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Frost v. Colvin

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

November 2, 2016

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


          JEFFREY S. FRENSLEY 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 Disability Insurance Benefits ("DIB"), as provided under Title II of the Social Security Act ("the Act"). The case is currently pending on Plaintiff's "Motion for Judgment Upon the Administrative Record." Docket No. 14. Plaintiff contemporaneously filed a supporting memorandum of law. Docket No. 15. 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 Upon the Administrative Record" be DENIED, and that the decision of the Commissioner be AFFIRMED.


         Plaintiff filed his application for Disability Insurance Benefits ("DIB") on December 7, 2011, with a protective filing date of November 29, 2011, alleging that he had been disabled since October 31, 2009, due to schizoaffective disorder, depression, and memory issues. See, e.g., Docket No. 12, Attachment ("TR"), pp. 87, 193, 261, 267.[1] Plaintiff's application was denied both initially (TR 87) and twice upon reconsideration (TR 88, 89). Plaintiff subsequently requested (TR 107) and received (TR 30-39, 40-77, 78-83) three hearings. Plaintiff's initial hearing was conducted on October 3, 2013, by Administrative Law Judge ("ALJ") Renee S. Andrews-Turner. TR 78-83. Plaintiff arrived at that hearing without counsel; the ALJ advised Plaintiff of his right to counsel; Plaintiff requested time to seek counsel; the ALJ granted Plaintiff's request and adjourned the hearing. Id. Plaintiff's second hearing was conducted on January 9, 2014, again by ALJ Andrews-Turner. TR 40-77. Plaintiff and vocational expert ("VE"), Kenneth Anchor, appeared and testified. Id. ALJ Andrews-Turner subsequently conducted a third, supplemental, hearing on May 28, 2014. TR 30-39. Plaintiff and VE Chelsea Brown appeared, and VE Brown testified. Id.

         On June 27, 2014, 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 8-23. Specifically, the ALJ made the following findings of fact:

1. The claimant last met the insured status requirements of the Social Security Act on March 31, 2014.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of October 31, 2009 through his date last insured of March 31, 2014 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: schizoaffective disorder, adjustment disorder, generalized anxiety disorder, antisocial personality disorder, major depressive disorder and polysubstance dependence (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: he can understand and remember simple instructions; he can frequently interact with coworkers and supervisors; he can occasionally interact with the general public; and can adapt to frequent changes in the workplace.
6. Through the date last insured, the claimant was capable of performing past relevant work as a painter and laborer. This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant's history of polysubstance dependence is not material to the issue of disability.
8. The claimant was not under a disability, as defined in the Social Security Act, at any time from October 31, 2009, the alleged onset date, through March 31, 2014, the date last insured (20 CFR 404.1520(f)).

TR 13-22.

         On July 21, 2014, Plaintiff timely filed a request for review of the hearing decision. TR 7. On December 2, 2015, the Appeals Council issued a letter declining to review the case (TR 1-3), 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. Sec'y of Health & Human Servs., 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. Sec'y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).

         "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support the conclusion." Her v. Comm'r of Soc. Sec., 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. Comm'r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996), citing Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (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 ALJ 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). If the Commissioner did not consider the record as a whole, however, the Commissioner's conclusion is undermined. Hurst v. Sec'y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985), citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).

         In reviewing the decisions of the Commissioner, courts look to four types of evidence: (1) objective medical findings regarding Plaintiff's condition; (2) diagnoses 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 summarized 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 or its equivalent.[2] 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) The burden then 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.

See, e.g., 20 CFR §§ 404.1520, 416.920. 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. Moon, 923 F.2d at 1181; 20 CFR § 404, Subpt. P, App. 2, Rule 200.00(e)(1), (2). See also Damron v. Sec'y of Health & Human Servs., 778 F.2d 279, 281-82 (6th Cir. 1985). 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. Sec'y of Health & Human Servs., 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 erred by: (1) improperly considering and weighing the medical opinion evidence; (2) improperly finding Plaintiff's statements about his impairments to not be fully credible, without considering how they support the opinions of his sources and without complying with the Regulations and relevant case law; (3) declaring Plaintiff's physical impairments to be non-severe without considering the exact degree of limitations present and how these limitations fit into Plaintiff's overall residual functional capacity; and (4) not accepting VE testimony in response to hypothetical questions based on the limitations in the medical opinion evidence of Ms. Brown and Dr. Surber, which would result in no jobs for an individual with Plaintiff's impairments.[3] Docket No. 15. 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. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994).

         1. Weight Accorded to Medical Opinion Evidence

         Plaintiff maintains that the ALJ failed to properly consider and weigh the medical opinions of record. Docket No. 15, p. 9. Specifically, Plaintiff argues that the ALJ failed to analyze the opinion of Plaintiff's treating medical provider, Dr. Michael Carter, in the manner set forth by 20 CFR § 404.1527(c) and relevant case law, to determine whether Dr. Carter's opinion is supported by objective findings and consistent with substantial evidence. Id. at 10. Plaintiff contends that the ALJ erroneously afforded only little weight to Dr. Carter's opinion because Dr. Carter is not trained in the field of mental health and because his opinion was inconsistent with the Mental Health Cooperative “(MHC”) treatment records. Id. Plaintiff asserts that Dr. Carter's opinion and limitations are, in fact, consistent with MHC's records. Id.

         Plaintiff also argues that the ALJ improperly gave great weight to the opinion of the medical expert, Calvin Vanderplate, Ph.D., who simply reviewed Plaintiff's records, because the ALJ did not discuss anything specific in Dr. Vanderplate's opinion that could have led to the ALJ assigning his opinion great weight. Id. at 11. Plaintiff further maintains that Dr. Vanderplate made legal conclusions that were not within his purview to make, such as stating that Plaintiff's report of symptoms and limitations was not fully credible. Id., citing TR 22, 683. Plaintiff argues that credibility is a determination to be made by the ALJ, rather than a medical expert. Id. Plaintiff also argues that Dr. Vanderplate improperly assigned weight to the opinions of other providers who had completed Medical Source Statements in this matter. Id.

         Plaintiff next maintains that the ALJ erroneously gave great weight to the opinion of consultative examiner, James Scott, M.A., without discussing the discrepancies in Mr. Scott's two reports, prepared two years apart. Id., citing TR 21. Plaintiff further argues that the ALJ erred by not discussing Mr. Scott's status as a non-acceptable medical source under 20 CFR §404.1513 and 404.913. Id.

         Plaintiff additionally contends that the ALJ failed to discuss or explain what weight was given to the opinion of consultative examiner, Jerry Surber, M.D., instead simply reciting Dr. Surber's examination results and assigned limitations with no further analysis. Id. at 14. Plaintiff finally contends that the ALJ erred by not discussing the report of Plaintiff's nurse practitioner, Ashley Brown, A.P.N., W.S.N., R.N., and not explaining what weight, if any, was given to her opinion. Id. at 11-12.

         Defendant responds that the ALJ properly evaluated all of the relevant medical opinions in a manner consistent with SSA regulations and policies. Docket No. 16, p. 4. Specifically, Defendant maintains that the ALJ correctly considered the opinion of Dr. Carter and determined that it was due little weight. Id. at 6, citing TR 19, 22. Defendant states that Dr. Carter's opinion consisted mainly of a checklist response form, which was "not particularly helpful." Id., referencing TR 655-56. Defendant asserts that it was proper for the ALJ to discount Dr. Carter's opinion because he is not a mental health specialist and because his findings were inconsistent with the records of Plaintiff's primary mental health care providers at MHC.[4] Id. at 7, citing TR 20, 22; Justice v. Comm'r of Soc. Sec., 515 F.App'x 583, 588 (6th Cir. 2013); Curler v. Comm'r of Soc. Sec., 561 F.App'x 464, 472 (6th Cir. 2014). Defendant maintains that Dr. Carter's conclusion that Plaintiff would "perhaps" be dangerous in the workplace was based on Plaintiff's hallucinations, which Plaintiff's mental health specialists stated were controlled by medication. Id. at 8, citing TR 20, 563, 656.

         Defendant argues that an ALJ may rely on the testimony of a medical expert and give it great weight, and that in this case, the ALJ properly granted great weight to the opinion of Dr. Vanderplate. Id., referencing TR 22; Steagall v. Comm'r of Soc. Sec., 596 F.App'x 377, 380 (6th Cir. 2015). Defendant further contends that the ALJ properly gave great weight to the opinion of Mr. Scott because his opinion was consistent with the record as a whole. Id. at 9, referencing TR 21. Defendant also responds that the ALJ discussed the opinion of Dr. Surber and properly gave it little weight because there was no medical evidence to support Dr. Surber's findings. Id. at 11, referencing TR 21. Defendant additionally maintains that it was appropriate for the ALJ to not include Ms. Brown's opinion because Ms. Brown's report was dated after the expiration of Plaintiff's insured status. Id. at 9, citing Johnson v. Comm'r of Soc. Sec., 535 F.App'x 498, 509 (6th Cir. 2013). Defendant further contends that the ALJ had already appropriately evaluated and discussed the records from MHC, where Ms. Brown had treated Plaintiff, and that Ms. Brown's opinion would therefore have been similarly evaluated. Id. at 9-10, citing TR 20, 721-23.

         With regard to the evaluation of medical evidence, the Code of Federal Regulations states:

Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source's opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the opinion. . . .
(3) Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion . . . .
(4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.
. . .

20 CFR § 416.927(c) (emphasis added). See also 20 CFR § 404.1527(c).

         The ALJ must articulate the reasons underlying her decision to give a medical opinion a specific amount of weight.[5]See, e.g., 20 CFR § 404.1527(d); Allen v. Comm'r of Soc. Sec., 561 F.3d 646 (6th Cir. 2009); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The reasons must be supported by the evidence and must be sufficiently specific so as to make clear to any subsequent ...

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