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Neeley v. Berryhill

United States District Court, D. Delaware

August 25, 2017

PAMELA B. NEELEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Pamela B. Neeley ("Neeley") filed this action on March 22, 2016 against the defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration (the "Commissioner"). Neeley seeks judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner's October 10, 2014 final decision, denying Neeley's claim for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"), 42 U.S.C. §§ 401-434 and §§ 1381-1383f. The court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g).

         Currently before the court are cross-motions for summary judgment filed by Neeley and the Commissioner. (D.I. 12; D.I. 14) Neeley asks the court to enter an award of benefits or, alternatively, to remand her case for further administrative proceedings. (D.I. 13) The Commissioner requests the court affirm the ALJ's decision. (D.I. 15 at 16) For the reasons set forth below, the court recommends granting-in-part and denying-in-part Neeley's motion for summary judgment (D.I. 12), and granting-in-part and denying-in-part the Commissioner's cross-motion for summary judgment (D.L 14). Additionally, it is recommended that the court deny Neeley's demand for an award of benefits. The court also recommends that the case be remanded for further administrative proceedings as outlined infra.

         II. BACKGROUND

         A. Procedural History

         Neeley filed a DIB application on March 7, 2007, claiming a disability onset date of January 1, 2005. (Tr. at 89) Her claim was initially denied on June 20, 2007, and denied again after reconsideration on November 14, 2007. (Id. at 60, 70) Neeley then filed a request for a hearing, which occurred on October 7, 2008. (Id. at 82) Administrative Law Judge, Edward J. Banas, issued an unfavorable decision, finding that Neeley was not disabled under the Act. (Id. at 16-25) The Appeals Council subsequently denied Neeley's request for review on March 6, 2010, rendering the ALJ's decision the final decision of the Commissioner. (Id. at 432-436) On May 3, 2010, Neeley brought a civil action in this court challenging the ALJ's decision. (D.I. 15 at 2) The Commissioner filed an unopposed motion for voluntary remand. (Tr. at 352) As such, the case was remanded on January 24, 2011 for further administrative proceedings. (Tr. at 350-352) On May 31, 2011, the Appeals Council again issued an unfavorable decision, finding that Neeley was not disabled under the Act. (Id. at 345)

         Neeley again brought a civil action in this court, and on March 15, 2012, it was remanded for further proceedings. (Id. at 421) On December 31, 2013, the Appeals Council assigned the case to Administrative Law Judge, Jeffery M. Jordan (the "ALJ"), for another hearing. (Id. at 425) The hearing was held on August 14, 2014. (Id. at 393-414) On October 10, 2014, the ALJ issued an unfavorable decision finding that Neeley was not disabled under the Act. (Id. at 371) The Appeals Council subsequently affirmed the ALJ's decision, rendering it the final decision of the Commissioner. (Id. at 360) On March 22, 2016, Neeley brought a civil action in this court challenging the ALJ's decision. (D.I. 2) On October 26, 2016, Neeley filed a motion for summary judgment, and on November 23, 2016, the Commissioner filed a cross-motion for summary judgment. (D.I. 12; D.I. 14)

         B. Medical History

         The ALJ concluded that Neeley has the following severe impairments: disorders of the back, including degenerative disc disease; residual effects of status post left rotator cuff repair; gastrointestinal disorder; anxiety; and depression. (Tr. at 377) The court notes that Neeley's medical history is not in dispute.

         C. Vocational expert testimony before ALJ Jordan

         The ALJ posed the following hypothetical to the vocational expert ("VE"):

Please assume a hypothetical individual [sic] the claimant's age, education and work background. Assume further this individual is going to lift, carry, push, pull up to ten pounds occasionally, from waist to chest level, and stand and walk about two to four hours with an eight-hour work day and sit six hours with an eight-hour work day. Can stand/walk no longer than ten to fifteen minutes at a time before having to sit. Would need to use an assistive device to aid in walking. Individual could sit up to about thirty minutes before having to stand for a few minutes. This individual has to avoid climbing ladders, ropes and scaffolds, crawling, perform other postural movements occasionally. Individual is limited to simple, routine, repetitive tasks with occasional brief superficial interaction with the public and co-workers. Avoid constant fingering, grasping, handling and reaching bilaterally and avoid overhead work activity with the left upper extremity. Avoid working around hazards such as moving dangerous machinery and unprotected heights. Work environment should have close proximity to a restroom such an [sic] office setting on the same floor. Could such an individual perform the claimant's past work?

(Id. at 409-410) The VE testified that at the limited sedentary level, the individual described would be able to work in occupations including addressing clerk, call out operator, and surveillance system monitor. (Id. at 410-411) The VE explained that Neeley's prior work experience as a jewelry packer, and housekeeper at the race track, would apply as past relevant work experience. (Id. at 411) However, the VE testified that Neeley could not return to either of those positions, because of the level of exertion required. (Id. at 409)

         In a second hypothetical, the ALJ posed the following to the VE: "If the individual was limited to no more than occasional fingering, grasping, handling and reaching with the left upper extremity in addition to the other limitations, could the individual still perform the cited jobs?" (Id. at 411-12) The VE testified that only the surveillance system monitor position is compatible with the hypothetical. (Id. at 412)

         On cross examination, Neeley's attorney asked whether the position of call out operator would be appropriate for a hypothetical individual who is limited to "brief interactions with coworkers, supervisor, and the general public." (Id.) The VE stated the position of call out operator would be appropriate, because the job description is someone "who basically compiles credit information and then telephones subscribers. So it is not an individual that deals directly with the public." (Id.) The VE further clarified that the job is done primarily in isolation, co-workers would be present, but direct interaction would not be required. (Id.)

         Neeley's attorney also asked if a person who needs to take a break and be off task for ten minutes, every thirty minutes, would be able to sustain full-time work. (Id. at 413) The VE stated that such a person would not be able to sustain any type of full-time work. (Id.)

         D. The ALJ's findings

         Based on the factual evidence in the record and the testimony of Neeley and the VE, the ALJ determined that Neeley was not disabled under the Act for the relevant time period from January 1, 2005 through March 31, 2006, the date last insured. (Tr. at 374-387) The ALJ found, in pertinent part:

1. The claimant last met the insured status requirements of the Social Security Act on March 31, 2006.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of January 1, 2005, through her date last insured (20 CFR 404.157l et seq.).
3. Through the date last insured, the claimant had the following severe impairments: disorders of the back, including degenerative disc disease (DDD); residual effects of status post left rotator cuff repair; gastrointestinal disorder; anxiety; and depression (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that through the date last insured, the claimant had the residual functional capacity to perform less than the full range of sedentary work as defined in 20 CFR 404.1567(a), except for the following: the claimant could lift, carry, push, and pull up to ten pounds occasionally from waist to chest level; the claimant could stand/walk for two to four hours and sit for six hours in an eight-hour workday, but she needed to walk with the aid of an assistive device and stand/walk for no longer than ten minutes at a time before sitting, and sit for no longer than thirty minutes before needing to stand/walk for a few minutes; the claimant had to avoid crawling and climbing ladders, ropes, and scaffolds, but she could stoop on an occasional basis; the claimant was limited to simple, routine, and repetitive tasks, with occasional, brief, and superficial interaction with the public and coworkers; the claimant had to avoid constant fingering, grasping, handling, and reaching; the claimant had to avoid overhead work activity with her left upper extremity; the claimant had to avoid working around hazards, such as moving dangerous machinery and unprotected heights; and the claimant's work environment should have had close proximity to a restroom, such as in an office setting on the same floor.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born December 15, 1960, and the claimant was forty-five years old, which is defined as a younger individual age 45-49, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education, and the claimant is able to communicate in English (20 CFR 404.1564).
9. 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 (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from January 1, 2005, the alleged onset date through the date ...

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