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McQueen v. Acting Commissioner of Social Security

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

July 12, 2018

JUNELL NICOLE MCQUEEN, Plaintiff,
v.
Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Joseph M. Hood Senior U.S. District Judge.

         Junell Nicole McQueen brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of an administrative decision of the Commissioner of Social Security denying her claim for disability insurance benefits (DIB). The Court, having reviewed the record, will AFFIRM the Commissioner's decision as it is supported by substantial evidence.

         I.

         Judicial review of the Commissioner's decision is limited to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). “Substantial evidence” is defined as “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.” Id. Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. Id. Rather, we are to affirm the Commissioner's decision, provided it is supported by substantial evidence, even if we might have decided the case differently. See Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).

         The ALJ, in determining disability, conducts a five-step analysis. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). Step One considers whether the claimant is still performing substantial gainful activity; Step Two, whether any of the claimant's impairments are “severe”; Step Three, whether the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether the claimant can still perform his past relevant work; and Step Five, whether significant numbers of other jobs exist in the national economy which the claimant can perform. As to the last step, the burden of proof shifts from the claimant to the Commissioner. Id.; see also Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).

         II.

         In 2014, Plaintiff filed an application for disability insurance benefits (DIB), alleging disability beginning September 2009 (Tr. 282-83). However, because a prior application was denied by an administrative law judge (ALJ) on September 12, 2012 (Tr. 152-64), which Plaintiff appealed to the district court and lost (Tr. 174), her claims for benefits prior to September 12, 2012 are barred by res judicata (Tr. 19). Thus, the Court will not consider the significant portions of Plaintiff's brief devoted to the time period prior to September 12, 2012. Her current application was denied initially and on reconsideration (Tr. 175, 190). Plaintiff then exhausted her administrative remedies before the Commissioner (Tr. 40-82 (hearing), 19-32 (ALJ decision), 1-4 (Appeals Council's denial of review of ALJ decision)).

         Plaintiff was 30 years old on September 12, 2012 (the earliest date she could be found disabled) and 31 years old on December 31, 2013, her date last insured (and the date by which she must establish disability for purposes of DIB) (Tr. 22, 282). See Social Security Ruling (SSR) 83-20, 1983 WL 31249, at *1 (in order to receive DIB benefits a claimant must show that she had insured status during the same time period in which the evidence establishes disability). She completed high school and two years of college (Tr. 300) and worked in the past as a petty officer in the United States Navy, a care provider, a legal assistant, a youthworker, and a transaction processor (Tr. 301). She quit working in September 2009 (Tr. 299).

         Plaintiff claims disability due to back problems, anxiety, arthritis, hand problems, right leg pain, a fast heart rate (tachycardia), restless leg syndrome, chronic fatigue syndrome, and knee pain (Tr. 299).

         The record shows very little diagnosis or treatment during the relevant time period. Plaintiff sought treatment in March 2013 and September 2013 for shortness of breath and was diagnosed with bronchitis (Tr. 531-35, 583-607, 1116-28). She sought treatment from the Department of Veteran's Affairs (VA) in September 2013 for chest pain and pressure (Tr. 715-20) and for throat and abdominal pain (Tr. 704-10, 712-13, 730-32). She also sought mental health treatment from the VA in mid- to late-2013 and was diagnosed with anxiety (Tr. 637-49, 702-03, 710-12, 720-22).

         In May 2014, state agency psychologist Dan Vandivier, Ph.D., reviewed Plaintiff's medical records and found that she had some moderate mental work-related limitations but agreed with the September 2012 ALJ's decision that Plaintiff retained the ability to understand, remember, and carry out simple and some detailed instructions in an object-focused environment (Tr. 185-87, see Tr. 158). Another state agency psychologist, Laura Cutler, Ph.D., later agreed (Tr. 202-04). Also in May 2014, Donna Sadler, M.D., reviewed Plaintiff's medical records and agreed with the September 2012 ALJ's decision that Plaintiff could perform a range of light work with no climbing ladders, ropes, or scaffolds; no more than frequent kneeling, stooping, crouching, crawling, balancing, climbing ramps and stairs, handling, and fingering; no concentrated exposure to temperature extremes and vibration; and a sit/stand option (Tr. 185, see Tr. 158). Another state agency physician, Jack Reed, M.D., agreed (Tr. 202).

         Pertinent to Plaintiff's arguments on appeal, the VA assigned Plaintiff a 50% VA disability rating in early 2011 (Tr. 1339-43) and a 70% VA disability rating at some point later (Tr. 364 (notice dated January 8, 2016)). In June 2015-two and a half years after the date by which Plaintiff had to establish disability-a VA nurse wrote that Plaintiff's anxiety, post-traumatic stress disorder (PTSD), chronic fatigue syndrome, headaches, degenerative disc disease, asthma, hypothyroidism, gastric ulcer, restless leg syndrome, and palpitations limited her ability to perform activities of daily living and maintain employment (Tr. 867).

         After review of the record, the ALJ determined that, during the relevant time period from September 2012 through December 2013, Plaintiff had degenerative disc disease of the lumbar spine with mid disc protrusion, history of bilateral patellofemoral syndrome with tendonitis (knee pain), a history of hypoplastic thumb post-surgery, anxiety, and pain disorder (Tr. 22). The ALJ found that, despite these impairments, Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; could stand and walk six hours out of an eight-hour workday and sit six hours; could frequently kneel, stoop, crouch, crawl, balance, climb ramps and stairs, and handle and finger; could never climb ladders, ropes, or scaffolds; should avoid concentrated exposure to temperature extremes and vibration; required a sit/stand option every hour; and was limited to performing simple and some detailed instructions in an object-focused environment (Tr. 25). The ALJ went on to find based on vocational expert testimony (see Tr. 73-76) that Plaintiff could ...


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