United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff Kriselda Jean Scruggs
Washington's Motion for Judgment on the Administrative
Record (Doc. No. 16), to which Defendant Social Security
Administration (SSA) has responded (Doc. No 21). Plaintiff
filed a reply to the SSA's response. (Doc. No. 22.) Upon
consideration of the parties' briefs and the transcript
of the administrative record (Doc. No. 11),  and for the
reasons set forth below, Plaintiff's Motion for Judgment
will be DENIED and the decision of the SSA will be AFFIRMED.
filed an application for supplemental security income
(“SSI”) under Title XVI of the Social Security
Act on August 12, 2009,  alleging disability onset as of August
12, 2009, due to severe depression, bipolar disorder and
memory loss. (Tr. 135.) Her claim to benefits was denied at
the initial and reconsideration stages of state agency
review. Plaintiff subsequently requested de novo
review of her case by an Administrative Law Judge (ALJ). ALJ
Scott C. Shimer heard the case on September 1, 2011, when
Plaintiff appeared with counsel and gave testimony. (Tr.
27-47.) Testimony was also received from an impartial
vocational expert. (Id.) At the conclusion of the
hearing, the matter was taken under advisement until November
21, 2011, when ALJ Shimer issued a written decision finding
Plaintiff not disabled. (Tr. 10-23.) That decision contains
the following enumerated findings:
1. The claimant has not engaged in substantial gainful
activity since August 12, 2009, the application date (20 CFR
416.971 et seq.).
2. The claimant has the following severe impairments:
degenerative joint disease (left shoulder); bipolar disorder;
and a history of polysubstance abuse, and osteoarthritis (20
3. 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 416.920(d), 416.925 and 416.926).
4. 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 416.967(b) which includes the ability to lift and/or
carry 20 pounds occasionally and 10 pounds frequently; stand
and/or walk 6 hours out of 8 hours; and sit 6 hours out of 8
hours. The claimant is restricted to simple routine
repetitive tasks. She can have occasional contact with the
public. Workplace changes should be gradual and infrequent
and she may require infrequent direct non-confrontational
supervision. She is also restricted from work involving
production rate, pace, and/or assembly line work.
5. The evidence establishes the claimant has no past relevant
work (20 CFR 416.965).
6. The claimant, born on February 10, 1966, was 43 years old,
which is defined as a younger individual age 18-49, on the
date the application was protectively filed (20 CFR 416.963).
7. The claimant has a limited (11th grade) education and is
able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the
claimant does not have past relevant work (20 CFR 416.968).
9. 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 416.969 and
10. The claimant has not been under a
“disability” as defined in the Social Security
Act since August 12, 2009, the date the application was
protectively filed (20 CFR 416.920(g)).
(Tr. 12-14, 18-19.)
17, 2013, the Appeals Council denied Plaintiff's request
for review of ALJ Shimer's decision (Tr. 1-6), thereby
rendering that decision the final decision of the SSA. This
civil action was thereafter timely filed, and the court has
jurisdiction. 42 U.S.C. § 405(g). If ALJ Shimer's
findings are supported by substantial evidence based on the
record as a whole, then those findings are conclusive.
Prior Claim and Finding
to filing the application for SSI that is the subject of the
instant case, Plaintiff filed an application for disability
insurance benefits under Title II of the Social Security Act
and an application for SSI under Title XVI of the Social
Security Act on September 27, 2006. In both applications
Plaintiff alleged a disability onset date of June 1, 1992.
Both applications were denied at the initial and
reconsideration stages of state agency review. Thereafter,
Plaintiff requested de novo review of her case by an
ALJ. The prior ALJ, John R. Daughtry, heard the case on June
16, 2009. Plaintiff appeared and testified at the hearing, as
did Kenneth Anchor, an impartial vocational
expert. At the conclusion of the hearing, the
matter was taken under advisement until July 29, 2009, when
ALJ Daughtry issued a written decision finding Plaintiff not
disabled. (Tr. 51-63.)
written decision, ALJ Daughtry stated:
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) which includes the ability to
lift and/or carry 30 pounds occasionally and 15 pounds
frequently; stand and/or walk up to 7 hours in an 8 hour
workday; sit up to 6 hours in an 8 hour workday; can engage
in unlimited pushing/pulling and can otherwise perform a full
range of light work. The claimant can understand, remember,
and carry out simple, low-level detailed directions; can
maintain concentration and persistence necessary to perform
simple and low-level detailed tasks with normal supervision;
no production rate, pace, assembly line work; can have
occasional contact with the general public; can interact with
co-workers and supervisors; may require infrequent direct
non-confrontational supervision; and can adapt to infrequent
Review of the Record
to reviewing Plaintiff's medical records, ALJ Shimer
briefly set forth the limits of his review, as follows:
Under AR 98-4,  Drummond v. Commissioner of Social
Security, 126 F.3d 837');">126 F.3d 837, [842-43 (6th Cir. 1997)], a
prior administrative law judge['s] finding must be
adopted on a subsequent disability claim barring additional
evidence that would support a contrary finding. The Sixth
Circuit court stated that “evidence not considered in
the earlier proceeding would be needed as an independent
basis to sustain a finding contrary to the final earlier
Shimer then summarized Plaintiff's medical records:
[T]he claimant returned to the Shade Tree Clinic on May 22,
2010, for follow up of right hip pain. She has had two
sessions of physical therapy, but was not sure if it was
making a difference. She stated Motrin was not helping much
and she wished she could get something stronger for pain. She
was encouraged to continue physical therapy, as pain appears
more muscular than true hip joint pain. She was not to be
prescribed narcotic or anxiolytics because of multiple
requests for such medications in the past. Exhibit 13F.
The claimant presented to the emergency room on July 19,
2010. She reported being involved in a motor vehicle accident
on June 16, 2010, with no initial injury but over the last
month, her right hip has been a little sore. She wanted
Vicodin that “works” although she complained of
mild pain. Physical examination was unremarkable except for
mild right hip tenderness in the anterior aspect of the hip.
She was neurovascularly intact with no motor or sensory
deficits. Impression was sprained right hip. She was
instructed to apply ice intermittently 15 to 20 minutes at a
time four to six times daily. She was discharged home with a
prescription for Tramadol. Exhibit 16F.
The claimant complained to a medical provider at Medical
Necessities on October 27, 2010, of chronic pain in her right
hip, right shoulder, legs, and lower back. Neurontin was
prescribed. X- rays of right and left hip were normal.
Cervical spine imaging studies revealed mild degenerative
narrowing of the C5-6 disc space with no alignment
abnormality. Lumbar spine imaging was normal. Impression was
lower back pain - degenerative joint disease, cervical spine
-degenerative disc disease, right shoulder - osteoarthritis,
and muscle spasms. On November 24, 2010, she stated she was
born with bone abnormality and has history of degenerative
joint disease. She reported pain worse with prolonged
sitting, standing, and lifting associated with numbness and
tingling in upper extremities. She stated her medication was
not working and Lortab and Soma were given. Examination on
December 2, 2010, noted tenderness to palpation in the
cervical and lumbar spine with slight decrease in range of
motion. There was also tenderness to palpation of the right
and left quadriceps and hamstrings and right shoulder with
full range of motion. Straight leg raise was negative. She
was encouraged to continue Lortab, Soma, and Xanax. On
February 12, 2011, she complained of pain in her lower back,
neck, and left shoulder. Laboratory testing results showed a
positive ANA. Systemic erythematosus lupus was diagnosed with
referral to rheumatologist. Lodine was prescribed. Exhibit
On August 14, 2010, she returned to the Shade Tree Clinic
with right hip pain. She stated the pain does not radiate and
is not associated with focal weakness, numbness, or
paresthesia. She stated physical therapy was not making a
difference. She reported having headaches for one and
one-half years. She has not really been concerned with them
until she saw a commercial on television for Fixodent denture
adhesive that described headaches similar to hers. Headaches
occur three to four times a week and have not changed in
intensity over one and one-half years. Examination revealed
pain on flexion and extension of the right hip with
tenderness to palpation over greater trochanter and IT tract.
She was again encouraged to continue physical therapy and
instructed to continue Ranitidine and Ibuprofen. Laboratory
testing was reviewed on May 28, 2011. The results are not
entirely conclusive/indicative of lupus. She is to be seen in
the arthritis clinic on June 21, 2011. She stated she was
given the diagnosis of lupus two months ago at an outside
clinic. She reported aching in her joints and itching
throughout her body. She denied skin changes, rash on face,
lymphadenopathy, pleuritic chest pain, palpitations,
hematuria, and cold extremities. Laboratory testing was
ordered to establish baseline. She was given a referral to
rheumatology. Exhibit 13F.
Dr. Nick Sowell performed a consultative physical examination
for the Social Security Administration on November 19, 2009.
The claimant was 67.5 inches tall and 164 pounds. Blood
pressure was 115/67. She reported diagnosis three to five
years ago of degenerative joint disease of the shoulders and
history of multiple motor vehicle accidents and drug and
alcohol addiction. She complained of pain in her shoulders,
hips, legs, feet, ankles, and back with stiffness. She had no
difficulty arising from her chair or getting onto and off the
examination table. Gait, station, and mobility were normal.
There was full range of motion in all joints. No physical
functional assessment was performed. Exhibit 2F.
Non-examining State Agency medical consultant, James P.
Gregory, M.D., reviewed the evidence and completed a physical
residual functional capacity assessment on January 24, 2010.
He assessed the claimant could lift and/or carry 20 pounds
occasionally and 10 pounds frequently; stand and/or walk 6
hours out of 8 hours; and sit 6 hours out of 8 hours. Exhibit
7F. Non-examining State Agency medical consultant, Frank R.
Pennington, M.D., reviewed the evidence on May 18, 2010, and
concurred with the assessment of Dr. Gregory. Exhibit l0F.
The opinions of Dr. Gregory and Dr. Pennington are well
supported by the evidence and entitled to significant weight
in this decision.
The claimant returned to Mental Health Cooperative on June
17, 2009. She denied auditory and visual
hallucinations, suicidal and homicidal ideation, and side
effects to medications. Sleep and appetite improved and mood
was stable. She was calm and cooperative with good eye
contact. She was instructed to continue Depakote and Lithium.
Lithium was changed to Seroquel on July 15, 2009, with
improvement. A clinically related group (CRG) form was
completed on September 24, 2009, reflecting moderate
limitation in activities of daily living, interpersonal
functioning, and adaptation to change and marked limitation
in concentration, task performance, and pace with global
assessment of functioning (GAF) score of 45. It is noted that
she does not concentrate well when off medications. She
complained of increased depression on October 2, 2009, due to
being without medications for one month. ...