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Burton v. Berryhill

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

April 11, 2019

SCOTT L. BURTON 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 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.

         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 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.

         FINDINGS OF FACT

         Plaintiff 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 (Id.).

         In a decision dated October 12, 2017 the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner[1] (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 date[2] (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.).

         At the 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).

         The ALJ 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).

         Plaintiff 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).

         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 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 Cir. 1993).

         The Commissioner's Sequential Evaluation Process

         The 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).

         The 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 Appendix 1?
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?

         Here, the ALJ denied Plaintiff's claim at the fifth step.

         Challenged Findings

         Plaintiff 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 ...


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