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Depew v. Colvin

United States District Court, M.D. Pennsylvania

January 26, 2017

BILLIE JO DEPEW, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM

          RICHARD P. CONABOY, United States District Judge

         Pending before the Court is Plaintiff's appeal from the Commissioner's denial of Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”). (Doc. 1.) She alleged disability beginning on January 12, 2009. (R. 17.) The Administrative Law Judge (“ALJ”) who evaluated the claim, Randy Riley, concluded in his August 19, 2015, decision that Plaintiff had the severe impairments of urinary and fecal incontinence, Bipolar Disorder, Panic Disorder, and a remote history of alcohol abuse. (R. 19.) ALJ Riley found that these impairments did not meet or equal a listing when considered alone or in combination. (R. 20-21.) He also found that Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work with certain nonexertional limitations and that she was capable of performing jobs that existed in significant numbers in the national economy. (R. 21-25.) ALJ Riley therefore found Plaintiff was not disabled from the alleged onset date through December 31, 2012, the date last insured. (R. 27.) These findings were made in the Decision by ALJ Riley following remand from the Appeals Council. In its remand order issued on May 7, 2015, the Appeals Council directed the ALJ to evaluate the severity of Plaintiff's urinary incontinence and stool leakage, give further consideration to the treating source opinion of Stephen Diltz, Jr., M.D., and evaluate the third party testimony from Plaintiff's son. (R. 17; Doc. 9 at 2.)

         In her “Statement of Errors” Plaintiff states that “[t]he ALJ erred on remand when he failed to comply with the Appeal Council order.” (Doc. 9 at 3.) After careful review of the record and the parties' filings, the Court concludes this appeal is properly granted and this matter is remanded for expedited further consideration.

         I. Background

         A. Procedural Background

         As noted above, the matter was before ALJ Riley on remand from the Appeals Council. (R. 17.) ALJ Riley held a hearing on July 30, 2015, in Harrisburg, Pennsylvania. (R. 17.) Plaintiff, who was represented by an attorney, appeared at the hearing as did Vocational Expert (“VE”) Paul Anderson. (R. 33.) Following the unfavorable decision outlined above, Plaintiff filed a request for review dated October 20, 2015. (R. 12-13.) The Appeals Council denied Plaintiff's request for review on May 5, 2016. (R. 1-7.) In doing so, the ALJ's decision became the decision of the Acting Commissioner. (R. 1.)

         On July 1, 2016, Plaintiff filed her action in this Court appealing the Acting Commissioner's decision. (Doc. 1.) Defendant filed her answer and the Social Security Administration transcript on September 12, 2016. (Docs. 6, 7.) Plaintiff filed her supporting brief on October 27, 2016. (Doc. 9.) Defendant filed her brief on December 1, 2016. (Doc. 10.) Plaintiff did not file a reply brief and the time for doing so has passed. Therefore, this matter is ripe for disposition.

         B. Factual Background

         Plaintiff was born on March 15, 1968, and was forty-four years old on the date last insured. (R. 25.) She has a high school education and past relevant work as a Parking Enforcement Officer and Stores Laborer. (Id.)

         1. Impairment Evidence

         The parties have not set out a summary of impairment evidence in their briefs to the Court. (See Docs. 9, 10.) Rather, Plaintiff cites the evidence pertinent to arguments presented in the Arguments section of her brief (Doc. 9 at 3-15), and Defendant relies on the ALJ's summary as well as facts incorporated by Defendant in support of arguments asserted (Doc. 10 at 4-15). Given this briefing approach, the Court will reference pertinent evidence in the context of the analysis of the issues presented in this appeal.

         2. ALJ Decision

         As noted above, ALJ Riley issued his Decision on August 19, 2015. (R. 21-32.) He made the following Findings of Fact and Conclusions of Law:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2012.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of January 12, 2009 through her date last insured of December 31, 2012 (20 CFR 404-1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: urinary and fecal incontinence, Bipolar Disorder, Panic Disorder, and a remote history of alcohol abuse (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant must avoid exposure to excessive vibration and is limited to the performance of simple, routine, repetitive tasks in a work environment free from fast-paced production involving only simple work-related decisions with few, if any, workplace changes; no interaction with the public; no more than occasional interaction with coworkers and supervisors; and no tandem tasks.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on March 15, 1968 and was 44 years old, which is defined as a younger individual age 18-44, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568).
10. Through the date last insured, considering the claimant's age education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant ...

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