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Palombo v. Berryhill

United States District Court, D. New Hampshire

June 25, 2018

Gayle Palombo
v.
Nancy A. Berryhill, Acting Commissioner of Social Security

          ORDER

          Landya McCafferty United States District Judge.

         Gayle Palombo seeks judicial review, pursuant to 42 U.S.C. §§ 405(g) & 1383(c)(3), of the decision of the Acting Commissioner of the Social Security Administration, denying her application for disability insurance and Supplemental Security Income benefits. Palombo moves to reverse the Acting Commissioner's decision, and the Acting Commissioner moves to affirm. Separately, Palombo moves for leave to file a response to the Acting Commissioner's surreply and requests clarification of the local rules with regard to social security disability cases. The court addresses the latter issue first, before evaluating the merits of Palombo's appeal. For the reasons discussed below, Palombo's motion for leave to file a response is denied, Palombo's motion to reverse is granted in part, and the Acting Commissioner's motion to affirm is granted in part.

         I. Motion for Leave to File Response to Surreply

         On April 4, 2018, Palombo filed a reply to the Acting Commissioner's motion for an order affirming her decision. See doc. no. 20. On April 9, 2018, the Acting Commissioner filed a surreply. See doc. no. 21.

         More than a month later, on May 14, 2018, Palombo filed a motion for leave to file a response to the Acting Commissioner's surreply. See doc. no. 23. In addition to requesting leave to file a response, Palombo's motion asks the court to "expressly clarify" that under Local Rule 9.1, the Acting Commissioner is prohibited from filing a surreply without first seeking leave of the court. Id. at 2. Palombo requests that the court either allow her to file her proposed response to the Acting Commissioner's surreply or strike the surreply.

         Local Rule 9.1, which governs social security disability cases, provides: "The plaintiff may file a reply memorandum pursuant to LR 7.1(e)(1). Neither party shall otherwise be required to file an objection to the other party's motion."[1]Local Rule 7.1(e)(3) provides: "If a reply has been filed either as of right pursuant to LR 7.1(e)(1) or by court order under LR 7.1(e)(2), a surreply may be filed within five (5) days of the date the reply was filed." In other words, once a party files a reply pursuant to Local Rule 7.1(e)(1), the other party may file a surreply within five days without seeking leave from the court.

         Considering all of these provisions, the Acting Commissioner is allowed to file a surreply without requesting the court's permission, and the surreply need not be stricken. Furthermore, Palombo cites no authority that would allow her to file a response to the Acting Commissioner's surreply. Accordingly, Palombo's motion is denied.

         II. Palombo's Appeal

         a. Standard of Review

         In reviewing the final decision of the Acting Commissioner in a social security case, the court "is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence." Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ's factual findings as long as they are supported by substantial evidence. 42 U.S.C. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016). "Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Astralis Condo. Ass'n v. Sec'y Dep't of Housing & Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010).

         In determining whether a claimant is disabled, the ALJ follows a five-step sequential analysis. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant "has the burden of production and proof at the first four steps of the process." Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). The first three steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether she has a severe impairment; and (3) determining whether the impairment meets or equals a listed impairment. 20 C.F.R. §§ 404.1520(a) (4) (i)-(iii), 416.920 (a) (4) (i)- (iii) .

         At the fourth step of the sequential analysis, the ALJ assesses the claimant's residual functional capacity ("RFC"), which is a determination of the most a person can do in a work setting despite her limitations caused by impairments, id. §§ 404.1545(a) (1), 416.945(a) (1), and her past relevant work, see Id. §§ 404.1520 (a) (4) (iv), 416.920(a)(4)(iv). If the claimant can perform her past relevant work, the ALJ will find that the claimant is not disabled. See id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform her past relevant work, the ALJ proceeds to Step Five, in which the ALJ has the burden of showing that jobs exist in the economy which the claimant can do in light of the RFC assessment. See id. §§ 404.1520(a) (4) (v), 416.92 0(a) (4) (v) .

         b. Background[2]

         This is Palombo's second application for disability insurance and Supplemental Security Income ("SSI") benefits. Palombo filed her first application in February 2012. In the first application, Palombo alleged disabilities of spurs and deterioration of spine, arthritis, tendonitis, depression, speech problems, knee issues, and obesity. The Social Security Administration denied the first application on initial review and, in December 2012, it denied the application again on reconsideration. Palombo did not further proceed with the first application.

         One year later, Palombo filed the present application, seeking both disability insurance and SSI benefits. She alleged that she was disabled because of depression, anxiety, spinal stenosis of the back and neck, arthritis, and asthma. At the time of her application, Palombo was 47 years old, had a high school education, and had previously worked as a telemarketer, short order cook, waitress, and factory laborer.

         During initial review, the Social Security Administration denied both her request for disability insurance benefits and her request for SSI benefits. As to the former, the agency determined that, because Palombo's alleged onset date (November 2011) was later than her date last ...


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