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Miller v. Berryhill

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

June 12, 2019

MARGARET C. MILLER 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 denying her claim for Social Security disability benefits. Plaintiff's fact and law summary and the Commissioner's responsive fact and law summary are at Dockets # 18 and 21. Additionally, Plaintiff filed a motion for a remand for consideration of new and material evidence pursuant to the sixth sentence of Section 405(g). (Docket # 17.) The Commissioner's response in opposition to Plaintiff's motion is included in her fact and law summary because, according to the Commissioner, the issues are “inextricably linked.” (Docket # 21 at 2.)

         This case is ripe for determination. 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 # 12.) For the reasons below, the Court will DENY Plaintiff's motion for a remand (Docket # 17); AFFIRM the Commissioner's final decision; and DISMISS Plaintiff's complaint.

         The ALJ's decision

         The Administrative Law judge (“ALJ”) denied Plaintiff's disability claim pursuant to the familiar 5- step sequential evaluation process, which applies in most Social Security disability cases. First, the ALJ found that Plaintiff has not engaged in substantial gainful activity since June 1, 2011, when she alleges she became disabled. (Administrative Record (“AR”) at 18.) Second, the ALJ found that Plaintiff suffers from the following “severe, ” or vocationally significant, medical impairments: obesity, degenerative changes of the lumbar spine and hips, sacroiliitis, and history or recurrent kidney stones resulting in eventual removal of the right kidney. (AR at 19.) Third, the ALJ found that Plaintiff does not suffer from a medical impairment satisfying the medical criteria of any impairment listed in Appendix 1 of the regulations. (Id.)

         As required in any case that advances beyond step 3, the ALJ determined Plaintiff's residual functional capacity (RFC). The ALJ found that Plaintiff has an RFC to perform a limited range of light work, with the following additional non-exertional limitations: can only occasionally climb ramps and/or stairs; occasionally climb ladders, ropes, or scaffolds; frequently balance; occasionally stoop, kneel, crouch, or crawl; and no constant exposure to vibration. (AR at 20.)

         Fourth, the ALJ found that Plaintiff is not disabled because she retains the ability to perform her past relevant work as a light cashier and closing manager. (AR at 22, 53.) Fifth, the ALJ found, in the alternative, that Plaintiff is not disabled because she retains the ability to perform a significant No. of other jobs in the national economy such as sedentary puller, stuffer, and ticket taker. (AR at 23-24, 54.)

         The ALJ's alternative fifth-step finding was premised on vocational testimony that contemplated greater restrictions than the ALJ's RFC finding. Specifically, the ALJ asked the vocational expert (VE) to assume (in addition to the above non-exertional limitations) that the individual is restricted to sedentary (as opposed to light) work. (AR at 54-55.) The VE testified that the individual could work as a sedentary puller, stuffer, or ticket taker. (Id.).

         Judicial Review, Sentence 4, 42 U.S.C. § 405(g)

         Where, as here, the Appeals Council declined to review the ALJ's decision (AR at 1), judicial review is limited to the evidence that was part of the record before the ALJ. Bass v. Comm'r of Soc. Sec., 499 F.3d 506, 512-13 (6th Cir. 2007). The Court decides only whether substantial evidence supports the ALJ's findings. Blakley v. Comm'r, 581 F.3d 399, 406 (6th Cir. 2009). If so, the Court affirms those findings even in the face of substantial evidence supporting a different (or even an opposite) conclusion. Id.

         In a Care Plan from March 2017, Plaintiff's treating advanced practice registered nurse (APRN), Angela Jessie, indicated that she had prescribed Plaintiff a wheelchair:

[Patient] reports having increasing difficulty walking due to hip pain. Contin[ue] to see pain clinic. Rx [prescription] written for wheelchair.

(AR at 660.)[1] The ALJ found that Plaintiff failed to prove that she medically requires a wheelchair:

The undersigned notes that the claimant's physician (sic.) (Ms. Jessie is an APRN) prescribed a wheelchair in March of 2017. However, to find that an assistive device is required, there must be medical documentation establishing the need for the device, as well as describing the circumstances in which it is needed. (SSR [Social Security Ruling] 96-9p.) However, the medical evidence does not sufficiently document the need for this device. In fact, on the same day the prescription was written, the claimant had normal range of motion, normal strength, and no instability. There was also no ...

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