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Elliott v. Berryhill

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

March 19, 2017

NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.



         Pending before the Court is Plaintiff's Motion for Judgment on the Administrative Record (Docket Entry No. 14). The motion has been fully briefed by the parties.

         Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff's claim for disability insurance under Title II and Supplemental Security Income (“SSI”), as provided by the Social Security Act (“the Act”). Upon review of the administrative record as a whole and consideration of the parties' filings, the Court finds that the Commissioner's determination that Plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g). Plaintiff's motion will be denied.


         Plaintiff, Marilyn Ruth Elliott, filed a Title II application for disability insurance and a Title XVI application for SSI on August 5, 2009, alleging disability as of July 31, 2007, although she later amended her onset date to January 18, 2008. (Tr. 130, 137, 152). Plaintiff's claims were denied at the initial level on February 19, 2010, and on reconsideration on June 21, 2010. (Tr. 78-83, 88-93). Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was held on April 10, 2012. (Tr. 10, 31). On April 25, 2102, the ALJ issued a decision finding that Plaintiff was not disabled. (Tr. 10-30). Plaintiff timely filed an appeal with the Appeals Council, which issued a written notice of denial on October 9, 2013. (Tr. 1-5). This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).


         The ALJ issued an unfavorable decision on April 25, 2102. (AR p. 10). Based upon the record, the ALJ made the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2013.
2. The claimant has not engaged in substantial gainful activity since January 18, 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: Back Disorder, Diabetes Mellitus, Hypertension, Borderline Intellectual Functioning, and a Mood Disorder (adjustment disorder versus depressive 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), including the ability to lift and/or carry 20 pounds occasionally and 10 pounds frequently, sit for six hours, and stand and/or walk for six hours, each with normal breaks in the course of an eight-hour day, except as follows: She is limited to jobs requiring no more than occasional climbing of ladders, ropes or scaffolds; no more than frequent posturals of climbing, balancing, stooping, crouching, kneeling, or crawling (as to stairs and ramps); with no concentrated exposure to vibrations. From a mental perspective, she is further limited to unskilled jobs involving no more than simple tasks and instructions.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on May 31, 1962 and was 45 years old, which is defined as a younger individual (age 18-49), on the alleged disability onset date (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 82-41and 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 regional and national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from January 18, 2008, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(AR pp. 12-25).


         The following summary of the medical record is taken from the ALJ's decision:

What follows is a synopsis of each of the treatment exhibits in an approximate chronological sequence. This is generally done on an exhibit-by-exhibit basis, bearing in mind there may be some chronological overlap as between a portion of the exhibits.
As to Exhibit 1-F, from the Dickson County Health Department, all of the medical records predate the amended alleged onset date, with nothing covering the relevant period. In April of 2006, there is mention of a 3.5 cm lipoma in the middle back near the spine that was tender to palpation, the onset of which was about four months earlier (p. 9). There is also mention of a hypothyroid condition, but this well predated the point of the alleged onset as well (p. 2-7).
Exhibit 2-F, from Dickson Medical Associates, covering the period between November of 2006 and May of 2007, also predates the amended alleged onset date. On the former date, the claimant presented with coughing symptoms and was diagnosed with sinusitis and bronchitis (p. 5). On the latter date, the claimant requested an estrogen injection for symptoms of menopause, but also mentioned the back lipoma(s) (pp. 2-3).
Exhibit 7-F, from the Dickson County Health Department, covers an interval between November of 2007 and May of 2010. There is mention of elevated liver enzymes on the former date, and the claimant expressed concern that she acquired an infection because she was exposed to a used needle. The treatment plan called for repeat liver enzyme tests in two weeks, and this was done (pp. 20-21). Separately, blood tests for all forms of Hepatitis infection were negative (p. 39). On the month of amended alleged onset, the claimant also experienced disturbances in eyesight in the setting of markedly elevated blood glucose levels, and was started on metformin; shortly after this, she stated that she felt better (p. 18-19). Still, her blood sugar levels were not well controlled in the beginning, and there was a report of elevated liver enzymes the following month (p. 15). As of June of 2008, most blood sugar readings was in the range of 110-140, though there was a spike at one point (p. 14).
On August 6, 2009, she had a well-woman physical examination which was unremarkable in all respects, except for notations regarding unrelated gynecological concerns (p. 2). On August 19, 2008, the claimant had experienced lower back and flank pain in the setting of a urinary tract infection and possibly dehydration as well; she stated she felt better after drinking cranberry juice and a lot of water (p. 12). By March of 2009, lab work and treatment had mainly been for diabetes, hypothyroidism, and dyslipidemia (p. 8). In June of 2009, the claimant alleged itching in the left ear and was treated for otitis externa (p. 6). In September of 2009, the claimant alleged back and abdominal pain, but also mentioned the back lipoma; this prompted x-rays of the thoracic and lumbar spine, but these reports do not appear in the file (p. 5).
In reviewing the historical lab tests, the only instance of especially elevated liver enzyme levels, from November of 2007, occurred in the setting of undiagnosed diabetes (and therefore, uncontrolled blood sugar levels), together with poor fluid intake (p. 21, 42). Subsequent to that event, these tests returned to a point at or near normal limits, with a rough correlation between elevated enzyme levels and elevated blood glucose and A1c levels (pp. 22-40; see also Ex. 11-F at 13-17). A number of the notes were of a terse and/or routine nature. In all of these things, there was no evidence outline liver dysfunction or damage.
Exhibit 4-F represents the consultative evaluation report of S. Mark Watson, M.D., dated November 19, 2009. In a nutshell, the claimant's main allegation on this occasion related to her back pain, yet on exam she presented a globally normal range of motion with an unremarkable gait and no abnormal neurological findings. The examining physician opined the claimant could only lift and/or carry 10 pounds occasionally, stand and/or walk for at least two hours, and sit for six hours (to this extent, consistent only with sedentary work), but with no other identified restrictions.
Exhibit 10-F represents a consultative evaluation report by Wyatt E. Harper, III, M.A., a licensed senior psychological examiner, dated July 23, 2011. The claimant testified she saw this individual only twice, that she had paid him $100, and that her boyfriend pays this professional sometimes. In any event, the report indicates she was referred there mainly to report on her intellectual functioning although stating that she was also being treated for depression.
The report itself was terse in places, and contained few objective observations, aside from the cognitive test results-She was oriented to place, person, time, and situation. Eye contact, posture, speech, and motor behavior all appeared unremarkable. She was able to count backward from 100 subtracting 3 until 88, when she began to make errors. She could perform simple arithmetic problems. Short term memory appeared moderately intact. She could recall recent events and knew the U.S. president's name. She was able to make and keep the appointments for testing with the examiner.
She was able to comprehend and answer in writing the questions on the examiner's client questionnaire that reads at the fifth grade level.
During the evaluation, the claimant asserted that she required special education classes before dropping out of school in the 9th grade for unspecified reasons. In an administration of the Wechsler Adult Intelligence Scale-IV Ed. (WAIS-IV), she achieved a full-scale IQ of 68, based on a verbal comprehension index of 66, a perceptual reasoning index of 77, a working memory index of 80, a processing speed index of 71 and a general ability index of 69. In an administration of the Wide Range Achievement Test-Third Ed. (WRAT-3), the claimant achieved standard scores of 81 and 82 in spelling and reading, respectively; but she obtained only a 68 in math. Her activities of daily living can be interpreted as fairly robust, because although the claimant asserted she spends her day watching television, she also said she is able to cook and care for herself and her mother, drives a motor vehicle, shops as needed, and has a boyfriend. The examiner concluded as follows- Ms. Elliott's general cognitive ability is in the extremely low range as estimated by the WAIS-IV. She does not learn verbal tasks nor non-verbal tasks well. Her general verbal comprehension abilities are in the extremely low range. Perceptual reasoning abilities are in the borderline range. She will not be able to comprehend and follow verbal or written directions well. Her ability to sustain attention, concentrate, and exert mental control is in the low average range. She will have difficulty maintaining extended performance in a work setting. . . . Ms. Elliott will have difficulty dealing with co-workers, work stresses, and maintaining attention and concentration.
In a separate form, the examiner went on to opine the claimant would only have mild limitations in her ability to understand, remember, and carry out simple instructions and to make judgments on simple work-related decisions, but would have marked limitations in her ability to do these things as to complex instructions. He further opined in favor of marked limitations in the claimant's ability to interact appropriately with co-workers and the public, moderate limitations in her ability to interact with supervisors, and moderate limitations in her ability to adapt to work-related change.
Exhibit 11-F, from the White Bluff Health Department, covers the interval between April of 2010 and February of 2012. It shows that on April 16, 2010, the claimant presented for a well woman physical examination, which was unremarkable in all respects; in fact, she reported no symptoms at all (pp. 9-10). In June of 2010, the claimant reported only groin pain while attempting to lift a heavy trash bag only nine days before the encounter, and was diagnosed with muscular strain (p. 12).
In the earliest available indication of mental illness within the treatment records, the claimant reported being depressed and tearful on January 19, 2011; she also reported a low energy level and disturbances in sleep. Notes included an impression of "situational stress, " suggesting that symptoms could have been acute in onset, rather than because of a long-standing or chronic problem. She was prescribed Flouxitine (the generic for Prozac) on this occasion. Of note, this incident came about only a few months prior to the date of the her evaluation with Mr. Hyatt in July of 2011 (see Ex. 10-F). She reported back and leg pain in July of 2011, but the musculoskeletal portion of the exam was unremarkable, her straight leg test was negative, and she had no spinal tenderness (p. ...

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