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Jolliemore v. Berryhill

United States District Court, D. Massachusetts

October 29, 2018

Norman Jolliemore, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Defendant.


          Leo T. Sorokin United States District Judge.

         Norman Jolliemore seeks judicial review of a final decision by the Acting Commissioner of the Social Security Administration (“Commissioner”) denying his request for Social Security Disability Insurance Benefits (“DIB”) and partially denying his application for Supplemental Security Income (“SSI”). The Commissioner adopted the ALJ's ruling that Mr. Jolliemore was not disabled prior to November 16, 2014, but became disabled on that date. Mr. Jolliemore argues that the ALJ erred by mechanically applying the age categories defined by the Social Security regulations when considering Mr. Jolliemore's age as a vocational factor. The Commissioner seeks an order reaffirming the decision. For the reasons set forth below, this Court ALLOWS Mr. Jolliemore's motion for judgment of reversal and DENIES the Commissioner's motion for judgment of affirmance.


         On August 6, 2012, Mr. Jolliemore applied for DIB and SSI alleging disability since January 1, 2010. A.R. at 201.[1] The applications were denied initially and on reconsideration. A.R. at 136, 175. Mr. Jolliemore then filed a timely request for a hearing before an ALJ, which was held on December 12, 2014. A.R. at 201, 236. On January 15, 2015, the ALJ issued a decision finding that Mr. Jolliemore was not disabled through June 30, 2014, his date last insured. A.R. at 216. The ALJ further ruled that Mr. Jolliemore became disabled on November 16, 2014, the date of his fifty-fifth birthday, and has remained disabled. A.R. at 215-16. As a result, the ALJ denied Mr. Jolliemore's request for DIB and partially denied his request for SSI. A.R. at 217.

         Mr. Jolliemore sought review of the ALJ's decision by the Appeals Council (“AC”). A.R. at 225. The AC affirmed the ALJ's finding that Mr. Jolliemore was disabled beginning on November 16, 2014, but vacated the decision and remanded with respect to the issue of disability before that date. A.R. at 35-36. On October 5, 2016, Mr. Jolliemore appeared with counsel and testified at a second hearing. A.R. at 20. Pursuant to the AC's order, the ALJ also heard the testimony of an impartial vocational expert with respect to additional physical limitations affecting Mr. Jolliemore's residual functional capacity. A.R. at 36. The ALJ then issued a decision re-affirming the earlier finding that Mr. Jolliemore was not disabled prior to November 16, 2014. A.R. at 37. The AC denied review and adopted the ALJ's decision as final on October 18, 2017. A.R. at 1.


         The court may enter “a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The court's inquiry, however, is limited to whether the ALJ “deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999). The Commissioner's findings of fact are “conclusive when supported by substantial evidence” unless they are “derived by ignoring evidence, misapplying the law, or judging matters entrusted to experts.” Id. The substantial evidence standard is satisfied when “a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion.” Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981). If this standard is met, the court must affirm the agency's decision “even if the record arguably could justify a different conclusion.” Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir. 1987).

         It is the role of the ALJ, not the role of the court, to “decide issues of credibility, draw inferences from the record, and resolve conflicts in the evidence.” Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991). Thus, the ALJ is responsible for determining the “ultimate question of disability.” Richardson v. Perales, 402 U.S. 389, 399 (1971).


         A. ALJ's Findings

         An individual is entitled to DIB if he is “disabled” within the meaning of the Social Security Act (“Act”) prior to the expiration of his insured status.[2] 42 U.S.C. § 423(a). The Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” § 423(d)(1)(A).

         In determining whether an individual is disabled, the Social Security Administration applies a sequential five-step evaluative process: (1) if the claimant is engaged in substantial gainful activity, he is not disabled; (2) if the claimant does not have a severe mental or physical impairment or combination of impairments, he is not disabled; (3) if the claimant has a severe impairment or combination of impairments that meets or equals one of the conditions listed in the Social Security regulations, he is disabled; (4) if the claimant's “residual functional capacity” is such that the claimant is able to perform “past relevant work, ” he is not disabled; and (5) if the claimant, given his age, education, work experience, and residual functional capacity, is unable to perform other work, he is disabled. 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of establishing disability in steps one through four. Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 7 (1st Cir. 1982). At step five, the burden shifts to the Commissioner to prove that the claimant can perform other work existing in significant numbers in the national economy. Id.

         To establish whether the claimant can perform other work, the ALJ may apply a series of rules contained in the Medical-Vocational Guidelines identifying the existence of jobs requiring specific combinations of factors. See Heckler v. Campbell, 461 U.S. 458, 461 (1983) (upholding the statutory validity of the guidelines pursuant to the Social Security Act). If the claimant's residual functional capacity and vocational factors correspond to a particular rule, the ALJ may rely on that rule in concluding that the claimant is disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.00.

         In this case, the ALJ applied the five-step framework to decide whether Mr. Jolliemore was disabled. At step one, the ALJ found that Mr. Jolliemore met the insured status requirement of the Social Security Act through June 30, 2014 and had not engaged in substantial gainful activity since the alleged onset date. A.R. at 22. The ALJ determined at step two that Mr. Jolliemore had the following severe impairments: (1) right shoulder muscle tear with a partial joint dislocation and moderate muscle strain; (2) status post right shoulder surgery; (3) arthritis of the right thumb; (4) degenerative disc disease of the lumbar and cervical spine; (5) major depressive disorder; (6) posttraumatic stress disorder; and (7) anxiety disorder. A.R. at 22. At step three, the ALJ held that these impairments did not meet or equal the listings described in Appendix 1 of the regulations. See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ concluded at step four that Mr. Jolliemore's residual functional capacity ...

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