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Presley v. Colvin

United States District Court, M.D. Tennessee, Nashville Division

December 9, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Dana Lee Presley, Plaintiff: David Clyde Downard, LEAD ATTORNEY, Downard & Associates, Nashville, TN.

For Social Security Administration, Defendant: Sam Delk Kennedy, Jr., LEAD ATTORNEY, Office of the United States Attorney (MDTN), Nashville, TN.

E. CLIFTON KNOWLES, United States Magistrate Judge. Judge Nixon.


E. CLIFTON KNOWLES, United States Magistrate Judge.

This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security denying Plaintiff Supplemental Security Insurance (" SSI"), as provided under Title XVI of the Social Security Act (" the Act"), as amended. The case is currently pending on Plaintiff's Motion for Judgment on the Administrative Record. Docket No. 14. Defendant has filed a Response, arguing that the decision of the Commissioner was supported by substantial evidence and should be affirmed. Docket No. 16.

For the reasons stated below, the undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED.


Plaintiff protectively filed her application for Supplemental Security Income (" SSI") on November 24, 2009, alleging that she had been disabled since May 1, 2007, due to degenerative knee joint disease, bipolar disorder, acid reflux disease, sleep apnea, obesity, and " Barret's esophagus." See, e.g., Docket No. 10, Attachment (" TR"), pp. 49, 143. Plaintiff's application was denied both initially (TR 49) and upon reconsideration (TR 50). Plaintiff subsequently requested (TR 64) and received (TR 72) a hearing. Plaintiff's hearing was conducted on April 23, 2012, by Administrative Law Judge (" ALJ") Carey Jobe. TR 28. Plaintiff and Vocational Expert, David Mark Boatner, appeared and testified. Id.

On April 26, 2012, the ALJ issued a decision unfavorable to Plaintiff, finding that Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR 8-22. Specifically, the ALJ made the following findings of fact:

1. The claimant has not engaged in substantial gainful activity since November 24, 2009, the application date (20 CFR 416.971 et seq .).
2. The claimant has the following severe impairments: degenerative joint disease knees; obesity; sleep apnea; bipolar disorder; obsessive-compulsive disorder; and personality disorder (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except requires a sit/stand option at thirty-minute to one-hour intervals; can do simple, one- to three-step tasks, with minimal contact with co-workers, supervisors, and the general public (dealing primarily with things and not people); infrequent workplace changes; and no rigorous production quotas.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on November 25, 1974, and was 34 years old, which is defined as a younger individual age 18-44, on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 416.968).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since November 24, 2009, the date the application was filed (20 CFR 416.920(g)).

TR 13-22.

Plaintiff timely filed a request for review of the hearing decision. TR 7. On April 26, 2013, the Appeals Council issued a letter declining to review the case (TR 1-4), thereby rendering the decision of the ALJ the final decision of the Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the Commissioner's findings are supported by substantial evidence, based upon the record as a whole, then these findings are conclusive. Id.


The parties and the ALJ have thoroughly summarized and discussed the medical and testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the extent necessary to analyze the parties' arguments.


A. Standard of Review

This Court's review of the Commissioner's decision is limited to the record made in the administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). The purpose of this review is to determine (1) whether substantial evidence exists in the record to support the Commissioner's decision, and (2) whether any legal errors were committed in the process of reaching that decision. Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986).

" Substantial evidence" means " such relevant evidence as a reasonable mind would accept as adequate to support the conclusion." Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999) ( citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). " Substantial evidence" has been further quantified as " more than a mere scintilla of evidence, but less than a preponderance." Bell v. Commissioner, 105 F.3d 244, 245 (6th Cir. 1996) ( citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).

The reviewing court does not substitute its findings of fact for those of the Commissioner if substantial evidence supports the Commissioner's findings and inferences. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different conclusion, the decision of the Administrative Law Judge must stand if substantial evidence supports the conclusion reached. Her, 203 F.3d at 389 ( citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). However, if the Commissioner did not consider the record as a whole, the Commissioner's conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985) ( citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) ( citing Futernick v. Richardson, 484 F.2d 647 (6th Cir. 1973))).

In reviewing the decisions of the Commissioner, courts look to four types of evidence: (1) objective medical findings regarding Plaintiff's condition; (2) diagnosis and opinions of medical experts; (3) subjective evidence of Plaintiff's condition; and (4) Plaintiff's age, education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).

B. Proceedings At The Administrative Level

The claimant carries the ultimate burden to establish an entitlement to benefits by proving his or her " inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). " Substantial gainful activity" not only includes previous work performed by Plaintiff, but also, considering Plaintiff's age, education, and work experience, any other relevant work that exists in the national economy in significant numbers regardless of whether such work exists in the immediate area in which Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he or she applied. 42 U.S.C. § 423(d)(2)(A).

At the administrative level of review, the claimant's case is considered under a five-step sequential evaluation process as follows:

(1) If the claimant is working and the work constitutes substantial gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which significantly limits his or her ability to work (a " severe" impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it must be determined whether he or she suffers from one of the " listed" impairments[1] or its equivalent. If a listing is met or equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level impairments, it must be determined whether the claimant can return to the job he or she previously held in light of his or her residual functional capacity (e.g., what the claimant can still do despite his or her limitations). By showing a medical condition that prevents him or her from returning to such past relevant work, the claimant establishes a prima facie case of disability.
(5) Once the claimant establishes a prima facie case of disability, the burden shifts to the Commissioner to establish the claimant's ability to work by proving the existence of a significant number of jobs in the national economy which the claimant could perform, given his or her age, experience, education, and residual functional capacity.

20 C.F.R. § § 404.1520, 416.920 (footnote added). See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

The Commissioner's burden at the fifth step of the evaluation process can be satisfied by relying on the medical-vocational guidelines, otherwise known as " the grid, " but only if the claimant is not significantly limited by a nonexertional impairment, and then only when the claimant's characteristics identically match the characteristics of the applicable grid rule. Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability determination. Id. In such cases where the grid does not direct a conclusion as to the claimant's disability, the Commissioner must rebut the claimant's prima facie case by coming forward with particularized proof of the claimant's individual vocational qualifications to perform specific jobs, which is typically obtained through vocational expert testimony. See Varley v. Secretary, 820 F.2d 777, 779 (6th Cir. 1987).

In determining residual functional capacity for purposes of the analysis required at stages four and five above, the Commissioner is required to consider the combined effect of all the claimant's impairments; mental and physical, exertional and nonexertional, severe and nonsevere. See 42 U.S.C. § 423(d)(2)(B).

C. Plaintiff's Statement Of Errors

Plaintiff contends that the ALJ: (1) improperly evaluated and assessed her credibility; (2) erroneously discounted the Medical Source Statement from her treating physician, Dr. John Cain; (3) erroneously accorded little weight to the Consultative Examiner's report; (4) did not see " new and material" evidence from Dr. Gary Gallant; and (5) minimized or failed to consider the " debilitating effects" of all of her mental and physical impairments. Docket No. 14-1 at 1-2. Accordingly, Plaintiff maintains that, pursuant to 42 U.S.C. § 405(g), the Commissioner's decision should be reversed, or in the alternative, remanded. Id.

Sentence four of § 405(g) states as follows:

The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.

42 U.S.C. § § 405(g), 1383(c)(3).

" In cases where there is an adequate record, the Secretary's decision denying benefits can be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is lacking." Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and immediately award benefits if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits. Faucher v. Secretary, 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (1994).

1. Credibility of Plaintiff's Statements

Plaintiff contends that, in finding her to be less than fully credible, the ALJ did not adequately address her subjective complaints. Docket No. 14-1 at 12. Specifically, Plaintiff maintains that the ALJ made a conclusory statement that he used the criteria outlined in SSR 96-7p in reaching his decision, but that he did not state the weight he gave to Plaintiff's statements or the rationale for that weight, as required by SSR 96-7p. Id. Plaintiff further argues that the ALJ erred in discounting her credibility based on the fact that she had been able to perform some activity on a very minimal basis, and that, " [b]y focusing on these few activities of daily living, the ALJ ignored the medical evidence which shows that the Plaintiff is disabled." Id.

Defendant responds that the ALJ complied with SSR 96-7p because, throughout his decision, he specifically explained why he found Plaintiff's subjective complaints not to be fully credible, and because those reasons were supported by the record. Docket No. 16 at 14. Defendant points to numerous inconsistencies between Plaintiff's statements and medical evidence of record, and also notes inconsistencies between Plaintiff's alleged disability onset date and evidence in the record concerning her subsequent work history. Id. at 9-13. Finally, Defendant points out that, although Plaintiff has alleged mental health impairments, Plaintiff failed to seek mental health treatment for " long periods of time." Id. at 12-13.

The Sixth Circuit has set forth the following criteria for assessing a plaintiff's subjective complaints:

[S]ubjective allegations of disabling symptoms, including pain, cannot alone support a finding of disability...[T]here must be evidence of an underlying medical condition and (1) there must be objective medical evidence to confirm the severity of the alleged pain arising from the condition or (2) the objectively determined medical condition must be of a severity which can reasonably be expected to give rise to the alleged pain.

Duncan v. Secretary, 801 F.2d 847, 853 (6th Cir. 1986) ( quoting S. Rep. No. 466, 98th Cong., 2d Sess. 24) (Emphasis added); see also 20 C.F.R. § § 404.1529, 416.929 (" [S]tatements about your pain or other symptoms will not alone establish that you are disabled...."); and Moon v. Sullivan, 923 F.2d 1175, 1182-83 (" [T]hough Moon alleges fully disabling and debilitating symptomology, the ALJ, may distrust a claimant's allegations...if the subjective allegations, the ALJ's personal observations, and the objective medical evidence contradict each other."). Moreover, " allegations of not constitute a disability unless the pain is of such a debilitating degree that it prevents an individual from engaging in substantial gainful activity." Bradley v. Secretary, 862 F.2d 1224, 1227 (6th Cir. 1988).

When analyzing the claimant's subjective complaints of pain, the ALJ must also consider the following factors and how they relate to the medical and other evidence in the record: the claimant's daily activities; the location, duration, frequency and intensity of claimant's pain; the precipitating and aggravating factors; the type, dosage and effect of medication; and the other treatment or measures to relieve pain. See Felisky v. Bowen, 35 F.3d 1027, 1039 (6th Cir. 1994) ( construing 20 C.F.R. ยง 404.1529(c)(2)). After evaluating these factors in conjunction with the evidence in the record, and by making personal observations of the claimant at the hearing, an ALJ may determine that a claimant's subjective complaints of pain and other disabling symptoms are not ...

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