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Hollinger v. Berryhill

United States District Court, M.D. Pennsylvania

March 30, 2018

NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          Mariani, J.



         This is an action brought under 42 U.S.C. §405(g), seeking judicial review of the Commissioner of Social Security's (“Commissioner”) final decision denying David Bjorn Hollinger's claim for disability insurance benefits under Title II of the Social Security Act. This matter has been referred to the undersigned United States Magistrate Judge for the preparation of the report and recommended disposition pursuant to the provisions of 28 U.S.C. §636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.

         For the reasons stated herein, we respectfully recommend that the Commissioner's final decision be VACATED, and the case REMANDED to the Commissioner.

          I. Background and Procedural History

         David Bjorn Hollinger (“Hollinger”) is an adult individual born March 13, 1955. Hollinger was fifty-eight years old at the time of the alleged onset of disability-April 1, 2013. (Tr. 17). Hollinger's age at the onset date makes him an individual “closely approaching advanced age” under the Commissioner's regulations whose age would be considered along with any severe impairments which may seriously affect the ability to adjust to other work. See 20 C.F.R. §416.963.

         On September 23, 2013, Hollinger protectively filed an application for benefits under Title II of the Social Security Act alleging disability as of April 1, 2013.[2] In his application, Hollinger alleged that the following impairments prevent him from engaging in any work: diabetes, hearing loss, acute glaucoma, back pain, sleep apnea and gastroesophageal reflux disease. (Tr. 118).

         Hollinger's claim was initially denied on April 4, 2014. Thereafter, he filed a timely request for an administrative hearing. His request was granted. Hollinger appeared and testified at hearings before Administrative Law Judge (“ALJ”) Sharon Zanotto on June 19, 2015, and April 28, 2016. Hollinger was represented by counsel, Jerrold A. Sulcove, throughout both proceedings. In addition, impartial vocational expert Michael Kibler (“VE Kibler”) appeared at the first hearing and impartial vocational expert Dr. Paul Anderson (“VE Anderson”) appeared at the second hearing.

         On May 17, 2016, the ALJ denied Hollinger's application for benefits in a written decision. On July 15, 2016, Hollinger sought further review of his claims by the Appeals Council, but his request was denied on February 27, 2017. This makes the ALJ's May 2016 decision the final decision subject to judicial review by this Court.

         Hollinger filed a timely complaint in this Court on March 27, 2017. (Doc. 1). In his complaint, Hollinger alleges that the final decision of the Commissioner is not supported by substantial evidence and is contrary to law and regulation.

         On May 31, 2017, the Commissioner filed her answer, in which she maintains that the ALJ's decision was made in accordance with the law and is supported by substantial evidence. (Doc. 10).

         This matter has been fully briefed by the parties and is ripe for decision. (Docs. 12, 13, and 14).

         II. Statement of Facts

         At the time of the first administrative hearing, Hollinger was sixty years old. At the second administrative hearing, Hollinger was sixty-one years old and resided in Saint Thomas, Pennsylvania, which is in the Middle District of Pennsylvania. Hollinger completed a high school education and four years of college. (Tr. 126, 238). Hollinger also attended IT classes; he holds a Security Plus Certification along with having a Six-Sigma green belt. (Tr. 238).

         Hollinger lives in a two story home with his wife. (Tr. 87). Hollinger stated that there is a bedroom, kitchen, dining room, living room, and bathroom, which includes a shower on the first floor. (Tr. 87). There is no laundry area in their home, it is in the tenant home. (Tr. 88).

         Hollinger's previous job was a program manager. He left because there was a reduction in force (RIF). (Tr. 89). Hollinger stated that had he not lost his job due to RIF, his ability to work would have been affected due to: (1) his diabetes and uncontrolled blood sugar (Tr. 89); (2) his hearing loss and use of hearing aids (Tr. 94); (3) his hearing impediment; (4) his eyesight issues (Tr. 95); and (5) obesity. Particularly, in his business of IT, his hearing impediment makes it difficult for him to hear on the telephone. (Tr. 95). He stated that it is easier for him to use the speaker-phone option of the telephone, because if he puts the receiver to his ear, it creates a loud noise when it is next to his hearing aids. (Tr. 110). The blood clots and floaters in his eyes make it difficult to see clearly. Hollinger had laser surgery approximately seven weeks prior to the hearing. (Tr. 99). He stated his obesity makes it hard for him to bend over. His wife ties his shoes, although he tries to wear slip-on shoes or sandals. (Tr. 100).

         Hollinger attends meetings of Mason's two to three times per month and they last approximately one to two hours. (Tr. 100-01).

         Hollinger stated that he uses a cane. He has fallen down in the past and needed help to get up, so he uses the cane for balance. (Tr. 101).

         Hollinger lives on a working farm. He stated that he has a tenant who does most of the farm work. Hollinger stated he does the watering of the animals with a hydrant and hose. (Tr. 102). He does not typically feed them unless the tenant, and his wife are unavailable. Feeding them requires filling a bucket of grain and scooping it into the feeders. (Tr. 102). Hollinger also ...

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