Blessing-Hardy v. Berryhill

• Decision Date: 15 May 2017
• Docket Number: CIVIL ACTION NO. 3:15-CV-802-DW
• Parties: KAREN LEONA BLESSING-HARDY PLAINTIFF v. NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

KAREN LEONA BLESSING-HARDY PLAINTIFF v. NANCY A. BERRYHILL¹, Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 3:15-CV-802-DW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT LOUISVILLE

May 15, 2017

MEMORANDUM OPINION AND ORDER

Plaintiff, Karen Leona Blessing-Hardy (Hardy), has filed a complaint pursuant to 42 U.S.C. §405(g) to obtain judicial review of a final decision of the Commissioner of Social Security that denied her application for disability insurance benefits (DIB). Hardy applied for DIB on March 26, 2012, alleging that she was disabled as of August 26, 2008, due to degenerative disc disease of the cervical and lumbar spine accompanied by head and neck pain, tension headaches, occipital neuralgia and hand and finger numbness/pain (Tr. 245-267, 280). The Commissioner denied Hardy's claim on initial consideration (Tr. 148) and on reconsideration (Tr. 153). Hardy requested a hearing before an Administrative Law Judge (ALJ) (Tr.156-57).

ALJ Jonathan Stanley conducted a videoconference hearing in Lexington, Kentucky, on February 19, 2014 (Tr.59-93).² Hardy attended with her attorney, Lisa Ballou (Tr. 59). Hardy and vocational expert (VE) Jackie Rogers testified at the hearing (Tr. 64-83, 83-93). Followingthe conclusion of the hearing, ALJ Stanley entered a hearing decision on April 4, 2014 that found Hardy is not disabled for the purposes of the Social Security Act (Tr. 25-41).

In his adverse decision, ALJ Stanley made the following findings:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2013.

2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of August 26, 2008 through her date last insured of December 31, 2013(20 C.F.R. 404.1571, et seq.).

3. Through the date last insured, the claimant has the following severe impairments: degenerative disc disease (DDD) of the cervical spine with cervicalgia; degenerative disc disease (DDD) of the lumbar spine with pain; history of tension headaches/occipital neuralgia; and hand and finger numbness/pain (20 C.F.R. 404.1520(c)).

4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except she can frequently push and pull using her upper extremities, bilaterally; can occasionally climb ramps and stairs, but cannot climb ropes, ladders or scaffolds; can occasionally balance, stoop, kneel, crouch and crawl; can occasionally reach overhead bilaterally; can frequently handle and finger, bilaterally; cannot work outdoors; and must avoid concentrated exposure to extremes in temperature, loud noise, pulmonary irritants, strobing light and vibration.

6. Through the date last insured, the claimant was capable of performing past relevant work as a sorter/pricer and as an assistant manager. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. 404.1565).

7. The claimant was not under a disability, as defined in the Social Security Act, at any time from August 26, 2008, the alleged onset date,, through December 31, 2013, the date last insured(20 C.F.R. 404.1520(f)).

(Tr. 27-41).

Hardy sought review of the hearing decision by the Appeals Council (Tr. 13-15). The Appeals Council denied her request for review, finding no reason under the Rules to review ALJ Stanley's decision (Tr.1-7 ). The present lawsuit followed.

The Five-Step Sequential Evaluation Process

Disability is defined by law as being the inability to do 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 12 months. See, 20 CFR §§ 404.1505(a), 416.905(a). To determine whether a claimant for DIB or SSI benefits satisfies such definition, a 5-step evaluation process has been developed. 20 CFR §§ 404.1520(a)(4)(i)-(v), 916.920(a)(4). At step 1, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the Commissioner will find the claimant to be not disabled. See, 20 CFR §§ 404.1520(a)(4)(i), 416.920(a)(4)(ii), 416.971. See, Dinkel v. Secretary, 910 F2d, 315, 318 (6^th Cir. 1990).

If the claimant is not working, then the Commissioner next must determine at step 2 of the evaluation process whether the claimant has a severe impairment or combination of severe impairments that significantly limit his or her ability to perform basic work activities. See 20 CFR §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairments of the claimant are determined by the Commissioner to be non-severe, in other words, so slight that they could not result in a finding of disability irrespective of a claimant's vocational factors, then the claimant will be determined to be not disabled at step 2. See, Higgs v. Bowen, 880 F.2d 960, 962 (6^th Cir. 1988); Mowery v. Heckler, 771 F.2d 966, 971-72 (6^th Cir. 1985).

If the claimant has a severe impairment or impairments, then the Commissioner at step 3 of the process will determine whether such impairments are sufficiently serious to satisfy the listing of impairments found in Appendix 1 of Subpart P of Part 404 of the federal regulations. 20 CFR §§ 404.1520(A)(4)(iii), 416.920(a)(4)(iii) The claimant will be determined to be automatically disabled without consideration of his or her age, education or work experience if the claimant's impairments are sufficiently severe to meet or equal the criteria of any impairment listed in the Appendix. See, Lankford v. Sullivan, 942 F.2d 301, 306 (6^th Cir. 1991); Abbott v. Sullivan, 905 F.2d 918, 923 (6^th Cir. 1990).

When the severity of the claimant's impairments does not meet or equal the listings, then the Commissioner must determine at step 4 whether the claimant retains the residual functional capacity (RFC) given his or her impairments to permit a return to any of his or her past relevant work. 20 CFR §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). See, Smith v. Secretary, 893 F.2d 106, 109-110 (6^th Cir. 1989). A claimant who retains the residual functional capacity, despite his or her severe impairments, to perform past relevant work is not disabled. 20 CFR §§ 404.1560(b)(3), 416.960(b)(3) The burden switches to the Commissioner at step 5 of the sequential evaluation process to establish that the claimant, who cannot return to his or her past relevant work, remains capable of performing alternative work in the national economy given his or her residual functional capacity, age, education and past relevant work experience. See, 20 CFR §§ 404.1520(a)(4)(v), 404.1560( c ), 416.920(a)(4)(v), 416.960( c ); Felisky v. Bowen, 35 F.3d 1027, 1035 (6^th Cir. 1994); Herr v. Commissioner, 203 F.3d 388, 391 (6^th Cir. 1999). Collectively, the above disability evaluation analysis is commonly referred to as the "5-step sequential evaluation process."

Standard of Review

Review of a decision of the Commissioner is governed by 42 U.S.C. § 405(g). The statute, and case law that interprets it, require a reviewing court to affirm the findings of the Commissioner if they are supported by substantial evidence and the Commissioner has employed the appropriate legal standard. Walters v. Commissioner of Social Security, 127 F.3d 525, 528 (6^th Cir. 1997) ("This Court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.). Substantial evidence is defined by the Supreme Court to be "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). See also, Lashley v. Sec'y of HHS, 708 F.2d 1048, 1053 (6^th Cir. 1983) (citing Perales). It is more than a mere scintilla of evidence or evidence that merely creates the suspicion of the existence of a fact, but must be enough evidence to justify a refusal to direct a verdict if the matter were tried to a jury. Sias v. Sec'y of HHS, 861 F.2d 475, 479 n. 1 (6^th Cir. 1988).

The substantiality of the evidence is to be determined based upon a review of the record taken as a whole, not simply some evidence, but rather the entirety of the record to include those portions that detract from its weight. Garner v. Heckler, 745 F.2d 383, 387 (6^th Cir. 1984); Laskowski v. Apfel, 100 F. Supp.2d 474, 482 (E.D. Mich. 2000). So long as the decision of the Commissioner is supported by substantial evidence, it must be upheld by the federal court even if the record might support a contrary conclusion. Smith v. Sec'y of HHS, 893 F.2d 106, 108 (6^th Cir. 1989). The substantial evidence standard "presupposes that there is a zone of choice within which decision makers can go either way, without interference from the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6^th Cir. 1986) (en banc).

Issues for Review

A. Hardy's Arguments

The primary issue raised by the Plaintiff in her Fact and Law Summary involves her request for a sentence 6 remand of her case pursuant to 42 U.S.C. § 405(g). (DN 19, Plaintiff's FL&S). Following the entry of ALJ Stanley's adverse hearing decision on April 4, 2014, Hardy submitted additional medical evidence to the Appeals Council for its review. Hardy argues that the evidence was both new and material and that good cause existed why it had not been earlier presented to ALJ Stanley. According to Hardy, the Appeals Council failed to fully and adequately...