United States District Court, W.D. Kentucky, Louisville
DAVE WHALIN, Magistrate Judge.
Plaintiff Hanaa Khudhair 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). Khudhair applied for SSI on Feb. 17, 2012, alleging that she was disabled as of Jan. 1, 2003, due to neck pain related to degenerative disk disease of the cervical spine along with post-traumatic stress disorder, depression, and anxiety (Tr. 32, 156, 177, 197). The Commissioner denied Khudhair's claims on initial consideration (Tr. 115-118) and on reconsideration (Tr. 122-24). Khudhair requested a hearing before an Administrative Law Judge (ALJ) (Tr. 126, 127-129).
ALJ D. Lyndell Pickett conducted a hearing in Louisville, Kentucky, on April 19, 2013 (Tr. 29-46). Khudhair attended with her attorney, Trevor Smith (Tr. 29). Khudhair and vocational expert (VE) Tina Stambaugh testified at the hearing (Tr. 33-42, 42-46). Following the conclusion of the hearing, ALJ Pickett entered a hearing decision on May 17, 2013, that found Khudhair is not disabled for the purposes of the Social Security Act (Tr. 19-25).
In his adverse decision, ALJ Pickett made the following findings:
1. The claimant has not engaged in substantial gainful activity since Feb. 17, 2012, the alleged onset date (20 C.F.R. 416.971, et seq. ).
2. The claimant has the following severe impairments: affective disorder and anxiety disorder (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, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work in all exertional levels but with the following limitations: low stress, routine and repetitive tasks with no strict production quotas in a task-oriented environment. The work involves occasional contact with supervisors and co-workers, and no contact with the general public. It also involves occasional reaching overhead bilaterally and frequent, but not constant, handling, fingering and feeling with the left non-dominant hand.
5. The claimant has no past relevant work (20 C.F.R. 416.965).
6. The claimant was born on May 15, 1964, and was 47-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 is not able to communicate in English, and is considered in the same way as an individual who is illiterate in English (20 C.F.R. 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant works (20 C.F.R. 416.968).
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)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since Feb. 17, 2012, the date the application was filed (20 C.F.R. 416.920(g)).
Khudhair sought review of the hearing decision by the Appeals Council (Tr. 7-13, 14-15). The Appeals Council denied her request for review, finding no reason under the Rules to review ALJ Pickett'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 ).
Issues for Review.
Plaintiff, Hanaa Khudhair, is a 50-year-old married woman, who emigrated with her husband and four of her five children from Iraq to the United States in 2011 (Tr. 32). Since her arrival, Khudhair has sought treatment for anxiety, depression, memory difficulties, insomnia and flashbacks, all related to post-traumatic distress disorder caused by her witnessing the murder of her parents and brother in Iraq in 1984 (Tr. 32, 34, 270). Khudhair has been treated for her psychiatric problems on five occasions by Dr. Paul Kensicki of the University of Louisville Psychiatric Associates (Tr. 224-245). Dr. Kensicki has offered his opinion that due to the symptoms associated with her PTSD Khudhair is disabled and unable to work (Tr. 224, 245, 274-75).
Khudhair testified at the hearing that her psychiatric problems, along with her neck and back pain, are her primary medical issues (Tr. 34). She related that her psychiatric problems with depression, anxiety and PTSD began after she witnessed the murder of her parents and brother during an incident in which she was shot as well (Id.). As a result, she experiences nightmares, flashbacks and anxiety attacks. These flashbacks and anxiety attacks occur approximately 3-4 times per week and last approximately an hour on each occasion (Tr. 35). She also experiences difficulty sleeping, problems with her memory and concentration that interfere with her ability to function in the home (Tr. ...