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Pickerell v. Saul

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

September 9, 2019

SABRINA DIANE PICKERELL PLAINTIFF
v.
ANDREW SAUL, Commissioner of Social Security[1] DEFENDANT

          MEMORANDUM OPINION AND ORDER

          H. Brent Brennenstuhl United States Magistrate Judge.

         BACKGROUND

         Before the Court is the complaint (DN 1) of Sabrina Diane Pickerell seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 15) and Defendant (DN 20) have filed a Fact and Law Summary. For the reasons that follow, the final decision of the Commissioner is AFFIRMED, and judgment is GRANTED in favor of 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 13). By Order entered July 23, 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

         Pickerell prospectively filed an application for Disability Insurance Benefits and Supplemental Security Income on October 11, 2016 (Tr. 223-232). Pickerell alleged that she became disabled on April 15, 2013 as a result of Irritable Bowel Syndrome; Arthritis; High Blood Pressure; Depression; and Anxiety (Tr. 246). Administrative Law Judge Jerry Lovitt (“ALJ”) conducted a hearing on September 11, 2017 via video conference from Louisville, Kentucky. Pickerell appeared in Elizabethtown, Kentucky and represented by Kirsten Brown, a non-attorney representative. Also present and testifying was Tina Stambaugh, an impartial vocational expert.

         In a decision dated November 21, 2017 the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 15-28). At the first step, the ALJ found Pickerell has not engaged in substantial gainful activity since April 15, 2013, the alleged onset date (Tr. 17). At the second step, the ALJ determined that Pickerell's degenerative disc disease, degenerative joint disease, obesity, anxiety, depression, and a history of substance abuse are “severe” impairments within the meaning of the regulations (Tr. 17). At the third step, the ALJ concluded that Pickerell does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in Appendix 1 (Tr. 18).

         At the fourth step, the ALJ found Pickerell has the residual functional capacity to perform less than the full range of sedentary work (Tr. 20). More specifically, the ALJ found that Plaintiff can frequently climb ramps and stairs, stoop, kneel, and crouch; cannot climb ladders, ropes, or scaffolds; cannot be exposed to unprotected heights; cannot crawl; cannot be exposed to wetness. Pickerell requires the use of a cane for ambulating. She is able to sustain concentration for completing short, simple, repetitive, routine tasks. She is able to use judgment in making simple decisions consistent with this type of work. Pickerell requires an occupation with set routines and procedures with few changes throughout the workday. Pickerell should not engage in work with fast-paced production demands or fast-paced quota driven work. She should not perform assembly line work. She is capable of frequent contact with supervisors, coworkers, and the general public. Every 30 minutes Pickerell should be allowed to transition from sitting to a standing position, for two to three minutes while at the workstation, and she should be allowed to similarly transition from standing and walking to the sitting position every 30 minutes for two to three minutes while at her workstation. Pickerell would be off task no more than 10 percent of the workday in addition to normally scheduled breaks. (Tr. 21). Relying on testimony from the vocational expert, the ALJ found that Pickerell is unable to perform any of her past relevant work (Tr. 26).

         The ALJ proceeded to the fifth step where he considered Pickerell's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 26). The ALJ found that Pickerell is capable of performing a significant number of jobs that exist in the national economy (Tr. 26). Therefore, the ALJ concluded that Pickerell has not been under a “disability, ” as defined in the Social Security Act, from April 15, 2013 through the date of the decision (Tr. 27).

         Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 217-218). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1).

         Discussion

         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)).

         The Appeals Council denied Pickerell's request for review of the ALJ's decision (Tr. 1). 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 ...


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