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Jacobson v. Berryhill

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

March 11, 2019

MICHELE JACOBSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE

         This action is before this Court for judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff Michele Jacobson was not disabled, and thus not entitled to disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. For the reasons set forth below, the decision of the Commissioner will be affirmed.

         BACKGROUND

         The Court adopts the statement of facts set forth in Plaintiff's Statement of Uncontroverted Facts, which is contained in Plaintiff's brief (ECF No. 16-1), as supplemented by Defendant (ECF No. 22-1), and Defendant's Statement of Additional Facts (ECF No. 22-2), which Plaintiff has not opposed. Together, these statements provide a fair description of the record before the Court. Specific facts will be discussed as needed to address the parties' arguments.

         Plaintiff, who was born on July 8, 1967, filed her applications for benefits on March 25, 2014. She alleged disability beginning May 5, 2012, [1] due to illiteracy, bipolar disorder, a tumor surrounding her pituitary gland, tendonitis, and low bone density.[2] On April 22, 2014, Plaintiff's applications were denied at the administrative level, and she thereafter requested a hearing before an Administrative Law Judge (“ALJ”).

         After an initial hearing, a denial of Plaintiff's claim by the ALJ, and a remand by the Appeals Council of the Social Security Administration, [3] a re-hearing was held on September 7, 2017. Plaintiff, who was represented by counsel, and VE Jeffrey Francis Magrowski, Ph.D., testified at the hearing. Plaintiff's counsel stipulated to the VE's qualifications to testify as a VE. Tr. 89.

         At the hearing, the ALJ referred to a Reading Assessment Report dated July 19, 2016, which was completed by psychologist Sandra Carusa, Ph.D., after she examined Plaintiff. Dr. Carusa administered the Wide Range Achievement Test, Fourth Edition (WRAT4), and she reported that Plaintiff's reading composite score and word reading ability were both profoundly impaired at less than the 1st percentile; and Plaintiff's spelling was severely impaired at the 1st percentile. Dr. Carusa further reported that Plaintiff's grade level reading was approximately at the second grade and that Plaintiff's reading deficits left her functionally unable to read. Tr. 618-19.

         At the hearing, the ALJ asked the VE about Plaintiff's past relevant work as a cashier, in light of this Reading Assessment Report. Plaintiff had testified at the initial hearing that she previously worked as a cashier at several retail stores; for example, she testified that she worked at Target for seven years with good performance reviews before she quit to find a higher paying job. Tr. 40-45.

         The ALJ engaged the VE in the following line of questioning with respect to Plaintiff's past work:

Q Dr. Magrowski, we previously classified [Plaintiff's] work. In your opinion, as well as per the [Dictionary of Occupational Titles (“DOT”)], could a person who has - well, let me ask you maybe a different way, is that [Plaintiff] had testing done indicating her - based upon the scores indicated that [Plaintiff] was unable to functionally read. Okay, in your estimation would that be a Reading Level Zero?
A It sounds like it and it's not compatible with the DOT and the jobs she's done.
Q In your opinion, could a person with Reading Level Zero, an ability to functionally read be able to perform that work?
A No. because, according to the DOT and I looked it up, these jobs require at least a language level of 2 and they're able to read comic books, adventure books and use a dictionary and these jobs are considered semiskilled with [a Specific Vocational Preparation (“SVP”)] Of 3.
Q Now based upon - now understanding that the DOT is somewhat outdated and antiquated, do you have an opinion as to whether or not in the current national economy a person who is not able to functionally read could perform that work?
A No.
Q I'm sorry?
A I don't believe she could.
Q Okay.
A I do have an opinion and I don't believe that she could work.
Q Well, but a person with an ability to functionally read would not be able to perform that work in the ...

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