Bragg v. Colvin, CIVIL ACTION NO. 1:16-CV-00086-HBB

• Decision Date: 28 December 2016
• Docket Number: CIVIL ACTION NO. 1:16-CV-00086-HBB
• Parties: LYDIA A. BRAGG PLAINTIFF v. CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

LYDIA A. BRAGG PLAINTIFF v. CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 1:16-CV-00086-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION

December 28, 2016

MEMORANDUM OPINION AND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Lydia A. Bragg ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Plaintiff has moved the Court for a remand to consider new medical evidence (DN 11), Defendant has filed a response (DN 18), and Plaintiff has filed a reply (DN 20).

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 9). By Order entered August 4, 2016 (DN 10), 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 November 29, 2012, Plaintiff filed an application for Disability Insurance Benefits (Tr. 17, 205). On October 24, 2013, Plaintiff filed an application for Supplemental Security Income (Tr. 17, 211). Plaintiff alleged that she became disabled on February 28, 2010, as a result of severe neck and shoulder pain, fused vertebrae in the lumbar spine, impaired reflexes, decreased sensation/feelings in the right leg, and bulging/possible degenerative discs (Tr. 205, 211, 223). Prior to the administrative hearing Plaintiff amended her alleged onset date to August 31, 2012 (Tr. 41, 313). On September 11, 2014, Administrative Law Judge Mary Joan McNamara ("ALJ") conducted a video hearing from Baltimore, Maryland (Tr. 17, 39-40). Plaintiff and her counsel, Mary G. Burchett-Bower participated from Bowling Green, Kentucky (Id.). Additionally, Peter A. Manzi, an impartial vocational expert participated and testified from Rochester, New York (Id.).

In a decision dated November 24, 2014, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 17-32). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since August 31, 2012, the alleged onset date (Tr. 19). At the second step, the ALJ determined that Plaintiff's spine disorders/degenerative disc disease/osteoarthritis are "severe" impairments within the meaning of the regulations (Id.). Notably, at the second step, the ALJ also determined that Plaintiff's migraine headaches, anxiety, and depression/affective disorder are "non-severe" impairments within the meaning of the regulations (Tr. 19-23). 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. 23).

At the fourth step, the ALJ found that Plaintiff has the residual functional capacity to perform less than a full range of light work because she can never climb ladders, ropes, or scaffolds; can occasionally stoop; can frequently kneel, crouch, and crawl; and can unlimitedly climb stairs, climb ramps, and balance (Tr. 23). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of her past relevant work (Tr. 30).

The ALJ proceeded to the fifth step where she considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 30-32). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 32). Therefore, the ALJ concluded that Plaintiff has not been under a "disability," as defined in the Social Security Act, from August 31, 2012, through the date of the decision, November 24, 2014 (Id.).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 11-13). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-5).

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. 1-5). 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. Specifically, the ALJ concluded that the Plaintiff possessed the requisite residual functional capacity to perform certain jobs existing in substantial numbers in the national and local economy (Tr. 30-32).

Plaintiff's Motion for Remand Plaintiff moves for a remand, pursuant to sentence six of 42 U.S.C. § 405(g), to consider new medical evidence regarding her lower back condition that was not before the ALJ (DN 11-3 PageID # 482). Plaintiff understands to obtain a sentence six remand she must demonstrate the evidence is new, material, and that good cause exists for her failure to introduce the evidence at the administrative level (DN 11-3 PageID # 482-83).

The evidence at issue is treatment records, dated January 21 and February 5, 2015, from Mitchell J. Campbell, M.D., with the Leatherman Spine Center in Louisville, Kentucky (DN 11-1 PageID # 454-469), and imaging-radiological reports from Norton Hospital, dated February 5, 2015, that set forth the results of a lumbar myelogram and helical CT images of the lumbar spine after administration of intrathecal contrast (DN 11-2 PageID # 470-481). Plaintiff explains that the evidence is new because it was not before the ALJ at the time of the decision (Id. PageID # 483).

Plaintiff contends that the evidence is material because the radiological imaging shows a pars defect at L5 with loosening of instrumentation from a prior fusion, nonunion/pseudoarthrosis at L5-S1 and possibly at L5 F4 region, and malpositioned screws on the left side at L4 and L5 (Id.). Plaintiff also points out that Dr. Campbell's treatment notes indicate the instrumentation is clearly loose, and Plaintiff has a nonunion especially at the L5-S1 region (Id.). Plaintiff asserts that the abnormalities depicted in the new medical records are inconsistent with the ALJ's finding that Plaintiff has the residual functional capacity to perform a limited range of light work (Id.). Plaintiff points out that at age 50 a sedentary residual functional capacity would direct a finding ofdisability in this case based on Medical-Vocational Rule 201.14 (Id.). Plaintiff argues that given the short period of time between the ALJ's decision and the imaging at Norton's Hospital and in light of the documentation of loose...