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Embree v. Colvin

United States District Court, E.D. Kentucky, Central Division, Frankfort

October 1, 2014

JEFFREY ALLAN EMBREE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION & ORDER

KAREN K. CALDWELL, Chief District Judge.

The plaintiff, Jeffrey Allan Embree, brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of an administrative decision of the Commissioner of Social Security denying his claims for a period of disability and disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). The Court, having reviewed the record, will affirm the Commissioner's decision, as it is supported by substantial evidence.

I. OVERVIEW OF THE PROCESS

In determining whether a claimant has a compensable disability under the Social Security Act, the regulations provide a five-step sequential process which the administrative law judge must follow. 20 C.F.R. §§ 404.1520(a); 416.920(a); see Walters v. Commissioner of Social Security, 127 F.3d 525, 529 (6th Cir. 1997). The five steps, in summary, are as follows:

(1) If the claimant is currently engaged in substantial gainful activity, he is not disabled.
(2) If the claimant is not doing substantial gainful activity, his impairment must be severe before he can be found disabled.
(3) If the claimant is not doing substantial gainful activity and is suffering from a severe impairment that has lasted or is expected to last for a continuous period of at least twelve months, and his impairment meets or equals a listed impairment, the claimant is presumed disabled without further inquiry.
(4) If the claimant's impairment does not prevent him from doing past relevant work, he is not disabled.
(5) Even if the claimant's impairment does prevent him from doing his past relevant work, if other work exists in the national economy that accommodates his residual functional capacity and vocational factors (age, education, skills, etc.), he is not disabled.

Id. The burden of proof is on the claimant throughout the first four steps of this process to prove that he is disabled. Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). If the administrative law judge reaches the fifth step without a finding that the claimant is disabled, then the burden shifts to the Commissioner to consider his residual functional capacity, age, education, and past work experience to determine if he could perform other work. If not, he would be deemed disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). Importantly, the Commissioner only has the burden of proof on "the fifth step, proving that there is work available in the economy that the claimant can perform." Her v. Commissioner of Social Security, 203 F.3d 388, 391 (6th Cir. 1999).

The decision of the Commissioner must be supported by substantial evidence. Varley v. Secretary of Health and Human Services, 820 F.2d 777, 779 (6th Cir. 1987). Once the decision of the Commissioner is final, an appeal may be taken to the United States District Court pursuant to 42 U.S.C. § 405(g). Judicial review of the Commissioner's decision is restricted to determining whether it is supported by substantial evidence and was made pursuant to the proper legal standards. See Cutlip v. Secretary of Health and Human Services, 25 F.3d 284, 286 (6th Cir. 1994). "Substantial evidence" is defined as "more than a mere scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. In reviewing the decision of the Commissioner, courts are not to conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. See id. Rather, the Court must affirm the Commissioner's decision so long as it is supported by substantial evidence, even if the Court might have decided the case differently. See Her, 203 F.3d at 389-90. However, the court must review the record as a whole, and must take into account whatever in the record fairly detracts from its weight. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).

II. EMBREE'S MEDICAL HISTORY AND THE ADMINISTRATIVE RECORD

Embree filed his DIB claim on August 27, 2010 [TR 184-87] and his SSI claim on August 30, 2010 [TR 169, 174]. He claims that he became disabled and unable to work on September 19, 2008 due to back pain, breathing problems, asthma, a hernia, and post traumatic stress disorder [TR 33, 193]. Embree's claims were denied initially and upon reconsideration [TR 113, 120]. At his request, a hearing before an administrative law judge ("ALJ") was held on May 14, 2012 [TR 25-50].

At the hearing, Embree testified that he participated in special education classes at school but that he never completed eighth grade [TR 40-41]. He described his past work, including jobs as a factory worker, a janitor, and a maintenance worker [TR 28-29]. He explained that he recently attempted to work for a tree service; however, he testified that he fell out of a tree, hurt his back and was unable to return to that job [TR 29]. He stated that he also suffers from asthma, colitis, heartburn, acid reflux, nerve problems, and knee problems due to a motorcycle accident [TR 30-32]. Based on these physical problems, he reported difficulties standing, sitting and lifting [TR 39-40]. As far as his mental health, Embree testified that he suffers from anxiety and depression [TR 36-37]. He described his daily activities as ...


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