KELSEY A. EMRICK, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,  Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed ( see ECF Nos. 12, 13, 14).
Plaintiff, KELSEY A. EMRICK, was born in 1990 and was 18 years old on the alleged date of disability onset of November 15, 2008 ( see Tr. 132, 140). Plaintiff was diagnosed with ADHD as a young child and treated for many years with Ritalin (Tr. 384). She had an extensive history of problems with depression, general anxiety with racing thoughts, catastrophic thinking, excessive worrying, insomnia, and irritability. She was diagnosed with PTSD. She had been raped twice as a child and suffered the sudden death of her father in 2008 (Tr. 282-85, 302-05, 385, 390, 416). That same year, she began abusing alcohol, gained 70 pounds and developed Type 2 diabetes (Tr. 44-45, 285, 385). She developed a series of rituals and obsessions, including compulsions and perfectionist traits (Tr. 58, 385, 390). She has received psychotherapy since 2009 and takes Adderal and Trazodone (Tr. 210-11, 261-93, 365-456). Plaintiff started tenth grade in high school, but did not complete it because she was having problems understanding and completing the work (Tr. 38-39).
Plaintiff has no significant work experience (Tr. 165).
Plaintiff has at least the severe impairments of post-traumatic stress disorder (PTSD), depression, anxiety, attention deficit hyperactivity disorder (ADHD), and obsessive-compulsive disorder (OCD) traits (20 CFR 404.1520(c) and 416.920(c)) (Tr. 18).
At the time of the hearing, plaintiff was living at home with her mother (Tr. 37).
Plaintiff filed an application for child insurance ("CIB") benefits pursuant to 42 U.S.C. § 423 (Title II) and Supplemental Security Income ("SSI") benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act ( see Tr. 132-39, 140-43). The applications were denied initially and following reconsideration (Tr. 81-92). Plaintiff's requested hearing was held before Administrative Law Judge Rebekah Ross ("the ALJ") on October 14, 2011 ( see Tr. 31-75). On November 22, 2011, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr.16-26).
On June 26, 2011, the Appeals Council denied plaintiff's request for review, making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-3). See 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision August, 2012 ( see ECF Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on November 9, 2012 ( see ECF Nos. 9, 10).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) whether or not the ALJ improperly rejected medical opinion evidence and acted as her own medical expert; (2) whether or not the ALJ improperly rejected plaintiff's testimony; (3) whether or not the ALJ improperly rejected lay testimony; (4) whether or not the ALJ made a residual functional capacity ("RFC") finding that does not reflect plaintiff's limitations; and (5) whether or not the ALJ failed to meet her burden at step five of the sequential evaluation process ( see ECF No. 12, p. 1).
By way of introduction, plaintiff synthesized all five of these issues by taking issue with the ALJ's conclusion that plaintiff had the RFC to perform unskilled work with simple tasks 95% of the work day, eight hours a day, five days a week. Plaintiff argues, "[w]hile there is evidence Ms. Emrick could perform simple and perhaps even complex tasks, there is no evidence that she could remain on task 95% of the time even with medication." (ECF No. 12, p. 5.)
Therefore, this case turns on whether or not this RFC determination is supported by substantial evidence and whether or not the ALJ satisfied her burden at step 5 of the sequential analysis to support the conclusion that other work existed in the national economy that plaintiff could perform based on this RFC. After reviewing the record as a whole, this Court concludes that the ALJ failed to meet that burden and that the RFC must be ...