United States District Court, W.D. Kentucky, Bowling Green Division
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE.
the Court is the pro se complaint (DN 1) of Patricia
Rivera (“Plaintiff”) seeking judicial review of
the final decision of the Commissioner pursuant to 42 U.S.C.
§ 405(g). Both the Plaintiff, proceeding pro se
(DN 23), and Defendant (DN 24) have filed a Fact and Law
Summary. For the reasons that follow, judgment is granted for
to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties
have consented to the undersigned United States Magistrate
Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of
judgment, with direct review by the Sixth Circuit Court of
Appeals in the event an appeal is filed (DN 13). By Order
entered November 15, 2016 (DN 18), the parties were notified
that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was
protectively filed an application for Disability Insurance
benefits on January 19, 2012 (Tr. 46, 154). Plaintiff alleged
that she became disabled on August 31, 2011 as a result of
the following conditions: fibromyalgia, partial hearing loss,
migraines, brain aneurysm, sleep apnea, asthma, cataracts,
pain in the left leg and hip, gallstones, and tinnitus (Tr.
169). Administrative Law Judge Nancy Lisewski
(“ALJ”) conducted a hearing on April 11, 2013 in
Philadelphia, Pennsylvania (Tr. 46). Plaintiff was present
and represented by attorney Ayala O'Brien (Id.).
Also present and testifying was Ms. Sherry L.
decision dated May 1, 2013 the ALJ noted that Plaintiff's
insured status under the Social Security Act expired on
September 30, 2012 (Tr. 48, 54). The ALJ evaluated
Plaintiff's adult disability claim pursuant to the
five-step sequential evaluation process promulgated by the
Commissioner (Tr. 46-54). At the first step, the ALJ found
Plaintiff has not engaged in substantial gainful activity
since August 31, 2011, the alleged onset date (Tr. 48). At
the second step, the ALJ determined that Plaintiff has the
following severe impairments: migraine headaches,
fibromyalgia, obesity, mild sleep apnea, Achilles tendinitis,
and a foot impairment including a fractured toe
(Id.). Additionally, the ALJ determined that
Plaintiff failed to demonstrate that her alleged hearing loss
is a medically determinable impairment (Id.). At the
third step, the ALJ concluded that Plaintiff does not have an
impairment or combination of impairments that meets or
medically equals one of the listed impairments in Appendix 1
fourth step, the ALJ found that, through the date last
insured, Plaintiff has the residual functional capacity to
perform light work as defined in 20 C.F.R. § 404.1567(b)
except she cannot have concentrated exposure to loud noise
(Tr. 51). Relying on testimony from the vocational expert,
the ALJ found that Plaintiff is capable of performing her
past relevant work as a cashier (Tr. 53). Therefore, the ALJ
concluded that Plaintiff has not been under a
“disability, ” as defined in the Social Security
Act, from August 31, 2011 through September 30, 2012, the
date last insured (Tr. 54).
filed a request for the Appeals Council to review the
ALJ's decision (Tr. 26). The Appeals Council denied
Plaintiff's request for review of the ALJ's decision
by the Court is limited to determining whether the findings
set forth in the final decision of the Commissioner are
supported by “substantial evidence, ” 42 U.S.C.
§ 405(g); Cotton v. Sullivan, 2 F.3d 692, 695
(6th Cir. 1993); Wyatt v. Sec'y of Health & Human
Servs., 974 F.2d 680, 683 (6th Cir. 1992), and whether
the correct legal standards were applied. Landsaw v.
Sec'y of Health & Human Servs., 803 F.2d 211,
213 (6th Cir. 1986). “Substantial evidence exists when
a reasonable mind could accept the evidence as adequate to
support the challenged conclusion, even if that evidence
could support a decision the other way.”
Cotton, 2 F.3d at 695 (quoting Casey v.
Sec'y of Health & Human Servs., 987 F.2d 1230,
1233 (6th Cir. 1993)). In reviewing a case for substantial
evidence, the Court “may not try the case de
novo, nor resolve conflicts in evidence, nor decide
questions of credibility.” Cohen v. Sec'y of
Health & Human Servs., 964 F.2d 524, 528 (6th Cir.
1992) (quoting Garner v. Heckler, 745 F.2d 383, 387
(6th Cir. 1984)).
previously mentioned, the Appeals Council denied
Plaintiff's request for review of the ALJ's decision
(Tr. 22-24). At that point, the ALJ's decision became the
final decision of the Commissioner. 20 C.F.R. §§
404.955(b), 404.981, 422.210(a); see 42 U.S.C.
§ 405(h) (finality of the Commissioner's decision).
Thus, the Court will be reviewing the decision of the ALJ,
not the Appeals Council, and the evidence that was in the
administrative record when the ALJ rendered the decision. 42
U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v.
Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir.
1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th
Commissioner's Sequential Evaluation Process
Social Security Act authorizes payment of Disability
Insurance Benefits and Supplemental Security Income to
persons with disabilities. 42 U.S.C. §§ 401 et seq.
(Title II Disability Insurance Benefits), 1381 et seq. (Title
XVI Supplemental Security Income). The term
“disability” is defined as an
[I]nability to engage in any 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 twelve (12) months.
42 U.S.C. §§ 423(d)(1)(A) (Title II),
1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§
404.1505(a), 416.905(a); Barnhart v. Walton, 535
U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d
918, 923 (6th Cir. 1990).
Commissioner has promulgated regulations setting forth a
five-step sequential evaluation process for evaluating a
disability claim. See “Evaluation of
disability in general, ” 20 C.F.R. §§
404.1520, 416.920. In summary, the evaluation proceeds as
1) Is the claimant engaged in substantial gainful activity?
2) Does the claimant have a medically determinable impairment
or combination of impairments that satisfies the duration
requirement and significantly limits his or her ability to do
basic work activities?
3) Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
4) Does the claimant have the residual functional capacity to
return to his or her past relevant work?
5) Does the claimant's residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant ...