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Buster v. Berryhill

United States District Court, W.D. Kentucky, Louisville

February 22, 2018

JAMES BUSTER PLAINTIFF
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER SOCIAL SECURITY ADMINISTRA TION DEFENDANT

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge

         This matter is before the court for consideration of the objections of the defendant, Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, to the Findings of Fact, Conclusions of Law, and Recommendation of the United States Magistrate Judge in this appeal from a denial of supplemental security benefits. The court has conducted a de novo review of the record and those portions of the magistrate judge's report to which the Commissioner objects. We are in agreement with the magistrate judge's findings and recommendation.

         The plaintiff, James Buster, received supplemental disability benefits as a child, but was determined on June 1, 2011 to no longer be disabled, and benefits were terminated. Buster appealed the decision, was granted a hearing, and the administrative law judge (“ALJ”) upheld the decision. Buster seeks review of the final decision of the Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g).

         The magistrate judge considered Buster's motion for summary judgment, his fact and law summary, and the fact and law summary submitted by the Commissioner, and recommended that the final decision of the Commissioner be reversed and the case be remanded for further proceedings.

         When Buster was fifteen years old, he had a brain tumor, an astrocytoma, for which he had a successful surgical resection. He did not have radiation or chemotherapy. He has had complex partial and generalized tonic clonic seizures since then and has been on seizure medication. At the time of the ALJ's decision, Buster was 22 years old. He has a GED. He has never held a paying job. When he turned 18, his eligibility for social security disability benefits was redetermined under the rules applicable to adults, as required by Section 1614(a)(3)(H) of the Social Security Act.

         In his review, the ALJ framed the issue as

[W]hether the claimant is disabled under section 1614(a)(3)(A) of the Social Security Act. Disability is defined as the inability to engaged in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments 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 12 months.

DN 11-2, PageID #60. He concluded that

After reviewing all of the evidence, the undersigned Administrative Law Judge concludes the claimant's disability ended on June 1, 2011, and the claimant has not become disabled again since that date.

Id.

         The magistrate judge considered the ALJ's decision and concluded that the ALJ committed an error of law at step three of the mandated five-step sequential evaluation process in determining whether Buster is disabled. As correctly explained,

At step three, the [ALJ] must determine whether the claimant's impairment or combination of impairments is of a severity to meet or medically equal the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925, and 416.926). If the claimant's impairment or combination of impairments is of a severity to meet or medically equal the criteria of a listing and meet the duration requirement (20 CFR 416.909), the claimant is disabled. If it does not, the analysis proceeds to the next step.

DN 11-2, PageID #61. The magistrate judge found that Buster offered evidence that he was suffering from both convulsive and non-convulsive seizures at the requisite frequency to have reasonably met either Listing 11.02 or 11.03. DN 18, PageID #769. He found that Buster referred to several medical records which raised a substantial question as to whether the frequency of his seizures reasonably qualifies Buster as disabled under the Listings and, “[a]s a result, the ALJ should have considered whether [Buster]'s seizure disorder met Listings 11.02 and 11.03.” Id., PageID #770.

         The ALJ stated at step three that “To determine whether [Buster]'s clinical findings meet or equal in severity the most closely applicable section in the List of Impairments, Appendix 1, Subpart P, Regulations No. 4; the Administrative Law Judge considered the criteria in Listing 11.00 for seizure disorder, as well as the criteria in section 13.00 for a history of brain tumor.” DN 11-2, Page ID #64. The ALJ did not articulate how his evaluation of the evidence lead him to the conclusion that ...


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