Haws v. Berryhill, CIVIL ACTION NO. 4:17-CV-00114-HBB

• Decision Date: 05 June 2018
• Docket Number: CIVIL ACTION NO. 4:17-CV-00114-HBB
• Parties: ROBERT HAWS PLAINTIFF v. NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

ROBERT HAWS PLAINTIFF v. NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 4:17-CV-00114-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY OWENSBORO DIVISION

June 5, 2018

MEMORANDUM OPINION AND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Robert Haws ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 15) and Defendant (DN 18) have filed a Fact and Law Summary. Additionally, Plaintiff has filed a motion for summary judgment (DN 15) and Defendant has filed a response (DN 18). For the reasons that follow, the final decision of the Commissioner is affirmed.

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 December 1, 2017 (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 filed an application for Disability Insurance Benefits on June 27, 2014¹ (Tr. 10, 195). Plaintiff alleged that he became disabled on April 16, 2013, as a result of a back injury and degenerative disc disease (Tr. 10, 226). On April 19, 2016, Administrative Law Judge Marci P. Eaton ("ALJ") conducted a video hearing from Paducah, Kentucky (Tr. 10, 80-82). Plaintiff and his attorney, Sara Martin, participated from Owensboro, Kentucky² (Id.). Also present in Paducah and testifying was Kenneth Boaz, an impartial vocational expert.

In a decision dated June 10, 2016, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 10-20). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since April 16, 2013, the alleged onset date (Tr. 12). At the second step, the ALJ determined that Plaintiff has the following "severe" impairment: degenerative disc disease status post lumbar surgeries with residual pain (Id.). 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 (Id.).

At the fourth step, the ALJ made the following finding:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can frequently climb ramps and stairs, and occasionally climb ladders, ropes and scaffolds. He can frequently stoop, crouch, and crawl. He should avoid concentrated exposure to vibrating equipment, moving machinery and unprotected heights.

Relying on testimony from the vocational expert, the ALJ found that Plaintiff is capable of performing his past relevant work as a casting and forging machine operator (Tr. 18-19). Nonetheless, the ALJ made alternative findings for step five of the sequential evaluation process.

At the fifth step, the ALJ considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 19-20). The ALJ found that Plaintiff is capable of performing a significant number of 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, from April 16, 2013 through June 10, 2016, the date of the decision (Id.).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 193-94). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-4).

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 inevidence, 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. 1-4). 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 fourth step, and made an alternative finding at the fifth step.

Challenged Findings

Plaintiff's fact and law summary and supporting memorandum set forth challenges to Finding Nos. 4, 5, and 6 (DN 15; DN 15-1 PageID # 677-84). With regard to Finding No. 4, Plaintiff argues the ALJ should have found his degenerative disc disease met listing 1.04 in Appendix 1 (DN 15; DN 15-1 PageID # 677-679). Plaintiff challenges Finding No. 5 by asserting that substantial evidence does not support these underlying determinations: (1) the medical opinion of Dr. Rupert is not entitled to controlling weight; (2) Plaintiff's severe degenerative disc disease allows him to perform light work; and (3) Plaintiff's statements regarding pain and otherlimitations are not fully credible (Id. PageID # 680-82, 683-84). And, with regard to Finding No. 6, Plaintiff makes a hypothetical argument that would result in a finding of disabled under the GRID Rules (Id. PageID # 682-83).

A.

The Court will begin by addressing Plaintiff's challenge to Finding No. 4. Plaintiff argues that the ALJ relied solely on the opinion of the non-examining State agency physician when the ALJ determined that Plaintiff's degenerative disc disease did not meet the requirements of listing 1.04A (DN 15; DN 15-1 PageID # 677-679). Plaintiff contends that the opinion does not constitute substantial evidence to support Finding No. 4 because of the volume of medical records demonstrating nerve root compression (three MRIs, two CT scans, and a lumbar myelogram Tr. 309, 346, 456-66, 467-68, 603), neuro-anatomic distribution of pain (Plaintiff's complaints Tr. 536), limitation of motion of the spine (independent medical exam Tr. 305), motor loss accompanied by sensory or reflex loss (Plaintiff's complaints Tr. 306, 317, 357, 509), and a positive straight-leg raising test (Tr. 316, 351) (Id.). Plaintiff contends this evidence demonstrates that he met listing 1.04A Disorders of the Spine (Id.).

In response, Defendant contends that Plaintiff has not demonstrated that his low back impairment satisfied all of the specified medical criteria in listing 104A (DN 18 PageID # 692-95). Defendant notes that Plaintiff has not alleged he had motor loss, defined as atrophy with associated muscle weakness or muscle weakness (Id.). Defendant indicates that the ALJ noted Plaintiff consistently demonstrated normal strength during examinations (Id. citing Tr. 14-15, 17, 328, 331, 334, 340, 343, 351, 359, 372-73, 389-90, 395, 400, 412-13, 417, 423, 444, 452, 457,...