United States District Court, W.D. Kentucky, Louisville
CYTONA N. HOWLETT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
DAVE WHALIN, Magistrate Judge.
Plaintiff Cytona N. Howlett 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 her application for supplemental security income (SSI). Howlett applied for SSI on June 28, 2010, alleging that she was disabled as of March 1, 2010, due to depression, post-traumatic stress disorder (PTSD) and scoliosis of the spine (Tr. 91-100). The Commissioner denied Howlett's claims on initial consideration (Tr. 115-118) and on reconsideration (Tr. 120-122). Howlett requested a hearing before an Administrative Law Judge (ALJ) (Tr. 123-125).
ALJ John R. Price conducted a hearing in Louisville, Kentucky, on Feb. 9, 2012 (Tr. 32-74). Howlett attended with her attorney, Alvin Wax (Tr. 32). Howlett and vocational expert (VE) Gail Franklin testified at the hearing (Tr. 36-66, 67-74). Following the conclusion of the hearing, ALJ Price entered a hearing decision on March 6, 2012, that found Howlett is not disabled for the purposes of the Social Security Act (Tr. 19-28).
In his adverse decision, ALJ Price made the following findings:
1. The claimant has not engaged in substantial gainful activity since June 28, 2010, the application date (20 C.F.R. 416.971, et seq. ).
2. The claimant has the following severe impairments: mood disorder and the back strain (20 C.F.R. 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b) except she is able to stand and walk only 4 hours and sit for 6 hours in an 8-hour workday. She is able to occasionally bend and stoop. Due to mental impairments, she is limited to simple, one-to-two step, job tasks in an object focused work setting that is low stress with little to no change and no production quota. She may have occasional contact with supervisors or co-workers, but no close tandem work and no contact with the general public.
5. The claimant is unable to perform any past relevant work (20 C.F.R. 416.965).
6. The claimant was born on July 19, 1989, and was 20 years-old, which is defined as a younger individual age 18-49, on the date the application was filed (20 C.F.R. 416.963).
7. The claimant has at least a high-school education and is able to communicate in English (20 C.F.R. 416.964).
8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferrable job skills (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, App. 2).
9. 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. 416.969 and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, since June 28, 2010, the date the application was filed (20 C.F.R. 416.920(g)).
(Tr. 21-28). Howlett sought review of the hearing decision by the Appeals Council (Tr. 14-15). The Appeals Council denied her request for review, finding no reason under the Rules to review ALJ Price's decision (Tr. 1-6). 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 CFR §§ 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 CFR §§ 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 CFR §§ 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 CFR §§ 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 listed in the Appendix. See, Lankford v. Sullivan, 942 F.2d 301, 306 (6th Cir. 1991); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
When the severity of the claimant's impairments does not meet or equal the listings, then the Commissioner must determine at step 4 whether the claimant retains the residual functional capacity (RFC) given his or her impairments to permit a return to any of his or her past relevant work. 20 CFR §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). See, Smith v. Secretary, 893 F.2d 106, 109-110 (6th Cir. 1989). A claimant who retains the residual functional capacity, despite his or her severe impairments, to perform past relevant work is not disabled. 20 CFR §§ 404.1560(b)(3), 416.960(b)(3) The burden switches to the Commissioner at step 5 of the sequential evaluation process to establish that the claimant, who cannot return to his or her past relevant work, remains capable of performing alternative work in the national economy given his or her residual functional capacity, age, education and past relevant work experience. See, 20 CFR §§ 404.1520(a)(4)(v), 404.1560(c), 416.920(a)(4)(v), 416.960(c); Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994); Herr v. Commissioner, 203 F.3d 388, 391 (6th Cir. 1999). Collectively, the above disability evaluation analysis is commonly referred to as the "5-step sequential evaluation process."
Standard of Review.
Review of a decision of the Commissioner is governed by 42 U.S.C. § 405(g). The statute, and case law that interprets it, require a reviewing court to affirm the findings of the Commissioner if they are supported by substantial evidence and the Commissioner has employed the appropriate legal standard. Walters v. Commissioner of Social Security, 127 F.3d 525, 528 (6th Cir. 1997) ("This Court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.). Substantial evidence is defined by the Supreme Court to be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). See also, Lashley v. Sec'y of HHS, 708 F.2d 1048, 1053 (6th Cir. 1983) (citing Perales ). It is more than a mere scintilla of evidence or evidence that merely creates the suspicion of the existence of a fact, but must be enough evidence to justify a refusal to direct a verdict if the matter were tried to a jury. Sias v. Sec'y of HHS, 861 F.2d 475, 479 n. 1 (6th Cir. 1988).
The substantiality of the evidence is to be determined based upon a review of the record taken as a whole, not simply some evidence, but rather the entirety of the record to include those portions that detract from its weight. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984); Laskowski v. Apfel, 100 F.Supp.2d 474, 482 (E.D. Mich. 2000). So long as the decision of the Commissioner is supported by substantial evidence, it must be upheld by the federal court even if the record might support a contrary conclusion. Smith v. Sec'y of HHS, 893 F.2d 106, 108 (6th Cir. 1989). The substantial evidence standard "presupposes that there is a zone of choice within which decision makers can go either way, without interference from the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) ( en banc ).
Howlett was born on July 19, 1989, and was 20 years and 7 months old at the alleged onset of her disability (Tr. 91, 134). She stands 5'3" tall with a reported weight of 124 lbs (Tr. 91). At the time she applied for SSI, Howlett was homeless with her sole income being a monthly child support payment for her daughter (Tr. 135-136). Her work history prior to the alleged onset of her disability included employment as a banquet server, a janitor, and a package handler (Tr. 165-168). She ceased employment, according to her hearing testimony, as a result of chronic back pain,  which Howlett treated with physical therapy and Ibuprofen (Tr. 36-37). Howlett explained that her pain is experienced daily in the middle part of her back (Tr. 38). While Ibuprofen reduces her discomfort, the pain remains at a reduced level (Tr. 39). She occasionally wears a back brace and uses Icy Hot for this discomfort (Tr. 42).
Due to her pain, Howlett has reduced her physical activities. She only cleans her home, a third-floor apartment, once a week. She no longer takes her daughter on walks in the park and cannot reach above her shoulder without experiencing pain (Tr. 40). Howlett estimated that she can stand for 30 minutes before experiencing pain. (Tr. 41).
Howlett testified that she graduated from high school (Tr. 45). She also attended Spencerian College for several months on two occasions (Tr. 45-46). She had hoped to attend Jefferson Community College, as well, but the administrative requirements for admission were too difficult for her too meet (Tr. 46).
Howlett testified that after the alleged onset of her disability she worked briefly for a temporary service that placed her with Audubon Hospital where she worked as a dietary aide delivering meals (Tr. 46-47). Howlett also, through the same temporary service, worked briefly at several local hotels on a part-time basis, approximately two days a week in order to pay for her ...