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Michelle H. v. Commissioner of Social Security

United States District Court, C.D. Illinois, Peoria Division

May 16, 2019

MICHELLE H., Plaintiff,



         Now before the Court is the Plaintiff's Motion for Summary Judgment (Doc. 9), the Commissioner's Motion for Summary Affirmance (Doc. 13), and the Plaintiff's Reply (Doc. 16). This matter has been referred for a Report and Recommendation. The Motions are fully briefed, and for the reasons stated herein, the Court recommends the Plaintiff's Motion for Summary Judgment be granted, the Defendant's Motion for Summary Affirmance be denied, and the matter be remanded.[1]


         On August 4, 2015, Plaintiff Michelle H. filed her application for disability insurance benefits (DIB), and at that time, Michelle lived in Beulah, Colorado. Her claim was denied on January 14, 2016. She requested a hearing concerning her application for DIB on February 15, 2016. A hearing was held before the Honorable Jennifer M. Fellabaum (ALJ) on October 4, 2017. At that hearing, Michelle was represented by an attorney and a vocational expert (VE) testified. Following the hearing, the ALJ issued a favorable decision on November 7, 2017.

         On January 5, 2018, the Appeals Council (AC) issued a Notice of Appeals Council Action in which the AC indicated it was reviewing the ALJ's Decision, found that the Decision was not supported by substantial evidence, and found that there was an error of law. The AC explained:

Instead of relying on [the VE's] testimony, the [ALJ] found that the 32, 400 jobs identified by the [VE] do not “constitute a significant number of jobs in the national economy” without any specific rationale or explanation for this conclusion . . . Such a finding is contrary to the evidence and is an error of law.

AR 135. Accordingly, the AC advised Michelle it intended to issue an unfavorable decision from August 25, 2015 through March 31, 2016. It further explained:

Absent the submission of new and material evidence or persuasive legal argument, the [AC] intends to issue an unfavorable decision finding that you were not disabled during the relevant period at issue . . . We will find you not disabled under the framework of Medical-Vocational Rule 201.28 . . . and relying upon the testimony of the [VE].

AR 136. Michelle's attorney thereafter submitted a Response to Appeals Council Action which included rebuttal evidence in an attempt to show that the jobs named by the VE no longer existed in the national economy in significant numbers. Thus, Michelle's attorney contended, those jobs could not properly be relied upon to deny her claim.

         On May 17, 2018, the AC issued its unfavorable decision which became the final decision of the Commissioner. Michelle filed the instant civil action seeking review of the AC's Decision on July 16, 2018.


         At the hearing, the ALJ first asked the VE whether he was familiar with jobs that existed in the regional and national economies, to which the VE responded in the affirmative. AR 42. The ALJ defined the local region as Colorado (where Michelle then lived) and the U.S. “in general.” Id. The VE classified Michelle's past work. Thereafter, the ALJ asked the VE three hypothetical questions, the last of which prompted the VE to identify three different jobs the hypothetical individual could do: “Your Honor, consistent with this Hypothetical, the Call-out Operator would survive . . . The Food Order Clerk is another one that will survive the Hypothetical . . . [there would also] be a position of Surveillance System Monitor.” AR 47-48. The VE earlier testified that the Call-Out Operator job included 8, 400 jobs nationally and “about 100 such positions” in Colorado. AR 45. The VE testified to “180 [Food Order Clerk jobs] and growing” in Colorado and “about 16, 000” of those jobs nationally. AR 46. The VE testified to “about 80” Surveillance System Monitor positions in Colorado and “about 8, 000” of those jobs nationally. AR 48. The ALJ next asked the VE whether any part of his testimony was inconsistent with, or not addressed by, the DOT. The VE answered:

Your Honor, I'm not inconsistent with the DOT; however, unfortunately, it does not address with any specificity environmental irritants. It certainly doesn't address sit/stand option at - with any durational consideration. It does not consider fast pace or unprotected heights. I am forced to rely upon my experience as a rehab counselor, now exceeding 30 years of practice. During the course of this practice, I've performed thousands of labor market contacts, both in person and by phone. I've met with thousands of disabled workers. I've performed hundreds of factual on-site job analyses, in which I critically analyzed the functional demands of work, physically, cognitively, and affectively, in order for the worker to successfully reach and maintain proficiency in their job.

AR 48-49.

         The ALJ thanked the VE and then stated, “And Ms. Lounsberry [Michelle's attorney], just so you know, Hypothetical 3, I find that that is not significant numbers in the national and regional economies.” AR 49. Attorney Lounsberry responded, “Okay. Thank you, Your Honor” and stated she had no questions for the VE. Id. Thereafter, the ALJ accepted Michelle's amended onset date of August 25, 2015 and explained “so then this will go out as a fully favorable Decision from that date forward on both the Title II and the Title XVI.” AR 51.


         In her November 7, 2017 decision, the ALJ found: Michelle's date last insured was March 31, 2016; Michelle had not engaged in substantial gainful activity since August 25, 2015 (her amended onset date); Michelle had as severe impairments chronic heart failure, fibromyalgia, and obesity; and Michelle did not have an impairment or combination of impairments that met or medically equaled the ...

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