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Hess v. Colvin

United States District Court, E.D. Virginia, Norfolk Division

May 7, 2014

GILMA MARINA HESS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.

REPORT AND RECOMMENDATION

LAWRENCE R. LEONARD, Magistrate Judge.

Plaintiff Gilma Marina Hess ("Ms. Hess") filed a complaint pursuant to 42 U.S.C. § 405(g) that seeks judicial review of the final decision of the Defendant, the Acting Commissioner of the Social Security Administration ("Acting Commissioner"), which denied Ms. Hess' claim for Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act. Both parties have filed motions for summary judgment, ECF Nos. 14 and 15, which are now ready for a recommended resolution. This action was referred to the undersigned United States Magistrate Judge ("the undersigned") pursuant to 28 U.S.C. §§ 636(b)(1)(B)-(C), Federal Rule of Civil Procedure 72(b), Local Civil Rule 72, and the April 2, 2002 Standing Order on Assignment of Certain Matters to United States Magistrate Judges. After reviewing the briefs, the undersigned disposes of cross-motions for summary judgment on the papers without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS that Ms. Hess' motion for summary judgment, ECF No. 14, be GRANTED to the extent it seeks reversal and remand of the Acting Commissioner's decision; the Defendant's motion for summary judgment, ECF No. 15, be DENIED; the final decision of the Acting Commissioner be VACATED, and that this matter be REMANDED for further proceedings consistent with this recommendation.

I. PROCEDURAL BACKGROUND

On August 18, 2010, Ms. Hess filed her application for DIB, alleging a disability onset date of May 28, 2004 due to scar tissue, fibroids, pelvic pain, and depression. R. 175-86.[1] To qualify for DIB, Ms. Hess must have insurance coverage at the time of disability. 42 U.S.C. § 423(a); 20 C.F.R. §§ 404.101(a); 404.131(a). Ms. Hess' date last insured ("DLI") was December 31, 2009. R. 172. Accordingly, Ms. Hess had the burden of establishing the existence of a disability on or before that date. Her application was initially denied on January 3, 2011, R. 69-76, and denied again upon reconsideration on May 12, 2011. R. 78-85. Ms. Hess requested a hearing in front of an administrative law judge ("ALJ") on June 30, 2011, R. 109-110, which was held on March 6, 2012. R. 30-68. The ALJ issued his decision denying Ms. Hess' DIB application on April 25, 2012. R. 16-29. Ms. Hess petitioned the Appeals Council for the Office of Disability and Adjudication ("Appeals Council") for review of the ALJ's decision. Ultimately, the Appeals Council denied Ms. Hess' request for review of the ALJ's decision on June 7, 2013, R. 1-5, and the ALJ decision became the final decision of the Acting Commissioner. After exhausting her administrative remedies, Ms. Hess filed her complaint for judicial review of the Acting Commissioner's final decision on August 2, 2013. ECF No. 2. The Acting Commissioner filed an Answer on September 27, 2013. ECF No. 9. Ms. Hess filed her motion for summary judgment on November 15, 2013, ECF No. 14, and the Acting Commissioner filed a cross-motion for summary judgment on December 16, 2013, ECF No. 15. Ms. Hess replied in opposition to the Acting Commissioner's motion for summary judgment on December 30, 2013. ECF No. 17. No additional briefing has been filed, and the time to do so expired. Accordingly, the matter is ripe for recommended disposition.

II. STANDARD OF REVIEW

On judicial review of the Acting Commissioner's final decision, the Court is limited to determining whether the decision was supported by substantial evidence in the record, and whether the proper legal standard was applied in evaluating the evidence. 42 U.S.C. § 405(g); see also Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005); Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hays, 907 F.2d at 1456 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938))). The Acting Commissioner's findings as to any fact, if the findings are supported by substantial evidence, are conclusive and must be affirmed. Perales, 402 U.S. at 390. While the standard is high, where the ALJ's determination is not supported by substantial evidence in the record, or where the ALJ has made an error of law, the district court must reverse the decision. Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987).

III. THE ALJ'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

A sequential five-step evaluation of a disability claimant's work and medical history is required in order to determine if the claimant is eligible for benefits. 20 C.F.R. § 404.1520. The ALJ conducts this five-step analysis for the Acting Commissioner, and it is that analysis the district court must examine on judicial review to determine whether the correct legal standards were applied and whether the resulting decision is supported by substantial evidence in the record. In accordance with the five-step analysis, the ALJ made the following findings of fact and conclusions of law.

First, Ms. Hess met the insured requirements of the Social Security Act through December 31, 2009, and she had not engaged in substantial gainful activity ("SGA") since May 28, 2004, the alleged disability onset date. R. 21. Second, Ms. Hess had the following severe impairments: chronic pelvic/abdominal pain, and endometriosis, which limited her ability to perform the demands of basic work activities. R. 21-23 (citing 20 C.F.R. § 404.1520(c)). The ALJ found the other alleged impairments-specifically, back impairment and depression-were non-severe because they either did not exist continuously for a period of twelve months, were responsive to medication, did not require significant medical treatment, or did not result in any continuous exertional or nonexertional limitations. R. 22 (citing 20 C.F.R. § 404.1509; Gross v. Heckler, 785 F.2d 1163 (4th Cir. 1986); Social Security Ruling 85-28).

The ALJ employed an extensive analysis with regard to Ms. Hess' alleged mental impairment, i.e. depression, in accordance with 20 C.F.R. Part 404, Subpart P, Appendix 1, also known as the "paragraph B" criteria. R. 22-23. The ALJ concluded that any alleged medically determinable mental impairment like depression was non-severe because it caused no more than mild limitations in Ms. Hess' activities of daily living, social functioning, and concentration, persistence, and performance, and because there were no episodes of decompensation. R. 22 (citing 20 C.F.R. § 404.1520a(d)(1)).

Third, Ms. Hess did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. R. 23 (citing 20 C.F.R. §§ 404.1520(d); 404.1525; 404.1526). Fourth, Ms. Hess has the residual functional capacity ("RFC") to perform unskilled sedentary work, with the following limitations: no climbing, no work around unprotected heights or dangerous machinery, with job tasks that are simple, repetitive, and non-production. R. 23-28 (citing 20 C.F.R. § 404.1567(a)). Lastly, after considering Ms. Hess' age-46 years old, or a younger individual, as of the DLI-her high school education, ability to communicate in English, her prior work experience, RFC, and the testimony of an impartial Vocational Expert ("VE") at the hearing, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Ms. Hess could perform, and thus, she was not under disability between the period of May 28, 2004 and December 31, 2009. R. 28-29.

IV. RELEVANT FACTUAL BACKGROUND

As of the ALJ hearing on March 6, 2012, Ms. Hess was forty-eight years old, married, with a high school education, and previous work experience as a computer programmer from 1998 until May 28, 2004, the alleged onset date of disability and the date last employed. R. 177. On April 8, 2003, Ms. Hess underwent a total abdominal supracervical hysterectomy to treat her symptomatic fibroid uterus. R. 46, 468. Since then, Ms. Hess generally claims that she has experienced pain in her left lower abdomen that has resulted in her inability to work. At the ALJ hearing, Ms. Hess provided the following testimony:

Ms. Hess and her husband live with her mother-in-law and pay her rent. R. 35. They have no children. Id. Since Ms. Hess became unable to work in 2004, R. 40, her husband started working part-time in the lawn mowing business in addition to his full-time job, R. 39, yet they have lost their house and savings due to Ms. Hess' medical impairments. R. 56. When asked to describe the pain, Ms. Hess testified that the pain is located in the left lower part of her abdomen, that it is always there, even when she sleeps, and that she has used pain medications and physical therapy to address the pain. R. 38. Ms. Hess described her daily routine as attempting to manage her pain. R. 40. She can dress, bathe, and care for herself; it just takes her twice as long as the average person. R. 44. She is able cook a few times per month and partially assist with the laundry, R. 41, but will take her ...


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