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Selby v. Berryhill

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

February 9, 2017

RONNIE SELBY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY United States Magistrate Judge

         This is a civil action filed pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), to obtain judicial review of the final decision of the Commissioner of Social Security finding that Plaintiff was not disabled and denying Plaintiff Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), as provided under the Social Security Act ("the Act"), as amended. The case is currently pending on Plaintiffs Motion for Judgment on the Administrative Record. Docket No. 16. Plaintiff has filed an accompanying Memorandum. Docket No. 17. Defendant has filed a Response, arguing that the decision of the Commissioner was supported by substantial evidence and should be affirmed. Docket No. 18.

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

         I. INTRODUCTION

         Plaintiff filed his applications for DIB and SSI on July 8, 2011, with a protective filing date of June 27, 2011, alleging that he had been disabled since January 29, 1996, due to back injury with nerve damage, lung problems, and Hepatitis C. Docket No. 12, Attachment ("TR"), TR 87-90, 156, 163, 192. Plaintiff later amended his alleged onset date to December 4, 2008. TR 255. Plaintiffs applications were denied both initially (TR 87, 88) and upon reconsideration (TR 89, 90). Plaintiff subsequently requested (TR 108) and received (TR 57-86) a hearing. Plaintiffs hearing was conducted on June 11, 2013, by Administrative Law Judge ("ALJ") Mark Siegel. TR 57. Plaintiff and vocational expert ("VE"), Ernest Brewer, appeared and testified. Id.

         On July 19, 2013, 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 34-36. Specifically, the ALJ made the following findings of fact:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.
2. The claimant has not engaged in substantial gainful activity since December 4, 2008, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: lumbar degenerative disc disease; hypertension; chronic obstructive pulmonary disease; borderline intellectual functioning; learning disorder; depressive disorder; post-traumatic stress disorder; alcohol dependence; and generalized anxiety disorder (20 CFR 404.1520(c) and 416.920(c)).
4. 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except the claimant can only occasionally perform such postural activities as climbing, balancing, stooping, crouching, crawling and kneeling. The claimant should not have concentrated exposure to pulmonary irritants. The claimant can understand, remember, and carry out simple and 1 to 3 step detailed instructions, but he is better suited working in an object-focused setting with things rather than people. The claimant reads at a fifth grade level and performs math at a fourth grade level.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on December 27, 1967 and was 40 years old, which is defined as a younger individual age 18-49, on the amended alleged disability onset date of December 4, 2008 (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. 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 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 29, 1996, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

TR 39-50 (emphasis in original).

         On August 2, 2013, Plaintiff timely filed a request for review of the hearing decision. TR 33. On September 9, 2014, the Appeals Council issued a letter declining to review the case (TR 1-6), 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.

         II. REVIEW OF THE RECORD

         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.

         III. CONCLUSIONS OF LAW

         A. Standards 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 o/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 Plaintiffs condition; (2) diagnoses and opinions of medical experts; (3) subjective evidence of Plaintiff s condition; and (4) Plaintiffs 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 Plaintiffs 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.[1]If a listing is met or equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing4evel 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, 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. Plaintiffs Statement of Errors

         Plaintiff contends that the ALJ erred by: (1) failing to properly consider and weigh the opinion evidence; (2) finding that Plaintiffs statements concerning the intensity, persistence and limiting effects of his symptoms were not entirely credible, specifically failing to appropriately address Plaintiffs complaints of pain and mental restrictions; (3) improperly determining that Plaintiff has the residual functional capacity to perform light work, disregarding the limiting effects of Plaintiff s pain and the Global Assessment of Functioning ("GAF") scores assigned by Plaintiff s mental health care provider. Docket No. 17, p. 17-22. Accordingly, Plaintiff has moved the Court for a judgment based upon the administrative record. Docket No. 16.[2]

         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 ...

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