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Cuckovic v. Berryhill

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

January 28, 2019

ZORAN CUCKOVIC 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 Zoran Cuckovic ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 14) and Defendant (DN 19) 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 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 7). By Order entered July 20, 2018 (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 protectively filed applications for Disability Insurance Benefits and Supplemental Security Income payments on August 22, 2014 (Tr. 13, 193, 197). Plaintiff alleged that he became disabled on April 28, 2014 as a result of a back problem involving a disc extrusion with left nerve root pressure at ¶ 5 and an extrusion on the right nerve root at ¶ 1 (Tr. 13, 217). Administrative Law Judge Teresa A. Kroenecke ("ALJ") conducted a hearing on December 13, 2016, in Louisville, Kentucky (Tr. 29). Plaintiff was present and represented by his attorney Trevor Smith (Id.). Also present and testifying was Courtney Stiles, a vocational expert (Id.).

         In a decision dated February 17, 2017, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 13-23). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since April 28, 2014 the alleged onset date (Tr. 15). At the second step, the ALJ determined that Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine and obesity (Id.). Notably, at the second step, the ALJ also determined that Plaintiff's medically determinable mental impairment of depression was a nonsevere impairment (Tr. 15-16). 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. 16-17).

         At the fourth step, the ALJ found that Plaintiff has the residual functional capacity to perform less than a full range of sedentary work because he needs to alternate between a sitting and standing/walking position every 30 to 45 minutes for 2 to 3 minutes at the workstation and he requires a cane to ambulate; he may occasionally stoop, balance, crouch, and climb ramps and stairs, but he may not operate foot controls, kneel, crawl, or climb ladders, ropes, or scaffolds; he must avoid concentrated exposure to wetness, humidity, vibrations, and hot and cold temperature extremes; he must avoid all exposure to hazards such as heights and dangerous machinery (Tr. 17). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of his past relevant work (Tr. 21).

         The ALJ proceeded to the fifth step where he considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 21-22). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Id.). Therefore, the ALJ concluded that Plaintiff has not been under a "disability," as defined in the Social Security Act, from April 28, 2014 through the date of the decision, February 17, 2017 (Tr. 22-23).

         Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 190-92). The Appeals Council denied Plaintiff's request for review (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 Plaintiff's 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 42 U.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 ...


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