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Harris v. Colvin

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

April 15, 2015



JOE B. BROWN, Magistrate Judge.

This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the final decision of the Social Security Administration ("the SSA"), through its Commissioner ("the Commissioner"), denying plaintiff's application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 416(i) and 423(d). For the reasons explained below, the undersigned RECOMMENDS that plaintiff's motion for judgment on the administrative record (Doc. 13) be DENIED and the Commissioner's decision AFFIRMED.


Plaintiff filed for DIB on November 13, 2009. (Doc. 11, pp. 66-67)[1] She claimed a disability onset date of April 21, 2009. (Doc. 11, pp. 36-37, 173, 188)

Plaintiff claimed that she was unable to work because of neck and back pain, degenerative disc disease, chronic bronchitis with chronic obstructive pulmonary disease (COPD) and breathing problems, pain from bone spurs, peripheral vascular disease, right leg claudication, [2] heart disease, and depression. (Doc. 11, pp. 71, 82, 192) Plaintiff's application for benefits was denied on initial review and upon reconsideration. (Doc. 11, pp. 66-71, 77-82)

Plaintiff requested a hearing before an administrative law judge (ALJ). (Doc. 11, pp. 84-85) A hearing was held on September 18, 2012 in Nashville before ALJ Scott Schimer. (Doc. 11, pp. 33-65) Vocational expert (VE) Charles Wheeler testified at the hearing. (Doc. 11, pp. 56-63) Plaintiff was represented by counsel at the hearing. (Doc. 11, p. 33)

The ALJ entered an unfavorable decision on October 5, 2012. (Doc. 11, pp. 12-32) Plaintiff filed a request with the Appeals Council to review the ALJ's decision. (Doc. 11, pp. 7-11) The Appeals Council denied plaintiff's request on January 22, 2014, whereupon the ALJ's decision became the final decision of the Commissioner. (Doc. 11, pp. 1-6)

Plaintiff, through counsel, brought this action on March 26, 2014. (Doc. 1) Plaintiff filed a motion for judgment on the administrative record on August 18, 2014 (Doc. 13), the Commissioner responded on September 17, 2014 (Doc. 14), and plaintiff replied on September 29, 2014 (Doc. 15). This matter is now properly before the court.


A. Medical Evidence

Plaintiff was treated by Affiliated Neurologists, PLC, from June 23, 2006 to May 15, 2007 for neck and right shoulder pain (Doc. 11, pp. 300-20) resulting from an on-the-job injury that occurred June 23, 2006 (Doc. 11, pp. 313, 317). On August 29, 2006, Dr. James Anderson, M.D., reported the following results from a MRI: "multilevel degenerative changes with lateral recess or neuroforaminal[4] narrowing... more prominent on the right side as compared to the left... [but]... no clear nerve root impingement present." (Doc. 11, p. 313) Examination also revealed "very mild" limitations in range of motion of the neck, and "some" tenderness of the neck and between the shoulders. (Doc. 11, p. 314) Otherwise the examination was normal, including "adequate fine motor facility, " "5/5 strength, " and "intact sensation for all modalities." (Doc. 11, p. 314)

Plaintiff was treated at the Howell Allen Clinic from January 25, 2007 to April 21, 2008. (Doc. 11, pp. 321-50) On July 12, 2007, Dr. Vaughan Allen, M.D., noted that plaintiff previously had a myelogram[5] (EMG). (Doc. 11, p. 340) On October 10, 2007, Dr. Allen characterized the EMG as "suggest[ing] she has... carpal tunnel." (Doc. 11, p. 337) Plaintiff underwent a second EMG on October 18, 2007 while being treated at the Howell Allen Clinic. (Doc. 11, p. 333) Doctor Michel Spellman, Jr., M.D., noted multiple moderate-to-severe spinal abnormalities in his report. (Doc. 11, pp. 333-36) On January 25, 2008, Dr. Allen performed a cervical laminectomy and foraminotomy.[6] (Doc. 11, p. 330) The operation was successful. (Doc. 11, pp. 329, 327) Doctor Allen released plaintiff back to work on light duty on February 21, 2008, following which he released her to regular duty on April 21, 2008. (Doc. 11, pp. 321-22, 326-27) The ALJ gave significant weight to Dr. Allen's opinion returning plaintiff to full duty. (Doc. 11, p. 25)

Plaintiff was treated at the Medical Center in Franklin from September 25, 2008 to July 26, 2010. (Doc. 11, 404-23) Imaging on September 25, 2008 revealed "[d]egenerative changes of the thoracic spine, " but "[n]o active disease." (Doc. 11, p. 407) Plaintiff had a MRI on April 12, 2010. (Doc. 11, p. 413) The overall impression was multilevel degenerative disease and facette arthropathy[7] within the lower thoracic and lumbar spine, multiple areas of disk bulging and bony changes resulting in areas of central and bilateral foraminal stenosis, moderate central canal stenosis associated with broad-based disk bulging, moderate sized right paracentral disk protrusion with herniation, but no nerve root impingement confirmed. (Doc. 11, p. 413)

Doctor Bruce Davis, M.D., a nontreating, examining source, conducted an "all-systems" consultive examination of plaintiff on May 15, 2010. (Doc. 11, pp. 368-71) Doctor Davis noted that plaintiff's corrected distance vision was 20/50 in each eye, and 20/50 together. (Doc. 11, p. 369) Doctor Davis also reported that plaintiff had "slow but normal neck flexion, extension, lateral flexion, rotation; normal shoulder, elbow, wrist, finger motion/dexterity with good grip 5/5 without atrophy, [or] swelling." (Doc. 11, p. 369) Doctor Davis opined that plaintiff was able to sit 1-2 hrs. continuously, 6 hrs. in an 8-hr. workday; stand 1-2 hrs. continuously, 4-6 hrs. in an 8-hr. workday; and lift 20 lbs. frequently and carry 10-20 lbs. frequently. (Doc. 11, p. 370) Doctor Davis also determined that plaintiff had limited ability to bend and climb, and be exposed to heights, extreme heat and cold, and irritating inhalants. (Doc. 11, p. 370) The ALJ gave significant weight to Dr. Davis' light work assessment. (Doc. 11, p. 25)

Doctor Christopher Fletcher, M.D., a nonexamining, nontreating source, completed a physical residual functional capacity (RFC) assessment on June 15, 2010. (Doc. 11, pp. 377-85) Doctor Fletcher determined that plaintiff was able to lift up to 20 lbs. occasionally, 10 lbs. frequently; stand and/or walk about 6 hrs. in an 8-hr. workday with normal breaks; sit about 6 hrs. in a normal 8-hr. workday with normal breaks; push and/or pull hand and/or foot controls without limitation. (Doc. 11, p. 378) Doctor Fletcher determined further that, although plaintiff could never climb ladders, ropes, or scaffolds, she could climb ramps/stairs, balance, stoop, kneel, crouch, and crawl frequently. (Doc. 11, p. 379) He also determined that plaintiff had limited ability to reach in all directions, but no limitations in her ability to handle, finger, and feel. (Doc. 11, p. 380) Doctor Fletcher also concluded that plaintiff had limited distance visual acuity. (Doc. 11, p. 380) Apart from avoiding concentrated exposure to extreme heat and cold, Dr. Fletcher concluded that plaintiff had no other environmental limitations. (Doc. 11, p. 381) The ALJ gave significant weight to Dr. Fletcher's light work assessment. (Doc. 11, p. 25)

Doctor Brannon Mangus, M.D., a nontreating, examining source, performed an "all systems" consultative examination of plaintiff on October 9, 2010. (Doc. 11, pp. 471-84) Doctor Mangus noted, inter alia, that plaintiff's grip was 40 lbs. in each hand, she lifted 10 lbs. with each hand, she had normal mobility, her grasp and ability to manipulate objects was normal, her back was symmetric, she exhibited no spinal tenderness and no spasms, her strength was 5/5 in all major muscle groups, her range of motion was within normal limits "universally, " and there was "no other tenderness, redness, swelling, spasm, joint enlargement or muscle wasting in any joint examined. (Doc. 11, pp. 474-75) Doctor Mangus also reported negative Tinel's and Phalen's Signs bilaterally.[8] (Doc. 11, p. 476) Doctor Mangus tested plaintiff's vision, and reported that her uncorrected vision in her right eye was 20/70 and 20/100 in her left eye, and with corrective lenses, her vision was 20/50 in her right eye and 20/100 in her left. (Doc. 11, p. 474) Although Dr. Mangus diagnosed plaintiff with visual acuity deficit, he also noted that plaintiff's "current prescription was obtained in 2000." (Doc. 11, pp. 474, 476) The ALJ gave little weight to Dr. Mangus' opinion "that the claimant ha[d] no impairment-related limitations." (Doc. 11, p. 26)

Doctor Frank Pennington, M.D., a nonexamining, nontreating source, completed a second physical RFC assessment on February 8, 2011. (Doc. 11, pp. 485-91) Doctor Pennington determined that plaintiff was never able to climb ladders/ropes/scaffolds, but did not establish any manipulative limitations. (Doc. 11, pp. 379-80) Otherwise, Dr. Pennington's physical RFC assessment was the same as Dr. Fletcher's, above at pp. 4-5. The ALJ gave Dr. Pennington's light work assessment significant weight. (Doc. 11, p. 25)

Plaintiff was seen at Wesley Medical on May 24, 2012. (Doc. 11, pp. 503-06) Dr. Wesley[9] diagnosed her with acute bronchitis. (Doc. 11, p. 505) Doctor Wesley also made the following observations: 1) denies joint swelling or muscular weakness; 2) "no spinal tenderness, scoliosis or kyphosis";[10] 3) no joint or limb tenderness to palpitation; 4) normal range of motion in all extremities; 5) joint stability normal/within normal limits in all joints; 6) no joint crepitation;[11] 7) no pain on motion of any extremity; 8) no edema present in the lower extremities; 9) normal gait; 10) able to stand without difficulty. (Doc. 11, pp. 504-05)

B. Transcript of the Hearing

Plaintiff testified that she was 59 years old at the time of the hearing. (Doc. 11, p. 44) She worked previously as a housekeeper, a housekeeping supervisor, in a men's mail order store, on an assembly line sorting tapes, and in a phone factory. (Doc. 11, pp. 39-43) She had not worked since being laid off in 2009. (Doc. 11, p. 43)

Plaintiff testified that back pain and breathing problems were her biggest impairments. (Doc. 11, p. 44) She rated her back pain as "six to eight" on a "typical day, " adding that the pain radiated down her right hip and leg and caused her leg to go numb. (Doc. 11, pp. 44-45) Plaintiff also testified that her neck burned and stung "all the time." (Doc. 11, p. 46)

Plaintiff testified that she could not walk for more than 10 mins. before having to sit down; she could not stand in one spot for more than 5 mins. because of back and sciatic nerve issues; and she could not sit in one position for more than 10 mins. before needing to alternate her position. (Doc. 11, p. 47) Plaintiff testified that she could lift a maximum of 4 lbs., adding that she could not lift a gallon of milk without using both hands. (Doc. 11, p. 47) Plaintiff also testified that she had been diagnosed with carpal tunnel syndrome, that she had trouble grasping, holding, and handling things, but had not sought treatment to correct/relieve the symptoms. (Doc. 11, p. 50)

The VE characterized plaintiff's past work as follows: 1) production assembler, Dictionary of Occupational Titles (DOT) 706.687-010; 2) shipping clerk, DOT 222.387-050; 3) head housekeeper, DOT 187.167-046; 4) housekeeper, DOT 321.137-010; 5) elevator operator, DOT 388.663-010; 6) sorter packer, DOT 976.687-018. (Doc. 11, pp. 57-59) The ALJ posed the following hypothetical to the VE:

[A]ssume a person of the claimant's age, education, and the past work experience.... Assume that this... individual would be restricted to light exertional level work; frequent balancing, stooping, kneeling, crouching, and crawling; frequently climbing ramps and stairs; no climbing ladders, ropes, and scaffolding; no concentrated exposure to temperature extremes; and no concentrated exposure to dust, fumes, odors, gases, and poor ventilation; a job that involved simple, routine, repetitive tasks and ...

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