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Hines v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, London

May 10, 2018

DONNA P. HINES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION & ORDER

          HANLY A. INGRAM UNITED STATES MAGISTRATE JUDGE

         I. Procedural History and ALJ Decision

         On April 30, 2014, Plaintiff Donna Hines protectively filed a Title II application for disability insurance benefits and a Title XVI application for supplemental security income. D.E. 11-1 at 102, 115, 116.[1] The Social Security Administration denied the claims initially and upon reconsideration. Id. at 113, 129. On September 10, 2014, Plaintiff requested a hearing, which occurred in Lexington, Kentucky, on January 6, 2016. Id. at 38, 145, 160. Administrative Law Judge (“ALJ”) Davida H. Isaacs heard testimony from an impartial vocational expert (“VE”), Joyce P. Forrest, and from Plaintiff, who was represented by counsel. Id. at 39, 195, 310.

         Under 20 C.F.R. §§ 404.1520 and 416.920, the ALJ conducts a five-step analysis to evaluate a disability claim.[2] The ALJ followed these procedures in this case. See D.E. 11-1 at 22-32.

         At the first step, if a claimant is working at a substantial gainful activity, she is not disabled. 20 C.F.R. § 404.1520(b). In this case, the ALJ found that Plaintiff “has not engaged in substantial gainful activity since January 2, 2013, the alleged onset date.” D.E. 11-1 at 24.

         At the second step, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). The ALJ found that Plaintiff did suffer the following significant impairments: “obstructive sleep apnea (OSA), osteoarthritis, and plantar fasciitis.” D.E. 11-1 at 24. The ALJ found that Plaintiff did not have severe liver disease or a severe mental impairment. Id. at 25.

         At the third step, if a claimant's impairments meet the duration requirement and meet or equal the listings in 20 C.F.R. Part 404, Subpart P, Appendix 1, then she is disabled. 20 C.F.R. § 404.1520(d). The ALJ found Plaintiff failed to meet this standard. D.E. 11-1 at 27.

         If, as here, a claimant is not found disabled at step three, the ALJ must determine the claimant's Residual Functional Capacity (“RFC”), which is the most work she can do despite her limitations. 20 C.F.R. §§ 404.1520(e), 1545(a)(1). The ALJ determined that Plaintiff had the RFC

[T]o perform light work as defined in 20 CFR 404.1567(b) except the claimant can never climb ladders, ropes or scaffolds and can no more than occasionally climb ramps and stairs, stoop, kneel, crouch, crawl, or push/pull/handle objects with the non-dominant left hand. The claimant cannot perform any overhead reaching with the right, dominant arm. The claimant must avoid more than frequent exposure to wetness/humidity and avoid more than occasional exposure to vibrations from machinery or hand tools. The claimant will require one extra bathroom break per day for a total of five minutes.

         D.E. 11-1 at 27. Plaintiff argues that the RFC is not supported by substantial evidence because the ALJ failed to properly consider her depression and obesity and erred in weighing opinion evidence when formulating the RFC. D.E. 13-1.

         At the fourth step, if a claimant's impairments do not prevent her from doing past relevant work (given the ALJ's assessment of her residual functional capacity), she is not disabled. 20 C.F.R. § 404.1520(f). The ALJ found that Plaintiff did not meet this standard because she was able to perform her past relevant work as a tour guide as it is generally performed. D.E. 11-1 at 30.

         At the fifth step, if a claimant's impairments (considering her RFC, age, education, and past work) do not prevent her from doing other work that exists in the national economy, she is not disabled. 20 C.F.R. § 404.1520(g). Although the ALJ found that Plaintiff was able to perform her past relevant work, she proceeded to step 5 and made an alternative finding that, based on Plaintiff's RFC, age, education, and past work, “there are other jobs that exist in significant numbers in the national economy that [Plaintiff] also can perform.” D.E. 11-1 at 31. The ALJ explained that she asked the VE at the hearing “whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity.” Id. She accepted the VE's testimony that Plaintiff could perform the requirements of representative occupations such as office helper and inspector/tester. Plaintiff was therefore “not disabled” as defined by the regulations. Id.

         Accordingly, on March 10, 2016, the ALJ issued her decision, finding that Plaintiff was not disabled, and was therefore ineligible for disability insurance benefits and supplemental security income. Id. at 31-32. The Appeals Council denied Plaintiff's request for review on April 18, 2017. Id. at 5.

         On June 20, 2017, Plaintiff initiated this civil action under 42 U.S.C. §§ 405(g) and 1383(c) to obtain judicial review of the ALJ's decision denying her application for disability insurance benefits. D.E. 2. Defendant, the Commissioner of Social Security (“the Commissioner”), filed an answer on September 8, 2017. D.E. 11. On November 7, 2017, Plaintiff filed a motion for judgment on the pleadings. D.E. 13. Plaintiff argues that the RFC is not supported by substantial evidence because the ALJ made multiple errors when formulating it, and that these harmful errors warrant remand. D.E. 13-1. First, Plaintiff argues that the ALJ failed to consider her depression when formulating the RFC, despite being required under the regulations to do so. Id. at 8. Consideration of her depression, Plaintiff argues, would have reduced the number of jobs available to her. Id. at 11. Second, Plaintiff argues that the ALJ erred when she gave Dr. Thomas Howard's opinion less weight because he was an examining physician, saw Plaintiff the same amount as the consultative examiner, and provided treatment notes consistent with the record. Id. at 12. Giving Dr. Howard's opinion greater weight, Plaintiff argues, would have put her at sedentary work and, consequently, would have resulted in a finding of disability under the regulations. Id. Third, Plaintiff argues that the ALJ failed to mention or consider her obesity when formulating the RFC, and therefore the opinion was unsupported by substantial evidence and warrants remand. Id. at 13-14. Commissioner responded, and also moved for summary judgment. D.E. 17.

         On November 14, 2017, the parties filed a joint motion, consenting to have the undersigned “conduct all proceedings in this case including trial, the entry of final judgment, and all post-trial proceedings.” D.E. 14. District Judge Van Tatenhove referred the matter to the undersigned “to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73.” D.E. 16.

         II. Framework for Judicial Review

         The Social Security Act defines “disability” as “the ‘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.'” Sorrell v. Comm'r of Soc. Sec., 656 Fed.Appx. 162, 169 (6th Cir. 2016) (quoting 42 U.S.C. § 423(d)(1)(A)). The burden is on Plaintiff to prove that she is disabled within the meaning of the regulations. Hernandez v. Comm'r of Soc. Sec., 644 Fed.Appx. 468, 473 (6th Cir. 2016) (citing Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010)). Judicial review of the denial of a claim for Social Security benefits is limited to determining whether the ALJ's findings are supported by substantial evidence and whether the correct legal standards were applied. Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). “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) (internal quotation marks and citations omitted). The substantial evidence standard “presupposes that there is a zone of choice within which the decisionmakers can go either way, without interference by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

         In determining the existence of substantial evidence, courts must examine the record as a whole. Id. at 545. However, courts are not to conduct a de novo review, resolve conflicts in evidence, or make credibility determinations. Bradley v. Sec'y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, if the “evidence could reasonably support the conclusion reached[, ]” then the ALJ's decision must stand, even if the evidence could also support another conclusion. Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).

         Disability determinations often hinge on the claimant's credibility. The ALJ must consider statements or reports from the claimant. 20 C.F.R. § 404.1529(a). To determine whether statements of a claimant are credible, the following two-part test is used:

First, the ALJ will ask whether [ ] there is an underlying medically determinable physical impairment that could reasonably be expected to produce the claimant's symptoms. Second, if the ALJ finds that such an impairment exists, then he must evaluate the intensity, persistence, and limiting effects of the symptoms on the individual's ability to do basic work activities.

         Rogers, 486 F.3d at 247 (citing 20 C.F.R. § 416.929(a) (internal citations omitted).[3] It is within the province of the ALJ, rather than the reviewing court, to evaluate the credibility of witnesses, including the claimant. Id. Even so, the credibility determinations ...


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