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Diane B. v. Commissioner of Social Security

United States District Court, D. Vermont

October 16, 2018

Diane B., Plaintiff,
Commissioner of Social Security, Defendant. v.

          OPINION AND ORDER (DOCS. 14, 16)


         Plaintiff Diane B. brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, requesting review and remand of the decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits (DIB). Pending before the Court are Plaintiff's motion to remand the Commissioner's decision for further proceedings and a new decision (Doc. 14), and the Commissioner's parallel motion to remand the Commissioner's decision for further proceedings and a new decision (Doc. 16). This is an unusual case, as the parties agree that the claim should be remanded but disagree regarding the terms of the remand order, particularly, whether the order should include a requirement that a hearing be held. (See Doc. 16 at 5-6, Doc. 18 at 1-3.)

         For the reasons explained below, the Court GRANTS Plaintiff's motion to remand (Doc. 14), in part; GRANTS the Commissioner's motion to remand (Doc. 16); and REMANDS the claim for further proceedings and a new decision.[1]

         Procedural and Factual Background

         Plaintiff was 54 years old on her alleged disability onset date of December 30, 2010. She has a high school education and experience working as a laundry worker and a home health aide/personal care attendant. She lives with her husband.

         On or around December 30, 2009, Plaintiff stopped working due to the following impairments: arthritis, depression, bladder issues, chronic obstructive pulmonary disease (COPD), pain in her hips and knees, high blood pressure, thyroid problems, and cholesterol issues. (AR 179-80.) In a December 2015 Function Report, Plaintiff stated that she is “very depressed” and “in so much pain.” (AR 211.) She explained that she cannot stand, sit, or walk for lengthy periods (AR 209); and that her husband “has to take care of [her], ” including cooking her dinner most nights (AR 211).

         On April 28, 2011, Plaintiff filed her first DIB application (referred to herein as the “prior claim”), which was denied at the initial stage on June 29, 2011. She did not request reconsideration of the denial. A few years later, on November 25, 2015, Plaintiff filed her second DIB application, which is the claim under review in this litigation. (AR 160-61.) Therein, Plaintiff alleges disability from December 30, 2010 through her date last insured of March 31, 2011. The claim was denied initially and on reconsideration; and on April 12, 2017, Administrative Law Judge (ALJ) Thomas Merrill conducted an administrative hearing on the claim. (AR 30-47.) Plaintiff appeared and testified, with representation from counsel, as did a vocational expert.

         On June 20, 2017, ALJ Merrill issued a decision denying Plaintiff's claim, finding that Plaintiff “was not under a disability . . . at any time from December 30, 2010, the alleged onset date, through March 31, 2011, the date last insured.” (AR 25.) Despite the fact that Plaintiff was 54 years old on both the alleged disability onset date and the date last insured, the ALJ did not consider Plaintiff's “borderline age” status at step five of the sequential evaluation, erroneously explaining in his decision that, “[d]uring the entire relevant period in this case, through her date last insured, [Plaintiff] did not change age category [and thus] [t]he [borderline age] exception does not apply.” (AR 15.) The ALJ also denied Plaintiff's request to reopen the denial of her initial April 2011 claim, finding that the denial “is administratively final” and there is “no basis” to reopen it. (AR 25.)

         Thereafter, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Having exhausted her administrative remedies, Plaintiff filed the Complaint in this action on January 3, 2018. (Doc. 3.)

         Standard of Review

         The Social Security Act defines the term “disability” as the “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A). A person will be found disabled only if it is determined that his “impairments are of such severity that he is not only unable to do his previous work[, ] but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

         In considering the Commissioner's disability decision, the court “review[s] the administrative record de novo to determine whether there is substantial evidence supporting the . . . decision and whether the Commissioner applied the correct legal standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court's factual review of the Commissioner's decision is thus limited to determining whether “substantial evidence” exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990) (“Where there is substantial evidence to support either position, the determination is one to be made by the factfinder.”). “Substantial evidence” is more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Poupore, 566 F.3d at 305. In its deliberations, the court should bear in mind that the Social Security Act is “a remedial statute to be broadly construed and liberally applied.” Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981).

         Summary of Arguments

         Preliminarily, Plaintiff argues that the denial of her prior DIB claim is not administratively final. (Doc. 14 at 1-4.) According to Plaintiff, because ALJ Merrill reviewed the “entire record” in considering Plaintiff's current claim, and because the alleged disability periods of the prior and current claim overlap for the period from December 30, 2010 through March 31, 2011, the ALJ constructively reopened the prior claim. (Id. at 2.) Given that constructive reopening, Plaintiff contends ALJ Merrill should have corrected a clear error contained in ...

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