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Briscoe v. Berryhill

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

July 6, 2017

RICHARD BRISCOE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge

         Richard Briscoe seeks judicial review of an administrative decision of the Commissioner of Social Security, which denied Briscoe's application for a period of disability and disability insurance benefits (DIB) under Title II of the Social Security Act. [R. 1.] Mr. Briscoe brings this action pursuant to 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g), 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. Briscoe's Motion for Summary Judgment [R. 10] and will GRANT the Commissioner's [R. 13.]

         I

         A

         Plaintiff Richard Briscoe filed a Title II application for a period of disability and disability insurance benefits (“DIB”) alleging disability beginning March 4, 2013. [Transcript (hereinafter, “Tr.”) 16.] Mr. Briscoe's motion for summary judgment explains that Briscoe suffers from, among other things, severe back pain, a cartilage tear in his right knee, disc extrusion at ¶ 5-S1, left hip locking sensation and radiation of back pain to the leg and hip, sporadic falling in part because his left leg “give[s] out, ” and obesity. [R. 10-1 at 2-5.] Briscoe's claim for a period of disability and DIB was denied on August 5, 2013, and upon reconsideration on October 14, 2013. [Tr. 16.] Briscoe then requested a hearing that was held in January 2015 before Administrative Law Judge Robert B. Bowling. [Id.] Following the hearing, the ALJ issued a final decision denying Briscoe's application for a period of disability and disability insurance benefits. [Tr. 16-29.]

         B

         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. Briscoe met the insured status requirements of the Social Security Act through December 31, 2018. [Tr. 18.] Then, at step one, the ALJ found Briscoe had not engaged in substantial gainful activity since March 4, 2013, the alleged onset date. [Tr. 18.] The claimant did receive pay after the alleged onset date but these earnings were for vacation pay and not for labor or services provided by Briscoe. [Id.] At step two, the ALJ found that Briscoe suffered from severe impairments of “disorders of the spine and joints and obesity.” [Tr. 18; see also 20 CFR 404.1520(c).] At step three, the ALJ determined Briscoe'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. 19.] Before moving onto step four, the ALJ considered the entire record and determined Briscoe 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

[H]e can stand and walk for only two hours total in an eight hour workday; can sit for only six hours total in an eight hour workday; would require a sit or stand option on a 30 minute basis; can only occasionally push and pull with the bilateral lower extremities; can only occasionally operate foot controls with the bilateral lower extremities; can never climb ladders, ropes, or scaffolds; can only occasionally climb ramps or stairs; can only occasionally stoop, kneel, crouch, and craw; should avoid concentrated exposure to extreme colds, wetness, or humidity; should avoid even moderate exposure to vibration; and should avoid all exposure to the use of moving machinery and unprotected heights.

[Tr. 20.]

         After explaining how he determined Briscoe's RFC [Tr. 20-27], the ALJ found at step four that, based on this RFC, Briscoe is unable to perform any past relevant work. [Tr. 27.] A vocational expert considered Mr. Briscoe's RFC and the additional environmental and postural limitations imposed by the ALJ, and testified that claimant could perform “occupations at the sedentary level of exertion.” [Tr. 28.] The ALJ found that jobs “exist in significant numbers in the national economy that the claimant can perform” after the vocational expert identified qualifying jobs such as “production helper . . . information clerk . . . and call-out operator.” [Id.] Accordingly, the ALJ concluded that Mr. Briscoe is “not disabled” and that he had not been “under a disability, as defined in the Social Security Act, from March 4, 2013, through the date of this decision.” [Tr. 29.] The Appeals Council denied Briscoe's request for review of the ALJ's unfavorable decision. [Tr. 1] Briscoe now seeks judicial review in this Court.

         C

         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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