United States District Court, E.D. Tennessee, Greeneville
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. § 636 for a report and recommendation. Plaintiff has filed an application for disability insurance benefits, an application for disabled widow benefits, and for supplemental security income under the Social Security Act. These applications were denied following an administrative hearing before an Administrative Law Judge ["ALJ"]. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 12] while the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 14].
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 born October 23, 1960, and thus was 52 years of age at the time of the ALJ's decision on May 14, 2013. She has a high school equivalency diploma. The dispute in this action involves what her past relevant work was and whether there is substantial evidence that she can perform it now.
The plaintiff's medical history is described in the plaintiff's brief as follows:
The Plaintiff has suffered from low back pain for a number of years. In connection with her prior application, she was evaluated by Dr. Robert A. Blaine in April 2009. He noted that she did not have straight leg pain and her strength was 5/5 bilaterally. Deep tendon reflexes could not be elicited in the upper extremities and knee jerks were 1/4. Ankle jerks could not be elicited in either side. He diagnosed low back pain and right arm pain and opined that she could stand or walk for six to eight hours in an eight hour day and could lift and carry 10 pounds frequently and 25 pounds infrequently. She could sit for eight hours in an eight hour day (TR 300).
The Plaintiff was evaluated at Peninsula for a suicide attempt by overdose on November 9, 2011. She was diagnosed as suffering from an overdose, suicidal ideation and depression on no medication (TR 317).
After that, the Plaintiff came under the care of Cherokee Health Systems for her mental problems. On November 14, 2011, the Plaintiff was diagnosed as suffering from major depression, recurrent, severe, and alcohol abuse. It was noted that her current GAF was 45 and her highest had been 50 and her lowest 40. It was noted that she had depressed mood, a flat affect, slow motor activity and speech, but her memory was impaired and she had poor concentration and her reasoning, impulse, and judgment were poor (TR 328). In December 2011, it was noted that she was still drinking (TR 332). After Christmas, she was drinking less (TR 333). In January, she was still depressed (TR 334). On January 18, 2012, she was diagnosed as suffering from alcohol dependence, depressive disorder, NOS, a personality disorder and she was begun on Celexa (TR 335). On January 24, 2012, it was noted that she was drinking less (TR 336). In April 2012, it was noted that her husband has passed away and she was again diagnosed as suffering from alcohol dependence, and depressive disorder, NOS, a personality disorder and in addition to Celexa, she was begun on Diazepam (TR 341).
The Plaintiff was evaluated by Mr. Arthur W. Stair, III, on June 8, 2012. He diagnosed her as suffering from major depressive disorder, moderate, anxiety disorder NOS, mild, and rule out alcohol dependence as her drinking had been worsening since her husband's death. He opined that her GAF was 50 (TR 352). He opined that the Plaintiff had the ability to understand simple information and to implement multiple-step complex instructions but that her ability to maintain persistence and concentration on tasks for a full work day and work week was at least moderately impaired due to depression and anxiety disorder NOS. Her ability to adapt to change in the work place was at least moderately impaired because of depression and anxiety and her social relationships were moderately impaired (TR 351).
The Plaintiff was evaluated by Dr. David H. McConnell, a family practitioner, in June 2012. He diagnosed the Plaintiff as suffering from chronic low back pain, osteoarthritis of te lumbosacral spine, minimal, chronic right upper arm and shoulder pain, osteoarthritis of the right shoulder, minimal, chronic cigarette abuse, being underweight and depression. He opined that the Plaintiff could occasionally lift and carry up to 40 pounds and could frequently lift 35 pounds, and could stand and walk with normal breaks for a total of at least seven hours in an eight hour work day and could sit with normal breaks for a total of at least eight hours in an eight hour work day (TR 418).
The Plaintiff continued to be followed by the Cherokee Health Systems for her mental problems. In May 2012, she was diagnosed as suffering from recurrent, severe major depression as well as alcohol abuse and her GAF was 45 (TR 456). In June 2012, it was noted that she was having difficulty in sleeping and was using alcohol, and she was diagnosed as suffering from alcohol dependence, depressive disorder, NOS, and personality disorder (TR 459). In September 2012, she reported that she had two panic attacks (TR 528). In February 2013, the Plaintiff reported that she was ver depressed and she had not drunk in two weeks (TR 533). It was noted that she was having longer periods of abstinence from alcohol but she was still described as suffering from recurrent severe major depression and alcohol dependence and her GAF was 45 (TR 534).
[Doc. 13, pgs. 2-5].
In addition to this, there are evaluations of the evidence by various state agency physicians and psychologists. On May 26, 2009, Dr. James N. Moore, M.D., found Dr. Blaine's medical assessment described above to be "too restrictive." Dr. Moore found plaintiff could frequently lift 25 pounds, occasionally lift 50 pounds, stand or walk for six hours in an eight hour workday and sit for six hours in an eight hour workday. Dr. Moore also found the plaintiff could never balance, and was limited in reaching, stating "overhead reaching bil upper extremities limited to frequent." He found her statements credible to a limited degree. (Tr. 301-09).
On August 4, 2012, following Dr. McConnell's consultative examination, Dr. James Gregory, M.D., a state agency physician, gave a medical assessment of the plaintiff. He opined plaintiff had the same lifting, standing/walking and siting capabilities as described by Dr. Moore above, her only difficulty being limited to occasional climbing of ladders, ropes and scaffolds. He found the plaintiff not ...