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Rivera v. Berryhill

United States District Court, W.D. Kentucky, Bowling Green Division

November 27, 2017

PATRICIA RIVERA PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          H. BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE.

         BACKGROUND

         Before 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 the Commissioner.

         Pursuant 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 filed.

         FINDINGS OF FACT

         Plaintiff 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. Kristal-Turetzky (Id.).

         In a 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 (Id.).

         At the 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).

         Plaintiff 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 (Tr. 22-24).

         CONCLUSIONS OF LAW

         Standard of Review

         Review 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)).

         As 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 Cir. 1993).

         The Commissioner's Sequential Evaluation Process

         The 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).

         The 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 follows:

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 Appendix 1?
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 ...

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