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Cromer v. Berryhill

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

May 2, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT


          David L. Bunning United States District Judge.

         Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of an administrative decision of the Commissioner of Social Security. The Court, having reviewed the record and for the reasons set forth herein, hereby affirms the decision of the Commissioner.


         Plaintiff filed an application for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) on August 16, 2012, alleging disability beginning December 31, 2011. (Tr. 15). Plaintiff's applications for SSI and DIB were denied on January 9, 2013. (Tr. 15). Plaintiff appealed, and her Request for Reconsideration was denied on April 16, 2013. (Tr. 15). Plaintiff then filed a Request for Hearing by Administrative Law Judge. (Tr. 15). On October 24, 2014, Administrative Law Judge (ALJ) Ronald M. Kayser ruled that Plaintiff was not entitled to DIB or SSI. (Tr. 15-26). The decision became final on April 7, 2016, when the Appeals Council denied review of Plaintiff's claim. (Tr. 1-6). On June 3, 2016, Plaintiff filed suit in this Court. (Doc. # 1). The parties then filed Cross-Motions for Summary Judgment, which are now ripe for review. (Docs. # 12 & 15).


         A. Overview of the Process

         Judicial review of the Commissioner's decision is restricted to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. See Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. See Cutlip, 25 F.3d at 286. Instead, the Court must affirm the Commissioner's decision if it is supported by substantial evidence even if the Court might have decided the case differently. See Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). However, “a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right, ” even if the decision is supported by substantial evidence. Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).

         The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers whether the claimant is still performing substantial gainful activity; Step 2, whether any of the claimant's impairments are “severe”; Step 3, whether the impairments meet or equal a listing in the Listing of Impairments; Step 4, whether the claimant can still perform his or her past relevant work; and Step 5, whether significant numbers of other jobs exist in the national economy that the claimant can perform. For the last step, the burden of proof shifts from the claimant to the Commissioner. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).

         B. The ALJ's Determination

         At Step 1, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her alleged onset date of December 31, 2011. (Tr. 18). At Step 2, the ALJ found that the Plaintiff had the following severe impairments: morbid obesity, fibromyalgia, inflammatory polyarthritis, degenerative disc disease, right shoulder pain status post surgery, and anxiety/affective disorders. (Tr. 18).

         At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments listed in, or medically equivalent to, 20 C.F.R. pt. 404, Subpt. P, App. 1. (Tr. 21). The ALJ reviewed Plaintiff's medical records and determined that there was no evidence to establish that she “is unable to ambulate effectively” under Listing 1.00B2b or that she has “extreme loss of function of both upper extremities” as in Listing 1.00B2c. (Tr. 21). In addition, the ALJ found that Plaintiff's fibromyalgia “fail[ed] to meet the criteria of any musculoskeletal listing” in Listing 1.00. (Tr. 22). The ALJ further found that Plaintiff did not meet the requirements for mental disorders under Listing 12 because “the evidence does not establish marked limitations on daily living, social functioning or concentration, persistence or pace and there are no repeated episodes of decompensation.” (Tr. 22).

         At Step 4, the ALJ concluded that Plaintiff has the residual functional capacity (RFC) to perform a reduced range of light work. (Tr. 22-24). Plaintiff's limitations include:

[S]tand/walk six hours out of eight and sit six hours out of eight; no limits on pushing and pulling up to the exertional limits; cannot climb rope, ladders or scaffolds but can frequently climb ramps and stairs; can occasionally balance, stoop, crouch, kneel or crawl; is occasionally able to reach overhead with the right upper extremity. She tested in the borderline intellectual functioning level with the ability to read on a high school level and has the ability to adequately perform skills in a work setting; can perform routine work tasks effectively over time; would work best in a job that did not require constant interaction with coworkers and supervisors[;] is able to adapt adequately to perform effectively within the work setting.

(Tr. 22). Additionally, the ALJ concluded that the Plaintiff is able to perform her past relevant work as an assembly worker and temporary laborer. (Tr. 24-25).

         Nevertheless, the ALJ proceeded to Step 5 and found that there were a significant number of jobs in the national economy that Plaintiff could perform. (Tr. 25-26). In making this conclusion, the ALJ consulted a vocational expert (VE) and inquired whether jobs existed in the national economy for an individual of claimant's age, education, work experience, and RFC. (Id.) The VE testified that Plaintiff could find work at the light exertional level as a machine attendant (3, 000 jobs in Kentucky, 206, 000 jobs nationally) and a non-hazardous security guard (4, 300 jobs in Kentucky, 330, 000 nationally). (Id.) The VE further listed a sedentary job with the same nonexertional limitation: surveillance monitor (1, 400 jobs in Kentucky, 109, 000 nationally). (Id.) Based on these findings, the ALJ concluded that Plaintiff was capable of adjusting to other work and therefore not under a disability, as defined in the Social Security Act. (Tr. 26).

         C. Analysis

         Plaintiff alleges three errors in the ALJ's determination. First, Plaintiff takes issue with the ALJ's credibility determination and claims that the ALJ did not consider the entire record and failed to give “specific or accurate reasons for rejecting” Plaintiff's allegations of various physical and mental impairments. Second, Plaintiff argues that the ALJ ignored the opinions and objective medical findings of Dr. Nold and Dr. Fishkoff, who conducted physical and psychological consultative evaluations of Plaintiff. Third, Plaintiff argues that the ALJ's opinion is not supported by substantial evidence. (Doc. # 14-1 at 7-15).[1]

         1. The ALJ did not err in assessing ...

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