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Potts v. Saul

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

October 9, 2019

CARRIE LYNN POTTS PLAINTIFF
v.
ANDREW SAUL, COMMISSIONER SOCIAL SECURITY ADMINISTRATION DEFENDANT

          MEMORANDUM OPINION AND ORDER

          H. Brent Brennenstuhl United States Magistrate Judge

         BACKGROUND

         Before the Court is the complaint (DN 1) of Carrie Lynn Potts (“Plaintiff”) seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 12) and Defendant (DN 17) have filed a Fact and Law Summary. For the reasons that follow, the undersigned concludes that the Commissioner's findings are supported by substantial evidence, and it is recommended that judgment be granted for the Commissioner.

         Pursuant to General Order No. 2014-17, this matter has been referred to the undersigned United States Magistrate Judge to review the Fact and Law Summaries and submit Findings of Fact, Conclusions of Law and Recommendations. By Order entered February 26, 2019 (DN 9), 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

         On February 4, 2013, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income (Tr. 161). Both applications alleged that she became disabled on April 30, 2012 (Id.). On March 4, 2014, Administrative Law Judge Jerry Faust (“ALJ Faust”) conducted a video hearing from St. Louis, Missouri (Id.). Plaintiff and her non-attorney representative, Jeffrey Smith, participated from Owensboro, Kentucky (Id.). Mary A. Harris testified as an impartial vocational expert during the hearing (Id.).

         In a decision dated May 12, 2014, ALJ Faust evaluated Plaintiff's adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 161-70). At the first step, ALJ Faust found that Plaintiff has not engaged in substantial gainful activity since April 30, 2012, the alleged onset date (Tr. 163). At the second step, ALJ Faust determined that Plaintiff has the following severe impairments: systemic lupus erythematosus (SLE) and class for lupus nephritis (Id.). ALJ Faust also determined that Plaintiff's thymoma, occasional chest pain, and occasional blurry vision are non-severe impairments (Tr. 164). At the third step, ALJ Faust found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in Appendix 1 (Id.).

         At the fourth step, ALJ Faust concluded that Plaintiff has the residual functional capacity (“RFC”) to lift and carry, push and pull 10 pounds occasionally and 5 pounds frequently; can sit, with normal breaks, for a total of six of eight hours per day; can stand and walk with normal breaks for a total of two of eight hours per day, but for no more than 15 minutes at a time; can occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; can occasionally stoop, kneel, crouch, and crawl; should avoid even moderate exposure to extreme cold and vibration, as well as exposure to hazards, such as unprotected heights, dangerous machinery, and commercial driving; and Plaintiff should not have any sun exposure (Tr. 165). ALJ Faust determined that Plaintiff was unable to perform any past relevant work (Tr. 169).

         At the fifth step, ALJ Faust considered Plaintiff's RFC, age, education, past work experience, and testimony from the vocational expert (Tr. 169-70). ALJ Faust found Plaintiff could perform jobs that exist in significant numbers in the national economy (Id.). Therefore, ALJ Faust concluded that Plaintiff had not been under disability, as defined in the Social Security Act, from April 30, 2012, through the date of his decision, May 12, 2014 (Tr. 170).

         Plaintiff timely filed a request for the Appeals Council to review ALJ Faust's decision (Tr. 219). The Appeals Council denied Plaintiff's request for review (Tr. 175-77).

         On October 20, 2015, Plaintiff protectively filed an application for Disability Insurance Benefits (Tr. 107, 293-99). Plaintiff alleged that she became disabled on May 10, 2012, because of lupus, chronic kidney disease, and depression (Tr. 319). On November 28, 2017, Administrative Law Judge Lisa R. Hall (“ALJ”) conducted a video hearing from Paducah, Kentucky (Tr. 107, 125-28). Plaintiff and her attorney, M. Michelle Cecil, participated from Owensboro, Kentucky (Id.). Kenneth Boaz, an impartial vocational expert, also testified during the hearing (Id.).

         In a decision dated February 28, 2018, ALJ Hall evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 107-18). ALJ Hall noted that Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2017 (Tr. 110). At the first step, ALJ Hall found Plaintiff had not engaged in substantial gainful activity from her alleged onset date of May 10, 2012 through her date last insured of December 31, 2017 (Id.). At the second step, ALJ Hall determined that Plaintiff's SLE with chronic pain and nephritis is a severe impairment (Id.). ALJ Hall found that Plaintiff's migraines and affective disorder were non-severe impairments (Tr. 110-11). At the third step, ALJ Hall 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 (Tr. 111).

         At the fourth step, ALJ Hall found through the date last insured, Plaintiff had the residual functional capacity to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a), except she can lift/carry and push/pull up to 10 pounds; she can sit up to six hours of an eight-hour workday; she can stand/walk in 15 minute increments for up to two hours of an eight-hour workday; she can never climb ladders; she can perform occasional postural activities; she should avoid moderate exposure to temperatures, especially cold and vibration; she should avoid all exposure to hazards, such as unprotected heights or moving/dangerous machinery; and she must avoid prolonged sun exposure (Tr. 112). Relying on testimony from the vocational expert, ALJ Hall found through the date last insured Plaintiff was unable to perform any of her past relevant work (Tr. 117).

         ALJ Hall proceeded to the fifth step where he considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 117-18). ALJ Hall found that Plaintiff can perform a significant number of jobs that exist in the national economy (Id.). Therefore, ALJ Hall concluded that Plaintiff has not been under a “disability, ” as defined in the Social Security Act, from May 10, 2012, the alleged onset date, through December 31, 2017, the date last insured (Tr. 118).

         Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 291-92). 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 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

         A

         Plaintiff disagrees with Finding Nos. 3, 5, 9, 10, and 11 in ALJ Hall's decision which is the final decision of the Commissioner (DN 12). Before addressing Plaintiff's arguments, there is a preliminary matter that must be addressed. Plaintiff at various points in her memorandum cites medical evidence she submitted to the Appeals Council in support of her request for review of ALJ Hall's decision (see DN 12-1 PageID # 1299, 1301, 1314 citing Tr. 9, 15, 18, 22, 25, 29, 32, 35, 39, 50-51, 90, 94, 95). Except for the October 23, 2017 treatment note prepared by Dr. Mourad (see Tr. 90-91, 1131-32), ALJ Hall did not have an opportunity to consider this medical evidence when she rendered her decision.

         Sixth Circuit law is well settled. When the Appeals Council considers new evidence, but declines review, the district court cannot consider the new evidence in deciding whether to uphold, modify, or reverse the final decision of the Commissioner. See 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). Here, ALJ Hall's decision became the final decision of the Commissioner when the Appeals Council declined review. 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). This means, except for the October 23, 2017 treatment note of Dr. Mourad (see Tr. 90-91, 1131-32), the medical evidence Plaintiff submitted to the Appeals Council (Tr. 8-89, 92-98) cannot be considered in deciding whether to uphold, modify, or reverse the final decision of the Commissioner.

         The medical evidence Plaintiff submitted to the Appeals Council (Tr. 8-89, 92-98) can be considered for the limited purpose of determining whether a pre-judgment remand is appropriate under sentence six of 42 U.S.C. § 405(g). See Cline, 96 F.3d at 148; Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 174-175 (6th Cir. 1994). But Plaintiff must demonstrate the “new” evidence is “material” and there is “good cause” for failing to present it to the Administrative Law Judge. See Cline, 96 F.3d at 148; Faucher, 17 F.3d at 174-175. Except for the October 23, 2017 treatment note of Dr. Mourad (see Tr. 90-91, 1131-32), the medical evidence submitted to the Appeals Council (Tr. 8-89, 92-98) is “new” because it did not exist or apparently was not available to Plaintiff before ALJ Hall rendered her decision. See Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990); Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010); Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001).

         ALJ Hall's decision addresses whether Plaintiff was under a disability from her alleged onset date of May 10, 2012 through her date last insured which is December 31, 2017 (Tr. 118). Most of the new medical evidence is not “material” because it merely depicts an aggravation of an existing condition from February 12, 2018 through May 14, 2018, which is after the relevant time frame (see Tr. 8-89, 92-93). See Sizemore v. Sec'y of Health & Human Servs., 865 F.2d 709, 712 (6th Cir. 1988). Although the November 13, 2017 treatment note of Dr. Brey (Tr. 94-98) falls within the relevant time frame, the information it provides is innocuous. See Ferguson, 628 F.3d at 276 (to be “material” there must be a “reasonable probability” the Commissioner would have reached a different disposition). Finally, Plaintiff has made no effort to satisfy the “good cause” requirement ...


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