plaintiff filed applications for SSI and disability insurance benefits ("DIB") under Title II of the Act alleging disability beginning March 3, 1997. (R. 173–86.) The claims were denied initially and a request for a hearing was filed timely. (R. 109–20.) A hearing was held on March 12, 2014, before Administrative Law Judge ("ALJ") Frederick Timm. (R. 35–67.) Plaintiff, who was represented by counsel, appeared and testified. Steven H. Gumerman, Ph.D., a vocational expert ("VE"), also appeared and testified. (R. 62–66.) In a decision dated June 10, 2014, the ALJ found that plaintiff was not disabled under the Act. (R. 16–34.) Plaintiff filed a request for review of the decision of the ALJ that was denied and the ALJ's decision became the final decision of the Commissioner. (R. 1–15.)

In October 2014, plaintiff sought judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g), requesting review of the Commissioner's denial of plaintiff's claim for SSI only; plaintiff did not pursue the denial of his claim for DIB. Plaintiff alleged that the ALJ erred in finding plaintiff's major depressive disorder did not meet or equal the requirements of Listing 12.04C(1), 20 C.F.R. Part 404, Subpt. P, App. 1 and that the ALJ erred by adopting the opinion of the VE which was based upon a faulty hypothetical. In a Report and Recommendation dated February 25, 2016, the undersigned recommended that plaintiff's request for review be granted and the case be remanded to the Commissioner for further review. See R. 1594–1615. In response to the issues raised by plaintiff in his request for review, the court first found that the ALJ did not properly analyze the evidence of record when he determined that plaintiff's depressive disorder did not meet the severity of Listing 12.04C(1) because the ALJ did not properly consider whether the evidence of hospitalizations constituted episodes of decompensation under the regulations. (R. 1602–09.) Furthermore, with respect to plaintiff's argument that the ALJ erred when he found that the record contained no evidence of episodes of decompensation while plaintiff was "clean and sober," the court noted that a "clean and sober" standard is not congruent with the Commissioner's regulations. (R. 1609–11.) Accordingly, the court found that to the extent the ALJ relied upon plaintiff's use of drugs and alcohol as a basis for denying his claim for benefits, the ALJ had an obligation to engage in the proper analysis under the Act and its regulations. See id.; 42 U.S.C. § 1382c(a)(3)(J) ; 20 C.F.R. § 416.935. Moreover, with respect to plaintiff's claim that that the ALJ erred at step five of the sequential analysis by failing to incorporate all of plaintiff's credibly established limitations in the hypothetical questions posed to the VE, the court determined that the ALJ's failure to properly consider the evidence concerning plaintiff's mental impairment impacted the ALJ's determinations regarding plaintiff's RFC. (R. 1611–12.) As such, the court recommended that when the ALJ reevaluated the evidence of plaintiff's mental impairment, the ALJ should reassess plaintiff's RFC and his ability to perform work given the impairments.

By Order dated March 11, 2016, the Report and Recommendation was approved and adopted and the matter was remanded for further evaluation. (R. 1615.) On October 9, 2015, the Appeals Council remanded the claim to an ALJ for "further proceedings consistent with the order of the court." (R. 1616–19.)

The court notes that plaintiff filed subsequent applications for DIB and SSI on December 16, 2014. See R. 1793–1816. Upon review of these applications in January 2015, plaintiff was awarded SSI benefits at the initial level. See R. 1622–29. Plaintiff was found to be disabled as of December 16, 2014.

Pursuant to the Appeals Council remand order on the present applications for benefits, a second hearing was held before ALJ Timm on October 31, 2016. (R. 1534–63.) Plaintiff, represented by counsel, appeared and testified, as did VE Christine Slusarski. In a decision dated March 6, 2017, the ALJ found that plaintiff was not disabled under the Act. (R. 1508–33.) The ALJ made the following findings:

1. The claimant met the insured status requirements of the Social Security Act through June 30, 2006.

2. A decision is deferred as to whether the claimant engaged in substantial gainful activity from March 3, 1997, the alleged onset date, through December 15, 2014, the day prior to the date that the claimant was found disabled in the subsequent favorable determination issued on January 22, 2015 ( 20 CFR, 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq. ).

3. From March 3, 1997, through December 15, 2014, the claimant had the following severe impairments: mild-to-moderate osteoarthritis of the left ankle status post fracture and open reduction internal fixation ; mild degenerative disc disease of the lumbar spine status post fusion; dilated aortic root/hypertension ; obstructive sleep apnea (OSA); asthma ; and major depressive disorder (MDD); and polysubstance dependence in partial remission ( 20 CFR 404.1520(c) and 416.920(c) ).

4. From March 3, 1997, through December 15, 2014, the claimant's impairments, including the substance use disorder, meet section 12.04 (Depressive, bipolar and related disorders) of 20 CFR Part 404, Subpart P, Appendix 1 ( 20 CFR 404.1520(d) and 416.920(d) ).

5. From March 3, 1997, through December 15, 2014, if the claimant stopped the substance use, the remaining limitations would cause more than a minimal impact on the claimant's ability to perform basic work activities; therefore, the claimant would continue to have a severe impairment or combination of impairments.

6. From March 3, 1997, through December 15, 2014, if the claimant stopped the substance use, the claimant would not have an impairment or combination of impairments that meets or medically equals any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 ( 20 CFR 404.1520(d) and 416.920(d) ).

7. From March 3, 1997, through December 15, 2014, if the claimant stopped the substance use, the claimant would have the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: cannot operate foot controls with one lower extremity; must never climb ladders, ropes, or scaffolds; can perform the other postural maneuvers on occasion; and must avoid concentrated exposure to extreme cold, extreme heat, wetness, humidity, and environmental irritants. From a mental standpoint the claimant is limited to unskilled tasks that are goal-oriented rather than production-paced; no significant interaction with the general public; no more than occasional interaction with supervisors and co-workers; and requires a stable workplace, defined as involving few if any changes of setting, processes, and tools.

8. The claimant has no past relevant work ( 20 CFR 404.1565 and 416.965 ).

9. The claimant was born on March 16, 1962 and was 34 years old, which is defined as a younger individual age 18–49, on the alleged disability onset date ( 20 CFR 404.1563 and 416.963 ). On March 15, 2012, the claimant's age category changed to an individual closely approaching advanced age ( 20 CFR 404.1563 and 416.963 ).

10. The claimant has at least a high school education and is able to communicate in English ( 20 CFR 404.1564 and 416.964 ).

11. Transferability of job skills is not an issue because the claimant does not have past relevant work ( 20 CFR 404.1568 and 416.968 ).

12. From March 3, 1997, through December 15, 2014, if the claimant stopped the substance use, considering the claimant's age, education, work experience, and residual functional capacity, there would be a significant number of jobs in the national economy that the claimant could perform ( 20 CFR 404.1560(c), 404.1566, 416.960

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