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Brewer v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, London

June 22, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Gregory F. Van Tatenhove United States District Judge.

         Keith Wayne Brewer seeks judicial review of an administrative decision of the Commissioner of Social Security, which denied Brewer's application for a period of disability and disability insurance benefits (DIB). Mr. Brewer brings this action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3), alleging various errors on the part of the ALJ considering the matter. The Court, having reviewed the record and for the reasons set forth herein will DENY Mr. Brewer's Motion for Summary Judgment [R. 15] and will GRANT the Commissioner's [R. 17.]



         Plaintiff Keith Wayne Brewer filed a Title II application for a period of disability and DIB in April 2013, alleging disability beginning on December 30, 2012. [Transcript (hereinafter, “Tr.”) 45.] Mr. Brewer's motion for summary judgment explains that Brewer suffers from, among other things, neck pain that originated from a workplace injury and degenerative discs at ¶ 4-C5, anxiety, chronic pain syndrome, elevated blood pressure, cervical strain, cervicalgia, central disc bulges at ¶ 3-C4, mild diffuse bulging annulus with small posterior marginal osteophytosis, hearing loss, and breathing difficulty resulting from his previous work as a coal miner. [See R. 15.] Brewer's claim for disability insurance benefits was denied in June 2013, and again upon reconsideration in July, 2013. [Tr. 45.] Brewer then requested a hearing that was held on January 14, 2015, before Administrative Law Judge Nicholas Walter. [Id.] Following the hearing, the ALJ issued a final decision denying Brewer's application for a period of disability and disability insurance benefits. [Tr. 45-55.]


         In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20 C.F.R. 404.1520.[1] First, if a claimant is performing a substantial gainful activity, he is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities, then he does not have a severe impairment and is not “disabled” as defined by the regulations. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he is “disabled.” 20 C.F.R. §404.1520(d). Before moving to the fourth step, the ALJ must use all the relevant evidence in the record to determine the claimant's residual functional capacity (RFC), which is an assessment of one's ability to perform certain physical and mental work activities on a sustained basis despite any impairment experienced by the individual. See 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545. Fourth, the ALJ must determine whether the clamant has the RFC to perform the requirements of his past relevant work, and if a claimant's impairments do not prevent him from doing past relevant work, he is not “disabled.” 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering his RFC, age, education, and past work) prevent him from doing other work that exists in the national economy, then he is “disabled.” § 404.1520(f).

         At the outset of this case, the ALJ determined that Mr. Brewer meets the insured status requirements of the Social Security Act through December 31, 2016. [Tr. 47; see also 20 C.F.R. § 404.131.] Then, at step one, the ALJ found Brewer had not engaged in substantial gainful activity since December 30, 2012, the alleged onset date. [R. 47.] There were some earnings during the first quarter of 2013, but the ALJ found that this was the result of an unsuccessful work attempt. [R. 47.] At step two, the ALJ found Brewer to suffer from severe impairments of degenerative cervical spine conditions, pneumoconiosis, and hearing loss. [Tr. 47.] At step three, the ALJ determined Brewer's combination of impairments did not meet or medically equal the severity of one of the listed impairments in 20 CFR Part 404 Subpart P, Appendix 1. [Tr.50.] Before moving on to step four, the ALJ considered the entire record and determined Brewer possessed the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with certain physical and environmental limitations described as follows:

[N]o more than occasional climbing ramps/stairs, pushing/pulling with the bilateral upper extremities, stooping, kneeling or crouching; he can never perform work involving overhead reaching, crawling, climbing ladders ropes or scaffolds, vibration, and unprotected heights or workplace hazards, extreme cold or hot temperatures, dust fumes, or other pulmonary irritants, and no loud noise.

[Tr. 51.] After explaining how he determined Brewer's RFC [Tr. 51-53], the ALJ found at step four that, based on this RFC, Brewer is unable to perform any past relevant work. [Tr. 53.] After considering Mr. Brewer's RFC and the additional environmental and postural limitations imposed by the ALJ, the vocational expert testified that claimant could perform unskilled light occupations “such as marker, retail . . . textile checker . . . and office helper.” [Tr. 54-55.] Jobs of this nature exist in significant numbers in the national economy. [Tr. 55.] The ALJ accepted the vocational expert's testimony and findings. [Id.] Accordingly, the ALJ concluded that Brewer could successfully adjust to other work and that Brewer “has not been under a disability, as defined in the Social Security Act, from December 30, 2012, through the date of” his decision on February 9, 2015. [Tr. 55.] The Appeals Council denied Brewer's request for review of the ALJ's unfavorable decision. [Tr. 36.] Brewer now seeks judicial review in this Court.


         The Court's review is generally limited to whether there is substantial evidence in the record to support the ALJ's decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). “Substantial evidence” is “more than a 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.” Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). The substantial evidence standard “presupposes that there is a zone of choice within which [administrative] decision makers can go either way, without interference by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

         To determine whether substantial evidence exists, courts must examine the record as a whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, a reviewing court may not conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); see also Bradley v. Sec'y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also ...

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