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Thomas v. Berryhill

United States District Court, W.D. Kentucky, Louisville

July 20, 2017

NATHAN C. THOMAS PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          DAVE WHALIN, MAGISTRATE JUDGE.

         Plaintiff Nathan C. Thomas 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, while partially favorable to his applications for disability insurance benefits (DIB) and supplemental security income (SSI), rejected his alleged onset date of August 15, 2011 in favor of the significantly later date, May 1, 2015. Thomas applied for DIB and SSI on August 29, 2013, alleging that he was disabled as of August 15, 2011, due to heart problems and dyslexia (Tr.73, 193, 201). The Commissioner denied Thomas's claims on initial consideration (Tr. 67-92) and on reconsideration (Tr. 97-124). Thomas requested a hearing before an Administrative Law Judge (ALJ) (Tr. 149, 150-56).

         ALJ William C. Zuber conducted a hearing in Louisville, Kentucky, on June 2, 2015 (Tr. 32-64). Thomas attended with his attorney, Trevor Smith (Tr. 32). Thomas and vocational expert (VE) Robert Piper testified at the hearing (Tr. 37-59, 60-66). Following the conclusion of the hearing, ALJ Zuber entered a hearing decision on August 21, 2015 that found Thomas was disabled for the purposes of the Social Security Act as of May 1, 2015 (Tr. 18-26).

         In his adverse decision, ALJ Zuber made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2016.
2. The claimant has not engaged in substantial gainful activity since the alleged onset date (20 C.F.R. 404.1571, et seq. and 416.971, et seq.).
3. Since the alleged onset date of disability, August 15, 2011, the claimant has had the following severe impairments: chronic atrial fibrillation, hypertension, and learning disability (20 C.F.R. 404.1520(c) and 416.920(c)).
4. Since the alleged onset date of disability, August 15, 2011, the claimant has not had 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. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that since August 15, 2011, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that that [sic] he could only occasionally climb ramps and stairs. He could frequently stoop, crouch, crawl, and kneel. He could never climb ladders, ropes, and scaffolds. He cannot be exposed to dangerous machinery, unprotected heights, vibration or temperature extremes. He could do no more than occasional simple reading and writing.
6. Since August 15, 2011, the claimant is unable to perform any past relevant work (20 C.F.R. 404.1565 and 416.965).
7. Prior to the established disability onset date, the claimant was an individual closely approaching advanced age. Applying the age categories non-mechanically, and consideration the additional adversities in this case, on May 1, 2015, the claimant's age category changed to an individual of advanced age. (20 C.F.R. 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 C.F.R. 404.1564 and 416.964).
9. Prior to May 1, 2015, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferrable job skills. Beginning on May 1, 2015, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 C.F.R. Part 404, Subpart P, App. 2).
10. Prior to May 1, 2015, the date the claimant's age category changed, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 C.F.R. 404.1569, 404.1569(a), 416.969 and 416.969(a)).
11. Beginning on May 1, 2015, the date the claimant's age category changed, considering the claimant's age, education, work experience, and residual functional capacity, there are no jobs that exist in significant numbers in the national economy that the claimant could perform (20 CRF 404.1560(c), 404.1566, 416.960(c), and 416.966).
12. The claimant was not disabled prior to May 1, 2015 but became disabled on that date and has continued to be disabled through the date of this decision (20 CFR 404.1520(g) and 416.921(g))

(Tr. 20-26). Thomas sought review of the hearing decision by the Appeals Council (Tr. 11-13). The Appeals Council denied his request for review, finding no reason under the Rules to review ALJ Zuber'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 P 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 (6thCir. 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.

         Nathan Thomas is a 56 year-old, divorced, former forklift operator with a 10th grade education and a documented medical history of heart and learning problems. (TR 38-39, 193-194, 400-401). Thomas seeks judicial review of the decision of the Commissioner, a partially-favorable decision, that found him to be disabled as of May 1, 2015 pursuant to Medical-Vocational Rule 202.02. (TR 26). The Commissioner, however, rejected Thomas's claim that he became disabled nearly four years earlier on August 15, 2011 based on the determination that Thomas retained the residual functional capacity (RFC) to do a restricted range of light work that permitted him to perform such alternative jobs as hand packager, sorter or assembler prior to May 1, 2015. (TR 21-24, 60-61).

         Thomas in his Fact and Law Summary objects to findings of fact Nos. 3, 4, 9, 10, 11 and 12 of ALJ Zuber's hearing decision (TR 18-26). The ALJ determined in finding no. 3 that Thomas has severe impairments of chronic atrial fibrillation, hypertension and a learning disability. Thomas first argues that the ALJ without explanation failed to include among his severe impairments congestive heart failure (CHF). Thomas explains that he was first diagnosed with CHF during his hospitalization from October 30-to-November 5, 2012. (TR 329). Again in March 2014, following another hospital admission for shortness of breath and fatigue, Thomas received a secondary diagnosis of CHF, a diagnosis that Thomas ...


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