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Gentry v. Berryhill

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

February 12, 2018

TAMMY K. GENTRY 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 complaint (DN 1) of Plaintiff Tammy K. Gentry seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 18) and Defendant (DN 21) have filed a Fact and Law Summary.

         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 11). By Order entered May 26, 2017 (DN 12), 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 filed an application for Supplemental Security Income benefits on November 9, 2011 (Tr. 373). Plaintiff alleged that she became disabled on September 2, 2007 as a result of migraine headaches, difficulty with concentration/focus; back disorders; neuropathy, swelling, numbness, pain in extremities; chronic obstructive pulmonary disease and chronic bronchitis; high blood pressure; gastrointestinal problems, nausea, choking on food; history of Bell's Palsy; depression and anxiety; mood disorders; and difficulty sleeping, lack of energy and motivation (Tr. 431). Administrative Law Judge Susan Wakshul conducted a hearing on September 26, 2013 (Tr. 127). This hearing resulted in an unfavorable decision (Tr. 199). The Appeals Council remanded the matter for additional consideration in May of 2015 (Tr. 216). ALJ Susan Torres held a second video hearing from Baltimore, Maryland on October 26, 2015 (Tr. 89). Plaintiff was remotely present in Bowling Green, Kentucky and represented by attorney Charles Burchett. Also present and testifying was impartial vocational expert Deborah Bunn Durham.

         In a decision dated December 14, 2015, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 220-46). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since October 31, 2011, the application date (Tr. 225).[1] At the second step, the ALJ determined that Plaintiff's degenerative joint disease of the knees, status post multiple right knee surgeries, degenerative disc disease, osteoarthritis, chronic obstructive pulmonary disease, morbid obesity, diabetes mellitus, migraines, major depressive disorder, and history of methamphetamine dependence are “severe” impairments within the meaning of the regulations (Tr. 225). 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 (Tr. 226).

         At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform a reduced range of sedentary work (Tr. 229). More specifically, the ALJ assessed the following limitations:

[T]he claimant is limited to no more than occasional climbing of ramps and stairs. She must never climb ladders, ropes, or scaffolds. She can occasionally stoop, kneel, or crouch. She must never crawl. She can occasionally reach overhead with her right upper extremity. She must avoid concentrated exposure to vibration. She must avoid even moderate exposure to hazards such as heights and moving machinery. She requires the use of a cane for ambulation. She needs a sit/stand option every thirty minutes. She can understand, remember, and carry out simple instructions in an environment free of fast paced production requirements and involving only simple work-related decisions with few work place changes. She is limited to occasional interaction with the public.

(Tr. 229). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of her past relevant work as a certified nurse assistant and a hotel front desk clerk (Tr. 238).

         The ALJ proceeded to the fifth step where she considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 238-39). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 239). Therefore, the ALJ concluded that Plaintiff has not been under a “disability, ” as defined in the Social Security Act, from October 31, 2011 through the date of the decision (Tr. 239).

         Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 41). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1).

         CONCLUSIONS ...


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