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Morris v. Berryhill

United States District Court, W.D. Kentucky, Bowling Green Division

January 30, 2019

LESLIE ANN MORRIS PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge United States District Court

         This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to the fourth sentence of 42 U.S.C. § 405(g), of the final decision of the Commissioner finding that her disability ended on December 9, 2011. Plaintiff's fact and law summary is at Docket # 15, and her motion for a remand pursuant to the sixth sentence of Section 405(g) is at Docket # 16. Defendant's responsive fact and law summary and response in opposition to Plaintiff's motion are at Docket # 17. The parties have consented to the jurisdiction of the undersigned magistrate judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. (Docket # 11.) The matter is ripe for determination.

         Because the administrative law judge's (“ALJ's”) decision is supported by substantial evidence and is in accord with applicable legal standards, and because Plaintiff has not shown that a “sentence six” remand is warranted, the Court will DENY Plaintiff's motion for a remand (Docket # 16), AFFIRM the Commissioner's final decision, and DISMISS Plaintiff's complaint.

         Background facts and procedural history

         On April 29, 2008, the Social Security Administration found Plaintiff to be disabled. [Administrative Record (“AR”) 34, 799.] On December 9, 2011, as part of its continuing disability review, the Administration found that Plaintiff's disability ended in December 2011. [AR 34, 832.] The finding was affirmed on multiple levels of administrative review, including a hearing and decision by a disability hearing officer, and Plaintiff eventually requested review by an ALJ. [AR 858-68, 886.] The ALJ conducted an administrative hearing [AR 751-98] and, on December 13, 2016, issued a decision affirming the prior decisions and finding that Plaintiff's “disability ended on December 9, 2011, and the claimant has not become disabled again since that date.” [AR 46.] The ALJ's decision became the Commissioner's final decision, subject to this judicial review, when the Appeals Council found no basis for changing the ALJ's decision. [AR 1-4.]

         Legal standards governing cessation of disability

         In cessation of disability cases, the central question is whether Plaintiff's medical impairments have improved to the point she is now able to perform substantial gainful activity. Kennedy v. Comm'r of Soc. Sec., 247 Fed.Appx. 761, 764 (6th Cir. 2007) (citing 42 U.S.C. § 423(f)(1)). Improvement is measured from “the most recent favorable decision” that the claimant was disabled. Id. (quoting 20 C.F.R. § 404.1594(b)(1)). There is no presumption of continuing disability. Id. (citing Cutlip v. Sec'y of Health & Human Services, 25 F.3d 284 n. 1 (6th Cir. 1994)). Instead, the Commissioner applies the procedures outlined in 20 C.F.R. §§ 404.1594 and 416.994 to determine whether Plaintiff's disability ended and she is now able to work. Id.

         The first part of the evaluation process focuses on medical improvement, which is defined as “any decrease in the medical severity of your impairment(s) which was present at the time of the most recent favorable medical decision that you were disabled or continued to be disabled.” Id. at 764-65 (quoting 20 C.F.R. § 404.1594(b)(1)). A determination of medical improvement “must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with your impairment(s).” Id. at 765 (quoting 20 C.F.R. § 404.1594(b)(1)). Additionally, the medical improvement must be related to Plaintiff's ability to work, which is the case only “if there has been a decrease in the severity ... of the impairment(s) present at the time of the most recent favorable medical decision and an increase in your functional capacity to do basic work activities.” Id. (quoting 20 C.F.R. § 404.1594(b)(3)).

         The second part of the evaluation process relates to Plaintiff's ability to engage in substantial gainful activity. Id. The evaluation incorporates many of the standards governing initial disability determinations. Id. (citing 20 C.F.R. § 404.1594(f)).

         The ALJ's decision

         On April 29, 2008, the Administration found Plaintiff to be disabled because she suffered from borderline intellectual functioning and a mood disorder rendering her unable to relate adequately to others and regularly complete tasks over a 40 hour work week. [AR 37, 1272.]

         On December 13, 2016, the ALJ found that (relative to her condition on April 29, 2008), as of December 9, 2011, Plaintiff experienced a medical improvement related to her ability work. [AR 39.] In support of this finding, the ALJ cited the November 15, 2011 examination findings of certified psychologist Ollie C. Dennis, Ed.D.; Plaintiff's mental health treatment records; and her testimony regarding her activities of daily living (ADLs). [Id.] Specifically, Dr. Dennis observed no “instances of disability”; assigned a global assessment of functioning (GAF) of 58[1]; and noted that Plaintiff was not taking any medication for depression. [Id. referencing findings, AR 1307-13.] Treatment records indicated a GAF score of 55 and ability to do ADLs with medication. [Id. referencing records, AR 1525, 1531, 1536.] Plaintiff testified that she cooks, does household chores, slept in a van while camping, went on spring break in 2016, plays cards almost every night, and recently went to a Chinese buffet. [Id. referencing testimony, AR 757-80.]

         The ALJ found that Plaintiff's “disability ended on December 9, 2011, and the claimant has not become disabled again since that date.” [AR 46.] In other words, the ALJ found that Plaintiff's medical improvement related to her ability work rendered her “not disabled” as of December 9, 2011, and that she remained “not disabled” through the December 13, 2016 decision date. Focusing on the period between December 9, 2011 and December 3, 2016 and translating the ALJ's findings into the familiar 5- step sequential evaluation process that applies to initial disability determinations, the ALJ found as follows: First, Plaintiff has not engaged in substantial gainful activity since December 9, 2011. [AR 37.] Second, Plaintiff suffers from severe, or vocationally significant, mental and physical impairments. [Id.] Mentally, Plaintiff suffers from affective disorder/major depression, anxiety disorder, and borderline intellectual functioning. [Id.] Physically, Plaintiff suffers from status-post right L5-S1 hemilaminectomy with a partial facetectomy, cervical disc degeneration, hypothyroidism, chronic obstructive pulmonary disease, carpal tunnel syndrome, obesity, diabetes mellitus, and dyspnea (labored breathing). [Id.] Third, none of these impairments satisfies the clinical criteria of any impairment listed in Appendix 1 of the regulations. [AR 38.]

         As required in any case that advances beyond step 3, the ALJ determined Plaintiff's mental and physical residual functional capacity (RFC). [AR 41.] Mentally, Plaintiff is limited to performing simple, routine tasks; can respond appropriately to supervision, coworkers, and work situations, but should have only occasional interaction with coworkers and supervisors and occasional contact with the public; and is limited to tolerating few changes in a routine work setting, defined as occasional decision-making and completion of simple tasks. [Id.] Physically, Plaintiff is limited to sedentary work as defined in 20 C.F.R. ยง 404.1567(a) and 416.967(a) with frequent handling, fingering and feeling with the left hand; occasional climbing of ramps and stairs; no climbing of ladders, ropes or scaffolds; ...


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