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Potter v. Colvin

United States District Court, E.D. Tennessee, Greeneville

August 1, 2014

STEVEN G. POTTER
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security

REPORT AND RECOMMENDATION

DENNIS H. INMAN, Magistrate Judge.

This matter is before the United States Magistrate Judge, under the standing orders of the Court and 28 U.S.C. ยง 636 for a report and recommendation. This action is for judicial review of the denial of the plaintiff's applications for disability insurance benefits and supplemental security income under the Social Security Act following an administrative hearing before an Administrative Law Judge ["ALJ"]. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 11] while the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 13].

The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir. 1988). "Substantial evidence" is defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Liestenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).

Plaintiff was 37 years of age at the time of his alleged disability onset date of November 30, 2007. He has a high school education. No one disputes that he cannot perform his past relevant work.

Plaintiff's medical history is summarized in his brief as follows:

The Plaintiff has complained of chest pains for a number of years. In January 2007, he was seen by Dr. Jonathan MacCabe (TR 149-151). He underwent a Myoview stress test which was normal (TR 153). However, an echocardiogram showed mild mitral regurgitation (TR 155). In February 2007, Dr. MacCabe opined that the Plaintiff's chest pain was likely non-cardiac given his recent normal stress test (TR 157). In March 2010, the Plaintiff was noted to have diabetes by Dr. Raina Sluder (TR 168).
The Plaintiff was evaluated by Dr. Marianne Filka in December 2010. She diagnosed the Plaintiff as suffering from chronic constant lumbar and tailbone pain with intermittent right hip radicular sharp pains, a history of a fractured lumbar transverse process from a fall, chronic intermittent mid back pain, adult onset diabetes with peripheral neuopathy as the main sequelae, chest pain, a history of mitral regurgitation, a history of juvenile rheumatoid arthritis, hypertension, arthralgia in his knees, ankles and feet, tobaccoism, a remote history of marijuana use, a history of tension headaches, a history of vertigo (TR 185), anxiety and depression based upon a reviow of systems, and borderline hypercholesterolemia (TR 186). She opined that the Plaintiff should be allowed to alternate positions to standing, sitting and walking as needed for comfort, and should no do any heavy lifting but could occasionally lift up to 40 pounds and frequently up to 30 pounds, he should not be pushing or pulling more than 50 pounds, and should not operate heavy vibrating equipment (TR 186). An x-ray noted mild osteoarthritic changes and disk space narrowing primarily in the lower lumbar vertebra (TR 187).
A state agency reviewing psychologist, Dr. Jeffrey T. Bryant, Ph.D. opined that the Plaintiff had no medically determinable impairment (TR 189).
The state agency reviewing physician, Dr. Marvin H. Cohn opined that the Plaintiff could occasionally lift 50 pounds, could frequently lift 25 pounds, could stand or walk about six hours out of an eight hour workday and could sit about six hours in an eight hour work day (TR 204). Another state agency reviewing physician, Dr. Janet C. Pelmore, opined similar restrictions (TR 214).
The Plaintiff came under the care of Dr. Sally A. Nicks, a rheumatologist, in January 2012. She noted that the Plaintiff had mild nodularity in the palmar flexor tendons with slight tenderness and he was tender in the MCP's. There was also slight swelling in the medial ankles, mid feet only and his c-spine range of motion was limited in all directions. There was also a slight decrease in his shoulder range of motion and Patrick's test caused discomfort in either hip and lower back. Dr. Nicks diagnosed pain in the joints at multiple sites and she thought that he might have fibromyalgia along with probable underlying arthritis (TR 224). In April 2012, Dr. Nicks diagnosed the plaintiff as suffering from spondyloarthropathy and he was put on Methotexate (TR 239). He was also diagnosed as suffering from degenerate disk disease of the lumbar spine and fibromyalgia (TR 240).

[Doc. 12, pgs. 3 and 4].

Dr. Robert Spangler, a vocational expert ["VE"], testified at the hearing before the ALJ. The ALJ asked Dr. Spangler to "assume physically the claimant is restricted to light work. Further assume he requires a sit/stand option. Assume he can't have any concentrated exposure to temperature extremes or vibration. And assume that he can't perform more than occasional fine manipulation." When asked if there were jobs that person could perform, Dr. Spangler opined that 651, 700 national jobs and 13, 797 regional jobs which a person with those limitations could perform. (Tr. 44-45).

In his hearing decision, the ALJ found that the plaintiff had severe impairments of a lower back impairment; arthritis in the knees, elbows, and hands; a heart valve abnormality; and diabetes mellitus with neuropathy in the feet and hands (Tr. 14). He found that the plaintiff's hypertension was controlled and not severe. He found that the plaintiff did not have a severe mental impairment. (Tr. 14-15).

He found that the plaintiff had the residual functional capacity ["RFC'] to perform light work, except that he would require a sit/stand option as needed. Also the plaintiff could not have any concentrated exposure to temperature extremes or vibration, and could not perform more than occasional fine manipulation bilaterally. (Tr. 17). He then discussed the plaintiff's daily activities and how these "weakens his credibility" with respect to his subjective complaints. (Tr. 18). He then thoroughly discussed the medical evidence in this fairly sparse record, particularly the examination and findings by Dr. Marianne Filka, the Commissioner's consultative examiner. (Tr. 19). He then went on to attach great weight to ...


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