United States District Court, E.D. Tennessee, Chattanooga
MEMORANDUM AND ORDER
K. LEE UNITED STATES MAGISTRATE JUDGE.
Barbara Eliane Robbins (“Plaintiff”) brought this
action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3), seeking judicial review of the final decision of
the Commissioner of Social Security
(“Commissioner” or “Defendant”)
denying her disability insurance benefits (“DIB”)
and supplemental security income (“SSI”). Each
party has moved for judgment on the administrative record and
summary judgment [Docs. 17 & 19] and has filed a
memorandum in support of their respective motions [Docs. 18
& 20]. This matter is now ripe. For the reasons stated
below, Plaintiff's motion for judgment on the
administrative record [Doc. 17] will be DENIED; the
Commissioner's motion for summary judgment [Doc. 19] will
be GRANTED; and the decision of the Commissioner will be
filed her current applications for DIB and SSI on August 28,
2012, alleging disability beginning August 12,
(Transcript [Doc. 12] (“Tr.”) 156-166).
Plaintiff's claims were denied initially and upon
reconsideration, and she requested a hearing (Tr. 105-111,
112, 116-120, 121-124). The administrative law judge
(“ALJ”) held a hearing on July 31, 2014, during
which Plaintiff was represented by an attorney (Tr. 26-50).
The ALJ issued a decision on September 23, 2014, finding that
Plaintiff was not under a “disability” as defined
in the Social Security Act (“Act”) and finding
Plaintiff has retained the residual functional capacity
(“RFC”) to perform sedentary work with additional
restrictions (Tr. 9-21). Plaintiff requested that the Appeals
Council review the ALJ's unfavorable decision, the
Appeals Council denied Plaintiff's request, and the
ALJ's decision became the final, appealable decision of
the Commissioner (Tr. 1-5). Plaintiff timely filed the
instant action [Doc. 1].
Education and Employment Background
was born in 1965 and originally alleged disability beginning
at age 46 due to neck and back problems and migraines (Tr.
19, 53, 56, 60, 62, 65, 68, 73, 79-80, 89, 199, 345-46,
372-73, 388, 448-49). Additional alleged impairments include
fibromyalgia, anxiety, diabetes mellitus, and hypertension
(Tr. 11-13, 79, 95-96, 345, 347, 531-537). Plaintiff was 48
years old on the date of her administrative hearing (Tr. 29).
She can communicate in English, obtained her GED in 1993 (Tr.
19, 30, 198-200), and has past work as a delivery person in
connection with medical deliveries, as a general laborer in a
production facility, as a merchandise supervisor and
merchandiser in retail stores, as a fast food restaurant
worker, and for a short stint as a customer service
representative (Tr. 69, 87, 200, 224, 400).
administrative record contains extensive medical records
which have been summarized by the parties and the ALJ that
need not be summarized again herein. Only the portions of
Plaintiff's medical records relevant to the parties'
arguments will be addressed within the respective sections of
the analysis below, but all relevant records have been
July 31, 2014 hearing, Plaintiff testified (Tr. 28-45). In
addition, a vocational expert (“VE”) testified
(Tr. 45-49). While the Court has carefully reviewed the
transcript of the testimony at the hearing, it is not
necessary to summarize all of the testimony herein. As
needed, portions of the testimony will be addressed within
the respective sections of the analysis below.
ELIGIBILITY AND THE ALJ'S FINDINGS
Social Security Act defines a disability as the
‘inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.'”
Schmiedebusch v. Comm'r of Soc. Sec., 536 F.
App'x 637, 646 (6th Cir. 2013) (quoting 42 U.S.C. §
423(d)(1)(A)); see also Parks v. Soc. Sec. Admin.,
413 F. App'x 856, 862 (6th Cir. 2011) (quoting 42 U.S.C.
§ 423(d)(1)(A)). A claimant is disabled “only if
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work,
but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy.”
Parks, 413 F. App'x at 862 (quoting 42 U.S.C.
§ 423(d)(2)(A)). The Social Security Administration
(“SSA”) determines eligibility for disability
benefits by following a five-step process. 20 C.F.R. §
404.1520(a)(4)(i-v). The five-step process provides:
1) If the claimant is doing substantial gainful activity, the
claimant is not disabled.
2) If the claimant does not have a severe medically
determinable physical or mental impairment-i.e., an
impairment that significantly limits his or her physical or
mental ability to do basic work activities-the claimant is
3) If the claimant has a severe impairment(s) that meets or
equals one of the listings in Appendix 1 to Subpart P of the
regulations and meets the duration requirement, the claimant
4) If the claimant's impairment does not prevent him or
her from doing his or her past relevant work, the claimant is
5) If the claimant can make an adjustment to other work, the
claimant is not disabled.
Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647,
652 (6th Cir. 2009). The claimant bears the burden to show
the extent of his impairments, but at step five, the
Commissioner bears the burden to show that, notwithstanding
those impairments, there are jobs the claimant is capable of
performing. See Ealy v. Comm'r of Soc. Sec., 594
F.3d 504, 512-13 (6th Cir. 2010).
the five-step process, the ALJ made the following findings
(Tr. 9-21). At step one, the ALJ found Plaintiff had not
engaged in any substantial gainful activity since the alleged
disability onset date, August 12, 2012 (Tr. 11). At step two,
the ALJ found Plaintiff had the following severe impairments:
degenerative disc disease of the lumbar spine (post fusion
surgery) and cervical spine, left lumbar radiculitis,
cervicogenic headaches, and anxiety disorder (Tr. 11). The
ALJ further found Plaintiff's alleged impairments of
hypertension and diabetes mellitus were not severe as they
both could be controlled with nutrition and medication,
records showed no evidence of any end organ damage from
either alleged impairment, and they caused no more than
minimal limitations on Plaintiff's “ability to
perform basic work activity” (Tr. 11-12). The ALJ
determined that fibromyalgia was not a medically determinable
impairment since the evidence was not sufficient to support
the requirements under Social Security Ruling
(“SSR”) 12-2p, particularly as to the number and
location of trigger points upon physical examination and
evidence that other disorders were not causing
Plaintiff's fibromyalgia symptoms (Tr. 12).
three, the ALJ states Plaintiff's representative did not
specifically make the assertion that Plaintiff meets or
equals any listing-level impairment and the ALJ found no
evidence that Plaintiff has any impairment or combination of
impairments to meet or medically equal the severity of one of
the listed disabling impairments listed at 20 C.F.R. pt. 404,
subpt. P, app. 1 (Tr. 12). The ALJ next determined Plaintiff
had the RFC to perform:
sedentary work as defined in 20 CFR 404.1567(a) and
416.967(a) except the claimant requires a sit/stand option at
about 30-minute to 1-hour intervals; however, no assistive
device is required for ambulation. The claimant can do no
climbing of ladders, ropes, or scaffolds. She can
occasionally perform postural activities including balancing,
stooping, kneeling, crouching, and crawling. She can use her
hands frequently for handling, fingering, and feeling. She
should avoid concentrated exposure to hazards such as
unprotected heights, moving machinery, etc. The claimant is
further limited to simple, routine, repetitive tasks, and she
must have only occasional contact with the public,
co-workers, and supervisors.
13-14). At step four, the ALJ found Plaintiff has no past
relevant work (Tr. 19). At step five, taking into
consideration the claimant's age, education, work
experience and RFC, and after utilizing the
Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P,
app. 2 (“Grids”), as a framework for his decision
and considering the testimony of a VE, the ALJ found
Plaintiff was capable of performing jobs that exist in
significant numbers in the national economy such as table
worker, hand mounter, and inspector/checker (Tr. 19-20).
These findings led to the ALJ's determination that
Plaintiff was not under a disability at any time from August
12, 2012 through the date of the ALJ's decision (Tr.
alleges the ALJ erred (1) by failing to provide good reasons
for rejecting the opinion of her treating physician, Dr.
Scott D. Hodges; (2) by failing to find that Plaintiff's
impairments meet or medically equal one of the listings, more
specifically Listing 1.04A; (3) by making a credibility
determination that is not supported by substantial evidence;
and (4) by finding that Plaintiff can perform a range of
sedentary work which Plaintiff argues is not supported by
Standard of Review
must affirm unless the Commissioner's decision rests on
an incorrect legal standard or is not supported by
substantial evidence. 42 U.S.C. § 405(g); McClanahan
v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir.
2006) (internal citations omitted). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
McClanahan, 474 F.3d at 833 (internal citations
omitted). Furthermore, the evidence must be
“substantial” in light of the record as a whole,
“tak[ing] into account whatever in the record fairly
detracts from its weight.” Garner v. Heckler,
745 F.2d 383, 388 (6th Cir. 1984) (internal citations
omitted). If there is substantial evidence to support the
Commissioner's findings, they should be affirmed, even if
the court might have decided facts differently, or if
substantial evidence would also have supported other
findings. Smith v. Chater, 99 F.3d 780, 782 (6th
Cir. 1996); Ross v. Richardson, 440 F.2d 690, 691
(6th Cir. 1971). The court may not re-weigh evidence, resolve
conflicts in evidence, or decide questions of credibility.
Garner, 745 F.2d at 387. The substantial evidence
standard allows considerable latitude to administrative
decision makers because it presupposes “there is a
‘zone of choice' within which the Commissioner can
act, without the fear of court interference.”
McClanahan, 474 F.3d at 833 (quoting Buxton v.
Halter, 246 F.3d 762, 772 (6th Cir. 2001)).
court may consider any evidence in the record, regardless of
whether it has been cited by the ALJ. Heston v.
Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir.
2001). The court, however, may not consider any evidence that
was not before the ALJ for purposes of substantial evidence
review. Foster v. Halter, 279 F.3d 348, 357 (6th
Cir. 2001). Furthermore, the court is under no obligation to
scour the record for errors not identified by the claimant,
Howington v. Astrue, No. 2:08-CV-189, 2009 WL
2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that
assignments of error not made by claimant were waived), and
arguments not raised and supported in more than a perfunctory
manner may be deemed waived, Woods v. Comm'r of Soc.
Sec., No. 1:08-CV-651, 2009 WL 3153153, at ...