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Louise W. v. Berryhill

United States District Court, D. Minnesota

January 28, 2019

Louise W., Plaintiff,
v.
Nancy A. Berryhill, Defendant.

          REPORT AND RECOMMENDATION

          Katherine Menendez United States Magistrate Judge.

         This matter is before the Court on the parties' cross-motions for summary judgment. (Pl.'s Mot. for Summ. J. (“Pl.'s Mot.”), ECF No. 18; Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 20.) For the reasons set forth below, the Court recommends that Louise W.'s[1] motion for summary judgment be GRANTED IN PART AND DENIED IN PART and the Commissioner's motion for summary judgment be GRANTED IN PART AND DENIED IN PART.

         I. Procedural History and Factual Background

         On May 15, 2012, Louise W. filed a pro se application for supplemental security income, alleging disability as of November 15, 2006. (R. 147-148.) Ms. W.'s claim was originally denied on September 23, 2012. (R. 36-48.) In July 2013, she obtained counsel, but her claim was dismissed on May 30, 2014. She later learned that her counsel had failed to timely file a request for a hearing after her request for reconsideration was denied. (R. 96.) Ms. W. then submitted a letter request to the Appeals Council, asking them to set aside the dismissal because she had relied upon her counsel to file her request for a hearing, which it ultimately failed to do. (R. 98.) The Appeals Council remanded Ms. W.'s claim for a good cause hearing on November 28, 2014. (R. 73-74.) After a hearing in March 2015 the ALJ found good cause existed to permit Ms. W.'s untimely hearing request. (R. 19.) A second hearing was held before Administrative Law Judge Richard Thrasher on June 24, 2015 to consider Ms. W.'s application for benefits. Ms. W. appeared pro se. (R. 728.) After receiving an unfavorable decision, she now appeals.

         A. ALJ Thrasher's Decision

         ALJ Thrasher reviewed Ms. W.'s case and issued a written opinion. He followed the established five-step evaluation process in making his determination regarding Ms. W. See 20 CFR 416.920(a). At step one, ALJ Thrasher found that Ms. W. had not engaged in substantial gainful activity since her alleged onset date, November 15, 2006. (R. 22.) He noted that Ms. W. received some income from work into 2007, but found that the work fell below the substantial gainful activity level. (Id.) At step two, ALJ Thrasher determined that Ms. W. has several severe impairments: “[M]yalgia and myositis (generalized pain), unspecified; low back pain with mild degenerative joint disease and scoliosis; neck pain with degenerative disc disease and mild degenerative joint disease of the cervical spine with congenital fusion; thoracic spine degenerative joint disease; mild to moderate sensorineural hearing loss; periodic limb movements of sleep with associated insomnia, hypersomnia, dyssomnia, and restless leg syndrome; bilateral foot/ankle pain due to metatarsalgia, plantar fasciitis, tendonitis of the ankles, lateral ankle instability and a calcaneal spur (also described as biomechanical foot pain with flat feet); and obesity.” (R. 23.)

         At step three, ALJ Thrasher decided that Ms. W.'s impairments, singularly or in combination, did not medically equal the severity of any of the listed impairments at 20 CFR Part 404 Subpart P, Appendix 1. (R. 24.) He specifically considered Listing 1.04 (disorders of the spine), Listing 1.02 (major dysfunction of a joint), and Listing 2.10 (hearing loss). (R. 25.) ALJ Thrasher also considered the additional and cumulative effects of obesity on Ms. W.'s impairments but concluded that no clear evidence demonstrated that obesity contributed to meeting or equaling any of the listings. (Id.)

         At step four, ALJ Thrasher determined that Ms. W. has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the additional limitations of “occasional climbing of ramps and stairs; no climbing of ladders/ropes/scaffolds; occasional balancing, stooping, kneeling, crouching and crawling; frequent reaching overhead on a bilateral basis; limited to moderate noise exposure and must be allowed to use a headset when using the telephone; and no exposure to unprotected heights or unprotected moving machine parts.” (R. 26.) ALJ Thrasher explained that he found Ms. W.'s statements regarding the disabling effects of her impairments to be not credible and “entirely out of proportion to the minimal objective findings of record.” (R. 27.) He further noted that Ms. W. failed to follow many recommended treatments for her conditions. (R. 27-29.)

         Finally, at step five, ALJ Thrasher found that Ms. W. is capable of performing her past relevant work as an order clerk, general office clerk, and data entry clerk. (R. 34.) He therefore concluded that Ms. W. is not disabled as defined in the Social Security Act. (Id.)

         Ms. W. then filed a request for review by the Appeals Council. With her request, Ms. W. submitted additional medical records for the Council's consideration. However, in September 2017, the Council denied Ms. W. review. (R. 9.) In its denial, the Council noted that the additional evidence submitted either did not show a reasonable probability that it would change the outcome of the decision, or it did not relate to the period at issue. (R. 10.) With this denial, ALJ Thrasher's decision became the final decision of the Commissioner of Social Security, making this case ripe for review by the District Court. Ms. W. appealed the final decision to this Court, and she and the Commissioner have both moved for summary judgment.

         II. Analysis

         Ms. W. argues that she is entitled to summary judgment for three reasons. First, she asserts that she did not receive the due process to which she was entitled during the proceedings below, including the ALJ hearing. Second, Ms. W. challenges the Appeals Council's refusal to consider additional evidence. Finally, she argues that the ALJ improperly assessed her mental health issues, and had he considered them properly, they would have fundamentally altered the ALJ's RFC finding. For the reasons set forth below, the Court finds that Ms. W.'s first assignment of error is correct in part, and remand is required.

         A. Due Process

         Ms. W. argues that the SSA violated her due process rights in two ways. First, she asserts that the ALJ and other employees of the agency mishandled her right to counsel. Also, she asserts that the ALJ should have done more to develop a fulsome record in light of her status as a pro se claimant. Although the Court disagrees with Ms. W. regarding her right to counsel, the Court finds that Ms. W.'s second argument has merit.

         1. Ms. W.'s Waiver of Her ...


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