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Jack v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

August 15, 2017

SYDNEY M. JACK, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Plaintiff's request for judicial review under 42 U.S.C. § 405(g) of the final decision of Defendant denying Plaintiff's application for supplemental security income under Title XVI of the Social Security Act (Act), 42 U.S.C. §§1381, et seq. For the reasons set forth below, the Court will reverse and remand the Commissioner's denial of Plaintiff's applications.

         Facts and Background

         On June 24, 2015, Administrative Law Judge Michael Lehr conducted a video hearing at Kansas City, Missouri. Plaintiff appeared in St. Louis and the Vocational Expert, Jennifer Smidt, appeared by phone. The claim was initially filed on August 9, 2012, and was denied by the State agency on November 16, 2012. On December 6, 2012, a request for hearing was held. Hearings were subsequently held but not concluded as the ALJ who conducted the hearings retired before completing the case. A hearing was held on June 24, 2015.

         Plaintiff was born on April 21, 1981, and was 33 years old at the time of the hearing. Plaintiff has completed high school. At the time of the most recent hearing Plaintiff was living with her mother.

         Plaintiff has prior work experience as a cashier at a fast food restaurant, bagger at a grocery store, childcare in a daycare center, and as a dietary aide at a nursing home. Plaintiff also has experience in a janitorial cleaning service.

         The record reflects Plaintiff has complained of being unable to work at the same pace as others in her past employment. She also testified that she has difficulty concentrating on more than one thing at a time. Plaintiff also testified that she had back pain and her left hand goes numb which creates difficulty in carrying objects. The difficulty with her hand resulted from an injury sustained while working. There was also testimony regarding the mental functioning of the Plaintiff and her intellectual abilities.

         The ALJ also heard testimony that the Plaintiff has difficulty concentrating on things and intellectual ability issues. There was evidence that the more recent IQ score of Plaintiff was just above 70. In addition, there was evidence that Plaintiff could count, write, read, care for herself and perform household tasks.

         There was testimony from the Vocational Expert. The Vocational Expert testified that based on an individual of Plaintiff's age, education, vocational history, and RFC Plaintiff could perform work existing in significant numbers including the light and unskilled jobs of bakery-conveyor worker, children's attendant, stock checker/apparel, and usher.

         The ALJ determined that Plaintiff was not entitled to a finding of disabled. The Appeals Council denied Plaintiff's request for review on August 5, 2016. The decision of the ALJ is now the final decision for review by this Court.

         Statement of Issues

         The issues in a Social Security case are whether the final decision of the Commissioner is consistent with the Social Security Act, regulations, and applicable case law, and whether the findings of fact by the ALJ are supported by substantial evidence on the record as a whole. Here the Plaintiff asserts, the ALJ failed to properly consider Plaintiff's back impairment in assessing her limitations; the ALJ failed to properly consider Listing 12.05C; and the ALJ's failed to use a proper hypothetical question to the Vocational Expert.

         Standard for Determining Disability

         The Social Security Act defines as disabled a person who is “unable 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.2010). The impairment must be “of such severity that [the claimant] 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).

         A five-step regulatory framework is used to determine whether an individual claimant qualifies for disability benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011) (discussing the five-step process). At Step One, the ALJ determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I); McCoy, 648 F.3d at 611. At Step Two, the ALJ determines whether the claimant has a severe impairment, which is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities”; if the claimant does not have a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a) (4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. At Step Three, the ALJ evaluates whether the claimant's impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the ...


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