Opinion
4:19-cv-228 RP-SBJ
2020-04-16
Rosalba SONGER, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant.
Kristin Elaine Olson, United States Attorney's Office-DSM, Des Moines, IA, for Defendant Timothy N Tripp, Tripp, P.C., Pella, IA, for Plaintiff
Kristin Elaine Olson, United States Attorney's Office-DSM, Des Moines, IA, for Defendant
Timothy N Tripp, Tripp, P.C., Pella, IA, for Plaintiff
MEMORANDUM OPINION AND ORDER
ROBERT W. PRATT, Judge U.S. DISTRICT COURT
Plaintiff, Rosalba Songer, filed a Complaint in this Court on July 24, 2019, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).
Plaintiff filed an application for benefits on June 13, 2016. Tr. at 196-202. Plaintiff appeared at a hearing on June 7, 2018, before Administrative Law Judge (ALJ) Julie Bruntz. Tr. at 30-55. The ALJ issued a Notice of Decision – Unfavorable on September 17, 2018. Tr. at 7-23. On May 22, 2019, the Appeals Council declined to review the ALJ's decision. Tr. at 1-3. Thereafter, Plaintiff commenced this action. Both Plaintiff and the Commissioner have filed briefs and Plaintiff filed a reply brief.
At the outset of the decision, that ALJ noted that Plaintiff was insured for Title II benefits until September 30, 2009. Tr. at 12. Plaintiff's date of birth is October 10, 1954. Tr. at 196. At the first step of the sequential evaluation, 20 C.F.R. § 404.1520(a)(4), the ALJ found that Plaintiff had not engaged in substantial gainful activity after December 30, 2000, the alleged disability onset. Tr. at 17. At the second step, the ALJ found that during the relevant period Plaintiff had the following severe impairments: dysfunction of major joints, diabetes mellitus, and affective disorder. The ALJ found that Plaintiff's impairments were not severe enough to qualify for benefits at the third step of the sequential evaluation. Tr. at 13. At the fourth step, the ALJ found:
After careful consideration of the entire record, the undersigned finds that through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she was limited to jobs that could be learned in thirty days or less; there could be no overhead lifting on the right; and only occasional handling and fingering on the right.
Tr. at 14. The ALJ found that Plaintiff was unable to perform her past relevant work.
The ALJ found that Plaintiff was fifty-four years old on the date last insured. The ALJ wrote:
Although a borderline age situation exists because the claimant is within a few days to a few months of attaining the next higher age category and use of the higher age category would result in a finding of "disabled" instead of "not disabled," the undersigned finds that the use of this age category is not supported by the limited adverse impact of all factors on the claimant's ability to adjust to other work.
The ALJ found that Plaintiff has a limited education and is able to communicate in English. In determining that Plaintiff is able to communicate in English, the ALJ noted that: (1) Plaintiff initiated a Social Security interview in English, although it was concluded in Spanish; (2) Plaintiff stated she could read, but not write, English; (3) at the hearing, Plaintiff's counsel noted Plaintiff is not illiterate in English; and (4) medical records documented Plaintiff's ability to converse in English. Although the ALJ noted that Plaintiff had completed high school in Mexico, she determined it appropriate to find that Plaintiff has a limited education. Tr. at 21-22.
At the fifth step of the sequential evaluation, the ALJ found there were jobs Plaintiff could have performed during the relevant period. Examples were photocopy machine operator, usher, and mail clerk. Tr. at 22. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 23.
In Phillips v. Astrue , 671 F.3d 699, 701-02 (8th Cir. 2012), the Eighth Circuit wrote:
"We review de novo the District Court's determination of whether substantial evidence on the record as a whole supports the ALJ's decision." Gonzales v. Barnhart , 465 F.3d 890, 894 (8th Cir. 2006). ‘‘Our review is limited to determining whether the Commissioner's decision is supported by substantial evidence on the record as a whole," which ‘‘is less than a preponderance, but enough that a reasonable mind might accept as adequate to support a conclusion." Moore v. Astrue , 572 F.3d 520, 522 (8th Cir. 2009).
The Court also reviews the final decision of the Commissioner to determine if the Commissioner applied the correct legal standard. Daniels v. Apfel , 154 F.3d 1129, 1132 (10th Cir. 1998).
In Phillips , the Eighth Circuit cited Daniels for the proposition that by failing to consider a borderline age situation the Commissioner misapplied the law. 671 F.3d at 704.
For reversal Plaintiff argues that the ALJ failed to properly apply two rules found at 20 C.F.R. Appendix 2 to Subpart P of Part 404 – Medical-Vocational Guidelines. The rules are often referred to as the Grid.
The Grid rules are predicated on impairments resulting in limitations relating to strength limitations, i.e., exertional limitations. Id. at § 200.00 (e). When an individual has an impairment resulting in both exertional and non-exertional limitations, the rules are first consulted to determine whether a finding of disability is possible based on exertional limitations alone. Id. at § 200 (e)(2). Where such a determination cannot be made, then full consideration must be given to all relevant facts in the case. Id. ; see also McCoy v. Schweiker , 683 F.2d 1138 (8th Cir. 1982) (en banc).
I. Grid Rule 202.09
Plaintiff first argues that she should be found disabled because Rule 202.09, which directs a finding of disabled for an individual closely approaching advanced age who is illiterate or unable to communicate in English, and whose past relevant work was unskilled or none. In her decision, the ALJ notes that a Field Office mentioned that Plaintiff has limited English proficiency and was unable to complete the interview in English switching to Spanish. The field office note states:
Limited English Proficiency: Claimant initiated interview process in English, after noticing that she had problems searching for English translation of some words, offered to continue interview process in Spanish. Claimant stated that she is able to read and understand English, but sometimes needs clarification of some English terms. She stated that she is not able to write in English.
Tr. at 219. On a Disability Report, Plaintiff was asked if she speaks and understands English, to which the answer was "No." On the same form she was asked if she can read and understand English, and she answered "Yes." The ALJ noted that Plaintiff's counsel stated at the hearing that Plaintiff is not illiterate in English. The ALJ pointed to medical records that document Plaintiff's ability to converse in English. Tr. at 21.
On the other hand, Plaintiff said she could not write more than her name in English. Tr. at 221. Plaintiff points to a letter to her from Broadlawns Medical Center written in Spanish. Tr. at 491-92. She also points to a Spanish Social Security Notice. Tr. at 88-97. An interpreter was used at the hearing to translate the proceedings into Spanish. Tr. at 33.
Plaintiff argues that substantial evidence of record shows she was unable to communicate in English defined in the rules as "unable to communicate in English when he or she cannot speak, understand, read, or write as simple message in English." Social Security Administration, Program Operations Manual System (POMS) § DI 25010.010, instructs adjudicators how to apply education as a vocational factor. Section 1 discusses the categories illiterate or unable to communicate in English, which are apropos to the case at bar (the titles of the sections have been omitted).
a. An illiterate person generally has little or no formal schooling, but is often able to sign his or her name. Illiteracy is the inability to read or write a simple message such as short instructions or inventory lists, even if the person is capable of signing his or her name.
b. A person is unable to communicate in English when he or she cannot speak, understand, read, or write a simple message in English.
c. This category applies when the claimant is unable to:
• read a simple message (such as short instruction or inventory list) in English,
• write a simple message in English,
• speak or understand a simple message in English, or
• any combination of the above.
Plaintiff argues that because the ALJ found her to be limited to unskilled light work with no overhead lifting and only occasional handling and fingering on the right, that Rule 202.09 directs a finding of disabled for individuals between the ages of fifty and fifty-four.
In his brief, the Commissioner argues: "Plaintiff has failed to establish a vocational adversity with respect to her ability to speak English."
20 C.F.R. Pt. 404, Subpt. P. App'x 2 § 200.00 (g) states:
While illiteracy or the inability to communicate in English may significantly limit an individual's vocational scope, the primary work functions in the bulk of unskilled work relate to working with things (rather than with data or people) and in these work functions at the unskilled level, literacy or ability to communicate in English has the least significance.
In the opinion of this Court, although some evidence detracts from the ALJ's finding, substantial evidence on the record as a whole supports the ALJ's finding that Plaintiff is neither illiterate nor unable to communicate in English as contemplated by the regulations. Plaintiff is not entitled to benefits under the provisions of Rule 202.09.
II. Rule 202.01
As an alternative argument, Plaintiff argues the ALJ erred by applying the grid rules mechanically in a borderline age situation because Plaintiff was only ten days away from age fifty-five when she reached her date last insured. Rule 202.01 provides that at age fifty-five, an individual with a limited or less education and unskilled or no past work is entitled to a finding of disabled.
Plaintiff asserts she was only nine days from age fifty-five. For the purposes of this decision, whether Plaintiff's last insured date was nine or ten days from her birthday does not matter.
20 C.F.R. § 404.1563 recognizes that advancing age is an increasingly limiting factor in the ability to make an adjustment work other than what was performed in the past. The regulation goes on to state:
We will not apply the age categories mechanically in a borderline situation. If you are within a few days to a few months of reaching an older age category, and using the older age category would result in a determination or decision that you are disabled, we will consider whether to use the older age category after evaluating the overall impact of the factors of your case .
(Emphasis added.)
In the case at bar, the ALJ took notice of Plaintiff's date of birth and age and noted that because Plaintiff was within a few weeks of attaining a higher age category that would result in a finding of disabled, a "borderline age situation" existed. The ALJ wrote: "the undersigned finds that the use of this age category is not supported by the limited adverse impact of all factors on the claimant's ability to adjust to other work." Tr. at 21.
In the comments accompanying the promulgation of this regulation's predecessor, the Commissioner explained that agency "practice over the years, in fact, has been in agreement with the comment that the passage of a few days or months before the attainment of a certain age should not preclude a favorable disability determination."
Daniels , 154 F.3d at 1133 (quoting Kane v. Heckler , 776 F.2d 1130, 1133 (3d Cir. 1985) ). In support of her argument, Plaintiff cites to the Hearings, Appeals, and Litigation Law Manual (HALLEX). Soc. Sec. Admin., Office of Hearings and Appeals, Hearings, Appeals, and Litigation Law Manual. In Newton v. Apfel , 209 F.3d 448, 459 (5th Cir. 2000), the court wrote: "While HALLEX does not carry the authority of law, this court has held that ‘where the rights of individuals are affected, an agency must follow its own procedures, even where the internal procedures are more rigorous than otherwise would be required.’ " (quoting Hall v. Schweiker , 660 F.2d 116, 119 (5th Cir. 1981) ). Plaintiff points out that HALLEX 1-2-2-42(C) requires the ALJ to: (1) determine the time period under review; (2) analyze the other factors of the case; (3) determine whether the overall impact of the factors justifies using the higher age category to find the claimant disabled; (4) determine onset; and (5) include in the decision an explanation that the borderline age situation was considered. Paragraph 5 of the HALLEX states that "The ALJ will explain in the decision that he or she considered the borderline age situation and state whether he or she applied the higher age category or the chronological age, and note the specific factor(s) he or she considered."
The Phillips court also cites Kane with approval. 671 F.3d at 704.
In the case at bar, the ALJ found that Plaintiff has severe impairments that limit her to light work that can be learned in thirty days or less and that involve no overhead lifting on the right and only occasional handling and fingering on the right. The ALJ also found Plaintiff has a limited education. If Plaintiff were ten days older, Rule 202.01 would require a finding of disabled if she were limited to a full range of light work. Plaintiff, however, has three additional limitations related to her right upper extremity: (1) she cannot do any overhead lifting with her right arm; (2) only occasional handling with the right hand; and (3) only occasional fingering with the right hand. The ALJ also found that Plaintiff's severe impairments also include an affective disorder, a non-exertional impairment not accounted for in the Medical Vocational guidelines.
The Court agrees with Plaintiff that the ALJ's statement here falls short of what is required by the above cited HALLEX instructions. Notwithstanding the ALJ's terse statement to the contrary, Tr. at 21, the ALJ mechanically applied the grid to a very clear borderline age situation. The HALLEX instructs the adjudicator to consider the following factors when deciding whether or not to apply a higher age category to the borderline situation.
1. Determine the time period under review.
Here, Plaintiff must establish the onset of disability before the expiration of her insured status, which is September 30, 2009. Plaintiff's chronological birthday is October 10, 1954. In order for Plaintiff to qualify for benefits using Rule 202.01, she must be deemed to be fifty-five years old on or before the date last insured. Factor No. 3 of this HALLEX states: "The closer in time the claimant is to the next higher age category, the more disadvantageous the claimant's age." Plaintiff was ten days from the next higher category when her insured status expired. She was, therefore, disadvantaged by her chronological age.
2. Analyze the other factor(s) of the Case.
The ALJ is to consider all other factors relevant to the case. The ALJ is cautioned not to double-weigh factors that are already accounted for in the rule. In the case at bar, factors that are accounted for in the rule are age, a limited education, and unskilled or no work background. Additional vocationally relevant factors found by the ALJ relate to Plaintiff's dominate upper extremity—Plaintiff is unable to lift over-head, can only occasionally handle, and occasionally finger. It must also be remembered that the ALJ found that Plaintiff's severe impairments include an affective disorder that was not accounted for in the Rules. Of less relevance, but possibly still a vocationally significant factor, is the fact that Plaintiff has not engaged in substantial gainful activity since December 30, 2000, and her unemployment was due in large part to a work injury for which she received Worker's Compensation benefits. In Rhines v. Harris , the Eighth Circuit noted: "Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available." 634 F.2d 1076, 1079 (8th Cir. 1980) (quoting Celebrezze v. Bolas , 316 F.2d 498, 501 (8th Cir. 1963). "Employers ... will not unduly risk increasing their health and liability insurance costs. It is unrealistic to think that they would hire anyone with the impairments of this claimant." Id. (quoting Thomas v. Celebrezze , 331 F.2d 541, 546 (4th Cir. 1964) ). The Court is aware that factors such as the ability to be hired are not relevant to a finding of disability, see 20 C.F.R. § 404.1566, but it is impossible to overlook them in the context of whether a more advantageous age category should be used in a borderline age situation—especially given that Plaintiff was a mere ten days over the limit.
3. Determine whether the overall impact of the factor(s) justifies using the higher age category to find the claimant "disabled."
The HALLEX instructs the ALJ to take a "sliding scale" approach to determine which age category to use. Here, Plaintiff is ten days shy of being in the more advantageous age category.
4. Determine onset.
The ALJ is instructed that if the factors support using the higher age category, the claimant will be found disabled with an established onset date corresponding to (1) the date of adjudication; (2) the date last insured; (3) the end of disabled widow(er)'s benefit prescribed period; (4) the end of child disability re-entitlement period; or (5) the date of cessation of disability. Of those options, the date last insured seems most appropriate. Accordingly the Court finds the substantial evidence supports the onset of Plaintiff's disability is September 30, 2009.
5. Include in the decision an explanation that the borderline age situation was considered.
The ALJ is directed to explain that the borderline age situation was considered, and state whether the higher age category or chronological age was applied, and "note the specific factor(s) he or she considered."
In Phillips , 671 F.3d at 704, the Court wrote that while the Commissioner is not required to apply a higher age category, he is required to consider applying the next category when the situation arises. The ALJ in Phillips had not considered the borderline age situation. The Court wrote: "Because we are unable to determine from the record if the Commissioner considered whether Phillips should be moved to the higher age category, substantial evidence does not support the Commissioner's decision." Phillips , 671 F.3d at 707. The case was remanded for further consideration. Id.
In the case at bar, unlike in Phillips , the ALJ recognized the borderline age situation but failed to follow or apply the clear directives of the Commissioner that are noted above. "[L]ike any factual issue, a finding regarding the appropriate age category in which to place a claimant must be supported by substantial evidence." Phillips , 671 F.3d at 704 (quoting Daniels , 154 F.3d at 1136 ). In the case at bar, the ALJ's decision which became the final decision of the Commissioner, is not supported by substantial evidence on the record as a whole. Given the findings made by the ALJ and Plaintiff's extremely close proximity to the higher age category—which is to be applied on a sliding scale—and the other disadvantageous factors discussed above, the ALJ erred by failing to properly apply the administrative rules for adjudicating a borderline age situation found in the HALLEX instruction discussed above. Substantial evidence on the record as a whole supports only one finding, namely that Plaintiff should be found disabled based on Rule 202.01.
In Gavin v. Heckler , 811 F.2d 1195, 1201 (8th Cir. 1987), the ALJ erred by finding that Gavin was able to perform his past relevant work. The Court found the ALJ's finding was not supported by substantial evidence on the record as a whole, and wrote:
Ordinarily, where the Secretary has incorrectly allocated the burden of proof based upon an erroneous finding that the claimant can return to his prior work, we will remand for further proceedings. However, where the total record is overwhelmingly in support of the finding of disability and the claimant has demonstrated his disability by medical evidence on the record as a whole, we find no need to remand.
Gavin , 811 F.2d at 1201. In Parsons v. Heckler , 739 F.2d 1334, 1341 (8th Cir. 1984), the Court held: "Where further hearings would merely delay receipt of benefits, an order granting benefits is appropriate." In Papesh v. Colvin , 786 F.3d 1126, 1135 (8th Cir. 2015), the Court wrote that an immediate finding of disability is appropriate only if the record overwhelmingly supports such a finding. The Papesh Court cited Fowler v. Bowen , 866 F.2d 249, 253 (8th Cir. 1989), in which the court wrote: "When the record is overwhelmingly in support of a finding of disability, there is no need to remand to the Secretary for further consideration." In Griffon v. Bowen , 856 F.2d 1150, 1154 (8th Cir. 1988), Judge Richard S. Arnold, writing for the court noted that Griffon's doctor concluded he was completely disabled due to a medically determinable impairment, and Griffon's complaints were corroborated by the medical evidence. Griffon's case was remanded for an award of benefits. In the case at bar, when the Medical-Vocational Guidelines are properly applied, a finding of disability as of Plaintiff's date last insured is required. A remand for further disability determination will do naught but delay the receipt of benefits to which Plaintiff is clearly entitled.
CONCLUSION AND DECISION
The Court has considered the evidence that supports, as well as the evidence that detracts, from the decision made by the ALJ. After applying the balancing test noted in Gavin , 811 F.2d at 1199, and cases cited therein, this Court holds that the final decision of the Commissioner is not supported by substantial evidence on the record as a whole. The case is reversed and remanded for an award of the benefits to which Plaintiff is entitled.
The judgment to be entered will trigger the running of the time in which to file an application for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B). See McDannel v. Apfel , 78 F. Supp. 2d 944, 950–54 (S.D. Iowa 1999) (discussing, among other things, the relationship between the EAJA and fees under 42 U.S.C. § 406(b)(1) and LR 54.A(b)); see also Gisbrecht v. Barnhart , 535 U.S. 789, 794, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) ; Mitchell v. Barnhart , 376 F. Supp. 2d 916 (S.D. Iowa 2005).
Counsel is reminded that Local Rule 54.A(b), states that an EAJA application "must specifically identify the positions taken by the government in the case that the applicant alleges were not substantially justified."
IT IS SO ORDERED.