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Kennedy v. Commissioner of Social Security

United States District Court, E.D. Tennessee

March 7, 2013

MELISSA REN'E KENNEDY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant

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For Melissa Ren'e Kennedy, Plaintiff: David N Darnell, Dean Greer & Associates, Kingsport, TN.

For Social Security Administration, Commissioner of, Defendant: Loretta S Harber, LEAD ATTORNEY, U S Department of Justice (Knox USAO), Office of U S Attorney, Knoxville, TN.

OPINION

SUSAN K. LEE, UNITED STATES MAGISTRATE JUDGE. Collier.

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REPORT AND RECOMMENDATION

Plaintiff Melissa Ren'e Kennedy brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security (" Commissioner" or " Defendant" ) denying her supplemental security income (" SSI" ). Plaintiff has moved for judgment on the pleadings and Defendant has moved for summary judgment [Docs. 9, 11]. Plaintiff alleges the Administrative Law Judge (" ALJ" ) improperly assigned less weight to the opinion of her treating physician and the opinion of a state agency physician, and further erred in assessing her subjective complaints. For the reasons stated below, I RECOMMEND that (1) Plaintiff's motion for judgment on the pleadings [Doc. 9] be GRANTED IN PART to the extent it seeks remand to the Commissioner and DENIED IN PART to the extent it seeks an award of benefits; (2) the Commissioner's motion for summary judgment [Doc. 11] be DENIED; and (3) the Commissioner's decision denying benefits be REVERSED and REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g).

I. ADMINISTRATIVE PROCEEDINGS

Plaintiff initially filed her application for SSI on June 5, 2009, alleging an onset date

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of November 29, 2007 (Transcript (" Tr." ) 101-04). Plaintiff's claim was denied initially and upon reconsideration and she requested a hearing before the ALJ (Tr. 54-65). The ALJ held a hearing on September 10, 2010, during which Plaintiff was represented by an attorney (Tr. 25-44). The ALJ issued his decision on November 8, 2010 and determined Plaintiff was not disabled because there were jobs that existed in significant numbers in the economy that she could perform (Tr. 6-19). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final, appealable decision of the Commissioner (Tr. 1-3). Plaintiff filed the instant action on June 1, 2012 [Doc. 1].

II. FACTUAL BACKGROUND

A. Education and Background

Plaintiff was 37 years old at the time of the hearing before the ALJ, had left school in the tenth grade, and received a GED diploma when she was 20 (Tr. 30, 126). Plaintiff had learned masonry and stone work from her father, for whom she would work off and on whenever she did not have a job, and she had also previously worked as a waitress, pizza deliverer, cashier, and doughnut packager (Tr. 30-31). Plaintiff testified she last worked in late 2007 (Tr. 31). Plaintiff testified she was physically unable to work because of pain in her back, neck and hips; she stated she was on Oxycodone, Soma and Valium for the pain but it just made her " fuzzy headed" and worse (Tr. 32-33). Plaintiff also had pain in her bones, difficulty using her left arm in many ways due to a shoulder injury, and hepatitis C, which caused limb pain, abdomen pain, and nausea (Tr. 33). She had been in the hospital the previous December because of hepatitis C treatment and was still having some symptoms (Tr. 33-34).

Plaintiff had been receiving treatment at the Mental Health Center for the previous six years and her doctor had prescribed Prozac for anxiety and depression (Tr. 34). Plaintiff testified to isolating herself and crying often due to pain and her inability to do anything and stated these conditions would prevent her from working (Tr. 34-35). Plaintiff was separated and lived with her parents; she had two children who did not live with her (Tr. 31-32, 35). Her mother took care of household chores and Plaintiff tried to help (Tr. 35). Plaintiff testified she did not get out of the house often, did not attend church, clubs, organizations, or visit friends or family, and only left the house for appointments, which was probably less than once a week (Tr. 35). Plaintiff had a driver's license and owned a vehicle, but did not drive (Tr. 36). Plaintiff did not drink, but she did use marijuana two to three times a week " for [her] stomach" and lack of appetite (Tr. 36). Plaintiff testified she got the marijuana from her father but was now on a medication that was helping her appetite so she was trying to stop using marijuana and had not used it in over two weeks (Tr. 36).

B. Vocational Expert Testimony

During the hearing, the ALJ solicited the testimony of vocational expert Adrian Bentley Hankins (the " VE" ) (Tr. 37-43). The ALJ first asked the VE to assume an individual age 37 with a GED who had the exertional limitations specified by state agency physician Dr. Pennington in his physical residual functional capacity (" PRFC" ) assessment form (Tr. 39). The VE testified that an individual with these limitations would have a slightly less than full range of light work available to them, but there would be jobs available; as examples, the VE testified this individual could work as a janitor or building cleaner, hand packer or packager, food preparation worker, laundry and dry cleaning worker

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or garment presser, or other production jobs such as assemblers and fabricators (Tr. 39-40). Approximately 2.5 to 2.6 million of these jobs would be available nationally, with 50,000 to 55,000 in Tennessee (Tr. 40).

In his second hypothetical, the ALJ asked the VE to assume an individual of the same age and with the same education and past relevant work, but with the physical limitations outlined by Dr. Breeding (Tr. 40). The VE testified that due to the ranges provided in Dr. Breeding's opinion as to Plaintiff's ability to sit or stand, the individual would likely be at less than a full range of sedentary work and would not be employable on a sustained basis for any type of work (Tr. 40-41). In the third hypothetical, the ALJ asked the VE to assume an individual of the same age and with the same education and past relevant work, but with the physical limitations opined by Dr. Grigsby (Tr. 41). The VE testified that Dr. Grigsby's opinion would also place the hypothetical individual at less than a full range of sedentary work and it would preclude the individual from any work that existed in significant numbers (Tr. 41). For the fourth hypothetical, the ALJ asked the VE to combine the physical restrictions outlined by Dr. Pennington from hypothetical one with the non-exertional limitations opined by Ms. Birchfield (Tr. 41). The VE testified the opinion of Ms. Birchfield would not have a significant impact, as she stated Plaintiff had moderate limitations in complex work instructions and social interaction with the public, co-workers or supervisors, but the unskilled occupations identified in response to the first hypothetical required minimal public contact (Tr. 41-42).

In the fifth hypothetical, the ALJ combined the physical restrictions outlined by Dr. Pennington from hypothetical one with the non-exertional limitations opined by Dr. Gaines (Tr. 42). The VE testified that because Dr. Gaines' opinion indicated marked limitations in numerous areas, the combination of psychological limitations would preclude employment (Tr. 42). For the ALJ's sixth and final hypothetical, the ALJ asked the VE to assume an individual of the same age and with the same education and past relevant work, but to assume the ALJ fully credited Plaintiff's testimony during the hearing (Tr. 42-43). The VE testified that the combination of impairments ...


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