RICHARD P. CONABOY, District Judge.
Here we consider Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). (Doc. 1.) The Administrative Law Judge ("ALJ") who originally evaluated the claim found that Plaintiff had the residual functional capacity to perform less than a full range of sedentary work, that jobs existed which she could perform, and, therefore, Plaintiff was not under a disability as defined in the Social Security Act. (R. 16, 21-22.) With this action, Plaintiff argues that the determination of the Social Security Administration is error for three reasons: 1) the ALJ did not consider that Plaintiff was entitled to benefits during her "re-entitlement period"; 2) the ALJ concluded Plaintiff's impairments did not meet or equal a listed impairment; and 3) the ALJ did not properly consider and discuss Plaintiff's impairments in combination and the impact on her ability to work. (Doc. 7 at 4.)
For the reasons discussed below, we conclude remand to the Acting Commissioner is required.
On February 18, 2009, Plaintiff protectively filed an application for Title II Disability Insurance benefits. (R. 87-93.) Plaintiff, whose date of birth is October 17, 1975, claimed disability beginning on November 4, 2008. (R. 87.) Plaintiff listed the illnesses, injuries, or conditions that limited her ability to work as "herniated disc in back, learning disability, depression." (R. 131.) She added that she cannot bend over without pain and could not sit or stand for long periods. ( Id. ) Plaintiff is married and does not have children. (R. 87-88.) Plaintiff had past work as a nurse's aid. (R. 21)
The Social Security Administration denied Plaintiff's application by decision issued on June 19, 2009. (R. 59-70.) On July 16, 2009, Plaintiff filed a timely Request for Hearing before an Administrative Law Judge. (R. 93.) On September 8, 2010, ALJ Ronald Sweeda held a hearing at which Plaintiff and a vocational expert ("VE") testified. (R. 28-56.)
In response to the question of why she was unable to work, Plaintiff testified "I've had three back surgeries in '09. I have rods in my back. I've had bone taken out of both my hips. I suffer from terrible anxiety, depression, obsessive compulsive disorder, bipolar. The medicines I take make me extremely tired. I have to lay down throughout the day." (R. 35.) At the time of the hearing, Plaintiff was taking Baclofen, Celebrex and Neurontin for pain. (R. 35.) She was also taking Lithium, Vistaril and Lexapro prescribed by her psychiatrist, Ashokkumar Patel, M.D. (R. 37.) Plaintiff testified that she had problems with her memory, she's very shy and people make her extremely nervous, she does not have friends, and she has no hobbies. (R. 38-39.) In response to the ALJ's question of how she spends her days, Plaintiff stated that she visited with her sister-in-law who lives next door, her mother comes down and takes her out for a bit, and she reads. (R. 39.)
Following Plaintiff's testimony, the ALJ asked the VE whether there were jobs for a hypothetical claimant with the same age, education and work experience as Plaintiff with the residual functional capacity to perform light work, but which would allow a change of position from sitting to standing at least every thirty (30) minutes plus other limitations. (R. 54.) The VE identified several positions. (R. 54.) The ALJ then asked a similar hypothetical but limited Plaintiff to sedentary work with the same limitations. (R. 54.) Again, the VE identified several positions. (R. 55.) When the ALJ added the restriction that the hypothetical claimant would be off task up to twenty percent of the work day, the VE responded there would be no jobs for such a person. (R. 55.)
By decision of October 8, 2010, ALJ Sweeda found that Plaintiff was not disabled within the meaning of the Social Security Act. (R. 22.) The following findings of fact and conclusions of law from the ALJ's decision are relevant to Plantiff's claimed errors: 1) Plaintiff has severe impairments of a "history of thoracic fusion, opiate dependence, mood disorder, and anxiety related disorder" (R. 14); 2) Plaintiff does not have an impairment or combination of impairments that meets or equals one of the listed impairments (R. 15); and 3) Plaintiff has the residual functional capacity to perform less than a full range of sedentary work (Plaintiff is capable of lifting and carrying up to ten pounds occasionally and two to three pounds frequently, she is limited to occupations that permit her to change from sitting to standing at least every thirty minutes, occupations that do not require crawling, kneeling or climbing and no more than occasional stooping or bending, occupations that require no exposure to temperature or humidity extremes, vibrations, unprotected heights or dangerous machinery, and she is limited to performing simple, repetitive tasks in a low stress environment defined as not involving production rate quotas)(R. 16).
As noted above, the ALJ ultimately decided that jobs exist in the national economy that Plaintiff can perform. (R. 22.) Thus, he determined that Plaintiff had not been under a disability as defined in the Social Security Act from November 4, 2008, through the date of his decision, October 8, 2010. (R. 22.)
On or about December 11, 2010, Plaintiff filed a timely request with the Social Security Administration Appeals Council for review. (R. 7-8.) In an Order dated May 11, 2012, the Appeals Council denied Plaintiff's Request for Review (R. 1-6), making the ALJ's decision the decision of the Commissioner.
Plaintiff filed this action on July 3, 2012. (Doc. 1.) She filed her brief in support of the appeal on December 6, 2012. (Doc. 7.) Commissioner Astrue filed his opposition brief on September 5, 2012. (Doc. 10.) Plaintiff did not file a reply brief and the time for doing so has passed. Therefore, this matter is ripe for disposition.
A. Relevant Authority