United States District Court, W.D. Kentucky, Louisville
NATHAN C. THOMAS PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER
WHALIN, MAGISTRATE JUDGE.
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).
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).
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
(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
Five-Step Sequential Evaluation Process.
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).
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).
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).
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.”
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).
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)
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
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