Payne v. Kijakazi

• Decision Date: 16 December 2021
• Docket Number: Civil Action 4:20-CV-00125-HBB
• Parties: CHRISTOPHER PAYNE PLAINTIFF v. KILOLO KIJAKAZI, ACTING COMMISSIONER[1] SOCIAL SECURITY ADMINISTRATION DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

CHRISTOPHER PAYNE PLAINTIFF v. KILOLO KIJAKAZI, ACTING COMMISSIONER^[1] SOCIAL SECURITY ADMINISTRATION DEFENDANT

Civil Action No. 4:20-CV-00125-HBB

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

December 16, 2021

MEMORANDUM OPINION AND ORDER

H Brent Brennenstuhl United States Magistrate Judge

BACKGROUND

Before the Court is the complaint (DN 1) of Christopher Payne (“Plaintiff”) seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C § 405(g). Both Plaintiff (DN 14) and Defendant (DN 19) have filed a Fact and Law Summary. For the reasons that follow, the final decision of the Commissioner is AFFIRMED, and judgment is GRANTED for the Commissioner.

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 12). By Order entered March 11, 2021 (DN 13), 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 Benefits on November 14, 2017 (Tr. 15, 206-09, 210-21). Plaintiff alleges to have become disabled on January 1, 2010, as a result of back and shoulder pain, bulging discs, arthritis, and pain in hip (Tr. 15, 62-63, 74-75, 89, 102). These claims were initially denied on March 9, 2018, and the claims were again denied upon reconsideration on June 12, 2018 (Tr. 15, 72-73, 84-85, 86-87, 100, 113, 114-15). At that point, Plaintiff filed a written request for a hearing before an administrative law judge (Tr. 15, 140-41).

Administrative Law Judge Jennifer B. Thomas (“ALJ”) conducted a video hearing from Nashville, Tennessee on March 26, 2019 (Tr. 15, 32-34). Virtually present at the hearing from Owensboro, Kentucky was Plaintiff and his attorney Sara Martin Diaz^[2] (Id.). During the hearing, Tina Stambaugh testified as a vocational expert (Tr. 15, 34, 58-60).

On May 28, 2019, the ALJ opined an unfavorable decision for Plaintiff (Tr. 15-25). At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 6, 2017, the alleged onset date^[3] (Tr. 17). At the second step, the ALJ determined Plaintiff has the following severe impairments: degenerative disc disease, dysfunction of major joints (including left shoulder disorder), and degenerative changes of the right hand (Tr. 18). The ALJ also found Plaintiff's depression to be nonsevere (Tr. 18). At the third step, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in Appendix 1 (Tr. 19).

At the fourth step, the ALJ found that Plaintiff has the residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except for the following limitations: Plaintiff can sit for 30 minutes and stand for 30 minutes each at a time; he can occasionally push and/or pull with lower extremities and push and/or pull with upper extremities; he can occasionally climb ramps/stairs but never climb ladders/ropes/scaffolds; he can occasionally balance, kneel, stoop, crouch, and crawl; he can frequently reach overhead and all around with the upper extremities; and he can have occasional exposure to extreme cold, humidity, vibration, moving mechanical parts, and unprotected heights (Tr. 19-20). The ALJ found Plaintiff is unable to perform any past relevant work (Tr. 23).

After this finding, the ALJ continued to the fifth step, where the ALJ also considered Plaintiff's RFC, age, education, and past work experience, as well as testimony from the vocational expert, to find that Plaintiff is able to perform other 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, since November 6, 2017, through the date of the decision (Tr. 24) (citing 20 C.F.R. §§ 404.1520(g), 416.920(g)).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 204-05). 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 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 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), 1382c(a)(3)(A); 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. Challenge to Vocational Expert's Testimony

1. Arguments of the Parties

Plaintiff argues that the ALJ “improperly relied on the inadequate testimony of the Vocational Expert” (DN 14-1 PageID 1642). The issue that Plaintiff presents is that “substantial evidence does not support that the jobs proffered by the [vocational expert] exist in significant numbers in the economy or are reliable” (Id.). Plaintiff focuses on the vocational expert's testimony which included the repeated phrase, “at a reduced number” (Id. at PageID 1643) (citing Tr. 58). It was “clear error” for the ALJ to note that the vocational expert's testimony was inconsistent with the Dictionary of Occupational Titles (“DOT”) while simultaneously finding that there were jobs in the national economy that Plaintiff could perform (Id.). Moreover, Plaintiff critiques the vocational expert's methodology to calculate the number of jobs available to Plaintiff (Id. at PageID 1643-44).

In contrast, Defendant claims that the vocational expert identified 320, 000 jobs in the national economy which an individual with Plaintiff's RFC, age, education, and background could perform, and the expert's testimony was consistent with the DOT (DN 19 PageID 1680). Defendant contends that no argument or challenge was raised to the vocational expert's testimony or methodology at the administrative hearing, so the ALJ “more than satisfied” her responsibilities under SSR 00-4p and can reasonably rely on the vocational expert's testimony in making their determination (Id. at PageID 1681). Additionally, “the Sixth Circuit has held that an ALJ may properly rely on [a vocational expert's] testimony even when it conflicts with the DOT” (Id. at PageID 1682) (citing Wright v. Massanari, 321 F.3d 611, 616 (6th Cir. 2003); Conn...