Thomas v. Astrue

• Decision Date: 21 March 2012
• Docket Number: 4:10CV3250
• Parties: NICHOLE L. THOMAS, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — District of Nebraska

NICHOLE L. THOMAS, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.

4:10CV3250

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Dated: March 21, 2012

MEMORANDUM AND ORDER

Plaintiff Nichole L. Thomas ("Thomas") seeks review of a decision by the defendant, Michael J. Astrue, the Commissioner of the Social Security Administration ("Commissioner"), partially denying her request for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401 et seq., and for supplemental security income under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. Thomas also seeks leave to amend her complaint in this matter. After carefully reviewing the record, the court finds Thomas' motion to amend should be denied, but the matter should be remanded to the ALJ for further determination of whether Thomas was disabled, for the purposes of disability insurance benefits and supplemental security benefits, from September 26, 2003 to February 29, 2004.

I. PROCEDURAL BACKGROUND

Thomas initially filed applications for SSDI and SSI benefits on October 31, 2001 ("Application 1").¹ Her application was denied at the initial and reconsideration levels ofadministrative determination on April 16, 2002 and June 19, 2002, respectively. Thomas filed a Request for Hearing on June 21, 2002.

At the initial hearing, the ALJ found that Thomas had a medically determinable impairment of fibromyalgia. (TR. 69). However, the ALJ determined Thomas was able to perform her past work as a security guard, fast-food worker, and electronics assembler, as well as jobs identified by a vocational expert at the hearing. (TR. 69). Because Thomas was able to perform past relevant work, the ALJ determined Thomas was not disabled, as defined by the SSA in 20 CFR 404.1529.

The opening of the ALJ's opinion stated that Thomas' application was for "supplemental security income benefits under Title XVI." (TR 60). However, in announcing her decision the ALJ pronounced that Thomas was not "entitled to a period of disability or to the payment of disability insurance benefits under Title II of the Social Security Act." (TR 70).

The Notice of Decision sent to Ms. Thomas with a copy of the ALJ's unfavorable decision stated that Thomas could file a new application if she did not appeal. However it noted that if she filed a new application instead of appealing "you might lose some benefits, or not qualify for any benefits" (TR. 58). Thomas was also informed that the ALJ's decision could be used against her on any new application for benefits, if the facts and issues were the same. (TR. 58). Thomas sought review from the Appeals Council, which was subsequently denied. (Supp. TR. 6).

Thomas sought no further review of Application 1. Instead, Thomas filed a second application for disability and SSI benefits on April 27, 2004, ("Application 2") initiallyalleging disability beginning March 10, 2001. (Supp. TR. 53-55). Her claims were denied initially, (TR 71, 91-94), and on reconsideration (TR 72, 98-101). Thomas sought a review before an ALJ. At the hearing, Thomas' attorney agreed to amend the alleged onset date to February 1, 2004. (TR. 76). On November 17, 2006, following the hearing, the ALJ found Thomas was not under a "disability" as defined in the Act. (TR. 76-86).

Plaintiff hired a new attorney and requested review of Application 2 by the Appeals Council (TR. 132-41). The Appeals Council reviewed the decision on Application 2 and remanded the case to the ALJ for further proceedings. (TR 142-45). Thomas also filed a third Application ("Application 3") for benefits in January of 2007. The applications were "associated" for the ALJ's consideration, (TR. 785-86 & 798-99) and a hearing was held on September 10, 2008. Additional hearings were held on October 22, 2008 and January 21, 2009 to elicit more testimony and to consider what Thomas' counsel deemed as "new" evidence in support of Thomas' request to amend the alleged disability onset date to March 30, 2001 and reopen Application 1. Steven Kuhn, an impartial vocational expert was present and testified at the October 22, 2008 hearing. (TR. 830) At the January 21, 2009 hearing the ALJ heard the testimony of an impartial medical expert, Morris Alex, MD. (TR. 856).

The ALJ issued a partially favorable decision. (TR. 25). The ALJ refused to reopen the October 31, 2001 determination, found that the opinion of September 26, 2003 had become final and binding, and the earliest onset date which could be considered by the ALJ was September 26, 2003. The ALJ also found that Thomas was not disabled from September 26, 2003 to March 1, 2004. However, the ALJ determined that starting on March 1, 2004, Thomas suffered from the severe impairments of fibromyalgia, obesity, and depression and was disabled as of that date. (TR. 50). Thomas now appeals that decision.

II. THE ALJ'S DECISION

As reflected in the ALJ's decision, she made the following findings:

1) The claimant met insured status requirements of the Social Security Act through December 31, 2004. (TR. 35).

2) The claimant has not engaged in substantial gainful activity since September 26, 2003 (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.). (TR. 35).

3) From September 26, 2003 to March 1, 2004, the claimant has had the following severe impairments: fibromyalgia, obesity, and depression (20 CFR 404.1520(c) and 416.920(c)).

4) From September 26, 2003 to March 1, 2004, the claimant has not had an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)). (TR. 36).

5) From September 26, 2003 to March 1, 2004, the date she became disabled, the claimant had the residual functional capacity ("RFC") to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), i.e., she could lift and carry 20 pounds occasionally and 10 pounds frequently; sit 6 hours, stand 6 hours, and walk 6 hours. She could occasionally climb, balance, stoop, kneel, crouch, and crawl, but she was precluded from climbing ladders, ropes, and scaffolds. Due to her mental impairment, the claimant was restricted to unskilled work at an SVP 1-2 level. The work had to be routine and repetitive and not requireextended concentration. Social interaction could be occasional, but not intense or constant. The claimant could handle brief superficial interaction. (TR. 37).

6) Beginning on March 1, 2004, the claimant has had the following severe impairments: fibromyalgia, obesity, and depression (20 CFR 404.1520(c) and 416.920(c)). (TR. 43).

7) Beginning on March 1,2004 the claimant has not had an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d) and 416.920(d)). (TR 44).

8) Beginning on March 1, 2004, the claimant has had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), i.e., she could lift and carry 20 pounds occasionally and 10 pounds frequently; sit 6 hours, stand 6 hours, and walk 6 hours. She could occasionally climb, balance, stoop, kneel, crouch, and crawl, but she is precluded from climbing ladders, ropes, and scaffolds. Due to her mental impairment, the claimant is restricted to unskilled work at an SVP 1-2 level. The work must be routine and repetitive and not require extended concentration. Social interaction could be occasional, but not intense or constant. The claimant can handle brief superficial interaction. Due to her chronic pain and fatigue, and her need to lie down frequently for extended periods throughout the day, the claimant cannot sustain work on a full-time basis for 8 hours a day, 5 days and 40 hours per week. (TR 45).

9) Beginning on March 1, 2004, the claimant has been unable to perform past relevant work (20 CFR 404.1565 and 416.965). (TR. 48).

10) The claimant was born on February 21, 1973, and was 31 years of age, which is defined as a younger individual age 18-49, on March 1, 2004, the established disability onset date (20 CFR 404.1563 and 416.963). (TR. 48).

11) The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964). (TR 48).

12) From September 26, 2003 to March 1, 2004, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills. Beginning on March 1, 2004, the claimant has not been able to transfer any job skills to other occupations (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). (TR. 49).

13) From September 26, 2003 to March 1, 2004, considering the claimant's age, education, work experience, and residual functional capacity, there were a significant number of jobs in the national economy that the claimant could have performed (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966). (TR. 49).

14) Beginning on March 1, 2004, considering the claimant's age, education, work experience, and residual functional capacity, there are not a significant number of jobs in the national economy that the claimant could perform (20 CFR 404.1560( c), 404.1566, 416.960(c), and 416.966). (TR. 50).

15. The claimant was not disabled from September 26, 2003 to March 1, 2004, but became disabled on that date and has continued to be disabled through the date of this decision (20 CFR 404.1520(g) and 416.920(g). (TR. 15).

III. ISSUES RAISED FOR JUDICIAL REVIEW

Thomas' complaint requests judicial review of the ALJ's decision for the following reasons:

1) The Commissioner's decision is unsupported by substantial evidence; and

2) In denying the claim, the Commissioner used incorrect legal standards and approaches to fact finding.

In her brief in support of her claim, Thomas more clearly defined the issues as...