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Fraze v. Berryhill

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

January 29, 2019

MARY FRAZE 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 Mary Fraze (“Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 18) and Defendant (DN 19) have filed a Fact and Law Summary. For the reasons that follow, the final decision of the Commissioner is AFFIRMED.

         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 16). By Order entered August 20, 2018 (DN 15), 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

         On April 17, 2014, Plaintiff protectively filed an application for Disability Insurance benefits and an application for Supplemental Security Income (Tr. 15, 269, 276). Plaintiff alleged that she became disabled on April 19, 2013, as a result of a bulging disc in her neck, bilateral carpal tunnel syndrome, hypertension, a left shoulder problem, and other back problems (Tr. 15, 353). Administrative Law Judge Jerry Lovitt (“ALJ") conducted a hearing on July 14, 2017, in Louisville, Kentucky (Tr. 15, 40-42). Plaintiff was present and represented by attorney Kevin McDowell (Id.). Sharon Lane testified as a vocational expert during the hearing (Id.).

         In a decision dated August 23, 2017, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 15-32). At the first step, the ALJ found that Plaintiff had worked various jobs through temporary employment agencies in 2014, 2015, 2016, and 2017 (Tr. 17-18). The ALJ considered Plaintiff's earnings in each of those years and concluded that Plaintiff had engaged in substantial gainful activity from April 1, 2015 through December 31, 2015 (Id.). However, the ALJ concluded that it was not necessary to determine unequivocally whether Plaintiff's work activity constituted disqualifying substantial gainful activity at the first step because there existed a valid basis for denying her application at a subsequent step in the sequential evaluation process (Tr. 18). The ALJ indicated that he considered Plaintiff's considerable work activity after her alleged onset date of April 19, 2013, when evaluating the severity of her symptoms, as well as the consistency of her testimony with the overall record (Id.).

         At the second step, the ALJ determined that Plaintiff has the following “severe” impairments: degenerative disc disease, degenerative joint disease of the left shoulder, depression, and anxiety disorder (Tr. 18). Notably, at the second step, the ALJ also determined that Plaintiff's hypertension was a “non-severe” inpairment because the condition was well-controlled with medication and did not affect Plaintiff's ability to engage in basic work related tasks (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 (Id.). The ALJ specifically explained why he concluded that Plaintiff did not meet or medically equal Listings 1.04, 1.02, 12.04, and 12.06 (Tr. 18-20).

         At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform less than a full range of light work because she can frequently climb ramps and stairs; only occasionally stoop, kneel, crouch and crawl; she can never climb ladders, ropes and scaffolds; she should not work around unprotected heights and hazards such as machinery with moving parts; she should have only occasional exposure to vibration; she is limited to frequent reaching overhead and laterally with the left arm, as well as frequent handling with the left hand and fine fingering with the left hand; she is able to sustain concentration to complete short, simple, repetitive, routine tasks; she can use judgment in making simple work-related decisions consistent with this type of work; she requires an occupation with set routine and procedures and with few changes during the workday, and with frequent contact with supervisors, coworkers and the general public, and where the incumbent worker is able to tolerate no more than moderate levels of noise as defined in Appendix D of the selected characteristics of occupations 1993 edition; she would be expected to be off task no more than 10% of the workday in addition to normally scheduled breaks (Tr. 20-21).

         Relying on testimony from the vocational expert, the ALJ found that Plaintiff is capable of performing her past relevant work as a mail sorter (DOT 209.687-026). Therefore, the ALJ concluded that Plaintiff has not been under a “disability," as defined in the Social Security Act, from April 19, 2013, the alleged onset of disability, through August 23, 2017, the date of the decision (Tr. 32). Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 266-68). The Appeals Council denied Plaintiff's request for review (Tr. 1-3).

         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. 1-3). 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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