United States District Court, D. Vermont
OPINION AND ORDER
WILLIAM K. SESSIONS III DISTRICT COURT JUDGE.
Bonnie A. brings this action pursuant to 42 U.S.C. §
405(g) for review of the Commissioner's determination
that she is not disabled and not entitled to disability
insurance benefits (DIB) or Supplemental Security Income
(SSI). Now before the Court are Plaintiff's motion for
judgment reversing the decision of the Commissioner, and the
Commissioner's motion for judgment affirming that
decision. Plaintiff also argues in a separate motion that
remand is required because the Administrative Law Judge (ALJ)
who presided over her hearing was not a properly-appointed
officer of the United States. That second motion is opposed
by the government. For the reasons set forth below,
Plaintiff's initial motion to remand is
granted, the Commissioner's motion is
denied, Plaintiff's subsequent motion to
remand is denied as moot, and this case is
remanded for further proceedings.
filed an application for DIB on December 20, 2011, and an
application for SSI on January 6, 2012. Her applications were
denied initially and upon reconsideration, at which time she
requested an administrative hearing. ALJ Thomas Merrill held
a hearing on September 11, 2013. Ms. A. was represented by
counsel and testified at the hearing. A vocational expert
(VE) also testified. On October 23, 2013, the ALJ issued an
opinion concluding that Ms. A. had failed to establish
disability within the meaning of the Social Security Act, and
was therefore not entitled to either DIB or SSI.
March 18, 2015, the Appeals Council vacated the ALJ's
The hearing decision found the claimant capable of performing
her past relevant work as a companion (Finding 6). The
claimant's past relevant work as a companion is not
consistent with the claimant's assessed residual
functional capacity (RFC). The RFC limited the claimant to a
range of medium work and she retained “the capacity for
brief and routine interactions with the public, supervisors,
and coworkers” (Finding 5). The claimant was assessed
with severe anxiety disorder resulting in moderate
difficulties in social functioning and moderate difficulties
in concentration, persistence or pace (Decision, page 5).
However, the job of a companion (309.677-010) requires
dealing with people as an integral part of the job functions
according [to] the Dictionary of Occupational Titles
(DOT). Accordingly, further consideration of whether the
claimant is capable of performing her past relevant work
and/or other jobs in the national economy is warranted.
Appeals Council instructed that, upon remand, the ALJ must:
(1) further consider the issues in the case and continue to
step five of the sequential evaluation process, and (2) if
warranted, obtain further testimony from a VE.
held a second hearing on August 12, 2015. Ms. A. did not
testify, as her attorney considered her testimony at the 2013
hearing sufficient. Counsel also amended Ms. A.'s onset
date to August 3, 2012. The ALJ noted that material evidence
extends to one year prior to the onset date, and therefore
considered only record evidence between August 3, 2011 and
Ms. A.'s last insured date of September 30, 2014. A VE
testified at the August 2015 hearing.
September 16, 2015, the ALJ issued a written opinion again
concluding that Ms. A. could perform her past relevant work.
While his 2013 opinion classified her past relevant work as
“companion, ” the 2015 decision classified that
work as “home attendant.” The ALJ also changed
his assessment of Ms. A.'s social functioning
difficulties from “moderate” to
“mild.” Ms. A. again requested review by the
Appeals Council, and the Appeals Council denied her request.
She subsequently filed the instant action.
March 2012, Ms. A. underwent a consultative examination with
psychologist Dr. Kathryn Rickard. Ms. A. informed Dr. Rickard
that she had worked in elder care from 1979 to the present,
and that when transportation was available she was working
six and a half hour days. She reported that she was able to
concentrate if not interrupted, and could read for an hour
but might not fully understand the content due to a language
learning disability. She reported some impairment with short
and long-term memory, and that she needed to write things
Rickard noted that Ms. A. was alert and appeared to be of
average intelligence, with testing (Mini-Mental Status Exam)
showing no cognitive impairment. She diagnosed Ms. A. with
mixed repetitive-expressive disorder and anxiety disorder.
She also believed that Ms. A. retained an unimpaired ability
to relate to others, and continued to maintain an interest in
pursuing activities in and outside the home.
March 2012, State agency psychological consultant Dr. Edward
Hurley reviewed Ms. A.'s records and concluded that she
retained the concentration and persistence for one-to-three
step tasks for two hours in an eight hour period, albeit with
social restrictions. Dr. Hurley also opined that Ms. A. was
capable of brief, routine interactions with supervisors and
co-workers. In July 2012, ...