Blake v. Kijakazi

• Decision Date: 29 March 2022
• Docket Number: Civil Action 4:20-CV-00082-HBB
• Parties: SHANNELL BLAKE PLAINTIFF v. KILOLO KIJAKAZI, ACTING COMMISSIONER[1]SOCIAL SECURITY ADMINISTRATION DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

SHANNELL BLAKE PLAINTIFF v. KILOLO KIJAKAZI, ACTING COMMISSIONER^[1]SOCIAL SECURITY ADMINISTRATION DEFENDANT

Civil Action No. 4:20-CV-00082-HBB

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

March 29, 2022

MEMORANDUM OPINION AND ORDER

H. BRENT BRENNENSTUHL, UNITED STATES MAGISTRATE JUDGE

BACKGROUND

Before the Court is the complaint (DN 1) of Shannell Blake (“Plaintiff”) seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C § 405(g). Both Plaintiff (DN 17) and Defendant (DN 21) have filed a Fact and Law Summary. For the reasons that follow, the final decision of the Commissioner is AFFIRMED, and judgment is GRANTED for 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 15). By Order entered May 25, 2021 (DN 16), 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 filed applications for Disability Insurance Benefits and Supplemental Security Income Benefits on June 23, 2017 (Tr 12, 197-200, 204-08). Plaintiff alleges to have become disabled on June 1, 2017, as a result of multiple sclerosis and fibromyalgia (Tr. 12, 56, 64, 74, 83). These claims were initially denied on August 11, 2017, ^[2] and the claims were again denied upon reconsideration on October 25, 2017 (Tr. 12, 63 71, 72-73, 81-82, 90-91, 92-93). Thereafter, Plaintiff filed a written request for a hearing before an administrative law judge (Tr. 12, 120-25).

Administrative Law Judge Jennifer B. Thomas (“ALJ”) conducted a video hearing from Nashville, Tennessee on January 25, 2019 (Tr. 12, 27-29). Virtually present at the hearing from Madisonville, Kentucky was Plaintiff and her attorney Sara Martin Diaz^[3] (Id.). During the hearing, James B. Adams testified as a vocational expert (Id.).

On June 21, 2019, the ALJ rendered a decision that Plaintiff was not disabled pursuant to the five-step sequential process (Tr. 12-21). At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 30, 2018, the alleged onset date (Tr. 14). At the second step, the ALJ determined Plaintiff has the following severe impairments: multiple sclerosis, migraine, disorders of muscle ligament and fascia, obesity, major depressive disorder, and generalized anxiety disorder (Id.). At the third step, the ALJ concluded 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 (Tr. 15).

At the fourth step, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except for the following limitations: Plaintiff can occasionally push/pull with the lower extremities and occasionally push/pull with the upper extremities; can occasionally climb ramps/stairs but never climb ladders/ropes/scaffolds; can occasionally balance, stoop, kneel, crouch and crawl; can frequently handle, finger, reach overhead and all around using the upper extremities; cannot be exposed to vibration, moving machinery parts, or unprotected heights; can understand, remember and carry out simple detailed tasks, and maintain concentration, persistence and pace for 2 hours in an 8-hours workday; can engage in frequent interaction with co-workers, supervisors and the public; and cannot engage in fast-paced production (Tr. 16-17). The ALJ found Plaintiff is unable to perform any past relevant work (Tr. 19).

After this finding, the ALJ went to the fifth step, where the ALJ also considered Plaintiff's RFC, age, education, and past work experience, as well as testimony from the vocational expert, to find that Plaintiff is able to perform other jobs that exist in the national economy (Tr. 20). Therefore, the ALJ concluded that Plaintiff has not been under a “disability, ” as defined in the Social Security Act, since September 23, 2017, the date the application was filed, through the date of the decision, January 24, 2020 (Tr. 21).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 196). 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, 695-96 (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), 1382c(a)(3)(A); 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.

Challenge to Step Three: Listing 11.09

1. Arguments of the Parties

Plaintiff asserts that the ALJ erred by not finding that she “met” the requirements of Listing 11.09, Multiple Sclerosis (DN 17-1 PageID 1868-71). Plaintiff criticizes the ALJ who “acted as her own medical expert in this case and made a medical determination without substantial evidence” (Id. at PageID 1869). This criticism stems from the Plaintiff's treating physician, Dr. Warren, declining to complete a Medical Source Statement and the ALJ not seeking a Consultative Examination before or after the administrative hearing (Id. at PageID 1868-69). As for the requirements of Listing 11.09, Plaintiff concedes that “[h]er condition has not progressed to the point that she meets the criteria laid out in 11.09A; however, she does satisfy the 11.09B requirements” (Id. at PageID 1870). Plaintiff relies upon her testimony to discuss how she has a marked limitation in physical functioning due to her impairment and its associated treatment (Id. at PageID 1870-71). Plaintiff also states that the ALJ should have found that she had a marked limitation in concentrating, persisting, or maintaining pace, as well as in adapting or managing yourself (Id. at PageID 1871). Plaintiff contends that if the ALJ had appropriately considered the medical evidence, it would support a finding that Plaintiff met Listing 11.09 (Id.).

Defendant posits that the evidence Plaintiff references for why she has a marked limitation in physical functioning does not “meet[] the high burden to prove the ‘persistent or intermittent symptoms that affect your abilities to independently initiate, sustain, and complete work related...