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Burlison v. Colvin

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

December 19, 2014

J.B. Burlison, Jr., Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

REPORT AND RECOMMENDATION

JOHN T. NIXON, Senior District Judge.

For the reasons explained herein, the Magistrate Judge RECOMMENDS that the Plaintiff's Motion for Judgment on the Administrative Record (the record) (Docket Entry (DE) 13) be DENIED, and the Commissioner's decision be AFFIRMED.

I. Procedural History

The Plaintiff protectively filed for Disability Insurance Benefits (DIB) on February 16, 2010. (DE 10, p. 116).[1] He initially claimed an onset date of January 21, 2010 and disability due to the following: depression, panic attacks, hernia, high blood pressure, and dizzy spells. (DE 10, pp. 116; 133). On July 23, 2010, the Commissioner denied the DIB claim. (DE 10, p. 50). On August 05, 2010, the Plaintiff timely filed for reconsideration. (DE 10, p. 54). On September 21, 2010, the Commissioner again denied the DIB claim. (DE 10, p. 55).

On October 29, 2010, the Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). (DE 10, p. 68). On April 25, 2012, the Plaintiff appeared before the ALJ, William O. Gray. (DE 10, p. 24). Also appearing were David Boatner (Mr. Boatner), the vocational expert (VE) and Brenda Benson (Ms. Benson), the Plaintiff's attorney. (DE 10, p. 24). On May 02, 2012, the ALJ decided that the Plaintiff was not disabled under section 223(d)(1)(A) of the Social Security Act (the Act) (DE 10, p. 10). On June 29, 2012, the Plaintiff timely requested that the Appeals Council (AC) review the decision. (DE 10, p. 172). On September 16, 2013, the AC denied the request (DE 10, p. 1).

On November 18, 2013, the Plaintiff timely brought the instant action and filed a Motion to Proceed in forma pauperis. (DE 1-2). On November 22, 2013, the Court granted the Plaintiff's Motion. (DE 3). On February 06, 2014, the Defendant filed the Answer and the record. (DE 9, 10). On March 11, 2014, the Plaintiff filed the Motion for Judgment on the Record and Memorandum in Support of the Motion pursuant to 42 U.S.C. ยง 405(g), seeking judicial review of the final decision of the Social Security Administration (the SSA), as set out by the ALJ. (DE 12-13). On May 22, 2014, the Defendant filed a Response in Opposition. (DE 16). On June 05, 2014, the Plaintiff filed a Reply. (DE 17). Pursuant to the Court's Order on February 07, 2014, granting the Plaintiff 14 days after service of the Defendant's Response in which to file a reply brief (DE 11), the Plaintiff's Reply was timely. The matter is now properly before the Court.

II. Review of the Record

A. Relevant Medical Evidence

In 2006, the Plaintiff presented to Dickson Medical Associates (Dickson Medical), where he was prescribed medications for hypertension, depression, and anxiety. (DE 10, pp. 175-79; 182-85). On January 08, 2010, a provider documented that the Plaintiff had shoulder pain that was possibly bursitis. (DE 10, p. 186). On January 21, 2010, the Plaintiff saw John Salyer, M.D. (Dr. Salyer) at Dickson Medical, who increased the dosage frequency of the Plaintiff's anxiety medication. (DE 10, p. 189). On January 25, 2010, providers at Dickson Medical documented the Plaintiff's high blood pressure and stable anxiety. (DE 10, p. 190). On February 17, 2010, Dr. Salyer increased the Plaintiff's anxiety medication. (DE 10, p. 191). On October 11 and November 11, 2010 as well as February 11 and August 16, 2011, the Plaintiff saw Dr. Salyer who documented that the Plaintiff had type II diabetes mellitus. (DE 10, pp. 234-48). On February 11, 2011, Dr. Salyer completed a Medical Source Statement, reporting that the Plaintiff had no limitations. (DE 10, p. 254).

On April 01, 2010, the Plaintiff presented to Centerstone Clinic (Centerstone) with reports of depression. Tracey Groves (Ms. Groves) diagnosed the Plaintiff with severe, recurrent major depressive disorder, and panic disorder with agoraphobia.[2] (DE 10, p. 204). On May 05, 2010 Ms. Groves reported the Plaintiff's "slight improvement." (DE 10, p. 205). The Plaintiff reported that he had been "helping out friends through the flood... [and that] this ma[de] him feel better about himself." (DE 10, p. 205). In June, July, and August of 2010, the Plaintiff continued to see Ms. Groves. (DE 10, pp. 255-56; 260-68). The Plaintiff returned to Centerstone in March of 2012 and reported being unable to work and not having insurance. (DE 10, p. 257). On March 12, 2012, Ms. Groves wrote a letter indicating that the Plaintiff "reports daily panic attacks and does not handle change... has extreme difficulty in social situations... [and] [h]is impairments... would hinder him from performing under job pressure." (DE 10, p. 275).

B. Consultative Examiner Assessments on behalf of Disability Determination Services

On May 15, 2010, Bruce Davis, M.D. (Dr. Davis) performed a medical consultative examination. (DE 10, p. 192). Dr. Davis reported that the Plaintiff had high blood pressure, dizziness, blood vessel damage, left shoulder pain, a ventral hernia, anxiety, depression, and reduced grip strength in his left hand. (DE 10, p. 192-93). He reported that the Plaintiff could sit, stand, or walk for 1 to 2 hours continuously and for 6 hours in an 8 hour workday, that he could lift 20 pounds and carry 10 to 20 pounds frequently, and that he was limited in left arm reaching or a forceful grip, abrupt changes, climbing, or extreme heat or cold. (DE 10, p. 194).

On May 24, 2010, Thomas Pettigrew, Ed. D. (Mr. Pettigrew) completed a psychological evaluation. (DE 10, p. 196). He documented that the Plaintiff "demonstrated his ability to understand... [and] no impairment in attention, concentration, or persistence...." (DE 10, p. 198). Dr. Pettigrew documented that the Plaintiff "communicated effectively and maintained socially appropriate behavior." (DE 10, p. 198).

On June 25, 2010, Karen Lawrence, Ph. D. (Dr. Lawrence) completed a Psychiatric Review. (DE 10, p. 209; 232). She documented that the Plaintiff had major depressive disorder and panic disorder that were not severe. (DE 10, pp. 209-21).

On July 19, 2010, Anita Johnson, M.D. (Dr. Johnson) completed a physical Residual Functional Capacity (RFC) assessment. (DE 10, p. 223; 233). She found no medically determinable impairment for the Plaintiff's left arm limitations noted in Dr. Davis's report. (DE10, p. 229). She found that the Plaintiff could sit, stand, or walk for 6 hours in an 8 hour workday, that he could lift or carry 10 pounds frequently, and that he could lift or carry 20 pounds occasionally. (DE 10, p. 224).

C. Testimonial Evidence

1. Plaintiff and Witness Testimony

On April 25, 2012, the Plaintiff appeared before the ALJ. (DE 10, pp. 24-46). When asked to describe his impairments, he testified, "I just [cannot] remember a lot, and I [cannot] deal with stuff... I just more or less [cannot] cooperate, and just [cannot], you know, do the right stuff or whatever." (DE 10, pp. 28-29). He testified that he gets a "scared feeling" around others. (DE 10, p. 29). He testified that his major problem is his mental health. (DE 10, p. 38).

The Plaintiff testified that he last worked in a "high security place" where he felt like he was "looking out a tunnel where you can only see one way out." (DE 10, p. 29). He testified that as a result of these feelings, his employer sent him to his physician who "gave [him] the Family Leave Act because [his] depression ha[d] gotten much worse." (DE 10, p. 30). He testified that he would miss 2 or 3 days of work each week due to these problems. (DE 10, p. 31).

The Plaintiff testified that getting up is a struggle, that his sister goes to the store for him, and that he stopped driving in 2008 because it made him nervous. (DE 10, pp. 30-31). He testified that he has panic attacks daily and is unable to concentrate. (DE 10, pp. 31-32). He testified that although he watches television, he will not always remember what he watches. (DE 10, p. 33). He testified that once he is accustomed to doing something, if an employer changed that, he would feel like "everything just goes wrong." (DE 10, p. 33). The Plaintiff also testified that he takes medication for high blood pressure and diabetes. (DE 10, p. 38).

The ALJ clarified that the Plaintiff had been treated at Centerstone in 2010, and again in March 2012, but not in the interim due to financial reasons. (DE 10, pp. 34-35). Ms. Benson read the March 12, 2012 letter from Ms. Groves into the record because the letter was not before the ALJ. (DE 10, pp. 36-37). The Plaintiff testified that the loss of his mother "pushed [him] over the edge." (DE 10, p. 39). He testified that he would be unable to sustain an 8 hour workday at a desk job because he would not "be capable of doing the right things." (DE 10, p. 39).

2. Vocational Expert Testimony

The VE testified that the Plaintiff worked for 27 years under two job titles. (DE 10, p. 27). The first job title was a lift truck operator, which is semi-skilled[3] work requiring a medium level of strength[4] and the second job title was a general laborer, which is unskilled work with an SVP of 2 and requiring a medium level of strength. (DE 10, pp. 27-28). The ALJ then presented the VE with a hypothetical scenario:

A person limited to medium, light, and sedentary levels of exertion, and the individual works better with things than with people, and the things that he works with would be simple and repetitive, no more than 1 to 3 steps, and he cannot deal with more than infrequent changes, probably should indefinitely work for periods of 2 hours at a time in an 8 hour day with customary breaks, and could formally say hello to a coworker... he would need a supervisor who is... understanding of the fact the he probably [will not] accept criticism well....

(DE 10, p. 41). The VE testified that there are a number of jobs that the Plaintiff could perform under this hypothetical. (DE 10, p. 41). The VE testified that the Plaintiff could perform work as (1) a general laborer, with 4, 800 employed in Tennessee and 780, 000 employed nationally in this job; (2) a hand packager, with 5, 500 employed in Tennessee and 690, 000 employed nationally in this job; (3) a textile worker, with 1, 600 employed in Tennessee and 245, 000 employed nationally in this job; (4) a folding machine tender, with 510 employed in Tennessee and 192, 000 employed nationally in this job; (5) an inspector, with 680 employed in Tennessee and 240, 000 employed nationally in this job; (6) an assembler, with 1, 400 employed in Tennessee and 334, 000 employed nationally in this job; or (7) an injection molding machine tender, with 700 employed in Tennessee and 250, 000 employed nationally in this job. (DE 10, pp. 42-44).

The ALJ asked the VE how the Plaintiff's testimony, if the ALJ found it credible, would affect the job market. (DE 10, p. 44). The VE testified that, given the "nonextertional/mental health issues that [the Plaintiff] described... [he] would not be able to sustain any sort of work at any level of strength or skill." (DE 10, p. 45). Finally, the VE testified that if the Plaintiff was off task 20% of the time at a job, missed 3 or 4 ...


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