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Scott v. Berryhill

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

June 14, 2019

SONYA L. SCOTT 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 Sonya L. Scott (“Plaintiff”) seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 17) and Defendant (DN 18) have filed a Fact and Law Summary. For the reasons that follow, the final decision of the Commissioner is REVERSED, and this matter is REMANDED, pursuant to 42 U.S.C. § 405(g), to the Commissioner for further proceedings.

         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 12). By Order entered November 15, 2018 (DN 13), 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 applications for Disability Insurance Benefits and Supplemental Security Income on May 2, 2016 (Tr. 21, 251-52, 253-56, 259-65). Plaintiff alleged that she became disabled on December 31, 2012, as a result of herniated and bulging discs, fibromyalgia and mental impairments (Tr. 21, 289). On August 23, 2017, Administrative Law Judge William C. Zuber (“ALJ”) conducted a video hearing from Louisville, Kentucky (Tr. 21, 37-71). Plaintiff and her counsel, A. Thomas Davis, participated from Bowling Green, Kentucky (Id.). Gail H. Franklin, an impartial vocational expert, testified during the hearing (Id.).

         In a decision dated February 13, 2018, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 21-30). The ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2014 (Tr. 23). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since December 31, 2012, the alleged onset date (Id.). At the second step, the ALJ determined that Plaintiff has the following severe impairments: degenerative disc disease of the lumbar and cervical spine and morbid obesity (Tr. 23). The ALJ also determined that Plaintiff's purported fibromyalgia and depression are non-severe impairments (Tr. 24).

         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.). Additionally, the ALJ specifically concluded that Plaintiff did not meet Listing 1.04 because imaging of her cervical and lumbar spine had not shown any nerve root compromise or nerve root compression (Id.).

         At the fourth step, the ALJ found Plaintiff has the residual functional capacity (RFC) to perform light work, as defined in 20 C.F.R. 404.1567(b) and 416.967(b), except the claimant must be afforded a sit/stand option allowing her to sit for 10-15 minutes every two hours; she can do no more than occasional climbing of ramps and stairs, stooping, and crouching; she is unable to crawl, kneel, or climb ladders, ropes, or scaffolds; she can perform no more than occasional overhead reaching; she can perform no more than frequent use of the hands for feeling, fingering, grasping, or handling; she can perform no more than occasional use of the lower left extremity for foot controls; and no more than occasional exposure to extreme cold, vibration, and dangerous machinery, or unprotected heights (Tr. 24). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of her past relevant work (Tr. 28).

         The ALJ proceeded to the fifth step where he considered Plaintiff's RFC, age, education, and past work experience as well as testimony from the vocational expert (Tr. 28-29). 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 December 31, 2012, through the date of the decision (Tr. 29).

         Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 240-43). The Appeals Council denied Plaintiff's request for review (Tr. 1-3).

         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. 1-3). 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 RFC 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. Plaintiff challenges Finding Nos. 3, 4, 5, 10, and 11 that address the second, third, fourth, and fifth steps in ...


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