Avery v. Colvin

• Decision Date: 06 May 2014
• Docket Number: CIVIL ACTION NO. 1:13CV-00121-HBB
• Parties: JOANNA L. AVERY PLAINTIFF v. CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

JOANNA L. AVERY PLAINTIFF v. CAROLYN W. COLVIN, ActingCommissioner of Social Security DEFENDANT

CIVIL ACTION NO. 1:13CV-00121-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION

May 6, 2014

MEMORANDUM OPINIONAND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Joanna L. Avery ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 16) and Defendant (DN 19) have filed a Fact and Law Summary.

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 of Appeals in the event an appeal is filed (DN 15). By order entered November 15, 2013, the parties were notified that oral arguments would be held unless a written request therefor was filed and granted (DN 14). No such request was filed.

FINDINGS OF FACT

Plaintiff protectively filed an application for disability insurance benefits and supplemental security income benefits on March 29, 2010 (Tr. 226, 401-402). Plaintiff alleged that she became disabled on March 1, 2003 as a result of bone deterioration in hips and pelvis, and anxiety and depression (Tr. 409-410). These claims were denied initially on August 18, 2010, and upon reconsideration on November 30, 2010 (Tr. 226). Thereafter, Plaintiff filed a written request for a hearing on January 28, 2011 (Tr. 226). Plaintiff then amended her disability onset date to December 31, 2009 (Tr. 226). On November 16, 2011, Administrative Law Judge Hortensia Haaversen ("ALJ") conducted a video hearing from Baltimore, Maryland (Tr. 226). Plaintiff appeared in Bowling Green and was presented by Mary G. Burchett-Bower, an attorney (Tr. 226). Also present and testifying was Leah P. Salyers, an impartial vocational expert (Tr. 226).

In a decision dated February 6, 2012, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 226-236). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since December 31, 2009, the alleged onset date (Tr. 228). At the second step, the ALJ determined that Plaintiff's major depressive disorder, pain disorder, anxiety disorder, occipital neuralgia, right cervical and thoracic facet arthritis, and right subacromial bursitis are "severe" impairments within the meaning of the regulations (Tr. 228). 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 (Tr. 229).

At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except the Plaintiff ambulateswith a cane; can understand, remember and carry out simple repetitive instructions and tasks; is able to tolerate stress and pressure of day-to-day employment but should be limited to only low stress job defined as only occasional decision making and occasional changes in a work setting; is able to sustain attention and concentration towards the performance of simple repetitive tasks; and she is able to respond appropriately to supervision, coworkers and work pressures of a low stress job as previously defined (Tr. 230). The ALJ further noted that her residual functional capacity determination was based on the consultative examiner's opinion and the cane use demonstrated at the hearing (Tr. 230). The ALJ also concluded that Plaintiff has no past relevant work because there is no indication that any of her prior jobs were performed at a substantial gainful activity level (Tr. 234).

The ALJ 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. 234-236). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 235). Therefore, the ALJ concluded that Plaintiff has not been under a "disability," as defined in the Social Security Act, from December 31, 2009, through February 6, 2012, the date of the administrative decision.

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision. The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-4).

CONCLUSIONS OF LAW

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 IIDisability 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 (6^th 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.

As previously mentioned, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-4). 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).

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. Section 405(g); Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Secretary of Health and Human Services, 974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Secretary of Health and Human Services, 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. Secretary of Health and Human Serverices, 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. Secretary of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).

Residual Functional Capacity Determination

Here, Plaintiff challenges the ALJ's Finding No. 5, which addresses the fourth step in the five-step sequential evaluation process promulgated by the Commissioner (DN 16, Plaintiff's Factand Law Summary at Pages 2-5).¹ With regard to Finding No. 5, the ALJ made the following conclusion:

[T]he undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant ambulates with a cane; can understand, remember and carry out simple repetitive instructions and tasks; is able to tolerate stress and pressure of day-to-day employment but should be limited to only low stress job defined as only occasional decision making and occasional changes in a work setting; is able to sustain attention and concentration towards the performance of simple repetitive tasks; and she is able to respond appropriately to supervision, coworkers and work pressures of a low stress job as previously defined (Based on the consultative examiner's opinion at Exhibit 3F and the cane use demonstrated at the hearing).

(Tr. 230).

Plaintiff argues that Finding No. 5 is not supported by substantial evidence because the ALJ failed to properly address restrictions stemming from Plaintiff's "severe" physical impairments (DN 16, Plaintiff's Fact and Law Summary at Pages 2-3). Plaintiff points out that the ALJ's residual functional capacity assessment only contains a physical restriction regarding ambulating with a cane and the limitation of light work activity (DN 16, Plaintiff's Fact and Law Summary at Pages 2-3).In essence, Plaintiff points out that the ALJ indicates that Plaintiff has "severe" physical impairments, but fails to identify specific physical restrictions resulting and therefore, remand is necessary for clarification of restrictions resulting from the "severe" impairments (DN 16, Plaintiff's Fact and Law Summary at Page 3). Plaintiff does not make any arguments with regard to the mental limitations assessed in the ALJ's residual functional capacity finding (DN 16, Plaintiff's Fact and Law Summary at Pages 2-5). In opposition, the Defendant asserts that Finding No. 5 is supported by...