Gordon v. Berryhill, CIVIL ACTION NO. 4:18 CV-00055-HBB

• Decision Date: 28 January 2019
• Docket Number: CIVIL ACTION NO. 4:18 CV-00055-HBB
• Parties: VICKIE L. GORDON PLAINTIFF v. NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

VICKIE L. GORDON PLAINTIFF v. NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 4:18 CV-00055-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY OWENSBORO DIVISION

January 28, 2019

MEMORANDUM OPINION AND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Vickie L. Gordon ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 13) and Defendant (DN 18) 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 11). By Order entered July 17, 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 September 2, 2014 (Tr. 15, 187, 194). Plaintiff alleged that she became disabled on September 1, 2014, as a result of Bipolar Disorder, Hepatitis C, memory problems, Methicillin-resistant Staphylococcus aureus (MRSA), Attention Deficit Hyperactivity Disorder (ADHD), compulsive, depression, anxiety, and high blood pressure (Tr. 187, 194, 210). On March 1, 2017, Administrative Law Judge Stacey L. Foster ("ALJ") conducted a video hearing from Paducah, Kentucky (Tr. 15, 31-33). Plaintiff and her attorney, Sara J. Martin, participated from Owensboro, Kentucky (Id.). Kenneth Boaz, B.S., an impartial vocational expert, testified during the hearing (Id.).

In a decision dated April 13, 2017, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 15-26). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since September 1, 2014 the alleged onset date (Tr. 17). At the second step, the ALJ determined that Plaintiff has the following "severe" impairments: osteoarthritis, obesity, memory impairment of gradual onset, and bipolar disorder (Id.). Notably, at the second step, the ALJ also determined that Plaintiff's hepatitis C and broken right wrist and hand are "non-severe" impairments within the meaning of the regulations (Tr. 17-18). 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. 18).

At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform medium work except she can occasionally climb ramps and stairs, but never ladders, ropes, orscaffolds; she can occasionally balance, stoop, kneel, crouch, and crawl; she can understand, remember, and carry out simple, routine tasks involving little independent judgment and minimal variation; she can have occasional interaction with supervisors and coworkers, but no interaction with the public; she should avoid fast-paced production rate work; and changes in work routine or environment should be rare and gradually introduced (Tr. 20). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of her past relevant work (Tr. 25).

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. 25-26). 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 September 1, 2014 through April 13, 2017, the date of the decision (Tr. 26).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 185-86). 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 whena 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, 695-696 (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 disagrees with Finding Nos. 3, 5, and 10 (DN 13, DN 13-1 PageID # 597-606). Regarding Finding No. 3, Plaintiff asserts that the ALJ erred in determining that Plaintiff's mental impairments do not satisfy the requirments of Listings 12.02 and 12.04 (Id. PageID # 593). As to Finding No. 5, Plaintiff contends substantial evidence does not support the ALJ's residualfunctional capacity assessment (RFC) and the ALJ erred in failing to accept Plaintiff's testimony as fully credible (Id. PageID # 593). Regarding Finding No. 10, Plaintiff asserts that there was an absence of substantial evidence to support the ALJ accepting the vocational expert's testimony as reliable (Id. PageID # 593).

A.

1. Arguments of the parties

Regarding Finding No. 3, Plaintiff asserts that the ALJ erred in holding that Plaintiff's dementia and bipolar disorder do not satisfy the requirments of Listing 12.02, Neurocognitive disorders and Listing 12.04, Depressive, bipolar and related disorders (DN 13-1 PageID # 593, 602-04). Plaintiff claims the evidence in the record demonstrates she has either marked or extreme degree of limitation in each category of the paragraph B criteria for these listings (Id.). Plaintiff asserts that the requirements of paragraph C are also met for these listings (Id.).

Defendant points out that Plaintiff has not identified the objective findings that support her claim that she has marked or extreme limitations in all of the paragraph B criteria for either listing (DN 18 PageID # 618-19). Additionally, Defendant indicates that Plaintiff has not cited any state agency medical/psychological consultant or medical expert opinion supporting Plaintiff's claim that she met Listings 12.02 or 12.04 (Id.). Defendant contends that the ALJ's findings are supported by substantial evidence in the record and comport with applicable law (Id.).

2. Discussion

At the third step, the Administrative Law Judge is required to consider the medical severity of the claimant's impairment. See 20 C.F.R. 404.1520(a)(4)(iii), 416.920(a)(4)(iii)....