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Jill A. Ewing v. Commissioner of Social Security

March 31, 2011

JILL A. EWING, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

MEMORANDUM DECISION AND ORDER*fn1

I. BACKGROUND

A. Procedural History

This case presents a complex history.

On September 26, 2002, Plaintiff protectively filed an application for disability insurance benefits ("DIB"). T*fn2 79-84. Plaintiff also filed an application for Supplemental Security Income ("SSI") benefits. T 534-37. On October 4, 2002, Plaintiff filed an application for child's insurance benefits. T 85-92.

In her applications for DIB and child's insurance benefits, Plaintiff alleged disability as of January 1, 1981, due to asthma and constant cold symptoms. See T 79-84, 108. In her application for SSI benefits, Plaintiff alleged disability as of 1976 due to asthma and allergies. T 534.

After all three applications were denied initially on March 5, 2003, a hearing was held before an Administrative Law Judge on May 3, 2004. T 541-82, T 664-707. Plaintiff testified, as well as a medical expert and a vocational expert. Id. On July 18, 2005, ALJ William B. Russell issued a decision finding that Plaintiff was not disabled under the Act, and thus, she was not entitled to DIB, SSI, and child's insurance benefits. T 25-30B.

On January 6, 2006, the Appeals Council denied Plaintiff's request for review. T 8-11. Plaintiff then commenced an action in this Court on March 3, 2006. Case No. 5:06-CV-0271(GHL). On August 7, 2007, this Court remanded the matter to the Commissioner because (1) the ALJ failed to provide "good reasons" for the weight he afforded the opinion of Plaintiff's treating physician; (2) the ALJ's finding that Plaintiff had the RFC to perform other work was not supported by substantial evidence; and (3) the ALJ improperly addressed Plaintiff's credibility. Id. at Dkt. No. 12; T 615-32.

On August 27, 2008, the Appeals Council vacated the ALJ's decision and remanded Plaintiff's claims for further proceedings. T 638-40. A supplemental hearing was scheduled; however no hearing was held because Plaintiff waived her right to appear at the hearing. T 645.

On April 16, 2009, ALJ Elizabeth W. Koennecke issued a decision regarding the DIB and SSI applications. T 583-99. The ALJ found, inter alia, that prior to February 12, 2002, Plaintiff was not disabled and was capable of performing sedentary work. Id.

The ALJ also issued a decision regarding the child's insurance benefits application. T 708- 19. The ALJ noted that in order to be entitled to entitled to these benefits, Plaintiff must have a disability that began before she attained age 22. T 712. The ALJ concluded that Plaintiff was not under a disability at any time prior to September 18, 1981 (the date Plaintiff attained age 22). T 708-19.

It appears that the ALJ's decisions became the final decision of the Commissioner.*fn3 Plaintiff then commenced the present action. Dkt. No. 1.

B. The Contentions

Plaintiff argues that this case should be remanded solely for the payment of benefits. Dkt. No. 8. In support of this request, Plaintiff makes the following arguments:

(1) The ALJ "erroneously failed to provide good reasons for refusing to give controlling weight to the opinion of the claimant's treating physician." Dkt. No. 8 at 10-19.

(2) The ALJ's determination that the Plaintiff had the residual functional capacity ("RFC") to perform other work is contrary to law and not supported by substantial evidence. Dkt. No. 8 at 19-21.

Unusually, Defendant also argues that the case should be remanded. Dkt. No. 11. However, Defendant argues that the case should be remanded so that the Commissioner may consider new information regarding Plaintiff's student status. Dkt. No. 11.*fn4

II. APPLICABLE LAW

A. Standard for Benefits

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he 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. § 1382c(a)(3)(A) (2004). In addition, the plaintiff's physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B) (2004).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. §§ 405(a), 1383(d)(1)), the Social Security Administration ("SSA") promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 416.920 (2006). "If at any step a finding of disability or non-disability can be ...


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