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Moore v. Berryhill

United States District Court, W.D. Kentucky, Owensboro Division

March 14, 2018

CARL E. MOORE 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 Carl E. Moore ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 12) and Defendant (DN 13) have filed a Fact and Law Summary. For the reasons that follow, the final decision of the Commissioner is reversed and this matter is remanded to the Commissioner for further proceedings.

         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 10). By Order entered October 5, 2017 (DN 11), 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 Disability Insurance Benefits and Supplemental Security Income on March 5, 2014[1] (Tr. 206, 210). Plaintiff alleged that he became disabled on July 1, 2011 as a result of Left ankle fusion, learning disability, and a cataract in his left eye (Tr. 209, 235). Administrative Law Judge Marci P. Eaton ("ALJ") conducted a video hearing from Paducah, Kentucky on March 15, 2016 (Tr. 39). Plaintiff and his attorney, Sara Martin, participated from Owensboro, Kentucky (Tr. 39-41). Stephanie Barnes, a vocational expert, participated by telephone (Id.).

         In a decision dated May 9, 2016, the ALJ concluded that Plaintiff was not disabled prior to April 1, 2015, but he became disabled on that date and has continued to be disabled through the date of the decision (Tr. 20). Notably, with regard to Plaintiffs DIB claim, the ALJ found that he was not under a disability within the meaning of the Social Security Act at any time through December 31, 2014, his date last insured (Tr. 22, 31).

         The ALJ evaluated Plaintiffs adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 20-31). At the first step in the sequential evaluation process, the ALJ found Plaintiff has not engaged in substantial gainful activity since the alleged onset date (Id.). At the second step, the ALJ determined that Plaintiff had the following "severe" impairments: left cataract and status post left ankle fusion (Id.). The ALJ also determined that Plaintiffs purported diabetes, gastroesophageal reflux disease/Barrett's esophagus, hyperlipidemia, migraine headaches, obesity, learning disorder, and left wrist impairment are "non-severe" impairments (Tr. 23-25). 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. 25).

         At the fourth step, the ALJ made the following finding:

After careful consideration of the entire record, the undersigned finds that since July 1, 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: he can occasionally climb ramps or stairs; he should never climb ladders, ropes, or scaffolds; he can occasionally stoop, kneel, crouch, or crawl; he should avoid concentrated exposure to extreme cold or extreme heat; he should avoid concentrated exposure to wetness or humidity; and he should avoid concentrated exposure to vibrating equipment, moving machinery, and unprotected heights.

(Tr. 25). Relying on testimony from the vocational expert, the ALJ found since July 1, 2011, Plaintiff has been unable to perform any of his past relevant work (Tr. 29).

         The ALJ proceeded to the fifth step where she determined that prior to April 1, 2015, Plaintiff was an individual closely approaching advanced age (Tr. 29). The ALJ noted that on April 1, 2015, Plaintiffs age category changed to an individual of advanced age (Id.). The ALJ found that Plaintiff had a limited education and was able to communicate in English (Tr. 30). The ALJ determined that prior to April 1, 2015, transferability of job skills was not material to the determination of disability and that after that date Plaintiff had not been able to transfer job skills to other occupations (Id.).

         Relying on testimony from the vocational expert, the ALJ found that prior to April 1, 2015, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed, considering his age, education, work experience, and residual functional capacity (Id.). The ALJ also found that beginning on April 1, 2015, there were not a significant number of jobs that existed in the national economy (Tr. 31). Therefore, the ALJ concluded that Plaintiff was not disabled prior to April 1, 2015, but became disabled on that date and has continued to be disabled through the date of the decision, May 9, 2016 (Id.).

         Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision. The Appeals Council denied Plaintiffs request for review of the ALJ's decision (Tr. 1-5).

         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 Plaintiffs request for review of the ALJ's decision (Tr. 1-5). 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 number of jobs in the national economy?

         Here, at the fifth step, the ALJ found that Plaintiff was not disabled prior to April 1, 2015, but became disabled on that date.

         Challenged Findings

         Although not expressly stated, the five arguments set forth in Plaintiffs memorandum suggest that he is either directly or indirectly challenging Finding Nos. 3, 5, 10, 12, and 13 (DN 12; DN 12-1 PageID # 627-39). One argument takes issue with the ALJ's finding that Plaintiffs learning disability is a non-severe impairment (Id.). Three arguments dispute whether substantial evidence supports the ALJ's residual functional capacity assessment ("RFC") (DN 12-1 PageID # 627-39). And, a fifth argument questions whether substantial evidence supports the ALJ's finding that jobs existed in significant numbers in the national economy (Id.). Plaintiff believes the ALJ should have found he became disabled on July 1, 2011 (Id.).

         A.

         The Court will begin by addressing Plaintiffs fourth argument (DN 12). It challenges Finding No. 3 which pertains to the second step in the five step sequential evaluation process. Specifically, Plaintiff disagrees with the ALJ's determination that Plaintiff s learning disorder is a non-severe impairment (Tr. 22-24, Finding No. 3). In connection with this determination, the ALJ gave "great weight" to the opinions of the non-examining state agency psychologists, Lea Perritt, Ph.D., and Laura Cutler, Ph.D., who reviewed the record on May 28, 2014 and September 15, 2014, respectively (Id.). They both opined that Plaintiff did not have a medically determinable mental impairment (Tr. 24, citing Tr. 72-76, 98-102).

         Plaintiff argues substantial evidence in the record does not support the ALJ's decision to give "great weight" to the opinions of Drs. Peritt and Cutler (DN 12-1 PageID # 636-37). Plaintiff is asserting the ALJ should have ordered a consultative psychological examination to develop the record regarding his IQ and intellectual abilities before the ALJ decided how much weight to assign to the opinions of Drs. Peritt and Cutler (Id.).

         Defendant argues that Plaintiff, not the ALJ, had the burden of developing the record regarding the learning disorder (DN 13 PageID # 642-44). Further, the ALJ was not obligated to order a consultative psychological examination merely because Plaintiff claims that he has a learning disability (Id.).

         The Court notes that Plaintiff has not cited any authority in support of his position that the ALJ should have ordered a consultative psychological evaluation to develop the record regarding his IQ and intellectual abilities. In special circumstances, where a claimant is not represented by counsel during the administrative proceeding, the Administrative Law Judge has a special duty to ensure that a full and fair administrative record is developed. See Tranddafir v. Comm'r of Soc. Sec, 58 Fed.Appx. 113, 115 (6th Cir. 2003); Duncan v. Sec'y Health & Human Servs., 801 F.2d 847, 856 (6th Cir. 1986); Lashley v. Sec'y of Health & Human Servs., 708 F.2d 1048, 1051-52 (6th Cir. 1983). However, there are no special circumstances here because counsel represented Plaintiff during the administrative proceeding.

         At the second step, the claimant has the burden of demonstrating that he has a "severe" impairment. 20 C.F.R. §§ 404.1520(a)(4)(h), 416.920(a)(4)(ii); Higgs v. Bowen,880 F.2d 860, 863 (6th Cir. 1988) (per curiam). To satisfy this burden, the claimant must show he suffers from a "medically determinable" physical or mental condition that satisfies the duration requirement (20 C.F.R. §§ 404.1509, 416.909) and "significantly limits" his ability to do one or more basic work activities. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c), 416.920(a)(4)(ii) and (c); Social Security Ruling 96-3p; Social Security Ruling 96-4p; Higgs, 880 F.2d at 863. Notably, the claimant must present objective medical evidence (i.e., signs, symptoms, and laboratory findings) that demonstrates the existence of a physical or mental impairment to satisfy the "medically determinable" requirement. 20 C.F.R. ยงยง 416.908; Social Security Ruling 96-4p, 1996 WL 374187, at *1; Social Security Ruling 96-3p, 1996 WL ...


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