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Albaugh v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

March 11, 2015

BRIDGETTE L. ALBAUGH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [14] AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [18]

MONA K. MAJZOUB, Magistrate Judge.

Plaintiff Bridgette L. Albaugh seeks judicial review of Defendant Commissioner of Social Security's determination that she is not entitled to social security benefits for her physical and mental impairments under 42 U.S.C. § 405(g). (Docket no. 1.) Before the Court are Plaintiff's Motion for Summary Judgment (docket no. 14) and Defendant's Motion for Summary Judgment (docket no. 18). Plaintiff also filed a response to Defendant's motion. (Docket no. 19.) With consent of the Parties, this case has been referred to the undersigned for final judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (Docket no. 16.) The Court has reviewed the pleadings, dispenses with a hearing pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), and is now ready to rule.

I. PROCEDURAL HISTORY

Plaintiff protectively filed an application for supplemental security income on September 21, 2007, alleging disability beginning December 31, 2004, due to carpal tunnel syndrome, herniated discs, arthritis, "repitory, " depression, anxiety, possible Crohn's disease, severe migraines, allergies, and lung problems. (TR 377-79, 394.) The Social Security Administration denied Plaintiff's claims on March 18, 2008, and Plaintiff requested a de novo hearing. (TR 154, 178.) The hearing was initially scheduled for February 10, 2010, but it was subsequently postponed due to inclement weather, rescheduled due to Plaintiff's failure to appear, and continued so that Plaintiff could seek representation. (TR 158.) Finally, on August 3, 2010, Plaintiff appeared with a representative and testified at the hearing before Administrative Law Judge (ALJ) Elliott Bunce. (TR 158, 165.) It was then discovered that a recording of the hearing was not made. (TR 158.) The hearing was rescheduled for September 15, 2010; Plaintiff did not appear, but the ALJ took testimony from the vocational expert. (TR 158.) In a September 22, 2010 decision, ALJ Bunce found that Plaintiff was not entitled to benefits because she was capable of performing a significant number of jobs in the national economy. (TR 158-65.) The Appeals Council reviewed and vacated ALJ Bunce's hearing decision and remanded Plaintiff's case to an ALJ for further resolution. (TR 169-73.)

On remand, Plaintiff appeared with a representative and testified at a hearing before ALJ Kathleen H. Eiler on October 20, 2011. (TR 65-113.) At the hearing, Plaintiff amended her alleged onset date to October 16, 2007. (TR 389.) In an January 20, 2012 decision, ALJ Eiler found that Plaintiff was not entitled to benefits because she was capable of performing a significant number of jobs in the national economy. (TR 39-59.) The Appeals Council declined to review the ALJ's decision (TR 1-6), and Plaintiff commenced this action for judicial review. The parties then filed cross motions for summary judgment, which are currently before the Court.

II. HEARING TESTIMONY AND MEDICAL EVIDENCE

A. Plaintiff's Testimony

Plaintiff was 45 years old at the time of the administrative hearing and 41 years old on the application date. (TR 57, 69.) Plaintiff briefly summarized her hearing testimony:

Ms. Albaugh continues to live at home with her boyfriend who helps her with things like grocery shopping since her daughter had moved out of the home (Tr.89). She testified at the hearing that she did not complete high school and that the highest level of education she completed was 10th grade (Tr. 69). Ms Albaugh does not have a driver's license, and testified to such at her hearing (Tr. 90). She testified to having previously worked as a cashier, sales attendant, and bartender/shortorder cook (Tr. 99-101). The claimant also stated that just prior to her hearing with ALJ Eiler [s]he had spent approximately four days in bed (Tr. 89), and that "sometimes I go four, five days, six days, not even taking a shower-" (Tr. 96). She also indicated that she does not enjoy any hobbies (Tr. 90), and said "I live in sweatpants and pajama bottoms" (Tr. 96).

(Docket no. 14 at 9.) The undersigned has reviewed the hearing transcript and will cite to it as necessary throughout this Report and Recommendation.

B. Vocational Expert's Testimony

First, the vocational expert (VE) classified Plaintiff's past work as a general cashier as unskilled at the light exertional level, as a sales attendant as unskilled at the light exertional level, as a bartender as semi-skilled at the light exertional level, and as a short-order cook as semi-skilled at the light exertional level per the Dictionary of Occupational Titles (DOT) but unskilled as performed by Plaintiff. (TR 99-101.)

The VE testified that a hypothetical individual of the same age, education, and work experience as Plaintiff who could perform work at the sedentary exertional level; could frequently, as opposed to constantly, reach, handle, finger, or feel with the right upper extremity; could never climb ladders, ropes, or scaffolds; could occasionally climb ramps or stairs, balance, stoop, crouch, kneel, or crawl; should avoid concentrated exposure to humidity, wetness, temperature extremes, and pulmonary irritants, such as smoke, dust, and fumes; should avoid all exposure to workplace hazards such as moving machinery and unprotected heights; could perform simple, routine, repetitive tasks in a low-stress environment, meaning no more than occasional changes in a routine work setting and no high production-rate pace; could occasionally interact with supervisors and coworkers, and should never interact with the general public could not perform any of Plaintiff's past work. (TR 101-02.)

The VE testified, however, that such an individual would be able to perform unskilled work at the sedentary level, such as a production worker/assembler, for which there were 2, 400 jobs available regionally and 28, 000 jobs available nationally; a machine operator/tender without exposure to hazards or moving parts, for which there were 1, 300 jobs available regionally and 44, 000 jobs available nationally; and an inspector, for which there were about 700 jobs available in the region and 13, 000 jobs available in the nation. (TR 102-03.) The VE also testified that all occupations would be eliminated if the hypothetical individual was expected to be off task at least 15 percent of each workday. (TR 103.)

Plaintiff's counsel then asked the VE if the individual's ability to perform the aforementioned jobs would be affected if the individual was further limited to only occasional reaching, handling, fingering, and feeling with the right upper extremity. (TR 108.) The VE responded that the individual would work more slowly, but not too slowly to perform the aforementioned jobs. (TR 109.) The VE testified that an additional limitation of no production-type work would preclude the aforementioned jobs. (TR 109-10.) Finally, the VE testified ...


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