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Bloodworth v. Berryhill

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

May 30, 2018

MICHAEL L. BLOODWORTH 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 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.

         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 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.

         FINDINGS OF FACT

         Plaintiff filed an application for Disability Insurance Benefits on August 6, 2014[1] (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 (Id.).

         In a 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).

         At the 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).

         The ALJ 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 (Id.).

         Plaintiff 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. 1-4).

         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. 1-4). 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 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), 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).

         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 from November 7, 2010 through December 31, 2014.

         Challenged Findings

         Plaintiffs 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 # 633-34).

         A.

         The 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.).

         Defendant 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) (Id.).

         At the 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.

         To 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.

         Contrary 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.).

         B.

         The 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 Ruling 96-7p.

         1. Assignment of Weight to Dr. Cole's Opinion

         Plaintiff 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.).

         Defendant 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 ...


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