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Avery v. Colvin

United States District Court, W.D. Kentucky, Bowling Green Division

May 7, 2014

JOANNA L. AVERY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.




Before the Court is the complaint (DN 1) of Joanna L. Avery ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 16) and Defendant (DN 19) 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 of Appeals in the event an appeal is filed (DN 15). By order entered November 15, 2013, the parties were notified that oral arguments would be held unless a written request therefor was filed and granted (DN 14). No such request was filed.


Plaintiff protectively filed an application for disability insurance benefits and supplemental security income benefits on March 29, 2010 (Tr. 226, 401-402). Plaintiff alleged that she became disabled on March 1, 2003 as a result of bone deterioration in hips and pelvis, and anxiety and depression (Tr. 409-410). These claims were denied initially on August 18, 2010, and upon reconsideration on November 30, 2010 (Tr. 226). Thereafter, Plaintiff filed a written request for a hearing on January 28, 2011 (Tr. 226). Plaintiff then amended her disability onset date to December 31, 2009 (Tr. 226). On November 16, 2011, Administrative Law Judge Hortensia Haaversen ("ALJ") conducted a video hearing from Baltimore, Maryland (Tr. 226). Plaintiff appeared in Bowling Green and was presented by Mary G. Burchett-Bower, an attorney (Tr. 226). Also present and testifying was Leah P. Salyers, an impartial vocational expert (Tr. 226).

In a decision dated February 6, 2012, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 226-236). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since December 31, 2009, the alleged onset date (Tr. 228). At the second step, the ALJ determined that Plaintiff's major depressive disorder, pain disorder, anxiety disorder, occipital neuralgia, right cervical and thoracic facet arthritis, and right subacromial bursitis are "severe" impairments within the meaning of the regulations (Tr. 228). 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. 229).

At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except the Plaintiff ambulates with a cane; can understand, remember and carry out simple repetitive instructions and tasks; is able to tolerate stress and pressure of day-to-day employment but should be limited to only low stress job defined as only occasional decision making and occasional changes in a work setting; is able to sustain attention and concentration towards the performance of simple repetitive tasks; and she is able to respond appropriately to supervision, coworkers and work pressures of a low stress job as previously defined (Tr. 230). The ALJ further noted that her residual functional capacity determination was based on the consultative examiner's opinion and the cane use demonstrated at the hearing (Tr. 230). The ALJ also concluded that Plaintiff has no past relevant work because there is no indication that any of her prior jobs were performed at a substantial gainful activity level (Tr. 234).

The ALJ proceeded to the fifth step where he considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 234-236). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 235). Therefore, the ALJ concluded that Plaintiff has not been under a "disability, " as defined in the Social Security Act, from December 31, 2009, through February 6, 2012, the date of the administrative decision.

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


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, ...

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