Michael G. v. Comm'r of Soc. Sec.

• Docket Number: Civil Action 3:22-CV-00278-RGJ-CHL
• Decision Date: 07 June 2023
• Parties: MICHAEL G.,[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Western District of Kentucky

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MICHAEL G.,^[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Civil Action No. 3:22-CV-00278-RGJ-CHL

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

June 7, 2023

REPORT AND RECOMMENDATION

Colin H Lindsay, Magistrate Judge

Before the Court is the Complaint filed by Plaintiff, Michael G (“Claimant”). Claimant 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 13.) Claimant and the Commissioner each filed a Fact and Law Summary. (DNs 14, 16.) 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. FINDINGS OF FACT

On or about August 28, 2019, Claimant filed an application for disability insurance benefits (“DIB”) alleging disability beginning on August 22, 2017. (R. at 15, 93 95-96, 110, 113, 20513.) On November 4, 2020, Administrative Law Judge (“ALJ”) Steven Collins (“the ALJ”) conducted a hearing on Claimant's application. (Id. at 34-74.) During the hearing, Claimant amended his alleged onset date to July 26, 2019, the day after an unfavorable decision by a different ALJ on a prior claim for benefits. (Id. at 15, 42-43.) In a decision dated March 31, 2021, the ALJ engaged in the five-step sequential evaluation process promulgated by the Commissioner to determine whether an individual is disabled. (Id. at 12-33.) In doing so, the ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021. (Id. at 17.)

2. The claimant has not engaged in substantial gainful activity since July 26, 2017, the amended alleged onset date. (Id. at 18.)

3. The claimant has the following severe impairments: Benign Paroxysmal Positioning Vertigo; Vestibulo-Ocular Reflex (“VOR”) dysfunction; Migraine headaches; and Partial seizure disorder. (Id.)

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 20.)

5. [T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: The claimant can occasionally climb ramps and stairs. The claimant must never climb ladders, ropes, or scaffolds. He should avoid all exposure to unprotected heights, moving mechanical parts, and driving a motor vehicle. (Id. at 21.)

6. The claimant is able to perform his past relevant work. (Id. at 26.)

7. The claimant . . . was 45 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. (Id. at 26.)

8. The claimant has at least a high school education. (Id. at 27.)

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills. (Id.)

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform. (Id.)

11. The claimant has not been under a disability, as defined in the Social Security Act, from July 26, 2019[,] through the date of this decision. (Id. at 28.)

Claimant subsequently requested an appeal to the Appeals Council, which denied his request for review on March 29, 2022. (Id. at 1-6, 202-04.) At that point, the ALJ's decision became the final decision of the Commissioner. See 20 C.F.R. § 422.210(a) (2022); see also 42 U.S.C. § 405(h) (discussing finality of the Commissioner's decision). Pursuant to 20 C.F.R. § 422.210(c), Claimant is presumed to have received that decision five days later. 20 C.F.R. § 422.210(c). Accordingly, Claimant timely filed this action on May 24, 2022. (DN 1.)

II. CONCLUSIONS OF LAW

The Social Security Act authorizes payments of DIB to persons with disabilities. See 42 U.S.C. §§ 401-434. 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); see also 20 C.F.R. § 404.1505(a) (2022).

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 for Evaluating Disability

The Commissioner has promulgated regulations that set forth a five-step sequential evaluation process that an ALJ must follow in evaluating whether an individual is disabled. 20 C.F.R. § 404.1520 (2022). 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).

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. Claimant's Contentions

Claimant argued that the ALJ erred in several ways. He argued the ALJ erred in in failing to reopen his prior claim, in failing to adequately address Claimant's dizziness and balance issues in the ALJ's RFC analysis and determination, and in the ALJ's assessment of the opinions of the state agency medical consultants. (DN 14, at PageID # 621-29.) He claimed that these errors in the ALJ's determination of his RFC caused errors at later steps. Specifically, Claimant argued that he could not actually perform his past relevant work due to his dizziness, the ALJ's determination regarding transferability of job skills was in error, and the ALJ's hypothetical to the vocational examiner (“VE”) was insufficient for failing to address Claimant's dizziness. (Id. at 627-30.) The undersigned will address these arguments below.

1. Failing to Reopen Prior Determination

At the outset of his decision, the ALJ noted that Claimant had filed a prior application for benefits that was denied in a decision by a different ALJ on July 25, 2019, (“the prior decision”). (R. at 15.) The prior decision is part of the administrative record in this case. (Id. at 75-92.) The ALJ found “no basis upon which to reopen th[e] [prior] decision” and that the provisions of SSR 91-5p did not apply in this case.^[3] (Id. at 15.) The ALJ concluded that “the pr[ior] decision [wa]s final and binding and the issue of disability [wa]s res judicata, involving the same parties and legal questions” and that he would “only consider the time period from July 25, 2019, the date of prior Administrative Law Judge decision, forward regarding the [C]laimant's alleged disability.” (Id.) Claimant argued this was conclusion was in error because there was new and material evidence in the record that justified reopening the prior...