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Gray v. Berryhill

United States District Court, E.D. Kentucky, Central Division, Lexington

April 23, 2018

RONALD GRAY, PLAINTIFF,
v.
NANCY A. BERRYHILL, in her official capacity as the Acting Commissioner of the Social Security Administration, DEFENDANT.

          MEMORANDUM OPINION AND ORDER

          EDWARD B. ATKINS, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, Ronald Gray, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) to challenge Defendant Commissioner's final decision denying Plaintiff's application for Social Security Disability Insurance Benefits. [R. 1]. This matter has been referred to the undersigned to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. [R. 12; R. 13; R. 14]. The specific matters currently before this Court include Plaintiff's Motion for Judgment on the Pleadings [R. 15] and Defendant's responsive Motion for Summary Judgment [R. 18]. Both matters are now ripe for decision, and, for the reasons discussed below, Plaintiff's Motion for Judgment on the Pleadings [R. 15] will be granted, and Defendant's Motion for Summary Judgment [R. 18] will be denied. Accordingly, the Court will reverse the Defendant Commissioner's decision to deny Plaintiff's disability claim and remand this matter for further administrative proceedings in accordance with this order.

         FACTUAL AND PROCEDURAL BACKGROUND

         On June 9, 2014, Plaintiff filed a Title II application for a period of disability and disability insurance benefits. [R. 10-1, at 81]. On November 19, 2014, Plaintiff's claim was denied for the first time. Id. On April 8, 2015, Plaintiff's claim was denied for the second time. Id. On August 1, 2016, an additional hearing was held. Id. On September 23, 2016, Plaintiff's claim was denied for the third time. Id. at 81-91. Plaintiff then filed an administrative appeal; however, on July 19, 2017, the Appeals Council denied Plaintiff's request for review. Id. at 4. Having exhausted his administrative remedies, on September 20, 2017, Plaintiff sought review through an action in this Court. [R. 1].

         On January 22, 2018, pursuant to Federal Rule of Civil Procedure 12(c), Plaintiff filed the present Motion for Judgment on the Pleadings [R. 15], with an accompanying Memorandum in Support [R. 16], arguing the following:

1. The [Administrative Law Judge (“ALJ”)] erred by failing to include mental limitations in the RFC, despite acknowledging that Plaintiff suffers from depression and anxiety. The ALJ further erred by improperly discounting the opinion of consultative examiner, Dr. [Robert W.] Genthner, without proper evaluation.
2. The Step 4 determination is not supported by substantial evidence because the ALJ relied on Vocational Expert testimony elicited in response to an incomplete hypothetical question.

[R. 15, at 1; R. 16, at 1].

         Responding to Plaintiff's Motion for Judgment on the Pleadings [R. 15], on February 21, 2018, Defendant filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56(a) [R. 18] arguing, in summary, “The ALJ properly evaluated the total record in determining the extent of Plaintiff's severe impairments, in her RFC finding, and in finding that Plaintiff retained the capacity to perform past relevant work, with her decision being supported by substantial evidence.” [R. 18, at 8].

         JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT STANDARDS

         This action is now before this Court on the Parties' cross motions for summary judgment. [R. 15; R. 18]. While Plaintiff styled his Motion [R. 15] as one for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), if such a motion relies on matters outside the pleadings, as the Plaintiff's Motion [R. 15] does, “the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).

         STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), a reviewing court “must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standard or has made findings of fact unsupported by substantial evidence in the record.” Longworth v. Comm'r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (citations omitted). The scope of judicial review is limited to the record itself, and the reviewing court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.” Hogg v. Sullivan, 987 F.2d 328, 331 (6th Cir. 1993) (citations omitted).

         The Sixth Circuit has held that “substantial evidence exists when a reasonable mind might accept the relevant evidence as adequate to support a conclusion.” Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (citations omitted). The limited nature of substantial evidence review prevents the reviewing court from substituting its judgment for that of the ALJ. Rather, so long as substantial evidence exists, the reviewing court should affirm the ALJ's Decision [R. 10-1, at 81-91] “even if there is substantial evidence in the record that would have supported an opposite conclusion.” Longworth, 402 F.3d at 595 (citations omitted). Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citations omitted). “In determining whether the Secretary's factual findings are supported by substantial evidence, [the Court] must examine the evidence in the record ‘taken as a whole . . . .'” Wyatt v. Secretary of Health and Human Services, 974 F.2d 680, 683 (6th Cir. 1992) (citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980)). Additionally, the Court “‘must take into account whatever in the record fairly detracts from its weight.'” Wyatt, 974 F.3d at 683 (citing Beavers v. Secretary of Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978). “The substantial evidence standard presupposes that there is a ‘zone of choice' within which the [Commissioner] may proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994) (citations omitted). “If the Secretary's findings are supported by substantial evidence, then we must affirm the Secretary's decision even though as triers of fact we might have arrived at a different result.” Elkins v. Secretary of Health & Human Services, 658 F.2d 437, 439 (6th Cir. 1981).

         DISCUSSION

         Under the Social Security Act, the term “disability” means an “inability 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 12 months . . . .” 42 U.S.C. § 423(d)(1)(A). A five-step sequential evaluation process is used to determine whether a claimant is disabled. 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920. In summary, the five-step sequential evaluation process is as follows:

The first step is to determine whether the claimant is engaged in significant gainful activity. 20 C.F.R. § 416.920(b). If not, the second step is to determine whether the claimant has a severe impairment, which is “any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities.” § 416.920(c). If there is a severe impairment, the third step is to determine whether the impairment meets or exceeds the criteria of one of the listed impairments in Appendix 1. § 416.920(d). If the claimant does not satisfy one of the listings, the [fourth step] is to determine whether the claimant's impairment prevents him from performing his past relevant work. § 416.920(e). If it does not, the claimant is found not disabled. [At the fifth step, ] [i]f the impairment prevents a return to former work, the claimant's residual functional capacity must be determined, id., and it is then considered in conjunction with the claimant's age, work experience and education in order to ascertain whether the impairment or combination of impairments prevents the claimant from doing other work. § 416.920(f); see also Subpart P, Appendix 2, Tables 1-3.

Williamson v. Secretary of Health and Human Services, 796 F.2d 146, 149 (6th Cir. 1986); see also 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920.

         The claimant “bear[s] the burden at step one of showing that he is not working, at step two that he has a medically severe impairment or combination of impairments, and at step four that the impairment prevents him from performing his past work.” Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). “[T]he Secretary bears the burden of proof at step five, which determines whether the claimant is able to perform work available in the national economy.” Id.

         Since the Parties' cross motions for summary judgment [R. 15; R. 18] concern the same facts, the Court will consider the Parties' Motions [R. 15; R. 18] together. The issues before the Court are as follows: (1) whether the ALJ justifiably determined Plaintiff was not subject to a severe mental impairment; (2) whether the ALJ's Decision [R. 10-1, at 81-91] was supported by substantial evidence; and (3) whether the ALJ's reliance on vocational expert testimony was proper. [R. 16, at 7-15; R. 18, at 8-15]. Since the issues of whether the ALJ justifiably determined Plaintiff was not subject to a severe mental impairment and whether the ALJ's Decision [R. 10-1, at 81-91] was supported by substantial evidence are so closely related, the Court will consider them together. The issue of whether the ALJ's reliance on vocational expert testimony was proper will be considered separately.

         I. WHETHER THE ALJ JUSTIFIABLY DETERMINED PLAINTIFF WAS NOT SUBJECT TO A SEVERE MENTAL IMPAIRMENT AND WHETHER THE ALJ'S DECISION WAS SUPPORTED BY SUBSTANTIAL EVIDENCE

         Plaintiff argues his mental impairments are severe and should have been considered as such in the ALJ's step two and RFC Finding [R. 10-1, at 86]. [R. 16, at 10-14]. However, at step two, the ALJ determined “[Plaintiff] has the following severe impairments: degenerative disc disease, obesity and essential hypertension.” [R. 10-1, at 84 (citing 20 C.F.R. § 404.1520(c))]. “Once the ALJ determines that a claimant has at least one severe impairment, the ALJ must consider all impairments, severe and non-severe, in the remaining steps.” Pompa v. Commissioner of Social Sec., 73 Fed.Appx. 801, 803 (6th Cir. 2003) (citing 20 C.F.R. § 404.1545(e)). Since the ALJ found Plaintiff had multiple severe impairments at step two of the sequential evaluation process, “the question of whether ALJ characterized any other alleged impairment as severe or not severe is of little consequence.” Pompa, 73 Fed.Appx. at 803. Therefore, as Defendant correctly asserts, “[t]he finding of non-severity is not legally relevant because the ALJ went on to determine Plaintiff's RFC between steps three and four, and, at that point, was required to consider his severe impairments as well as impairments determined not severe.” [R. 18, at 9-10 (citing 20 C.F.R. § 404.1545(a)(2))].

         Pursuant to 20 C.F.R. § 404.1545(a)(2), “If [a claimant has] more than one impairment. [The ALJ] will consider all of [the claimant's] medically determinable impairments of which [the ALJ is] aware, including [the claimant's] medically determinable impairments that are not ‘severe, ' as explained in §§ 404.1520(c), 404.1521, and 404.1523, when [the ALJ] assess[es] [the claimant's] residual functional capacity.” Residual functional capacity (“RFC”) is a claimant's maximum work capacity considering all the relevant information and despite the claimant's physical and/or mental limitations. 20 C.F.R. § 416.945(a)(1); Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002). A claimant's RFC is to be determined by an ALJ considering all of the relevant medical and other evidence. 20 C.F.R. § 416.945(a)(3). Medical evidence is explicitly to be considered, 20 C.F.R. § 416.927, as is the supportability, 20 C.F.R. § 416.927(c)(3), and the consistency, 20 C.F.R. § 416.927(c)(4), of that evidence with the other evidence in the record. Thus, “[a] statement by a medical source that you are “disabled” or “unable to work” does not mean that we will determine that you are disabled.” 20 C.F.R. § 416.927(d)(1) (emphasis added). Final credibility determinations are generally left to the discretion of the ALJ. See Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007).

         Plaintiff argues that despite the ALJ acknowledging Plaintiff's limitations related to depression and anxiety in the ALJ's Decision [R. 10-1, at 81-91], “the ALJ did not account for them in formulating the RFC, because the ...


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