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Sullivan v. Colvin

United States District Court, W.D. Kentucky, Owensboro Division

February 21, 2014

ALICE M. SULLIVAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

H. BRENT BRENNENSTUHL, District Judge.

BACKGROUND

Before the Court is the complaint (DN 1) of Alice M. Sullivan ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 19) and Defendant (DN 20) have filed a Fact and Law Summary.

Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the undersigned United States Magistrate Judge conducting all further proceedings in this case, including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed (DN 16). By Order entered October 29, 2013 (DN 17), the parties were notified that oral arguments would not be held unless a written request therefor was filed and granted. No such request was filed.

FINDINGS OF FACT

On September 27, 2010, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income (Tr. 160-164, 165-171). Plaintiff alleged that she became disabled on December 1, 2007, as a result of open heart surgery and left leg problems (Tr. 179, 181). On January 11, 2012, Administrative Law Judge Hortensia Haaversen ("ALJ") conducted a video hearing from Baltimore, Maryland (Tr. 9, 23-25). Plaintiff appeared in Bowling Green, Kentucky, and was represented by attorney Nancy O. Roberts (Tr. 9, 23-25). Also present and testifying was Stephen P. Davis, a vocational expert (Tr. 9, 23-25).

In a decision dated May 16, 2012, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 9-17). Before addressing each step, the ALJ determined that Plaintiff meets the insured status requirements of the Social Security Act through June 30, 2014 (Tr. 11). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since December 1, 2007, the alleged onset date (Tr. 11). At the second step, the ALJ determined that Plaintiff's coronary artery disease status post two-vessel coronary artery bypass grafting with benign hypertension, ongoing tobacco abuse, and obesity are "severe" impairments within the meaning of the regulations (Tr. 12). Notably, at the second step, the ALJ determined although Plaintiff had a sever fracture of her left tibia in May 2010 this impairment could not be a "severe" impairment within the meaning of the regulations because it did not last twelve months (Tr. 12). At the third step, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in Appendix 1 (Tr. 12).

At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform less than a full range of light work because she may sit 8 hours, stand 2 hours, and walk one hour; she needs the option to sit and stand, she may occasionally bend, stoop, push, pull, and reach overhead but never kneel, stoop, crouch, or crawl; she will need to alternate positions every 35 to 45 minutes and may occasionally be able to grip with her hands (Tr. 12-13). Additionally, the ALJ found that Plaintiff is unable to perform any past relevant work (Tr. 15).

The ALJ proceeded to the fifth step where she considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 16-17). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 16-17). Therefore, the ALJ concluded that Plaintiff has not been under a "disability, " as defined in the Social Security Act, from December 1, 2007, through the date of the decision, May 16, 2012 (Tr. 17).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 22). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-3, 4).

CONCLUSIONS OF LAW

The Social Security Act authorizes payment of Disability Insurance Benefits and Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term "disability" is defined as an

"[i]nability to engage in any 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 twelve (12) months."

42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a), 416.905(a); Barnhart v. Walton , 535 U.S. 212, 214 (2002); Abbott v. Sullivan , 905 F.2d 918, 923 (6th Cir. 1990).

The Commissioner has promulgated regulations setting forth a five-step sequential evaluation process for evaluating a disability claim. See "Evaluation of disability in general, " 20 C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:

1) Is the claimant engaged in substantial gainful activity?
2) Does the claimant have a medically determinable impairment or combination of impairments that satisfies the duration requirement and significantly limits his or her ability to do basic work activities?
3) Does the claimant have an impairment that meets or medically equals the criteria of a listed impairment within Appendix 1?
4) Does the claimant have the residual functional capacity to return to his or her past relevant work?
5) Does the claimant's residual functional capacity, age, education, and past work experience allow him or her to perform a significant number of jobs in the national economy?

Here, the ALJ denied Plaintiff's claim at the fifth step.

As previously mentioned, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-3). At that point, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality of the Commissioner's decision).

Before addressing each of Plaintiff's arguments the undersigned will globally address an issue that pertains to all of her arguments. Specifically, Plaintiff has mistakenly used the abuse of discretion standard in each of her challenges to the ALJ's findings (DN 19, Memorandum at Pages 5-19). Apparently, Plaintiff is not aware that 42 U.S.C. §405(g) governs judicial review of her claims. This statute limits the Court's review to determining whether the findings set forth in the final decision of the Commissioner are supported by "substantial evidence" and whether the correct legal standards were applied. Gayheart v. Commissioner , 710 F.3d 365, 374 (6th Cir. 2013) (citing 42 U.S.C. § 405(g); Cole v. Astrue , 661 F.3d 931, 937 (6th Cir. 2011)). "Substantial evidence exists when a reasonable mind could accept the evidence as adequate to support the challenged conclusion, even if that evidence could support a decision the other way." Cotton, 2 F.3d at 695 (quoting Casey v. Secretary of Health and Human Serverices , 987 F.2d 1230, 1233 (6th Cir. 1993)). This means, "[a] reviewing court will affirm the Commissioner's decision if it is based on substantial evidence, even if substantial evidence would also have supported the opposite conclusion." Gayheart , 710 F.3d at 374 (emphasis added) (citing Colvin v. Barnhart , 475 F.3d 727, 730 (6th Cir. 2007)). In reviewing a case for substantial evidence, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Cohen v. Secretary of Health and Human Services , 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler , 745 F.2d 383, 387 (6th Cir. 1984)). In sum, the Court will not apply the abuse of discretion standard when it addresses each of Plaintiff's challenges to the ALJ's findings. Instead, the Court will assess whether each challenged finding is supported by "substantial evidence" and whether the ALJ applied the correct legal standard.

Plaintiff's Challenges to Finding No. 2

a

Plaintiff argues the ALJ erred in finding December 1, 2007 is the alleged onset date (DN 19, Memorandum at Pages 6-7, 8). Relying on comments the ALJ made during the hearing, Plaintiff asserts the ALJ should have used May 15, 2009, as the onset date (DN 19, Memorandum at Pages 6-7, 8).

Defendant acknowledges the onset date in Finding No. 2 is different from the May 15, 2009 date the ALJ mentioned during the hearing (DN 20, Fact and Law Summary at Page 5). Defendant points out the onset date actually should have been the day after the May 12, 2009 Administrative Law Judge decision denying Plaintiff's earlier application for benefits (DN 20, Fact and Law Summary at Page 5 at foot note 2). Defendant asserts this error is harmless because the ALJ's decision (Tr. 11-17) shows she considered the period from December 1, 2007 through May 16, 2012, and substantial evidence support the ALJ's decision for the pertinent period (DN 20, Fact and Law Summary at Page 5-7).

Both applications for benefits allege a December 1, 2007 onset of disability (Tr. 162, 165). During the administrative hearing on January 11, 2012, the ALJ observed that Plaintiff filed a previous application for benefits and it had been denied by an Administrative Law Judge on May 14, 2009 (Tr. 23, 25). Therefore, the ALJ indicated the onset date "we're going to consider in this case is May 15, 2009, " the day after the previous denial (Tr. 25). On May 16, 2012, the ALJ issued a decision (Tr. 9-17). In the first paragraph of the decision, the ALJ noted that both of Plaintiff's applications allege her disability began on December 1, 2007 (Tr. 9). In Finding No. 2, the ALJ concluded that December 1, 2007, is "the alleged onset date" (Tr. 11). This finding is supported by substantial evidence in the record because that is the date Plaintiff's applications allege she became unable to work (Tr. 162, 165). Further, Plaintiff did not amend the alleged onset date before the ALJ rendered her decision.[1]

The previous Administrative Law Judge decision was issued on May 12, 2009 (DN 20, Fact and Law Summary at Page 5, foot note 2). Therefore, the ALJ's decision should have addressed whether Plaintiff has been under a disability from May 13, 2009, through the date of the decision, May 16, 2012. Instead, the ALJ's decision addressed whether Plaintiff has been under a disability from December 1, 2007, through the date of the decision, May 16, 2012 (Tr. 9-17). However, the ALJ's error is harmless because May 13, 2009 through May 16, 2012 is included within the time frame addressed in her decision (Tr. 9-17).

In an effort to show harm, Plaintiff asserts pushing the onset date back to 2007 results in her being classified as a younger individual (age 18-49) (DN 19, Memorandum at Page 8). Plaintiff points out she is now age 51 and, therefore, "she is less able to perform job functions as the ALJ states through the date of this decision'" (DN 19, Memorandum at Page 8, citing Tr. 17). Plaintiff's argument is specious at best because she would have been classified as a younger person (under age 50) regardless of whether the ALJ used December 1, 2007[2], May 13, 2009, or May 15, 2009[3] as the onset date. 20 C.F.R. §§ 404.1563(c), 416.963(c). Further, Plaintiff's age on December 27, 2013, is irrelevant to the question of whether she has been under a disability through May 16, 2012, the date of the ALJ's decision.

Plaintiff has made general allegations about a "lack of" and an "abuse of" due process as a result of the ALJ's confusion about her onset date (DN 19, Memorandum at Pages 7, 8). Plaintiff has not explained why the ALJ's purported confusion about her onset date has resulted in a due process violation.[4] Further, Plaintiff has twice cited Golberg v. Kelly , 397 U.S. 254 (1970)[5] and the Fifth and Fourteenth Amendments to the Constitution without any explanation why this case and these constitutional amendments substantiate her general allegations of a due process violation (DN 19, Memorandum at Pages 7, 8). Moreover, Plaintiff has not cited a single case involving a similar fact scenario where a federal court has concluded a due process violation occurred. It is well-established that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived." United States v. Layne , 192 F.3d 556, 566 (6th Cir.1999) (quoting McPherson v. Kelsey , 125 F.3d 989, 995-96 (6th Cir.1997)); see also Brindley v. McCullen , 61 F.3d 507, 509 (6th Cir.1995) (observing that "[w]e consider issues not fully developed and argued to be waived."); Rice v. Commissioner of Social Security, 2006 WL 463859, *2 (6th Cir. 2006). Here, the undersigned concludes that Plaintiff has waived her due process claim because all she has done is refer to it in a perfunctory manner. Notably, Plaintiff cannot demonstrate a due process violation because the ALJ's purported confusion regarding the onset date does not pose a "risk of an erroneous deprivation" of Plaintiff's interest in Social Security disability benefits as the result would have been the same even if the ALJ had used a May 13 or 15, 2009 onset date. Flatford v. Chater , 93 F.3d 1296, 1306 (6th Cir. 1996).

Finally, Plaintiff asserts "[t]he ALJ must not further abuse [her] by not allowing [her] to amend her onset date to the last date she worked at The Cabin, May 15, 2009, because that was the date she could no longer work" (DN 19, Memorandum at Page 8). This argument is confusing because during and after the hearing Plaintiff did not ask the ALJ to amend her onset date to May 15, 2009 (Tr. 25-26). Plaintiff's purported request to amend the onset date was actually in a letter brief she sent to the Appeals Council, not the ALJ[6] (Tr. 4, 254). Moreover, Plaintiff did not make an affirmative request to change the onset date from December 1, 2007 to May 15, 2009 (Tr. 254). Instead, Plaintiff merely expressed a willingness to amend the onset date if the Social Security Administration was concerned about the amount of back pay she would receive (Tr. 254). More importantly, the Court's review here is limited to deciding whether to uphold, modify, or reverse the ALJ's decision because it became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. 42 U.S.C. §§ 405(g) and (h); 20 C.F.R. §§ 404.955(b), 404.981, 422.210.

b

Plaintiff also disputes the ALJ's finding that she has not engaged in substantial gainful activity since December 1, 2007 (DN 19, Memorandum at Page 7). Plaintiff contends she engaged in substantial gainful activity in 2009 because she earned $9, 434.21 while working as a cook at the Cabin restaurant[7] (DN 19, Memorandum at Page 7).

Defendant asserts the ALJ appropriately found Plaintiff's work in 2009 through May 2010 did not rise to the level of substantial gainful activity because of extensive accommodations by her employer (DN 20, Fact and Law Summary at Page 4). Further, Defendant asserts that Plaintiff has not shown how the ...


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