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Bonnie A. v. Saul

United States District Court, D. Vermont

August 8, 2019

BONNIE A., Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration Defendant.



         Plaintiff 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.


         I. Procedural History

         Ms. A. 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.

         On March 18, 2015, the Appeals Council vacated the ALJ's order, stating:

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.

         The 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.

         The ALJ 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.

         On 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.

         II. Medical History

         In 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 down.

         Dr. 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.

         In 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, ...

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