United States District Court, W.D. Kentucky, Owensboro Division
MICHAEL L. BLOODWORTH 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 Michael L. Bloodworm
("Plaintiff) seeking judicial review of the final
decision of the Commissioner pursuant to 42 U.S.C. §
405(g). Both the Plaintiff (DN 15) and Defendant (DN 22) 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, pursuant to sentence four of 42 U.S.C.
§ 405(g), to the Commissioner for further proceedings.
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 October 19, 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 an application for Disability Insurance Benefits on
August 6, 2014 (Tr. 201-02). Plaintiff alleged that he
became disabled on July 9, 2009, as a result of a plate and
screws in his left arm, right leg, and right arm (treatment
for injuries sustained in a motor vehicle accident);
anxiety/panic attacks; irritability; trouble sleeping at
regular times; and depression (Tr. 201, 218-19). On September
22, 2016, Administrative Law Judge Lisa R. Hall
("ALJ") conducted a video hearing from Paducah,
Kentucky (Tr. 35, 37). Plaintiff and her attorney, Sarah
Martin, participated from Madisonville, Kentucky
(Id.). James Adams, the testifying vocational
expert, was present in the hearing room in Paducah, Kentucky
decision dated February 23, 2017, the ALJ evaluated this
adult disability claim pursuant to the five-step sequential
evaluation process promulgated by the Commissioner (Tr.
18-30). The ALJ observed that Plaintiffs date last insured
was December 31, 2014 (Tr. 20). At the first step, the ALJ
found Plaintiff did not engage in substantial gainful
activity from November 7, 2010, the alleged onset date,
through December 31, 2014, his date last insured
(Id.). At the second step, the ALJ determined the
Plaintiff had the following severe impairments residuals of a
motor vehicle accident, depression, and anxiety
(Id.). 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. 20-21).
fourth step, the ALJ made the following determination:
After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the
claimant had the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b) except he should
never climb ladders, kneel or crawl. He can occasionally
engage in other postural activities. He can perform simple,
routine, repetitive tasks, meaning tasks which apply
commonsense understanding to carry out instructions furnished
in written, oral or diagrammatic form, with the ability to
deal with problems involving several concrete variables in or
from standardized situations. The claimant can frequently
interact with coworkers and supervisors, and occasionally
with the general public.
(Tr. 22). Relying on testimony from the vocational expert,
the ALJ found that Plaintiff is unable to perform any of his
past relevant work (Tr. 28).
proceeded to the fifth step where he considered Plaintiffs
residual functional capacity (RFC), age, education, and past
work experience as well as testimony from the vocational
expert (Tr. 29-30). The ALJ found that Plaintiff is capable
of performing a significant number of jobs that exist in the
national economy (Tr. 30). Therefore, the ALJ concluded that
Plaintiff has not been under a "disability, " as
defined in the Social Security Act, from November 7, 2010
through December 31, 2014, the date last insured
timely filed a request for the Appeals Council to review the
ALJ's decision (Tr. 198-200). The Appeals Council denied
Plaintiffs request for review of the ALJ's decision (Tr.
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. 1-4). 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 42U.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
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),
l382c(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 from November 7, 2010 through December 31, 2014.
fact and law summary and supporting memorandum set forth
challenges to Finding Nos. 3, 5, and 10 (DN 16; DN 16-1
PageID # 630-35). Plaintiff argues that Finding No. 3 fails
to recognize all of his severe physical impairments (DN 16-1
PageID # 630-31). Plaintiff challenges Finding No. 5 by
asserting that substantial evidence does not support these
underlying determinations: (1) Plaintiffs severe impairments
allow him to perform light work; (2) the medical opinion of
Dr. Cole is not entitled to great weight; and (3) Plaintiffs
statements regarding pain and other limitations are not fully
credible (Id. PageID # 631-33, 634-35). And finally,
Plaintiff contends Finding No. 10 is not supported by
substantial evidence because the vocational expert's
testimony is based on obsolete job descriptions from the
Dictionary of Occupational Titles (DOT) (Id. PageID
Court will begin by addressing Plaintiff s challenge to
Finding No. 3. Plaintiff asserts that as a result of the
motor vehicle accident he suffered a closed head injury,
bilateral rib fractures, pneumothorax (bruised lung),
pulmonary contusions, fracture of T12, L1 and L2 vertebrae,
hepatic contusion, open right wrist fracture, closed left
wrist fracture, and a right tibia plateau fracture (DN 15-1
PageID # 619-20). Further, he points out that he underwent
multiple surgeries and in-patient rehabilitation lasting
nearly a month (Id.). Plaintiff contends the ALJ
should have recognized these injuries or their resulting
conditions (chronic pain syndrome, neuropathy, post-traumatic
arthritis in his AC joint) and his hernia are severe
impairments (Id.). Instead, Finding No. 3 minimizes
them by characterizing them as "residuals" of a
motor vehicle accident (Id.).
points out that the ALJ thoroughly discussed the injuries
Plaintiff sustained in the motor vehicle accident as well as
the surgeries and rehabilitation he underwent (DN 22 PageID #
649-51, citing Tr. 22). Therefore, argues Defendant,
Plaintiff has not demonstrated that the ALJ ignored his
impairments, and has not shown that the ALJ committed any
error by failing to identify each injury separately
(Id.). Further, Defendant asserts that the failure
to designate each of Plaintiffs impairments severe is a
harmless error because the ALJ considered the functional
limitations resulting from all of the impairments in
assessing Plaintiffs residual functional capacity (RFC)
second step in the sequential evaluation process a claimant
must demonstrate he has a "severe" impairment. 20
C.F.R. §§ 404.1520(a)(4)(ii), 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.
satisfy the "medically determinable" requirement
the claimant must present objective medical evidence (i.e.,
signs, symptoms, and laboratory findings) that demonstrates
the existence of a physical or mental impairment. 20 C.F.R.
§ 416.908; Social Security Ruling 96-4p, 1996 WL 374187,
at *1; Social Security Ruling 96-3p, 1996 WL 374181, at *2.
To fulfill the "duration" requirement the
impairment "must have lasted or must be expected to last
for a continuous period of at least 12 months." 20
C.F.R. § 416.909.
to Plaintiffs assertion, the ALJ recognized the
injuries/conditions caused by the motor vehicle accident and
the diagnosis of midline ventral hernia (Tr. 22-25, 454).
There appears to be no dispute that the accident related
injuries/conditions and the hernia diagnosis satisfy the
medically determinable requirement. Further, the medical
evidence indicates the hernia and some but not all of the
accident related injuries/conditions satisfy the duration and
severity requirements. More importantly, the ALJ's use of
the phrase "residuals of a motor vehicle accident"
in Finding No. 3 has not harmed Plaintiff because the ALJ
specifically discussed those injuries/conditions and
considered the functional limitations resulting therefrom in
assessing Plaintiffs RFC (Tr. 22-28). Further, the ALJ's
failure to find Plaintiffs hernia is a severe impairment is
also harmless because the ALJ considered the functional
limitations it caused in assessing Plaintiffs RFC
(Id.)- See Maziarz v. Sec'y of Health &
Human Servs, 837 F.2d 240, 244 (6th Cir. 1987) (So long
as an Administrative Law Judge finds that other impairments
are severe, continues on with the sequential evaluation
process, and considers all of a claimant's impairments in
the remaining steps, the error is harmless.).
Court will now address Plaintiff s three challenges to the
RFC set forth in Finding No. 5. The RFC is an Administrative
Law Judge's ultimate determination of what a claimant can
still do despite his physical and mental limitations. 20
C.F.R. §§ 404.1545(a), 404.1546. An Administrative
Law Judge makes this assessment based on a consideration of
medical source statements and all other evidence in the case
record. 20 C.F.R. §§ 404.1529, 404.1545(a),
404.1546; Social Security Ruling 96-5p; Social Security
Ruling 96-7p. Thus, in making the RFC, an Administrative Law
Judge must necessarily assign weight to the medical source
statements in the record and consider the subjective
allegations of the claimant and make credibility findings. 20
C.F.R. §§ 404.1527(c), 404.1529; Social Security
Assignment of Weight to Dr. Cole's Opinion
argues the ALJ's assignment of weight to the medical
opinion of his treating physician, Dr. Cole, is not supported
by substantial evidence (DN 15-1 PageID # 623). Plaintiff
contends the ALJ should have assigned great weight to Dr.
Cole's opinion because the limitations expressed therein
are consistent with the evidence in the record
(Id.). Plaintiff also asserts that the ALJ failed to
provide a sufficient explanation for affording no weight to
Dr. Cole's opinion (Id.).
points out that the ALJ declined to accept the highly
restrictive limitations expressed by Dr. Cole because they
were inconsistent with Dr. Cole's own treatment notes (DN
22 PageID # 653-55). Defendant asserts that the ALJ also
found Dr. Cole's highly restrictive ...