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Welch v. Colvin

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

September 8, 2014

CLAUDE MELVIN WELCH
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. Plaintiff's applications for disability insurance benefits and supplemental security income under the Social Security Act were denied following a hearing before and Administrative Law Judge ["ALJ"]. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 14] while the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 16].

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 is a younger individual. He has a limited education. He cannot return to any past relevant work.

Plaintiff's medical history is mainly from sources related to his claims for disability. The medical evidence is summarized in the defendant's brief as follows:

Dr. Marianne E. Filka examined Plaintiff in December 2008 and described his intellectual functioning as average (Tr. 241, 396, 403). Dr. Filka observed Plaintiff had a normal gait and full range of motion in his shoulders (Tr. 241).
A physician at Lakeshore Mental Health Center (whose signature is illegible) stated in February 2009 that Plaintiff's intellectual functioning was average (Tr. 255). Though Plaintiff admitted using drugs and his urine drug screen showed cocaine (Tr. 254), the physician also observed Plaintiff's speech was normal, memory was intact, thinking was concrete, and attention span was average (Tr. 255).
Connie Sue Robinette, an advanced practice nurse at Frontier Health, examined Plaintiff in June 2009 and observed his intelligence appeared average (Tr. 295). She also observed his speech had a normal rate and rhythm; concentration was good; insight, judgment, and memory were intact; abstraction ability was within normal limits; and thoughts were logical, coherent, and goal-directed (Tr. 295). Plaintiff had no abnormal movements or postures (Tr. 295).
Beth Ballard, a senior psychological examiner, examined Plaintiff and administered intelligence testing in August 2009 (Tr. 321). Plaintiff stated he had not used illegal drugs in years (Tr. 317). Plaintiff reported drinking a twelve pack of beer one day earlier (Tr. 316). Ms. Ballard noted he smelled "strongly" of alcohol (Tr. 318). Intelligence testing yielded a Verbal IQ of 64, Performance IQ of 62, and Full Scale IQ of 65 (Tr. 319). Ms. Ballard opined Plaintiff may have "more than a slight limitation" in several mental areas but could still function satisfactorily in each area (Tr. 322-24).
Dr. Charles E. Gaines, a psychiatrist, examined Plaintiff in November 2010 and did not diagnose him with mental retardation (Tr. 593). Dr. Gaines observed Plaintiff answered questions logically and participated well in treatment discussions and decisions (Tr. 593). According to Dr. Gaines, Plaintiff also made several "negativistic statements, " including that "his presentation to this office for treatment might prevent him from working, such as if this would conflict with employment" (Tr. 592).
Dr. Samuel Breeding, a physician, examined Plaintiff in April 2011 and estimated Plaintiff's intelligence as average (Tr. 608). After observing that Plaintiff's gait and station appeared normal, knees had no swelling and only "mild" tenderness, and range of motion apart from his lumbar spine appeared normal (Tr. 608), Dr. Breeding stated he had no objective evidence for placing physical restrictions on Plaintiff (Tr. 609).
Ms. Ballard examined Plaintiff again in March 2011 (Tr. 601). Ms. Ballard observed his speech was logical, coherent, and goal directed (Tr. 603). Ms. Ballard also observed that Plaintiff's ability to perform activities of daily living was adequate (Tr. 604). Based on previous testing, she opined he was functioning in the mild range of mental retardation (Tr. 603, 605). Ms. Ballard and Diane L. Whitehead, a psychologist, opined Plaintiff could understand and remember simple instructions but that his intellectual functioning caused marked limitations in understanding and remembering detailed instructions, moderate limitations in maintaining age-appropriate social behavior, neatness, and cleanliness, and mild limitations in responding appropriately to changes, being aware of normal hazards, taking precautions, traveling unaccompanied to unfamiliar places, and using public transportation (Tr. 605).
William T. Stanley, a senior psychological examiner, examined Plaintiff in April 2012 (Tr. 664). Plaintiff denied using street drugs (Tr. 664). Mr. Stanley stated Plaintiff had awkward fine and gross motor movements, including shaky hands and a slow, shuffling, and limping gait (Tr. 664). Intelligence testing yielded a Verbal Comprehension Index of 72, Perceptual Reasoning Index of 67, and Full Scale IQ of 66 (Tr. 667). Mr. Stanley opined Plaintiff had numerous "moderate" or "marked" mental limitations (Tr. 670-72).
Plaintiff reported he does not drive because he lost his license in the 1980s (Tr. 206, 608). He also stated in October 2010 that he was on probation for a DUI (Tr. 400, 559). In the Function Report that he submitted to the agency, Plaintiff reported he can shop for groceries and pay bills, count change, handle a savings account, and use a checkbook and money orders (Tr. 206). He also reported he does not get along ...

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