ROBERT E. BURGIN, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
DAVE WHALIN, District Judge.
Plaintiff Robert E. Burgin has filed a complaint pursuant to 42 U.S.C. §405(g) to obtain judicial review of a final decision of the Commissioner of Social Security that denied his application for disability insurance benefits (DIB). Burgin applied for DIB on August 18, 2010, alleging that he was disabled as of October 28, 2009, due to degenerative disk disease of the lumbar spine, mild obesity, depression, anxiety disorder and borderline intellectual functioning (Tr. 20). The Commissioner denied Burgin's claims on initial consideration (Tr. 84, 85-98) and on reconsideration (Tr. 99, 100-115). Burgin requested a hearing before an Administrative Law Judge (ALJ) (Tr. 129-130).
ALJ Gregory O. Varo conducted a video hearing from Lexington, Kentucky, in Frankfort, Kentucky, on September 16, 2011. Burgin attended with his attorney, Walter McGee (Tr. 32). Burgin and vocational expert (VE) Joyce Forrest testified at the hearing (Tr. 36-62, 63-68). Following the conclusion of the hearing, ALJ Varo entered a hearing decision on October 21, 2011, that found Burgin is not disabled for the purposes of the Social Security Act (Tr. 18-27).
In his adverse decision, ALJ Varo made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2012.
2. The claimant has not engaged in substantial gainful activity since October 28, 2009, the alleged onset date (20 C.F.R. 404.1571, et seq. ).
3. The claimant has the following severe impairments: degenerative disk disease of the lumbar and spine; mild obesity; borderline intellectual functioning; depressive disorder; and anxiety disorder (20 C.F.R. 404.1520(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b). The claimant can lift 10 lbs. frequently and 20 lbs. occasionally; stand and walk 6 hours in an 8-hour day, but not more than 2 hours at a time; sit 6 hours in an 8-hour day, but not more than 2 hours at a time. He needs to shift positions every 2 hours. He can occasionally climb ramps and stairs and never climb ladders, ropes or scaffolds; occasionally stoop, kneel, crouch and crawl. He must avoid concentrated exposure to vibrations; avoid all exposure to unprotected heights. He is limited to simple, repetitive tasks; requires an objectfocused work environment, no fast-paced production quotas or goals, and no task requiring significant reading or math skills.
6. The claimant is unable to perform any past relevant work. (20 C.F.R. 404.1565).
7. The claimant was born on October 11, 1959, and was 47-years-old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed category to closely approaching advanced age (20 C.F.R. 404.1563).
8. The claimant has at least a limited education and is able to communicate in English (20 C.F.R. 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocation Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills. (See SSR84-21 and 20 C.F.R. Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. 404.1569, 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from March 2, 2007, through the date of this decision (20 C.F.R. 404.1520(f)).
(Tr. 20-27). Burgin sought review of the hearing decision by the Appeals Council (Tr. 7-8). The Appeals Council denied his request for review, finding no reason under the Rules to review ALJ Varo's decision (Tr. 1-4). The present lawsuit followed.
The Five-Step Sequential Evaluation Process.
Disability is defined by law as being the inability to do substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than 12 months. See, 20 CFR §§ 404.1505, 416.905(a). To determine whether a claimant for DIB or SSI benefits satisfies such definition, a 5-step evaluation process has been developed. 20 C.F.R. §§ 404.1520, 916.920(a). At step 1, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the Commissioner will find the claimant to be not disabled. See, 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(ii), 416.971. See, Dinkel v. Secretary, 910 F.2d, 315, 318 (6th Cir. 1990).
If the claimant is not working, then the Commissioner next must determine at step 2 of the evaluation process whether the claimant has a severe impairment or combination of severe impairments that significantly limit his or her ability to perform basic work activities. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairments of the claimant are determined by the Commissioner to be non-severe, in other words, so slight that they could not result in a finding of disability irrespective of a claimant's vocational factors, then the claimant will be determined to be not disabled at step 2. See, Higgs v. Bowen, 880 F.2d 960, 962 (6th Cir. 1988); Mowery v. Heckler, 771 F.2d 966, 971-72 (6th Cir. 1985).
If the claimant has a severe impairment or impairments, then the Commissioner at step 3 of the process will determine whether such impairments are sufficiently serious to satisfy the listing of impairments found in Appendix 1 of Subpart B of Part 404 of the federal regulations. 20 C.F.R. §§ 404.1520(A)(4)(iii), 416.920(a)(4)(iii) The claimant will be determined to be automatically disabled without consideration of his or her age, education or work experience if the claimant's impairments are sufficiently severe to meet or equal the criteria of any impairment ...