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Johnson v. Berryhill

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

February 4, 2019

BRANDON LEWIS JOHNSON 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 Brandon Johnson seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 13) and Defendant (DN 18) have filed a Fact and Law Summary. For the reasons that follow, the undersigned orders that judgment be granted in favor of the commissioner.

         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 July 23, 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 filed an application for a period of disability and disability insurance benefits on October 2, 2014 (Tr. 27). Johnson alleged that he became disabled on September 1, 2014 as a result of back pain, pinched nerve in left leg, depression, chronic pain, headaches, Attention Deficit Hyperactive Disorder, neck pain, numbness in left leg, anxiety (Tr. 105). Administrative Law Judge Maribeth McMahon ("ALJ") conducted a hearing on June 1, 2017 via video conference from Paducah, Kentucky. Plaintiff appeared from Madisonville, Kentucky and is represented by Brent Yonts. Also present and testifying was James Adams, M.A., an impartial vocational expert.

         In a decision dated November 21, 2017, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 27-41). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since September 1, 2014, the alleged onset date (Tr. 29). At the second step, the ALJ determined that Plaintiff's degenerative disc disease, right-sided hearing loss, depression, anxiety, and attention deficit hyperactivity disorder ("DHD) are “severe” impairments within the meaning of the regulations (Tr. 29). 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. 30).

         At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform light work (Tr. 32). More specifically, the ALJ found that Plaintiff can lift or carry 20 pounds occasionally and 10 pounds frequently; stand or walk with normal breaks for 6 hours in an 8-hour workday; push or pull consistent with lifting or carrying weights. He can perform frequent overhead reaching bilaterally. He can occasionally push or pull with lower extremities, He can never climb ladders, ropes or scaffolds, but can occasionally climb ramps and stairs. He can occasionally stoop, kneel, crouch, and crawl. He can frequently balance. He should avoid concentrated exposure to vibrations and loud noises. He is able to understand, remember and carry out simple instructions. He is able to maintain attention and concentration for the time required to complete simple tasks. He is able to work in coordination with or in proximity to others without being distracted by them. He can complete a normal workweek without excessive interruptions from psychologically based symptoms. He is able to respond appropriately to supervisors and coworkers but can have only occasional contact with the public. He is able to adapt to routine changes and avoid hazards in a work setting with routine support and structure. (Tr. 32). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of his past relevant work as a coal miner, lineman, material handler, and tree cutter (Tr. 40).

         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. 40). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 40). Therefore, the ALJ concluded that Plaintiff has not been under a “disability, ” as defined in the Social Security Act, from September 1, 2014 through the date of the decision (Tr. 41).

         Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 204-205). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1).

         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. __). 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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