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Simmons v. Astrue

December 28, 2009

DEBRA DENISE SIMMONS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: SOCIAL SECURITY APPEAL

Plaintiff, Debra Denise Simmons, seeks judicial review of the decision by the Commissioner of the Social Security Administration (the "Commissioner") denying her application for Social Security disability insurance benefits ("SSDI") under the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-1383(c) (2000). Jurisdiction is established under § 1383(c)(3), which incorporates § 405(g) of the Act. 42 U.S.C. §§ 405(g), 1383(c)(3). After careful and independent consideration of the matter, and for the following reasons, the Court will remand the case to the Commissioner for further proceedings consistent with this opinion.

I. Background and Procedural History

Plaintiff first applied for SSDI on May 15, 2006, alleging disability beginning January 4, 2004, due to a work-related injury. (R. 70-74.) Plaintiff was 45 years old at the date of the injury, and weighed in excess of 300 pounds. (R. 335.) Plaintiff, a mother of three, had been working three different jobs at the time: (1) she was a truant officer for the School District of Philadelphia, (2) she was a telemarketer for Focus Pointe Global, and (3) she was a noontime aide at the West Philadelphia Head Start school. (R. 91, 342-345.) Her work-related injury arose in her job as a noontime aide, where Plaintiff fell backwards when standing on a milk crate, suffering injuries to her left knee and right shoulder. (R. 90, 345.) Subsequent physical therapy and treatment failed, and Plaintiff underwent surgery to her left knee in July 2004, and to her right shoulder in March 2005. (R. 334.) Plaintiff was further injured in a January 2007 car accident which resulted in a brain injury, and injuries to her left shoulder which required surgery.

(R. 338.) In early 2007, Plaintiff was diagnosed with sleep apnea. (R. 338-339.) The most recent evidence in the record indicates that Plaintiff is 5 ft. 3 inches tall, and weighs 376 pounds.

(R. 369.)

The Social Security Administration denied Plaintiff's SSDI application on October 30, 2006. (R. 32-33, 44.) On December 20, 2006, Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). (R. 48.) The hearing was held before ALJ Linda M. Bernstein on June 21, 2007. (R. 332-365.) In her written decision of June 27, 2007, the ALJ denied Plaintiff's application for benefits, and held that Plaintiff was not disabled within the meaning of the Act. (R. 34-43.) The ALJ found that Plaintiff suffered from the severe impairment of musculoskeletal difficulty relating to Plainitiff's shoulder and knee injuries (R. 39), but that such an impairment did not meet or equal a listed impairment in 20 C.F.R. § 404, Subpt. P, App. 1. (R. 40.) The ALJ then determined that Plaintiff had the residual functional capacity ("RFC") to perform sedentary work. (R. 40-42.) The ALJ found that while none of Plaintiff's past jobs comprised past relevant work, because all of her previous jobs were performed on a part-time basis, there were a significant number of jobs in the national economy that Plaintiff could perform, thus making Plaintiff "not disabled." (R. 42-43.)

On July 6, 2007, Plaintiff timely appealed the ALJ's decision to the Appeals Council. (R. 61.) On October 11, 2007, Plaintiff submitted a letter to the Appeals Council stating the reasons for her appeal. (R. 59.) On November 23, 2007, the Appeals Council issued an order vacating the ALJ's decision, and remanding the case back to the ALJ. (R. 66-69.) The Appeals Council set forth six issues to be addressed on remand,*fn1 including that the ALJ did not evaluate the impact of Plaintiff's obesity in accordance with Social Security Ruling ("SSR") 02-1p, and did not address the physical therapist's observation that Plaintiff required breaks due to shortness of breath and fatigue. (R. 68-69.)

The remand hearing was held on April 8, 2008. (R. 366-407.) In her written decision of May 20, 2008, ALJ Bernstein again denied Plaintiff's application for SSDI benefits, holding that Plaintiff was not disabled within the meaning of the Act. (R. 12-21.) The ALJ found that Plaintiff suffered from several severe impairments, including degenerative arthritis right knee, status post left knee arthroscopic surgery, status post arthroscopic surgery right and left shoulders, right shoulder impingement syndrome, and obesity. (R. 17.) Nevertheless, the ALJ found that these impairments did not meet or equal a listed impairment in 20 C.F.R. § 404, Subpt. P, App. 1. (R. 18.) The ALJ then determined that Plaintiff had the RFC to perform the full range of sedentary work as defined in 20 C.F.R. 404.1567(a). (R. 18-20.) Because the ALJ found Plaintiff capable of performing past relevant work as a telemarketer, the ALJ held that Plaintiff is not disabled under the Act. (R. 20-21.)

On August 19, 2008, Plaintiff requested Appeals Council review. (R. 330-331.) The Appeals Council denied Plaintiff's request on August 27, 2008. (R. 4-9.) Plaintiff subsequently filed the instant action, requesting that this Court reverse the Commissioner's decision, or, in the alternative, remand the case for further consideration before a different ALJ. (Doc. Nos. 1, 9.)

II. Legal Standards

A. Jurisdiction

The Social Security Act provides for judicial review by this Court of any "final decision of the Commissioner of Social Security" in a disability proceeding. 42 U.S.C. ยง 405(g) (2000). A district court may enter a judgment "affirming, modifying, or reversing the decision of the Commissioner ...


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