Davis v. Berryhill

• Decision Date: 20 February 2019
• Docket Number: CIVIL ACTION NO. 4:18-CV-00062-HBB
• Parties: CRAIG A. DAVIS PLAINTIFF v. NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
• Court: United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky

CRAIG A. DAVIS PLAINTIFF v. NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 4:18-CV-00062-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY OWENSBORO DIVISION

February 20, 2019

MEMORANDUM OPINION AND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Craig A. Davis ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 17) and Defendant (DN 22) have filed a Fact and Law Summary. For the reasons that follow, the final decision of the Commissioner is REVERSED and this matter is REMANDED, pursuant to 42 U.S.C. § 405(g), to the Commissioner for further proceedings.

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 13). By Order entered July 19, 2018 (DN 12), 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 protectively filed applications for Disability Insurance Benefits and Supplemental Security Income on April 24, 2014 (Tr. 21, 223, 230). Plaintiff alleged that he became disabled on February 2, 2014, as a result of neuropathy, diabetes, high blood pressure, depression, bone deterioration of mouth area, and groin pain (Tr. 21, 249). Administrative Law Judge Jennifer B. Thomas ("ALJ") conducted a video hearing from Paducah, Kentucky, on April 12, (Tr. 21, 37-39). Plaintiff and his attorney, Gerald Burns, participated from Madisonville, Kentucky (Id.). Stephanie G. Barnes, Rh. D., testified as an impartial vocational expert during the hearing (Id.).

In a decision dated July 12, 2017, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 21-30). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since February 2, 2014 the alleged onset date (Tr. 23). At the second step, the ALJ determined that Plaintiff has the following severe impairments: diabetes mellitus; diabetic peripheral neuropathy; anxiety; affective disorder; and borderline intellectual functioning (Id.). The ALJ also determined that Plaintiff's hypertension and hypercholesterol are non-severe impairments (Tr. 23-24). 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. 24).

At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform light work except that he can frequently handle, finger, and feel with the upper extremities; he can reach overhead and all around with his right upper extremity; he can occasionally climb ramps and stairs, but should never climb ladders, ropes, or scaffolds; he can frequently balance, and occasionally kneel, stoop, crouch, and crawl; he can understand, remember, and carry out simple,routine tasks in two-hour segments of time in an 8-hour workday for task completion purposes that are not at a production or quota rate; he can frequently interact with coworkers and supervisors, and occasionally interact with the public (Tr. 25). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is not able to perform any of his past relevant work (Tr. 29).

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. 29-30). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Id.). Therefore, the ALJ concluded that Plaintiff has not been under a "disability," as defined in the Social Security Act, from February 2, 2014 through the date of the decision (Tr. 30).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 221-22). 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 acase 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

Plaintiff disputes Finding Nos. 4 and 5 (DN 17; DN 17-1 PageID # 937-44). Regarding Finding No. 4, Plaintiff argues the ALJ erred in holding his mental impairments do not satisfy the requirements of Listings 12.04, 12.05, and 12.06 (Id. PageID #937-40). Concerning Finding No. 5, Plaintiff asserts that substantial evidence does not support the residual functional capacity (RFC) determination and great weight should have been given to the treating source opinion of Dr. Fazenbaker (Id. PageID # 941-42, 943-44).

A.

1. Arguments of the parties

Plaintiff argues the ALJ erred in finding that his mental impairments do not satisfy the paragraph B and paragraph C criteria for Listings 12.04, 12.05, and 12.06 (DN 17-1 PageID #937-40). Plaintiff contends the ALJ's findings addressing the paragraph B and paragraph C criteria are not supported by substantial evidence because she relied on the moderate limitations expressed by a non-examining state agency psychiatrist, Alex Guerrero, M.D., instead of the marked and extreme limitations expressed by two consultative psychological examiners, Michael E. Whitten, Ph.D., and Rita Jungblom, Psy.D. (Id. citing Tr. 24-25, 28, 130-31). Plaintiff emphasises that Dr. Guerrero's opinion is of questionable value because there were only seven exhibits in the record when he rendered the opinion and, since then, 17 medical exhibits were added to the record that Dr. Guerrero did not consider (Id.). Plaintiff also points out that his score of 66 on the full-scale IQ test administered by Dr. Jungblom demonstrates the requirements of 12.05 are met (Id.).

Defendant explains that the ALJ gave little weight to the extreme limitations of Drs. Whitten and Jungblom because they were inconsistent with and unsupported by Plaintiff's treatment history and the record evidence (DN 22 PageID # 957-62). Further, in assessing how much weight to give to these opinions, the ALJ considered other factors such as Plaintiff had never been hospitalized for mental health issues, the treatment records from Pennyroyal Mental Health Center showing moderate symptoms, how consistently Plaintiff sought...