United States District Court, W.D. Kentucky, Owensboro Division
SONYA L. SCOTT 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 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.
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
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
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).
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.).
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).
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).
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).
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. 1-3). 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
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.
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.
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
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 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?
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 ...