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Pearson v. Berryhill

United States District Court, D. New Jersey

December 19, 2018

JENNIFER PEARSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION

          Hon. Kevin McNulty United States District Judge

         Jennifer Pearson was found disabled as of February 1, 2004, and she thereafter received Title II disability insurance benefits ("DIB"). See 42 U.S.C. § 423. Some seven years later, however, the Administration ruled that she was no longer disabled as of March 1, 2011, and remained non-disabled through her date last insured, September 30, 2011. She brings this action pursuant to 42 U.S.C. § 405(g) to review that decision.

         For the reasons set forth below, the final decision of the Commissioner is reversed and remanded in order to ensure that the diabetes listing under which the claimant was found disabled, although subsequently repealed, was nevertheless considered in the continuation-of-benefits analysis.

         I. ORIGINAL FINDING OF DISABILITY AND SUBSEQUENT HISTORY

         On May 23, 2005, Ms. Pearson was found disabled as of February 1, 2004. Her condition, diabetes mellitus, was found to satisfy the criteria of a listed impairment, Listing 9.08B. (R 83) [1]She had been hospitalized several times in late 2004 and early 2005 for diabetic ketoacidosis, staph endocarditis, and acute cellulitis. (R 108, 249, 261-447)

         Thereafter, her treatment regimen included monthly doctor visits and administration of insulin. (R 456-554) As of July 2010, she had not experienced diabetic ketoacidosis "in recent years." (R 458) Her diabetes was not adequately controlled, although her failure to count carbohydrates or use an insulin pump may have been partly to blame. (R 458)

         Ms, Pearson completed a Continuing Disability Review Report in November 2010 and a Function Report in January 2011. (R 175-94) These disclosed that she had difficulty with strenuous activity and heavy lifting. She reported that she was able to care for her daily needs, perform light housework, shop, attend church, and spend time with her boyfriend. (R 185-91)

         On March 4, 2011, a consultative exam produced normal physical and neurological findings. At the exam, Ms. Pearson reported working as a receptionist. (R 249-50) Yvonne Li, M.D., a state agency consultant, reviewed the record and concluded that Ms. Pearson could perform a range of light work. (R 253-60)

         On March 24, 2011, the SSA issued an initial determination that Ms. Pearson's condition had improved, and that as of March 1, 2011, she was no longer entitled to disability benefits. (R 84, 87-87) She requested reconsideration. In December 2011, a state agency consultant, Howard Goldbas, M.D., reviewed the updated medical record and concluded that Ms. Pearson could perform a range of light work despite her diabetes. (R 555-62) The SSA denied reconsideration. (R 85, 112-14)

         That denial was upheld by an Administrative Law Judge ("ALJ") and the Appeals Council in decisions, summarized below, that are the subject of this appeal.

         II. DECISIONS OF THE ALJ AND APPEALS COUNCIL

         A. The Eight-Step Sequential Analysis

         To qualify for Title II DIB benefits, a claimant must meet the insured status requirements of 42 U.S.C. § 423(c). A claimant must show that she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that 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). In a decision dated May 23, 2005, Ms. Pearson was found to satisfy that standard. See supra. The issue now before the court is whether the Administration later correctly found that her medical condition had improved, and her disability had ended.

         Because the framework for determining whether a claimant already receiving benefits continues to be disabled is somewhat unfamiliar, I review it at the outset. It incorporates much of the familiar five-step sequential analysis for an initial disability application, but adds some intermediate steps specifically directed to the issue of whether there has been a medical improvement, making eight steps in all. See 20 C.F.R. § 404.1594(f). Those steps are as follows:

(1) Are you engaging in substantial gainful activity? If you are (and any applicable trial work period has been completed), we will find disability to have ended (see paragraph (d)(5) of this section).
(2) If you are not, do you have an impairment or combination of impairments which meets or equals the severity of an impairment listed in appendix 1 of this subpart? If you do, your disability will be found to continue.
(3) If you do not, has there been medical improvement as defined in paragraph (b)(1) of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (4). If there has been no decrease in medical severity, there has been no medical improvement. (See step (5).)
(4) If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b) (1) through (4) of this section; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination. If medical improvement is not related to your ability to do work, see step (5). If medical improvement is related to your ability to do work, see step (6).
(5) If we found at step (3) that there has been no medical improvement or if we found at step (4) that the medical improvement is not related to your ability to work, we consider whether any of die exceptions in paragraphs (d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the First group of exceptions to medical improvement applies, see step (6). If an exception from the second group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in this process.
(6) If medical improvement is shown to be related to your ability to do work or if one of die first group of exceptions to medical improvement applies, we will determine Whether all your current impairments in combination are severe (see §404.1521). This determination will consider all your current impairments and the impact of the combination of those impairments on your ability to function. If tiie residual functional capacity assessment in step (4) above shows significant limitation of your ability to do basic work activities, see step (7). When die evidence shows that all your current impairments in combination do not significantly limit your physical or mental abilities to do basic work activities, these impairments will not be considered severe in nature. If so, you will no longer be considered to be disabled.
(7) If your impairment(s) is severe, we will assess your current ability to do substantial gainful activity in accordance with §404.1560. That is, we will assess your residual functional capacity based on all your current impairments and consider whether you can still do work you have done in the past. If you can do such work, disability will be found to have ended.
(8) If you are not able to do work you have done in the past, we will consider whether you can do other work given the residual functional capacity assessment made under paragraph (f)(7) of this section and your age, education, and past work experience (see paragraph (f)(9) of this section for an exception to this rule). If you can, we will find that your disability has ended. If you cannot, we will find that your disability continues.

20 CFR § 404.1594(f)(1)-(8).

         B. The Commissioner's Decision Denying Disability

         On February 5, 2015, the claimant, Ms. Pearson, who was represented by counsel, had a hearing before ALJ Theresa Merrill. (The transcript is at R 39-81.) At the hearing, the ALJ took testimony from Ms. Pearson as well as Dr. Pat Green, a vocational expert ("VE").

         On April 24, 2015, ALJ Merrill filed her decision finding that the claimant, Ms. Pearson, was no longer disabled. (R 20-30). Her findings, corresponding to the eight-step process outlined above, were as follows:

         The comparison point decision ("CPD") from which any medical improvement would be measured was the SSA's decision awarding disability benefits on May 23, 2005. (R 21 ¶ 1) At that time, the claimant was found to have diabetes mellitus, an impairment that met or equaled the severity of ...


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