Cuckovic v. Commissioner of Social Security

Filing 20

MEMORANDUM AND OPINION by Magistrate Judge H. Brent Brennenstuhl on 1/28/2019. The final decision of the Commissioner is REVERSED. This matter is REMANDED, pursuant to 42 U.S.C. § 405(g), to the Commissioner for further proceedings. cc: Counsel (MEJ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:18-CV-00232-HBB
ZORAN CUCKOVIC

PLAINTIFF

VS.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Zoran Cuckovic (APlaintiff@) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
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 REVERSED and this matter is
REMANDED, pursuant to 42 U.S.C. § 405(g), to the Commissioner for further proceedings.
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 7). By Order entered July 20,
2018 (DN 12), 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 payments on August 22, 2014 (Tr. 13, 193, 197). Plaintiff alleged that he
became disabled on April 28, 2014 as a result of a back problem involving a disc extrusion with
left nerve root pressure at L5 and an extrusion on the right nerve root at S1 (Tr. 13, 217).
Administrative Law Judge Teresa A. Kroenecke (AALJ@) conducted a hearing on December 13,
2016, in Louisville, Kentucky (Tr. 29). Plaintiff was present and represented by his attorney
Trevor Smith (Id.). Also present and testifying was Courtney Stiles, a vocational expert (Id.).
In a decision dated February 17, 2017, the ALJ evaluated this adult disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 1323). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since
April 28, 2014 the alleged onset date (Tr. 15). At the second step, the ALJ determined that
Plaintiff has the following severe impairments: degenerative disc disease of the lumbar spine and
obesity (Id.). Notably, at the second step, the ALJ also determined that Plaintiff=s medically
determinable mental impairment of depression was a nonsevere impairment (Tr. 15-16). 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. 1617).
At the fourth step, the ALJ found that Plaintiff has the residual functional capacity to
perform less than a full range of sedentary work because he needs to alternate between a sitting
and standing/walking position every 30 to 45 minutes for 2 to 3 minutes at the workstation and he
requires a cane to ambulate; he may occasionally stoop, balance, crouch, and climb ramps and
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stairs, but he may not operate foot controls, kneel, crawl, or climb ladders, ropes, or scaffolds; he
must avoid concentrated exposure to wetness, humidity, vibrations, and hot and cold temperature
extremes; he must avoid all exposure to hazards such as heights and dangerous machinery (Tr. 17).
Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform
any of his past relevant work (Tr. 21).
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. 21-22). The ALJ found that Plaintiff is capable of performing a significant number of jobs
that exist in the national economy (Id.). Therefore, the ALJ concluded that Plaintiff has not been
under a Adisability,@ as defined in the Social Security Act, from April 28, 2014 through the date of
the decision, February 17, 2017 (Tr. 22-23).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
190-92). 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 Asubstantial 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). ASubstantial 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
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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 Amay 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 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
Adisability@ 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).
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The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See AEvaluation 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 found that Plaintiff was not able to perform any of his past relevant work. The ALJ
proceded to the fifth step where she denied Plaintiff=s claim because his residual functional
capacity, age, education, and past work experience allowed him to perform a significant number
of jobs in the national economy.
Challenged Findings
Plaintiff disagrees with Finding No. 4 which addressed whether he met or equaled Listing
1.04 (DN 14 PageID # 1632-42). Plaintiff also takes issue with Finding No. 5 which sets forth
the ALJ’s residual functional capacity assessment (Id.).

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A.
1.

The Parties’ Arguments

In his challenge to Finding No. 4, Plaintiff acknowledges that the ALJ identified Listing
1.04 and recited the factors stated in that listing (DN 14 PageID # 1632-33). Plaintiff takes issue
with the ALJ’s failure to actually evaluate the evidence regarding his back condition and obesity,
compare it to Listing 1.04, and explain why she concluded that Plaintiff did not meet or equal that
listing (Id.). Plaintiff then explains why the medical evidence in the record concerning his back
condition is more than sufficient to conclude that he met or equaled Listing 1.04 (Id.).
Defendant contends that substantial evidence in the record supports the ALJ’s
determination that Plaintiff did not meet or medically equal Listing 1.04 (DN 19 PageID # 165558). Defendant acknowledges that the ALJ’s explanation was cursory but asserts it was legally
sufficient (Id. citing Bledsoe v. Barnhart, 165 F. App’x. 408, 411 (6th Cir. 2006)). Additionally,
Defendant argues the ALJ’s discussion of the medical evidence in Finding No. 5 should be
considered when the Court addresses Plaintiff’s challenge to Finding No. 4 (Id.).
2.

Discussion

At the third step, the Administrative Law Judge is required to consider the medical severity
of the claimant's impairment.

See 20 C.F.R. 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

More

specifically, the Administrative Law Judge must determine whether the claimant's impairment
meets or equals one of the listings in the Listing of Impairments, which “describes for each of the
major body systems impairments that [the Social Security Administration] consider[s] to be severe
enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education or work experience.” 20 C.F.R. § 404.1525(a), 416.925(a); see 20 C.F.R. Part 404,
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Subpart P, Appendix 1. If the claimant can satisfy all of the objective medical criteria, as well as
the duration requirement, then he “will be deemed conclusively disabled, and entitled to benefits.”
Reynolds v. Comm'r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011); Burgess v. Sec’y of
Health & Human Servs., 835 F.2d 139, 140 (6th Cir. 1987); see 20 C.F.R. §§ 404.1520(d),
416.920(d).
An Administrative Law Judge “need not discuss listings that the applicant clearly does not
meet.” Sheeks v. Comm'r Soc. Sec., 544 F. App’x 639, 641 (6th Cir. 2013). But when the record
“‘raise[s] a substantial question as to whether [a claimant] could qualify as disabled’ under a
listing, the ALJ should discuss that listing.” Id. (quoting Abbott v. Sullivan, 905 F.2d 918, 925
(6th Cir. 1990)). Notably, the Administrative Law Judge is required to “actually evaluate the
evidence, compare it to the applicable Listings, and give an explained conclusion, in order to
facilitate meaningful review.” Reynolds, 424 F. App’x at 416. If an Administrative Law Judge
offers nothing to support his or her conclusions at step three, the reviewing court cannot assess
whether the Administrative Law Judge’s decision is based on substantial evidence. See Combs
v. Colvin, No. 15-104-DLB, 2016 WL 1301123, at *4 (E.D. Ky. April 1, 2016) (citing Reynolds,
424 F. App’x at 416; James v. Colvin, No. 3:11-CV-640-S, 2013 WL 4096977, at *8 (W.D. Ky.
Aug. 13, 2013)). Thus, such an omission at Step 3 may constitute reversible error. Id.
The listing at issue reads as follows:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the spinal cord.
With:
A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,
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motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology
report of tissue biopsy, or by appropriate medically acceptable
imaging, manifested by severe burning or painful dysesthesia,
resulting in the need for changes in position or posture more than
once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and weakness,
and resulting in inability to ambulate effectively, as defined in
1.00B2b.
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04. Here, the undersigned has reviewed the record and
concludes there is a substantial question as to whether Plaintiff could qualify as disabled under this
listing. Yet, the ALJ failed to actually evaluate the evidence, compare it to this listing, and give
an explained conclusion in order to facilitate meaningful review.

Instead, the ALJ briefly

summarized the above critera and summarily proclaimed “[t]he medical evidence does not
establish the existence of the above signs or symptoms even with the compounding impact of the
claimant’s obesity” (Tr. 17). The ALJ offered nothing to support her conclusion. Thus, the
Court cannot determine whether the ALJ’s decision is based on substantial evidence.
Defendant encourages the Court to consider the ALJ’s discussion of the medical evidence
at Step four. But this exercise merely encourages the Court to speculate why the ALJ may have
concluded that Plaintiff did not meet Listing 1.04. Such an approach cannot serve as a basis for
a meaningful judicial review of the ALJ’s conclusion at Step three. While it may be tempting to
look at the record and predict how the ALJ would have analyzed Listing 1.04 based on the evidence
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in the administrative record, the Court cannot do so without overstepping the bounds of its review.
See Combs, 2016 WL 1301123, at *5. The Court's task is to consider whether the ALJ's decision
is supported by substantial evidence and comports with applicable law, not to fill in the blanks left
by the ALJ. Id. (citing Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)). Furthermore, “correction of such an error is not merely a formalistic matter of procedure,
for it is possible that the evidence [the claimant] put forth could meet this listing.” Reynolds, 424
Fed.Appx. at 415. For the above reasons, the Court must reverse and remand the case pursuant
to sentence four of 42 U.S.C. § 405(g), to the Commissioner with instructions to conduct additional
proceedings to remedy this defect in the original proceeding. See Faucher v. Sec’y of Health &
Human Servs., 17 F.3d 171, 175 (6th Cir. 1994) (sentence four of 42 U.S.C. § 405(g) authorizes a
post judgment remand).
B.
Plaintiff also takes issue with Finding No. 5 which sets forth the ALJ’s residual functional
capacity assessment (DN 14 PageID # 1634-42).

In light of the above conclusion, the

undersigned deems it unnecessary to address this claim.

Further, the ALJ will have the

opportunity to remedy this issue when he conducts additional proceedings to remedy the above
identified defect in the original proceedings.

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ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is REVERSED.
IT IS FURTHER ORDERED that this matter is REMANDED, pursuant to 42 U.S.C. §
405(g), to the Commissioner for further proceedings.

January 28, 2019

Copies:

Counsel

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