United States District Court, W.D. Kentucky, Owensboro Division
CARL E. MOORE PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl United States Magistrate Judge
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
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 an application for Disability Insurance Benefits and
Supplemental Security Income on March 5, 2014 (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.).
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).
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).
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).
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
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.).
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).
Standard of 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)).
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
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).
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
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?
at the fifth step, the ALJ found that Plaintiff was not
disabled prior to April 1, 2015, but became disabled on that
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.).
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).
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.).
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
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.
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. §§
416.908; Social Security Ruling 96-4p, 1996 WL 374187, at *1;
Social Security Ruling 96-3p, 1996 WL ...