Sullivan v. Colvin

• Decision Date: 20 February 2014
• Docket Number: CIVIL ACTION NO. 1:13CV-000119-HBB
• Parties: ALICE M. SULLIVAN PLAINTIFF v. CAROLYN W. COLVIN, Acting Commissioner of Social Security DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

ALICE M. SULLIVAN PLAINTIFF v. CAROLYN W. COLVIN,Acting Commissioner of Social Security DEFENDANT

CIVIL ACTION NO. 1:13CV-000119-HBB

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY OWENSBORO DIVISION

February 20, 2014

MEMORANDUM OPINIONAND ORDER

BACKGROUND

Before the Court is the complaint (DN 1) of Alice M. Sullivan ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 19) and Defendant (DN 20) 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 16). By Order entered October 29, 2013 (DN 17), 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

On September 27, 2010, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income (Tr. 160-164, 165-171). Plaintiff alleged that she became disabled on December 1, 2007, as a result of open heart surgery and left leg problems (Tr. 179, 181). On January 11, 2012, Administrative Law Judge Hortensia Haaversen ("ALJ") conducted a videohearing from Baltimore, Maryland (Tr. 9, 23-25). Plaintiff appeared in Bowling Green, Kentucky, and was represented by attorney Nancy O. Roberts (Tr. 9, 23-25). Also present and testifying was Stephen P. Davis, a vocational expert (Tr. 9, 23-25).

In a decision dated May 16, 2012, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 9-17). Before addressing each step, the ALJ determined that Plaintiff meets the insured status requirements of the Social Security Act through June 30, 2014 (Tr. 11). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since December 1, 2007, the alleged onset date (Tr. 11). At the second step, the ALJ determined that Plaintiff's coronary artery disease status post two-vessel coronary artery bypass grafting with benign hypertension, ongoing tobacco abuse, and obesity are "severe" impairments within the meaning of the regulations (Tr. 12). Notably, at the second step, the ALJ determined although Plaintiff had a sever fracture of her left tibia in May 2010 this impairment could not be a "severe" impairment within the meaning of the regulations because it did not last twelve months (Tr. 12). 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. 12).

At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform less than a full range of light work because she may sit 8 hours, stand 2 hours, and walk one hour; she needs the option to sit and stand, she may occasionally bend, stoop, push, pull, and reach overhead but never kneel, stoop, crouch, or crawl; she will need to alternate positions every 35 to 45 minutes and may occasionally be able to grip with her hands (Tr. 12-13). Additionally, the ALJ found that Plaintiff is unable to perform any past relevant work (Tr. 15).

The ALJ proceeded to the fifth step where she considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 16-17). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 16-17). Therefore, the ALJ concluded that Plaintiff has not been under a "disability," as defined in the Social Security Act, from December 1, 2007, through the date of the decision, May 16, 2012 (Tr. 17).

Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 22). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-3, 4).

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 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 (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," 20C.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).

Before addressing each of Plaintiff's arguments the undersigned will globally address an issue that pertains to all of her arguments. Specifically, Plaintiff has mistakenly used the abuse of discretion standard in each of her challenges to the ALJ's findings (DN 19, Memorandum at Pages 5-19). Apparently, Plaintiff is not aware that 42 U.S.C. §405(g) governs judicial review of her claims. This statute limits the Court's review to determining whether the findings set forth in the final decision of the Commissioner are supported by "substantial evidence" and whether the correct legal standards were applied. Gayheart v. Commissioner, 710 F.3d 365, 374 (6^th Cir. 2013) (citing42 U.S.C. § 405(g); Cole v. Astrue, 661 F.3d 931, 937 (6^th Cir. 2011)). "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. Secretary of Health and Human Serverices, 987 F.2d 1230, 1233 (6th Cir. 1993)). This means, "[a] reviewing court will affirm the Commissioner's decision if it is based on substantial evidence, even if substantial evidence would also have supported the opposite conclusion." Gayheart, 710 F.3d at 374 (emphasis added) (citing Colvin v. Barnhart, 475 F.3d 727, 730 (6^th Cir. 2007)). 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. Secretary of Health and Human Services, 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)). In sum, the Court will not apply the abuse of discretion standard when it addresses each of Plaintiff's challenges to the ALJ's findings. Instead, the Court will assess whether each challenged finding is supported by "substantial evidence" and whether the ALJ applied the correct legal standard.

Plaintiff's Challenges to Finding No. 2

a

Plaintiff argues the ALJ erred in finding December 1, 2007 is the alleged onset date (DN 19, Memorandum at Pages 6-7, 8). Relying on comments the ALJ made during the hearing, Plaintiff asserts the ALJ should have used May 15, 2009, as the onset date (DN 19, Memorandum at Pages 6-7, 8).

Defendant acknowledges the onset date in Finding No. 2 is different from the May 15, 2009 date the ALJ mentioned during the hearing (DN 20, Fact and Law Summary at Page 5). Defendant points out the onset date actually should have been the day after the May 12, 2009 Administrative Law Judge decision denying Plaintiff's earlier application for benefits (DN 20, Fact and Law Summary at Page 5 at foot note 2). Defendant asserts this error is harmless because the ALJ's decision (Tr. 11-17) shows she considered the period from December 1, 2007 through May 16, 2012, and substantial evidence support the ALJ's decision for the pertinent period (DN 20, Fact and Law Summary at Page 5-7).

Both applications for benefits allege a December 1, 2007 onset of disability (Tr. 162, 165). During the administrative hearing on January 11, 2012, the ALJ observed that Plaintiff filed a previous application for benefits and it had been denied by an Administrative Law Judge on May 14, 2009 (Tr. 23, 25). Therefore, the ALJ indicated the onset date "we're going to consider in this case is May 15, 2009," the day after the previous denial (Tr. 25). On May 16, 2012, the ALJ issued a decision (Tr. 9-17). In the first paragraph of the decision, the ALJ noted that both of Plaintiff's applications allege her disability began on December 1, 2007 (Tr. 9). In Finding No. 2, the ALJ concluded that December 1, 2007, is "the alleged onset date" (Tr. 11)....