United States District Court, W.D. Kentucky, Owensboro Division
SCOTT L. BURTON PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl United States Magistrate Judge.
the Court is the complaint (DN 1) of Scott L. Burton
("Plaintiff") seeking judicial review of the final
decision of the Commissioner pursuant to 42 U.S.C. §
405(g). Both the Plaintiff (DN 19) and Defendant (DN 22) have
filed a Fact and Law Summary. Additionally, Defendant has
filed a notice of supplemental authority (DN 23). For the
reasons that follow, the final decision of the Commissioner
is AFFIRMED, and judgment is
GRANTED for the Commissioner.
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 17, 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.
protectively filed an application for Disability Insurance
Benefits on January 9, 2015 (Tr. 64, 210-13). Plaintiff
alleged that he became disabled on June 13, 2014 because of
ankylosing spondylitis, and diabetes (type II), sleep apnea,
elevated white and red blood cell count, anxiety, and
depression (Tr. 64, 232). On May 31, 2017, Administrative Law
Judge Jennifer B Thomas ("ALJ") conducted a video
hearing from Paducah, Kentucky (Tr. 64, 85). Plaintiff and
her attorney, Sara J. Martin, participated from Owensboro,
Kentucky (Id.). James Adams, M.A., testified as an
impartial vocational expert during the administrative hearing
decision dated October 12, 2017 the ALJ evaluated this adult
disability claim pursuant to the five-step sequential
evaluation process promulgated by the
Commissioner (Tr. 64-77). At the first step, the ALJ
found Plaintiff has not engaged in substantial gainful
activity since June 13, 2014, the alleged onset
(Tr. 67). At the second step, the ALJ determined that
Plaintiff has the following severe impairments: degenerative
disc disease, ankylosing spondylitis, fibromyalgia, and
anxiety (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.).
fourth step, the ALJ found Plaintiff has the residual
functional capacity to perform sedentary work except he can
sit for 45 minutes at a time and stand/walk for 45 minutes at
a time; he can occasionally climb ramps, stairs, ladders,
ropes, and scaffolds; he can frequently balance and
occasionally stoop, kneel, crouch, and crawl; he needs to
avoid concentrated exposure to cold, heat, humidity, and
wetness; he needs to avoid pulmonary irritants such as gases,
dust, odors, and poor ventilation; he needs to avoid
concentrated exposure to vibration; he needs to avoid all
exposure to moving mechanical parts and unprotected heights;
he can understand, remember and carry out simple, routine
tasks for two-hour segments in an eight-hour workday; he can
have occasional interactions with coworkers, supervisors, and
the public; any changes in the workplace should be rare or
gradually introduced (Tr. 69). Relying on testimony from the
vocational expert, the ALJ found that Plaintiff is unable
perform any of his past relevant work (Tr. 75).
proceeded to the fifth step where he considered Plaintiffs
residual functional capacity, age, education, and past work
experience as well as testimony from the vocational expert
(Tr. 75-76). The ALJ found that Plaintiff can perform 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 June 13, 2014, through the date
of the decision (Tr. 76).
timely filed a request for the Appeals Council to review the
ALJ's decision (Tr. 208-09). The Appeals Council denied
Plaintiffs request for review (Tr. 1-4).
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)).
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 C.F.R. § 404.981; Cline v.
Comm'r of Soc. Sec., 96 F.3d 146, 148 (6th Cir.
1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th
Commissioner's Sequential Evaluation Process
Social Security Act authorizes payment of Disability
Insurance Benefits and Supplemental Security Income to
persons with disabilities. 42 U.S.C. §§ 401 et seq.
(Title II Disability Insurance Benefits), 1381 et seq. (Title
XVI Supplemental Security Income). The term
"disability" is defined as an
[I]nability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than twelve (12) months.
42 U.S.C. §§ 423(d)(1)(A) (Title II),
1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§
404.1505(a), 416.905(a); Barnhart v. Walton, 535
U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d
918, 923 (6th Cir. 1990).
Commissioner has promulgated regulations setting forth a
five-step sequential evaluation process for evaluating a
disability claim. See "Evaluation of disability
in general," 20 C.F.R. §§ 404.1520, 416.920.
In summary, the evaluation proceeds as follows:
1) Is the claimant engaged in substantial gainful activity?
2) Does the claimant have a medically determinable impairment
or combination of impairments that satisfies the duration
requirement and significantly limits his or her ability to do
basic work activities?
3) Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
4) Does the claimant have the residual functional capacity to
return to his or her past relevant work?
5) Does the claimant's residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national economy?
the ALJ denied Plaintiff's claim at the fifth step.
disagrees with Finding Nos. 4, 5, and 10 (DN 19). Regarding
Finding No. 4, he contends that substantial evidence supports
a finding that his ankylosing spondylitis met Listing 14.09
(DN 19-1 PageID # 932-33). As to Finding No. 5, Plaintiff
asserts substantial evidence does not support the ALJ's
residual functional capacity (RFC) finding that he could
perform sedentary work (Id. PageID # 934-35).
Regarding Finding No. 10, Plaintiff contends substantial
evidence does not support the ALJ's finding that jobs
existed in the regional or national economy consistent with
the adopted RFC (Id. PageID # 935-37).
Alternatively, Plaintiff contends the Court should order a