JOSEPH C. WILKINSON, JR., Magistrate Judge.
Plaintiff Catherine Norton seeks judicial review pursuant to Section 405(g) of the Social Security Act (the "Act") of the final decision of the Commissioner of the Social Security Administration (the "Commissioner"), granting plaintiff's claim for a period of disability and disability insurance benefits under Title II of the Act. 42 U.S.C. § 1382c. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 73.2E(B).
On December 13, 2017, Norton filed a Title II application for a period of disability and disability insurance benefits, alleging a disability onset date of April 1, 2016. (Tr. 159-65). After her claim was denied at the agency level, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), which was held on November 15, 2018, in New Orleans, Louisiana. (Tr. 98-101, 117). Plaintiff appeared at the hearing in person and was represented by counsel. (Tr. 38). On November 5, 2018, in advance of the hearing, plaintiff's counsel submitted into the record a case summary and exhibits in support of a motion to amend plaintiff's alleged disability onset date to August 17, 2016. (Tr. 265-78). Plaintiff's case summary outlines three alleged unsuccessful work attempts by plaintiff in 2017, supported by citations to record evidence.
The ALJ issued a decision on December 19, 2018, finding that Norton was not disabled before January 1, 2018, but became disabled on that date and continued to be disabled through the date of decision, with a disability expected to last twelve months past the onset date. (Tr. 24-32). The ALJ rejected plaintiff's alleged disability onset date of August 17, 2016, reasoning that before January 1, 2018, Norton engaged in substantial gainful activity throughout 2017 as a mortgage underwriter for three separate companies. (Tr. 24, 26). In reaching this finding, the ALJ also rejected plaintiff's assertion that these 2017 work stints were "unsuccessful work attempts" under 20 C.F.R. § 404.1574. (Tr. 24). The ALJ reasoned that the 2017 work stints were not unsuccessful work attempts because "these were generally the same jobs involving the same duties and were performed in the same industry."
On January 11, 2019, Norton requested review of the ALJ's decision. (Tr. 150-52). The Appeals Council denied plaintiff's request on March 7, 2019, finding no basis to overrule the decision, and the ALJ's decision became the Commissioner's final decision for purposes of this court's review. (Tr. 1-3).
Plaintiff filed her complaint in this court on April 11, 2019. Record Doc. No. 1. Instead of filing a memorandum of facts and law as ordered, Record Doc. No. 10, plaintiff filed a motion for summary judgment. Record Doc. No. 13. The court treats her summary judgment motion as a memorandum of facts and law regarding her instant appeal from the Commissioner's final decision. Defendant timely filed a reply memorandum of facts and law on December 31, 2019. Record Doc. No. 15. At plaintiff's request, oral argument was conducted on January 29, 2020. Record Doc. Nos. 16-17, 20.
In her single assignment of error, plaintiff contends that the ALJ did not apply proper analysis under 20 C.F.R. § 404.1574 in assessing whether plaintiff's three work stints in 2017 were "unsuccessful work attempts." Record Doc. No. 13-2 at p. 3. Plaintiff argues that the ALJ's decision should be vacated in part and remanded to the ALJ for proper analysis of plaintiff's 2017 work.
Plaintiff contends that the Commissioner made the following error:
Record Doc. No. 13-2 at p. 3.
The ALJ made the following findings relevant to the issue on appeal:
(Tr. 24-32).
The function of this court on judicial review is limited to determining whether there is substantial evidence in the record to support the final decision of the Commissioner as trier of fact and whether the Commissioner applied the appropriate legal standards in evaluating the evidence.
The ALJ is entitled to make any finding that is supported by substantial evidence, regardless whether other conclusions are also permissible.
To be considered disabled and eligible for a period of disability and disability insurance benefits, plaintiff must show that she is unable "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 twelve months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated regulations that provide procedures for evaluating a claim and determining disability. 20 C.F.R. §§ 404.1501 to 404.1599 & appendices, §§ 416.901 to 416.998 (2016). The regulations include a five-step evaluation process for determining whether an impairment prevents a person from engaging in any substantial gainful activity.
Claimant has the burden of proof under the first four parts of the inquiry. If she successfully carries this burden, the burden shifts to the Commissioner to show that other substantial gainful employment is available in the national economy that the claimant is capable of performing. When the Commissioner shows that the claimant is capable of engaging in alternative employment, the burden of proof shifts back to the claimant to rebut this finding.
The court weighs four elements of proof when determining whether there is substantial evidence of disability: "`(1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant's subjective evidence of pain and disability; and (4) the claimant's age, education, and work history.'"
At the ALJ hearing, Norton testified she is 60 years old, right-handed, five feet ten inches tall and weighs 130 pounds. (Tr. 41). She stated that she is divorced and has no minor children.
Plaintiff stated that she worked as a senior mortgage underwriter for Wholesale Capital Corporation, Home Mortgage Alliance Corporation, Security National Mortgage Company, Amlease Corporation, Evolve Bank & Trust, Flagstar Bank, Aerotek and Eureka Homestead. (Tr. 43-44, 46). She said that she was a supervisor at Eureka Homestead in 2006 and 2007, where she was responsible for ten people and had the power to hire, fire and discipline employees. (Tr. 46-47). She testified that the last time she worked was October 5, 2017, at Security National Mortgage Company. (Tr. 46).
Plaintiff stated that her duties as a mortgage underwriter were to analyze loans and determine if these loans met government guidelines. (Tr. 47). She said that her jobs required lots of typing out of conditions for the mortgages she reviewed.
Norton testified that she is unable to type with her right, dominant hand. (Tr. 48). She stated that she had surgery on her right hand in April 2018.
Plaintiff stated that she can dress with assistance and bathe without assistance. (Tr. 49). She said that she is unable to button, zip or pull clothes over her head by herself.
Plaintiff testified that her ulna bone is deteriorating due to an accident in which she fractured her wrist. (Tr. 50, 53). She stated that she was diagnosed by her doctors with a fractured wrist, anemia, iron deficiency and hardening of the arteries. (Tr. 51). Norton stated that she takes medication, which helps "to a degree."
Norton testified that on a typical day she wakes up and spends about 20 minutes getting out of bed and putting on her brace. (Tr. 52). She said that after she gets up she takes a shower and brushes her teeth.
Norton stated that she does not visit any type of mental health therapist or psychiatrist.
Plaintiff stated that she fractured her wrist in August 2016, while she was working for Evolve Bank & Trust. (Tr. 53). She testified that she called her employer to explain the injury and subsequently was fired from the job.
Norton testified that she was hired by Wholesale Capital on February 22, 2017.
Plaintiff testified that she has no functional use of her right hand except for a single finger, which sometimes gives her trouble. (Tr. 56). She stated that she has "no sensation" and that when she attempted to pick up a pen, "it just falls."
Plaintiff testified that the pain affects her ability to do normal daily activities such as reading, because she is unable to concentrate.
Norton testified that the pain in her hand limits her social life in that she is unable to drive or leave the house. (Tr. 59). She stated that she goes to family functions with her sisters, but needs to be driven by them.
Plaintiff testified that her doctors cannot operate until her bone regenerates and that the doctors want to perform a bone graft on her arm to stabilize it. (Tr. 60). She stated that the doctors think her arm can be stabilized, but that there is nothing that can be done to help her fingers. (Tr. 61).
A vocational expert, Katrina Virden, testified at the hearing.
The ALJ posed a hypothetical of a right-hand dominant individual who could occasionally lift and carry ten pounds; frequently lift and carry less than ten pounds; stand, sit and/or walk for six hours out of an eight-hour work day, with a right upper extremity that can be used in a helper fashion to the weight already given on the left upper extremity; who was occasionally limited in handling, fingering, feeling and reaching in the right upper extremity; can never climb ladders, ropes or scaffolds; and can only occasionally crawl. (Tr. 63). Virden testified that such an individual could perform less than a full range of sedentary work and none of plaintiff's past relevant work. (Tr. 63-64).
I have reviewed the medical records in evidence and the ALJ's summary of the evidence. (Tr. 26-32). I find the ALJ's summary of the medical evidence substantially correct and incorporate it herein by reference, with the modifications, corrections and highlights noted below.
As stated above, to be considered disabled and eligible for a period of disability and disability insurance benefits, a Social Security claimant must show that she is unable to engage in any substantial gainful activity by reason of her physical or mental impairment(s). 42 U.S.C. § 423(d)(1)(A). The Commissioner's primary consideration in evaluating work activity for substantial gainful activity purposes is the amount of earnings a claimant derives from the work activity. 20 C.F.R. § 404.1574(a)(1). However, a Social Security claimant's earnings from an "unsuccessful work attempt . . .
Plaintiff's medical records establish that she suffered a distal radius fracture of her right wrist after falling off her porch steps on August 16, 2016. (Tr. 288, 294, 490, 626). Norton's written submissions allege a disability onset date of August 17, 2016, and outline three alleged unsuccessful work attempts by plaintiff in 2017 following the accident. (Tr. 265-78).
Norton testified at the ALJ hearing that after her accident, she informed her thenemployer Evolve Bank & Trust about her wrist injury and subsequently was fired from her position as a senior mortgage underwriter. (Tr. 53). Plaintiff stated that her duties as an underwriter were to analyze loans and determine if these loans met government guidelines. (Tr. 47). She said that the position requires lots of typing out of conditions for the mortgages she reviews.
Plaintiff visited Dr. Melvin Parnell at Crescent City Orthopedics on August 17, 2016, for treatment for her wrist injuries and placement of a cast. (Tr. 265, 286-90, 294). She was treated by Drs. Parnell and John Cazale, IV in October and November 2016, who observed mild limitation of motion of plaintiff's right wrist and fingers, stiffness in her right hand and delayed healing at the site of the fracture. (Tr. 620-27). Plaintiff visited Dr. Charles T. Clasen on November 3, 2016, who observed that plaintiff had edema through the right wrist and some edema to the right hand, limited range of motion in the right wrist, and complained of significant pain upon movement of her right fingers. (Tr. 490). Dr. Clasen concluded that plaintiff's injuries were "grossly under rehabilitated" and recommended "aggressive hand therapy" and discontinuation of all mobilization. (Tr. 491). Plaintiff attended physical and/or occupational therapy at Hand Surgical Associates from October 31 through November 18, 2016. (Tr. 628-31). Notes from her therapy appointments state that plaintiff initially experienced significant pain when extending her wrist and performing range of motion exercises, but eventually experienced a decline in pain and increased range of motion tolerance.
Plaintiff's first alleged unsuccessful work attempt was a senior mortgage underwriter position with Wholesale Capital Corporation, which she began on February 22, 2017. (Tr. 177, 270-71). Plaintiff was fired from the job on April 4, 2017, based on "inconsistency in conditioning loans, and failure to satisfactorily meet the underwriting production expectations." (Tr. 272). Norton testified that she was fired because of her swollen hand and inability to perform her job duties based on the fact that she could only type with one finger. (Tr. 54-55).
Plaintiff visited Dr. Brandon P. Donnelly at Pontchartrain Orthopedics on April 21, 2017, complaining of pain and stiffness to the right hand, inability to straighten her fingers, decreased sensation with numbness and tingling to the entire right hand, and weakness and difficulty grabbing and using the right hand. (Tr. 297). Upon physical examination, Dr. Donnelly found that plaintiff had deformity to the wrist consistent with malunion of the distal radius with prominence of the ulna, limited range of motion of the wrist, marked pain diffusely about the wrist, crepitus, contractures to the right hand and fingers and inability to move her right fingers to the palm. (Tr. 297, 299). Dr. Donnelly recommended additional therapy to work on extension of plaintiff's joints and range of motion in the fingers. (Tr. 299).
Plaintiff's second alleged unsuccessful work attempt was a senior mortgage underwriter position with American Residential Lending, which she began on May 30, 2017, before she was terminated on June 9, 2017. (Tr. 274-76). Plaintiff testified that she was terminated because she "could not keep up the pace" required for the job. (Tr. 55).
Plaintiff's third and final alleged unsuccessful work attempt was an underwriter position with Security National Mortgage Company that began on September 5, 2017, and ended on October 5, 2017, when she was fired. (Tr. 55-56, 180, 280). Plaintiff testified that she was fired because she "could not keep the pace" required for the job and further stated in a disability report that she stopped working there "[b]ecause of my condition(s)." (Tr. 55-56, 180).
On November 7, 2017, plaintiff visited Dr. Laura Mansfield at the Family Practice Center complaining of headaches, weakness, anxiety, lack of sleep and appetite, depression and ankle pain. (Tr. 371). Upon physical examination, Dr. Mansfield found that plaintiff had deformity in the right hand and wrist; contractures of the right wrist; tenderness, pain and edema in the left ankle; and a depressed, flat mood. (Tr. 371, 373). Plaintiff was admitted to East Jefferson General Hospital for iron deficiency anemia on November 18, 2017. (Tr. 393). An ultrasound of plaintiff's left ankle revealed very severe stenosis involving the left anterior tibial artery. (Tr. 395, 448).
After review of the record evidence and testimony summarized above, the ALJ found that plaintiff "engaged in substantial gainful activity throughout the year 2017" and concluded that plaintiff's three employment stints in 2017 were not unsuccessful work attempts. (Tr. 24). As sole support for her conclusion, the ALJ cited plaintiff's hearing testimony that her 2017 jobs "were generally the same jobs involving the same duties and were performed in the same industry."
The ALJ's foregoing conclusion based on the quoted finding was erroneous as a matter of law and contrary to substantial evidence that Norton's work attempts were unsuccessful because of her impairment. The type of work and duties a Social Security claimant performs
The ALJ did not apply the appropriate legal standard under 20 C.F.R. § 404.1574 in reaching her conclusion that plaintiff's three work stints in 2017 were substantial gainful activity rather than one or more unsuccessful work attempts, despite the availability of ample medical, employment and testimonial evidence in the record to do so.
For the foregoing reasons,
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.
Second, if it is determined that, although the claimant is not engaged in substantial employment, she has no severe mental or physical impairment which would limit the ability to perform basic work-related functions, the claimant is found not disabled.
Third, if an individual's impairment has lasted or can be expected to last for a continuous period of twelve months and is either included in a list of serious impairments in the regulations or is medically equivalent to a listed impairment, she is considered disabled without consideration of vocational evidence.
Fourth, if a determination of disabled or not disabled cannot be made by these steps and the claimant has a severe impairment, the claimant's residual functional capacity and its effect on the claimant's past relevant work are evaluated. If the impairment does not prohibit the claimant from returning to his or her former employment, the claimant is not disabled.
Fifth, if it is determined that the claimant cannot return to her former employment, then the claimant's age, education, and work experience are considered to see whether she can meet the physical and mental demands of a significant number of jobs in the national economy. If the claimant cannot meet the demands, she will be found disabled.
