Lee v. Colvin

• Decision Date: 03 May 2013
• Docket Number: CIVIL ACTION NO. 1:12CV-00161-HBB
• Parties: ROBERT MELVIN LEE PLAINTIFF v. CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

ROBERT MELVIN LEE PLAINTIFF

v.CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 1:12CV-00161-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION

May 3, 2013

MEMORANDUM OPINIONAND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Robert Melvin Lee ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Plaintiff has filed a motion for summary judgment (DN 17) and Defendant has filed a response (DN 18).

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 15). By Order entered January 10, 2013 (DN 16), 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 applications for Disability Insurance Benefits and Supplemental Security Income payments on August 13, 2008 (Tr. 493). Plaintiff alleged that he became disabled on March 29, 2008 as a result of a back condition, right hip problem, post traumatic arthritis, depression, seizure, herniated disc, osteoarthritis, sleep apnea, and high blood pressure (Tr. 493, 860-861). Administrative Law Judge Katherine D. Wisz ("ALJ Wisz") conducted a hearing on March 4, 2010 in Lexington, Kentucky (Tr. 493, 1272). Plaintiff was present and represented by attorney Elizabeth Broyles (Tr. 493, 1272). Also present and testifying was Joyce P. Forrest as a vocational expert (Tr. 493, 1272).

In a decision dated May 14, 2010, ALJ Wisz evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 493-503). She observed that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2009 (Tr. 495). At the first step, ALJ Wisz found Plaintiff has not engaged in substantial gainful activity since March 29, 2008, the alleged onset date (Tr. 495). At the second step, ALJ Wisz determined that Plaintiff's lumbar degenerative disc disease following fusion; chronic back pain; pronation weakness in the right ankle; obesity; generalized osteoarthritis, but worst in the right knee and right hip; residuals from a left fifth finger injury; sleep apnea; and mild depressive disorder were "severe" impairments within the meaning of the regulations (Tr. 495-496). At the third step, ALJ Wisz 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. 496).

At the fourth step, ALJ Wisz found Plaintiff has the residual functional capacity to perform less than a full range of light work because he can lift, carry, push, and pull ten pounds at a time;stand and walk for 20 minutes at a time, for two hours in an eight-hour workday; sit for 20 minutes at a time, for six hours in an eight-hour workday; he can perform limited reaching in all directions, including overhead; can perform gross manipulation but only occasional fine manipulation; he can understand, remember and carry out simple instructions, can sustain attention and concentration for two-hour segments, can tolerate interactions with coworkers, supervisors and the public on an occasional basis, and can tolerate and handle routine stress and change in the work environment (Tr. 498). Relying on testimony from the vocational expert, ALJ Wisz found that Plaintiff is unable to perform any of his past relevant work as a truck driver (Tr. 501).

Next, ALJ Wisz 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. 501-502). She found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 501-502). Therefore, ALJ Wisz concluded that Plaintiff has not been under a "disability," as defined in the Social Security Act, from March 29, 2008 through the date of the decision, May 14, 2010 (Tr. 502).

Plaintiff timely filed a request for the Appeals Council to review ALJ Wisz's decision (Tr. 489). The Appeals Council denied Plaintiff's request for review of ALJ Wisz's decision (Tr. 468-468B).

CONCLUSIONS OF LAW

A

In order to grant a motion for summary judgment, the court must find that the pleadings, together with the depositions, interrogatories and affidavits, establish that there is no genuine issueof material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The moving party bears the initial burden of specifying the basis for its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

Although the court must review the evidence in the light most favorable to the non-moving party, the non-moving party is required to do more than simply show that there is some "metaphysical doubt as to the material facts." Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The Rule requires the nonmoving party to present specific facts showing there is a genuine issue for trial. Fed. R. Civ. P. 56(C). Moreover, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252; see also Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir. 1994) (plaintiff not entitled to trial merely on the basis of allegations; plaintiff must present "significant probative evidence" from which jury could reasonably find for her). According to the Supreme Court, the standard for granting summary judgment mirrors the standard for a directed verdict; thus, summary judgment is appropriate if the moving party establishes that there is insufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Celotex, 477 U.S. at 323.

B

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 toperform a significant number of jobs in the national economy?

Here, ALJ Wisz denied Plaintiff's claim at the fifth step.

As previously mentioned, the Appeals Council denied Plaintiff's request for review of ALJ Wisz's decision (Tr. 468-468B). At that point, ALJ Wisz'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).

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. Section 405(g); Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Secretary of Health and Human Services, 974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Secretary of Health and Human Services, 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. Secretary of Health and Human Serverices, 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. Secretary of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).

Plaintiff challenges Finding No. 3 which addresses the second step in the sequential evaluation process (DN 17, Fact and Law Summary at Page 2). He believes his anxiety and depression as well as his fatigue/sleepiness due to his pain and the side effects of medication are also severe impairments (DN 17,...