Shirley v. Colvin, CIVIL ACTION NO. 1:13CV-00038-JHM

• Decision Date: 25 October 2013
• Docket Number: CIVIL ACTION NO. 1:13CV-00038-JHM
• Parties: EVELYN M. SHIRLEY PLAINTIFF v. CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

EVELYN M. SHIRLEY PLAINTIFF v. CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 1:13CV-00038-JHM

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY BOWLING GREEN DIVISION

October 25, 2013

MEMORANDUM OPINIONAND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Evelyn M. Shirley ("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.

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 13). By Order entered June 14, 2013 (DN 14), the parties were notified that oral arguments would not be held unless a written request therefor was filed and granted.

FINDINGS OF FACT

Plaintiff filed applications for Disability Insurance benefits and Supplemental Security Income payments on December 20, 2011 (Tr. 11, 200-206, 207-213). Plaintiff alleged that she became disabled on July 1, 2010 as a result of bipolar disorder, suicidal ideation, history of suicide attempts, high blood pressure, and intermittent back problems (Tr. 11, 200-206, 207-213, 306). These claims were denied initially on March 6, 2012, and upon reconsideration on May 8, 2012 (Tr. 11). Plaintiff filed a request for a hearing and, thereafter, Administrative Law Judge D. Lyndell Pickett ("ALJ") conducted a hearing on July 11, 2012 in Louisville, Kentucky (Tr. 11). Plaintiff was present and represented by Trevor A. Smith, an attorney (Tr. 11). Also present and testifying was William R. Irvin, an impartial vocational expert (Tr. 11).

In a decision dated August 7, 2012, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 11-22). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since July 1, 2010, the alleged onset date (Tr. 13). At the second step, the ALJ determined that Plaintiff's cervical radiculopathy, obesity, bipolar disorder, obsessive-compulsive disorder, and polysubstance abuse in full sustained remission are "severe" impairments within the meaning of the regulations (Tr. 14). Also, at the second step, the ALJ observed that Plaintiff has some history of hypertension; however, he did not find hypertension to be a severe impairment (Tr. 14). 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 (Tr. 14).

At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except she may never climbladders, ropes or scaffolds; frequently, but not constantly, balance, stoop, kneel, and crouch; and must avoid all exposure to hazards like dangerous machinery and unprotected heights (Tr. 15). Additionally, the ALJ found that Plaintiff has the mental residual functional capacity to perform routine, repetitive, unskilled and low stress work, which requires no strict production quotas (Tr. 15). Lastly, the ALJ determined that Plaintiff may have no contact with the public and only occasional contact with supervisors and coworkers in a task-oriented environment (Tr. 15). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform her past relevant work as a fast wood worker, factory clothes dryer, laundry worker, and daycare worker (Tr. 20).

The ALJ proceeded to the fifth step where he considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 21). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in significant numbers in the national economy (Tr. 21). Therefore, the ALJ concluded that Plaintiff has not been under a "disability," as defined in the Social Security Act, from July 1, 2010, through August 7, 2012, the date of the ALJ's decision (Tr. 21-22).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 33). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-3).

CONCLUSIONS OF LAW

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 IIDisability 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 (6^th 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.

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).

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 (6^th Cir. 1993); Wyatt v. Sec'y of Health and Human Servs., 974 F.2d 680, 683 (6^th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec'y of Health and Human Servs., 803 F.2d 211, 213 (6^th 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 and Human Servs., 987 F.2d 1230, 1233 (6^th 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 and Human Servs., 964 F.2d 524, 528 (6^th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6^th Cir. 1984)).

Plaintiff challenges the ALJ's Finding No. 5, which addresses the fourth step in the five-step sequential evaluation process promulgated by the Commissioner (DN 15, Plaintiff's Fact and Law Summary at Pages 2-11).¹ Here, the ALJ found that Plaintiff has the residual functional capacityto perform medium work², except she may never climb ladders, ropes or scaffolds; frequently, but not constantly, balance, stoop, kneel, and crouch; and must avoid all exposure to hazards like dangerous machinery and unprotected heights (Tr. 15). Additionally, the ALJ found that Plaintiff has the mental residual functional capacity to perform routine, repetitive, unskilled and low stress work, which requires no strict production quotas (Tr. 15). Lastly, the ALJ determined that Plaintiff may have no contact with the public and only occasional contact with supervisors and coworkers in a task-oriented environment (Tr. 15).

Plaintiff argues that Finding No. 5 is not supported by substantial evidence because the ALJ made selective findings without a rationale for rejecting those findings that support Plaintiff's claim of disability (DN 15, Plaintiff's Fact and Law Summary at Pages 2-11). Plaintiff also argues that the ALJ failed to consider her subjective complaints of pain when making the residual functional capacity determination (DN 15, Plaintiff's Fact & Law Summary at Pages 2-11). More specifically, Plaintiff maintains that due to her physical and mental conditions, she is unable to perform even unskilled sedentary work (DN 15, Plaintiff's Fact & Law Summary at Pages 2-11). With regard to her physical impairments, Plaintiff asserts that she experiences severe neck pain, which radiates intoher chest and left shoulder, and as a result of this pain, she cannot lift more than 10 or 20 pounds or reach overhead (Tr. 16, 61-62). As to her mental impairments, Plaintiff asserts that she suffers from severe depression, obsessive-compulsive disorder and anxiety, and she has a history of substance abuse (Tr. 16, 50-60). In addition, she alleges auditory hallucinations, racing thoughts, mood swings, suicidal ideation and paranoia, which interfere with her sleep and ability to get along with others (Tr. 16, 50-60). Because of her alleged mental impairments, Plaintiff asserts that she can maintain concentration...