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Blankenship v. Commissoner of Social Security

United States District Court, W.D. Tennessee, Eastern Division

January 30, 2017

MICHAEL GEORGE BLANKENSHIP, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G)

          S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE.

         Plaintiff Michael George Blankenship filed this action to obtain judicial review of Defendant Commissioner's final decision denying his applications for disability insurance benefits under Title II of the Social Security Act (“Act”) and for Supplemental Security Income (“SSI”). Plaintiff's applications were denied initially and upon reconsideration by the Social Security Administration. Plaintiff then requested a hearing before an administrative law judge (“ALJ”), which was held on September 6, 2012. On September 28, 2012, the ALJ issued a decision, finding that Plaintiff was not entitled to benefits. The Appeals Council denied Plaintiff's request for review, and, thus, the decision of the ALJ became the Commissioner's final decision. For the reasons set forth below, the decision of the Commissioner is REVERSED, and the action is REMANDED for additional testimony pursuant to sentence four of 42 U.S.C. § 405(g).

         Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision made by the Commissioner after a hearing to which he was a party. “The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”[1] The Court's review is limited to determining whether there is substantial evidence to support the Commissioner's decision, [2] and whether the correct legal standards were applied.[3]

         Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[4] It is “more than a mere scintilla of evidence, but less than a preponderance.”[5] The Commissioner, not the Court, is charged with the duty to weigh the evidence, to make credibility determinations and resolve material conflicts in the testimony, and to decide the case accordingly.[6] When substantial evidence supports the Commissioner's determination, it is conclusive, even if substantial evidence also supports the opposite conclusion.[7] “[W]hen there is not substantial evidence to support one of the ALJ's factual findings and his decision therefore must be reversed, the appropriate remedy is not to award benefits. The case can be remanded under sentence four of 42 U.S.C. § 405(g) for further consideration.”[8]

         Pursuant to sentence four, a district court may “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” The court may immediately award Plaintiff benefits “only if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits.”[9] “A judicial award of benefits is proper only [when] the proof of disability is overwhelming or where the proof of disability is strong and evidence to the contrary is lacking.”[10] These factors are not present in this case, and, therefore, an immediate award of benefits is not appropriate. However, a remand pursuant to sentence four of § 405(g) is appropriate because all essential issues have not been resolved.

         Plaintiff was born on March 31, 1957, and was fifty years old on his alleged disability onset date, which is defined, for purposes of vocational analysis, as an individual closely approaching advanced.[11] He has a high school education. Plaintiff alleges disability due to diabetes, neuropathy, and arthritis[12] with an amended alleged onset date of December 1, 2007.[13]

         The ALJ enumerated the following findings: (1) Plaintiff met the insured status requirements through December 31, 2007; (2) Plaintiff has not engaged in substantial gainful activity since the alleged onset date; (3) Plaintiff has severe impairments of diabetes mellitus with neuropathy, but he does not have an impairment or combination of impairments that met or equaled a listing in 20 C.F.R. pt. 404, subpt. P, app. 1 through his date last insured; (4) Plaintiff retained the residual functional capacity to perform medium work as defined in 20 C.F.R. 404.1567(c) and 416.967(c), except lifting and/or carrying fifty pounds occasionally and twenty-five pounds frequently, standing and/or walking (with normal breaks) about six hours in an eight-hour workday, sitting (with normal breaks) about six hours in an eight-hour workday, pushing and/or pulling unlimited other than as shown for lifting and/or carrying, frequently climb, balance, stoop, kneel, crouch, and crawl, and should avoid concentrated exposure to extreme cold and extreme heat; (5) Plaintiff can perform his past relevant work as an assembler, motor vehicle (automotive manufacturing); (6) Plaintiff was not under a disability as defined in the Act at any time through the date of this decision.[14]

         The Social Security Act defines disability as the inability to engage in substantial gainful activity.[15] The claimant bears the ultimate burden of establishing an entitlement to benefits.[16]The initial burden of going forward is on the claimant to show that he is disabled from engaging in his former employment; the burden of going forward then shifts to the Commissioner to demonstrate the existence of available employment compatible with the claimant's disability and background.[17]

         The Commissioner conducts the following, five-step analysis to determine if an individual is disabled within the meaning of the Act:

1. An individual who is engaging in substantial gainful activity will not be found to be disabled regardless of medical findings.
2. An individual who does not have a severe impairment will not be found to be disabled.
3. A finding of disability will be made without consideration of vocational factors, if an individual is not working and is suffering from a severe impairment which meets the duration requirement and which meets or equals a listed impairment in Appendix 1 to Subpart P of the regulations.
4. An individual who can perform work that she has done in the past will not be found to be disabled.
5. If an individual cannot perform his or her past work, other factors including age, education, past work experience and residual functional capacity must be considered to determine if other work can be performed.[18]

         Further review is not necessary if it is determined that an individual is not disabled at any point in this sequential analysis.[19] Here, the sequential analysis proceeded to the fourth and fifth steps. The ALJ found that Plaintiff could perform his past relevant work and that there was other work that exists in substantial numbers in the national economy that he could perform. The Commissioner argues that, even if the ALJ's step four finding that Plaintiff could perform his past relevant work was in error, the ALJ correctly found that Plaintiff could perform other work at step five of the sequential process.

         Plaintiff contends that the ALJ erred by (1) relying on and giving great weight to a consultative psychological examination report that was unsigned and unauthenticated; (2) failing to obtain testimony from a vocational expert regarding his findings at step four and step five of the sequential evaluation; and (3) not properly assessing Plaintiff's credibility. Plaintiff also complains that the ALJ's decision was not signed by the ALJ who presided over the hearing and was not properly authenticated.

         Looking at Plaintiff's last argument first, the Court finds it to be without merit. While Plaintiff is correct that the hearing decision was signed by an ALJ (William R. Ingram) other than the one who presided over the hearing (Paul Michael Stimson) and there is nothing in the record indicating that Judge Stimson had approved this decision and given signatory authority to Judge Ingram, as required by HALLEX I-2-8-40, this procedural error does not require reversal. As explained in Estep v. Astrue,

Section I-2-8-40 of the SSA's Hearings, Appeals, and Litigation Law Manual (“HALLEX”) provides procedures for situations in which the ALJ who conducted the hearing is unavailable to issue the decision. In a scenario where the ALJ who conducted the hearing is unavailable to issue the decision due to death, retirement, resignation, prolonged illness or other causes resulting in prolonged leave, the Hearing Office Chief ALJ (“HOCALJ”) will reassign the case to another ALJ. See HALLEX § I-2-8-40. The incoming ALJ is given discretion to determine whether a new hearing is necessary … Id. Section I-2-8-40 also provides procedures for a second scenario in which “an ALJ has approved a final decision but is unavailable to sign the final decision.” In that case, the HOCALJ has authority to sign the final decision on behalf of the temporarily unavailable ALJ with prior written authorization. Id.
There is no indication in the record whether the case was transferred to ALJ Newkirk by the HOCALJ. Likewise, there is no indication whether ALJ Newkirk is the HOCALJ signing on behalf of ALJ Sparks. Simply put, the record does not reveal whether the Commissioner complied with either scenario contemplated in HALLEX section I-2-8-40 when ALJ Newkirk signed the decision for ALJ Sparks. ...

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