Merritt v. Comm'r of Soc. Sec.

• Decision Date: 07 February 2022
• Docket Number: Civil Action 3:20-CV-00467-CRS-CHL
• Court: U.S. District Court — Western District of Kentucky
• Parties: IVA MERRITT, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, [1] Defendant.

IVA MERRITT, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ^[1] Defendant.

Civil Action No. 3:20-CV-00467-CRS-CHL

United States District Court, W.D. Kentucky, Louisville Division

February 7, 2022

REPORT AND RECOMMENDATION

COLIN H LINDSAY, MAGISTRATE JUDGE

Before the Court is the Complaint filed by Plaintiff, Iva Merritt (“Merritt”). Merritt seeks judicial review of the final decision of the Commissioner of Social Security (“the Commissioner”). (DN 1.) This case was referred to the undersigned Magistrate Judge to prepare a report and recommendation. (DN 11.) Merritt and the Commissioner each filed a Fact and Law Summary. (DNs 12, 18.) Therefore, this matter is ripe for review.

For the reasons set forth below, the undersigned recommends that the final decision of the Commissioner be AFFIRMED.

I. BACKGROUND

On or about April 10, 2017, Merritt filed an application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) alleging disability beginning on November 14, 2016. (R. at 19, 92, 94 125-26, 214-26.) On April 11, 2019, Administrative Law Judge (“ALJ”) D. Lyndell Pickett (“the ALJ”) conducted a hearing on Merritt's application. (Id. at 34-67.) In a decision dated June 27, 2019 the ALJ engaged in the five-step sequential evaluation process promulgated by the Commissioner to determine whether an individual is disabled. (Id. at 16-33.) In doing so, the ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2020. (Id. at 21.)

2. The claimant has not engaged in substantial gainful activity since November 14, 2016, the alleged onset date. (Id.)

3. The claimant has the following severe impairments: degenerative disc disease, arthropathies, chronic obstructive pulmonary disease (COPD), carpal tunnel syndrome (CTS), fractures of upper extremities, and neuropathy. (Id. at 21-22.)

4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (Id. at 23.)

5. [T]he claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except frequent, not constant[, ] handling, fingering or feeling with the right dominant hand. She can perform occasional overhead reaching bilaterally. She can tolerate occasional exposure to vibration and fumes, odors, dusts, gases, and poor ventilation. (Id. at 23.)

6. The claimant is capable of performing past relevant work as cashier, meat clerk, produce clerk, and companion. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity. (Id. at 26.)

7. The claimant has not been under a disability, as defined in the Social Security Act, from November 14, 2016, through the date of this decision. (Id. at 28.)

Within his analysis at Finding No. 6, the ALJ also made alternative step five findings. He concluded that considering Merritt's age, education, work experience, and residual functional capacity, there were jobs in significant No. in the national economy that Merritt was capable of performing based on the vocational examiner's testimony. (Id. at 27-28.)

Merritt subsequently requested an appeal to the Appeals Council, which denied her request for review on May 5, 2020. (Id. at 1-6, 211-13, 344-49.) At that point, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 422.210(a) (2020); see also 42 U.S.C. § 405(h) (discussing finality of the Commissioner's decision). Pursuant to 20 C.F.R. § 422.210(c), Merritt is presumed to have received that decision five days later. 20 C.F.R. § 422.210(c). Merritt timely filed this action on June 30, 2020. (DN 1.).

II. DISCUSSION

The Social Security Act authorizes payments of DIB and SSI to persons with disabilities. See 42 U.S.C. §§ 404-434, 1381-1383f. An individual shall be considered “disabled” if he or she is unable “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] months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a) (2020).

A. Standard of Review

The Court may review the final decision of the Commissioner but that review is limited to whether the Commissioner's findings are supported by “substantial evidence” and whether the Commissioner applied the correct legal standards. 42 U.S.C. § 405(g); Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). “Substantial evidence” means “more than a mere scintilla”; it means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). The Court must “affirm the Commissioner's decision if it is based on substantial evidence, even if substantial evidence would also have supported the opposite conclusion.” Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2013); see Smith v. Sec'y of Health & Hum. Servs., 893 F.2d 106, 108 (6th Cir. 1989) (holding that if the Court determines the ALJ's decision is supported by substantial evidence, the court “may not even inquire whether the record could support a decision the other way”). However, “failure to follow agency rules and regulations” constitutes lack of substantial evidence, even where the Commissioner's findings can otherwise be justified by evidence in the record. Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011).

B. Five-Step Sequential Evaluation Process

The Commissioner has promulgated regulations that set forth a five-step sequential evaluation process that an ALJ must follow in evaluating a disability claim. 20 C.F.R. §§ 404.1520, 416.920 (2020). In summary, the evaluation process proceeds as follows:

(1) Is the claimant involved in substantial gainful activity? If the answer is “yes, ” the claimant is not disabled. If the answer is “no, ” proceed to the next step.

(2) Does the claimant have a medically determinable impairment or combination of impairments that satisfies the duration requirement^[2] and significantly limits his or her physical or mental ability to do basic work activities? If the answer is “no, ” the claimant is not disabled. If the answer is “yes, ” proceed to the next step.

(3) Does the claimant have an impairment that meets or medically equals the criteria of a listed impairment within 20 C.F.R. Part 404, Subpart P, Appendix 1? If the answer is “yes, ” the claimant is disabled. If the answer is “no, ” proceed to the next step.

(4) Does the claimant have the residual functional capacity (“RFC”) to return to his or her past relevant work? If the answer is “yes, ” then the claimant is not disabled. If the answer is “no, ” proceed to the next step.

(5) Does the claimant's RFC, age, education, and work experience allow him or her to make an adjustment to other work? If the answer is “yes, ” the claimant is not disabled. If the answer is “no, ” the claimant is disabled.

20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

The claimant bears the burden of proof with respect to steps one through four. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). However, the burden shifts to the Commissioner at step five to prove that other work is available that the claimant is capable of performing. Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008). The claimant always retains the burden of proving lack of RFC. Id.; Her v. Comm'r of Soc. Sec., 203 F.3d 388, 392 (6th Cir. 1999).

C. Merritt's Contentions

Merritt challenged the ALJ's Finding Nos. 5-7. (DN 12, at PageID # 931-37.) Specifically, Merritt argued that the ALJ erred in determining her RFC by not providing a sufficient narrative discussion of her capability to perform sustained work, in evaluating her pain, in his treatment of a third-party function report in the record, and in his consideration of the medical opinion evidence in the record. (Id. at 931-36.) She also argued that the errors in ALJ's determination of her RFC caused errors at later steps. (Id. at 936-37.) The undersigned will address each of these arguments below.

1. RFC

An ALJ's RFC finding is the ALJ's ultimate determination of what a claimant can still do despite his or her physical and mental limitations. 20 C.F.R. §§ 404.1545(a)(1), 404.1546(c), 416.945(a)(1), 416.946(c) (2020). The ALJ bases his or her determination on all relevant evidence in the case record, including statements from medical sources. 20 C.F.R. §§ 404.1529, 416.929 (2020); 20 C.F.R. §§ 404.1545(a)(1)-(4), 416.945(a)(1)-(4). Thus, in making his or her determination of a claimant's RFC, an ALJ must necessarily evaluate the persuasiveness of the medical source statements in the record and assess the claimant's subjective allegations. 20 C.F.R. §§ 404.1520c, 416.920c (2020); 20 C.F.R §§ 404.1529(a), 416.929(a).

Here the ALJ found that Merritt had the residual functional capacity to perform medium work except that she could only frequently, not constantly, perform handling, fingering, or feeling with her right hand; only occasionally perform overhead reaching bilaterally; and tolerate only occasional exposure to certain environmental hazards such as vibration, fumes, odors, dusts, gases, and poor ventilation. (R. at 23.) In support, the ALJ cited to Merritt's hearing testimony and description of her own limitations, her medical records, certain reports in the record, and the medical opinion evidence of record. (Id. at 23-26.) Merritt contended that the ALJ erred in determining that she had the RFC to perform medium...