United States District Court, E.D. Tennessee, Greeneville Division
JOEY K. MURR
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. § 636 for a report and recommendation. Plaintiff was previously found to have been disabled and entitled to disability insurance benefits as of October 1, 2007. On June 13, 2011, it was found that her disability ceased as of June 1, 2011. This decision was affirmed by the Commissioner following an administrative hearing before an Administrative Law Judge ["ALJ"]. This is an action for judicial review of this, the final decision of the Commissioner in the plaintiff's case. 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 was, and is, a "younger" individual under the Commissioner's regulations. She has a high school education. It is undisputed that she cannot return to her past relevant work in telemarketing.
In order for plaintiff's previously awarded benefits to cease, she has to have experienced medical improvement related to her ability to work. In making the determination that she did experience such improvement in her condition, the ALJ utilized the eight-step sequential evaluation process required in 20 CFR § 404.1594, the requirements of which will be discussed herein.
The plaintiff's medical history is summarized in her brief as follows:
The plaintiff was diagnosed with cancer in 2007. She was diagnosed by Dr. Michael J. Hodge as suffering from bilateral breast cancer with positive right sided axilla (Tr. 208). Dr. Hodge performed right and left modified radical mastectomies.
The plaintiff was referred to the McLeod Cancer and Breast Center by Dr. Hodge. Dr. Ray Lamb diagnosed her as suffering from synchoronous bilateral breast cancer, high risk with right breast Stage IIIC, 12 lymph nodes involved (Tr. 241).
The plaintiff had to be re-hospitalized in the Johnson City Medical Center in late November 2007 when she underwent debridement (Tr. 255).
The plaintiff also suffered from severe psoriasis and anxiety as early as April 2007 (Tr. 181). The plaintiff was referred to the Tri-Cities Skin and Cancer Clinic as suffering from plaque psoriasis on the arms, legs, scalp, buttocks, and stomach and they prescribed Enbrel (Tr. 301). It was noted that she had diffuse full body psoriasis which was worsening (Tr. 297). It covered 15% of her body surface area (Tr. 298). In April 2008, it was noted that the severity was 5 with 5 being the worst (Tr. 295). In December 2010, it was noted that she had full body psoriasis which had lasted for years (Tr. 285).
In regards to the plaintiff's cessation, she was seen by a Mr. Arthur Stair, III, MA, a psychologist, on April 6, 2011. He diagnosed moderate major depressive disorder and anxiety disorder, not otherwise specified, and opined that her ability to understand simple information or directions was not impaired as was her ability to comprehend and implement multi-step instructions. However, her ability to maintain persistence and concentration on tasks for a full work day and work week was moderately impaired due to the plaintiff's moderate major depressive disorder and mild anxiety disorder. Her ability to adapt to change was also moderately impaired and her social relationships were moderately or markedly impaired (Tr. 318).
A state agency reviewing psychologist, Dr. Mason D. Currey, Ph.D., opined that the plaintiff had affective disorders and anxiety disorders on may 2, 2011 (Tr. 321). He further opined that the plaintiff was moderately limited in her ability to maintain social functioning and in her ability to maintain concentration, persistence, or pace (Tr. 231). He opined that the plaintiff's allegations were partially credible and although she would have difficulty interacting with the general public he thought that the preponderance of the evidence showed no more than moderate impairments in functional abilities due to mental health problems (Tr. 333).
A state agency reviewing physician, Dr. Celia M. Gulbenk opined in June 2011, that the plaintiff could occasionally lift or carry 20 pounds, could frequently lift or carry 10 pounds, could stand and/or walk for about six hours in an eight hour workday and she could only use her right upper extremity occasionally overhead (Tr. 336). She could only occasionally climb ladders, ropes or scaffolds and she should avoid even moderate exposure to extreme heat (Tr. 339). Dr. Gulbenk also opined that significant medical improvement had occurred (Tr. 350).
The plaintiff continued to be followed by the McLeod Cancer and Blood Center. In March 2008, it was noted that she was on chemotherapy and that she had anemia secondary to that (Tr. 387). In January 2009, she had a skin infection (Tr. 374). In February 2010, it was noted that she had breast cancer, psoriasis, and situational depression (Tr. 371). In July 2010, it was noted that she had an incisional hernia of the lower abdomen as well as multiple large psoriatic lesions on the chest, abdomen, lower arms, lower legs and back (Tr. 369). It was noted that her psoriasis was a little better in the summer months ...