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Duvall v. Berryhill

United States District Court, W.D. Kentucky, Bowling Green Division

April 17, 2017

JULIE F. DUVALL PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          LANNY KING, MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying her claim for Social Security disability benefits. The fact and law summaries of Plaintiff and Defendant are at Dockets 12 and 17. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. Docket 8.

         The administrative law judge (ALJ) found that Plaintiff is restricted to sedentary work and is not disabled because she retains the ability to perform her past relevant work as a part-time, self-employed barber.

         The Court will REMAND this matter to the Commissioner for a new decision because substantial evidence does not support the ALJ’s findings pertaining to Plaintiff’s limitations and does not support the ALJ’s finding that Plaintiff’s prior work qualifies as part relevant work.

         Background facts and procedural history

         In 1987, Plaintiff began work as a self-employed, part-time barber. She rents her shop and purchases her own supplies. Administrative Record (AR), p. 53.

         In 2006, she suffered a severe left ankle fracture requiring arthrodesis[1] and fusion of the talus, fibula, and tibia bones of the left ankle. AR, p. 37 referring to AR, p. 625. The surgery was relatively successful, and she continued working.

         In or around July 13, 2011, she reinjured her ankle. She wears a prescribed stabilizing ankle brace. AR, pp. 55 and 56. Due to increased ankle pain and limitation, she stated that “I reduced my customer load from 10 to 12 customers a week, to approximately five customers a week including walk- ins.” AR, p. 326.

         She continues to work but with modification. She works sitting in a high stool, keeping the customer mostly below her and her supplies close at hand. AR, p. 58.

         She filed for Social Security disability benefits, alleging disability commencing on July 13, 2011.

         The ALJ acknowledged that Plaintiff’s earnings after July 13, 2011 did not rise to the level of substantial gainful activity (SGA). AR, p. 33. The ALJ found, however, that her earnings prior to July 13, 2011 constituted SGA and, therefore, constituted past relevant work (PRW). See 20 C.F.R. § 404.1560(b)(1) (“Past relevant work is work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it”).

         The ALJ found that Plaintiff retains the ability to perform her PRW (as she actually performed it prior to July 13, 2011) and, therefore, she is not disabled. AR, pp. 20 and 40.

         The ALJ’s findings pertaining to Plaintiff’s limitations are not supported by substantial evidence.

The ALJ found that “the record reveals that the claimant’s allegedly disabling impairments were present at approximately the same level of severity prior to the alleged onset date [July 13, 2011, when Plaintiff re-injured her ankle]. The fact that the impairments did not prevent the claimant from working at that time strongly suggests that it would not currently prevent work.” AR, p. 39.[2]

         The ALJ’s conclusory finding that Plaintiff’s impairments were present at the same level of severity prior to July 13, 2011 is belied by the ALJ’s own specific findings (AR, pp. 37-39):

1. Plaintiff “had virtually no treatment until July 2011.”
2. “In [July] 2011, she had been having increasing difficulty with her left foot.” She was referred to pain management, where Dr. Beard prescribed hydrocodone, a “short leg double upright brace, ...

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