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Judd v. Colvin

United States District Court, E.D. Tennessee, Greeneville

February 28, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security


          Clifton L. Corker United States Magistrate Judge

         This matter is before the United States Magistrate Judge, with the consent of the parties and under an order of reference [Doc. 16] pursuant to 28 U.S.C. § 636, for disposition and entry of a final judgment. The plaintiff's application for Disability Insurance Benefits under the Social Security Act was administratively denied following a hearing before an Administrative Law Judge [“ALJ”]. This is an action for judicial review of that final decision of the Commissioner. The plaintiff has filed a Motion for Judgment on the pleadings [Doc. 12], and the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 14].

         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. Listenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6thCir. 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).

         The applicable administrative regulations require the Commissioner to utilize a five-step sequential evaluation process for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), the complete sequential review poses five questions:

1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant's severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner's Listing of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant's RFC, can he or she perform his or her past relevant work?
5. Assuming the claimant can no longer perform his or her past relevant work -- and also considering the claimant's age, education, past work experience, and RFC -- do significant numbers of other jobs exist in the national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4). A claimant bears the ultimate burden of establishing disability under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).

         The plaintiff alleges that he became disabled as of January 1, 2015. He is, and was at all times pertinent to this case, a “younger” individual, being 43 years of age on his alleged disability onset date and 45 years of age at the present time. He has a high school education. There is no dispute that he cannot return to any past relevant work.

         Plaintiff received extensive medical treatment at both the VA Medical Center in Johnson City, Tennessee, as well as with private physicians. His medical history, his testimony at his administrative hearing, and the testimony of the vocational expert [“VE”] are adequately described in the Commissioner's brief as follows:

On June 20, 2014, Dr. Barnes, Plaintiff's treating doctor at Appalachian Orthopedics, performed a left shoulder arthroscopy with rotator cuff repair on Plaintiff (Tr. 264-67). In December 2014, Dr. Barnes found that Plaintiff could lift 40 pounds below shoulder level and sit and walk for a continuous period (Tr. 161). Dr. Barnes indicated these restrictions were not permanent, as Plaintiff had not yet reached maximum medical improvement (Tr. 161). In the same month, Dr. Bookout, another of Plaintiff's physicians, opined that Plaintiff could lift no more than 40 pounds below his shoulder level and perform no overhead lifting (Tr. 163-65).
In December 2014 and January 2015, Plaintiff reported to Dr. Barnes that he had joint pain but no muscle weakness, back pain, swelling of the extremities, or exercise intolerance (Tr. 246, 248). Plaintiff was not completing his home exercises for his shoulder which included stretching and range of motion exercises (Tr. 245-46, 249).
On January 22, 2015, Dr. Barnes opined that Plaintiff could return to his regular work duties in two weeks (Tr. 246). Plaintiff was anxious to return to work as a mail handler (Tr. 246). Plaintiff reported that he had joint pain but no muscle weakness, back pain, swelling of the extremities, or exercise intolerance (Tr. 246). An electromyogram (EMG) was normal and showed no evidence of a right cervical motor neuropathy (Tr. 303).
On March 2, 2015, the Department of Veterans Affairs (VA) determined that Plaintiff was entitled to 60% service-connected disability on January 22, 2014, which would increase to a 100% service-connected disability rating on June 30, 2014, but revert back to 60% service-connected disability on December 1, 2014 (Tr. 135).
In March 2015, Dr. Karbasi, a psychiatrist at the VA Medical Center, noted that Plaintiff was seeking mental health treatment but his primary interest seemed to be increasing his disability rating (Tr. 680). Plaintiff's symptoms had previously been treated with prescribed medication (Tr. 680). Dr. Karbasi reviewed Plaintiff's records and noted that he had not been previously diagnosed with any mental health condition by any mental health professional other than partner relational problems (Tr. 681). Plaintiff also reported that he was filing for Social Security Disability and “they were on his back” to get an evaluation done (Tr. 681).
On March 27, 2015, Plaintiff completed a Function Report (Tr. 187). Plaintiff reported that he provided care for his 4-year old son when his wife was working (Tr. 188). He prepared meals, drove, mowed the lawn, and shopped in stores and by mail (Tr. 189-90). Plaintiff also watched television, read, and attended church (Tr. 191).
In April 2015, Dr. Wells, a specialist at Watauga Orthopedics, saw Plaintiff for left shoulder pain (Tr. 582). Plaintiff reported that he had no muscle aches or weakness, arthralgias, or joint pain (Tr. 583). A magnetic resonance imagining (MRI) scan of Plaintiff's cervical spine revealed a disc protrusion at the C3-C4 level and C7-T1 facet arthrosis with spurring, moderate right foraminal stenosis, and mild impingement exiting the right C5 nerve root (Tr. 584). A lumbar spine MRI revealed a disc bulge at the L2-L3 level, with no impingement, and L5-S1 levels, with anterolisthesis right formainal bulge, but no source for left-sided radiculopathy (Tr. 584). Dr. Wells noted that Plaintiff's lumbar spine showed no evidence of nerve root ...

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