Skaggs v. Berryhill

• Decision Date: 21 September 2018
• Docket Number: CIVIL ACTION NO. 3:18-CV-00037-HBB
• Parties: BRENDA SKAGGS PLAINTIFF v. NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

BRENDA SKAGGS PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 3:18-CV-00037-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

September 21, 2018

MEMORANDUM OPINION AND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Brenda Skaggs ("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 judgment on the pleadings (DN 16) and, in response, Defendant has filed a Fact and Law Summary (DN 22). For the reasons that follow, 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 13). By Order entered April 16, 2018 (DN 14), 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.

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FINDINGS OF FACT

Plaintiff protectively filed applications for Disability Insurance Benefits and Supplemental Security Income on June 2, 2014 (Tr. 16, 318-25, 326-31). Plaintiff alleged that she became disabled on February 5, 2014 as a result of herniated disc disease in the back and joint/deteriorating bone disease in the upper body and neck (Tr. 16, 385). Administrative Law Judge Teresa A. Kroenecke ("ALJ") conducted a video hearing from Louisville, Kentucky on May 23, 2017 (Tr. 16, ). Plaintiff and her non-attorney representative, John R. Sharpensteen, III, participated from Elizabethtown, Kentucky (Id.). William R. Harpool, an impartial vocational expert, also participated and testified during the hearing (Id.).

In a decision dated July 14, 2017, the ALJ found that Plaintiff met the insured status requirement of the Social Security Act through June 30, 2018 (Tr. 19). The ALJ evaluated Plaintiff's adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 16-32). At the first step, the ALJ found that although Plaintiff attempted to work from April 2016 to about September 2016 at the LG&E Power Plant, this work activity was an unsuccessful work attempt (Id.). Therefore, the ALJ concluded Plaintiff had not engaged in substantial gainful activity since February 5, 2014, the alleged onset date (Id.).

At the second step, the ALJ determined that Plaintiff has the following severe impairments: lumbar degenerative disc disease, cervical degenerative disc disease, and non-dominant left shoulder degenerative joint disease (Tr. 19). The ALJ also determined that Plaintiff's previously diagnosed adjustment disorder is a non-severe mental impairment because it causes no more than minimal limitations in her ability to perform basic work activities (Tr. 19-20). At the third step,

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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. 20-21).

At the fourth step, the ALJ found Plaintiff has the following residual functional capacity ("RFC"):

After careful consideration of the entire record, I find that since February 5, 2014, the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except her pushing/pulling with her non-dominant left upper extremity is limited to occasionally and only occasional overhead reaching with her left upper extremity. The claimant is limited to no more than occasional balancing, stooping, kneeling, crouching, crawling, and climbing of ramps and stairs but no climbing of ladders, ropes, or scaffolds. She is limited to no exposure to vibration or to hazards, such as unprotected heights and/or moving mechanical parts. The claimant is allowed to alternate into the sitting position from the standing position and/or from walking every 30-45 minutes for 2-3 minutes while at her workstation. Further, the claimant is allowed to alternate into the standing position from the sitting position every 30-45 minutes for 2-3 minutes while at her workstation.

(Tr. 21). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of her past relevant work (Tr. 28).

The ALJ proceeded to the fifth step where he classified Plaintiff as closely approaching advanced age (age 50-54) prior to the May 23, 2017 administrative hearing (Tr. 29). The ALJ classified Plaintiff as advanced age (age 55 or older) beginning May 23, 2017, because she turned age 55 on June 11, 2017 (Id.). The ALJ found Plaintiff has a limited education and is able to communicate in English (Id.). The ALJ indicated that transferability of job skills was not an issue in this case because Plaintiff's past relevant work was unskilled (Tr. 30). The ALJ concluded that prior to May 23, 2017, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed given her age, education, work experience, and RFC (Tr.

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30-31). The ALJ also found Plaintiff was disabled beginning May 23, 2017 pursuant to Medical-Vocational Rule 202.01 (Tr. 31). Thus, the ALJ determined that Plaintiff was not disabled prior to May 23, 2017, but became disabled on that date and has remained disabled through the date of the decision, July 14, 2017 (Tr. 31-32).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 316-17). The Appeals Council denied Plaintiff's request for review (Tr. 1-4).

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. 1-4). 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

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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) (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

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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, at the fifth step, the ALJ found Plaintiff was not disabled prior to May 23, 2017. However, the ALJ found that Plaintiff became disabled on May 23, 2017 and has continued to be disabled through the date of the decision.

Challenged Findings

Plaintiff disagrees with Finding No. 5 which sets forth the ALJ's RFC assessment (DN 16-1 PageID # 630, 638-42). Plaintiff also disagrees with Finding No. 10 which sets forth the ALJ's conclusion that prior to May 23, 2017, there were jobs that existed in significant numbers in the national economy that Plaintiff could...