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Hickman v. Berryhill

United States District Court, W.D. Missouri, Southwestern Division

July 26, 2018

ELENA HICKMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AFFIRMING IN PART AND REMANDING IN PART THE COMMISSIONER'S DECISION

          GREG KAYS, CHIEF JUDGE UNITED STATES DISTRICT COURT

         Plaintiff Elena Hickman (“Plaintiff”) petitions for review of an adverse decision by Defendant, the Acting Commissioner of Social Security (“Commissioner”). Plaintiff applied for Social Security disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-434, and Supplemental Security Income (“SSI”) under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. The Administrative Law Judge (“ALJ”) found Plaintiff had severe impairments of fibromyalgia, polysubstance abuse and dependence, adjustment disorder, bipolar disorder, posttraumatic stress disorder, delirium secondary to alcohol withdrawal, major depressive disorder, and generalized anxiety disorder. The ALJ further found given her residual functional capacity (“RFC”), age, education, and work experience, no jobs exist in significant numbers in the national economy that Plaintiff can perform. However, the ALJ found that if Plaintiff stopped the substance use, she would have the RFC to perform light work.

         After carefully reviewing the record and the parties' arguments, the Court finds remand is necessary on the narrow issue of workplace limitations. The Commissioner's decision is REMANDED for further proceedings consistent with this Order.

         Procedural and Factual Background

         The complete facts and arguments are presented in the parties' briefs and are repeated here only to the extent necessary.

         The procedural history of this case is quite extensive and bears recounting. On August 17, 2009, following a hearing, an ALJ found that Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review on November 24, 2010, and Plaintiff appealed to this Court. On June 1, 2011, Defendant filed a motion to remand pursuant to sentence 6 of § 205(g) of the Act (“Sentence 6 Remand”), because the recording of the administrative hearing was inaudible. See 42 U.S.C. § 405(g). On July 8, 2011, this Court remanded the claim to the Social Security Administration (“SSA”) for the ALJ to conduct a de novo hearing.

         On January 13, 2012, the Appeals Council vacated the ALJ's August 2009 decision and remanded the case for the ALJ to offer Plaintiff the opportunity for a hearing. An ALJ held a hearing on December 6, 2013, at which time the ALJ noted that Plaintiff's counsel had withdrawn from the case earlier that year. At the hearing, Plaintiff requested a continuance so that she could obtain a new representative. The hearing was rescheduled for February 21, 2014, but Plaintiff did not appear. On February 26, 2014, the ALJ dismissed Plaintiff's claim for her failure to report for the rescheduled hearing.

         Plaintiff did not appeal this determination. However, in early 2015, through a routine review of pending matters, SSA discovered a procedural anomaly and again requested a Sentence 6 Remand. Although the regulations permit an ALJ to dismiss a claim for a claimant's failure to report for a hearing without good cause, 20 C.F.R. §§ 404.957(b) and 416.1457(b), the ALJ may not do so in a case that has been remanded by a court under a Sentence 6 Remand. See Program Operations Manual System (POMS) GN 03106.036(C)(3)(a), https://secure.ssa.gov/ apps10/poms.nsf/lnx/0203106036 (last visited June 13, 2018). Instead, the ALJ should have issued a decision on the record. Id.

         On March 11, 2015, the Court granted Defendant's motion for a Sentence 6 Remand, and the Appeals Council again vacated the ALJ's decision and remanded the claim to an ALJ for further proceedings. The Appeals Council noted that Plaintiff had subsequently filed claims for disability benefits and SSI in March 2014 and March 2015, and directed the ALJ to consolidate consideration of all of Plaintiff's claims.

         The ALJ held another hearing, and on January 25, 2017, issued a decision ultimately finding Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for a review, leaving the ALJ's decision as the final decision. Plaintiff has exhausted all administrative remedies and judicial review is now appropriate under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).

         Standard of Review

         A federal court's review of the Commissioner's decision to deny disability benefits is limited to determining whether the Commissioner's findings are supported by substantial evidence on the record as a whole. Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015). Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind would find it sufficient to support the Commissioner's decision. Id. In making this assessment, the court considers evidence that detracts from the Commissioner's decision, as well as evidence that supports it. Id. The court must “defer heavily” to the Commissioner's findings and conclusions. Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015).

         Discussion

         The Commissioner follows a five-step sequential evaluation process[1] to determine whether a claimant is disabled, that is, unable to engage in any substantial gainful activity by reason of a medically determinable impairment that has lasted or can be expected to last for a ...


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