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Dillow v. Astrue

November 18, 2010

LINDA SUE DILLOW, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

Electronically Filed

MEMORANDUM OPINION

I. Introduction

Plaintiff, Linda Dillow ("Plaintiff") brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act (the "Act"), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). The parties have submitted cross motions for summary judgment on the record developed at the administrative proceedings. For the following reasons, Plaintiff‟s Motion for Summary Judgment (Doc. No. 8) will be granted to the extent it seeks to vacate the Commissioner‟s decision. The Commissioner‟s Motion for Summary Judgment (Doc. No. 9) will be denied and the case will be remanded to the Commissioner pursuant to the fourth sentence of §405(g) for further administrative proceedings.

II. Procedural History

Dillow protectively filed applications for DIB and SSI on August 24, 2006, alleging disability as of September 10, 2003. R. 81-89. The applications were denied by the state agency on October 23, 2006. R. 42-54. Dillow responded on November 14, 2006, by filing a timely request for an administrative hearing. R. 55-57. On December 19, 2007, a hearing was held in Morgantown, West Virginia, before Administrative Law Judge ("ALJ") Norma Cannon. R. 21-41. Dillow, who was represented by counsel, appeared and testified. R. 28-38. Larry Bell, an impartial vocational expert ("VE"), also testified. R. 38-40.

In a decision dated February 14, 2008, the ALJ determined that Dillow was not "disabled" within the meaning of the Act. R. 10-19. The Appeals Council denied Dillow‟s request for review on March 23, 2010, thereby making the ALJ‟s decision the final decision of the Commissioner in this case. R. 1-5. Dillow commenced the present action on May 13, 2010, seeking judicial review of the Commissioner‟s decision. Doc. No. 1. Dillow and the Commissioner filed cross-motions for summary judgment on October 7, 2010. Doc. Nos. 8 & 9. These motions are the subject of this memorandum opinion.

III. Statement of the Case

In her decision, the ALJ made the following findings:

1. The claimant met the insured status requirements of the Social Security Act through September 30, 2005.

2. The claimant has not engaged in substantial gainful activity since September 10, 2003, the alleged onset date. (20 C.F.R. §§ 404.1520(b), 404.1571 et seq., 416.920(b), 416.971 et seq.).

3. The claimant has the following severe impairments: Grave‟s disease and anxiety. (20 C.F.R. §§ 404.1520(c), 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 416.920(d), 416.925, and 416.926).

5. Based on all available evidence, the undersigned finds that the claimant retains the residual functional capacity to perform medium work, or work which requires maximum lifting of 50 pounds and frequent lifting up to 25 pounds (20 C.F.R. § 416.967). In addition, the claimant has the following non-exertional limitations: she must avoid working in areas of extreme heat or cold, wetness and humidity, or in areas of concentrated fumes, dust, odors, and gases; she cannot work around environmental hazards such as dangerous moving machinery or unprotected heights; she can do no more than entry-level unskilled work, routine and repetitive in nature, involving primarily things, rather than people; she cannot do work that requires intense concentration; she can do no work that requires fine visual acuity; and she can do no work that requires more than limited contact with the public and co-workers.

6. The claimant is unable to perform any past relevant work. (20 C.F.R. §§ 404.1565 and 416.965).

7. The claimant was born on October 24, 1972, and was 30 years old, which is defined as a "younger individual" within the meaning of the regulations, on the alleged disability onset date. (20 C.F.R. §§ 404.1564 and 416.964).

8. The claimant has at least a high school education and the ability to communicate in English. (20 ...


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