United States District Court, W.D. Tennessee, Western Division
H. MAYS, JR. UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Laurel Dianne Burnette's appeal
from a final decision of the Commissioner of Social Security
(“Commissioner”) denying Burnette's
application for disability-insurance benefits under Title II
of the Social Security Act (the “Act”), 42 U.S.C.
§ 401-34. For the following reasons, the
Commissioner's decision is AFFIRMED.
11, 2011, Burnette applied for disability-insurance benefits
under Title II of the Act. (R. at ¶ 212.) Burnette alleged
a “disabling condition” beginning on February 18,
2011. (Id.) The Social Security Administration
(“SSA”) denied Bur-nette's application on
initial review and on reconsideration. (Id. at
¶ 143 (initial determination); id. at ¶
Burnette's request, an Administrative Law Judge
(“ALJ”) held a hearing about Burnette's
application on September 20, 2012. (Id. at ¶
105.) On October 23, 2012, the ALJ issued a decision denying
Burnette's benefits request. (Id. at ¶
89-P99.) The ALJ found that Burnette was not disabled because
she retained the residual functional capacity
(“RFC”) to perform past relevant work. (See,
e.g., id. at ¶ 99; see also
Section II.B infra (discussing sequential
analysis).) On January 14, 2014, the SSA's Appeals
Council denied Burnette's request for review. (R. at
¶ 34.) That denial made the ALJ's decision the
Commissioner's final decision. (Id.)
filed the present action on March 11, 2014. (Compl., ECF No.
1.) The Commissioner answered Burnette's complaint on
June 30, 2014. (Answer, ECF No. 12.) On July 1, 2014, the
Court entered an Administrative Track Scheduling Order. (ECF
No. 13 (“Scheduling Order”).) The order gave
Bur-nette thirty days to file “a brief in support of
the asserted claim, ” and gave the Commissioner thirty
days after that filing to submit a response. (Id.)
Burnette filed her brief on July 30, 2014. (Mem. Br. in Supp.
of Pl., ECF No. 14 (“Mem.”).) The Commissioner
filed a response on September 2, 2014. (Mem. in Supp. of
Comm'r's Decision, ECF No. 19 (“Resp.”).)
Burnette did not file a reply to the Response, and the
deadline for doing so has passed. (Scheduling Order 1.)
Standard of Review
42 U.S.C. § 405(g), a claimant may obtain judicial
review of any final decision made by the Commissioner after a
hearing to which the claimant was a party. “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], with or without remanding
the cause for a rehearing.” 42 U.S.C. § 405(g).
Review of the Commissioner's decision is limited to
whether there is substantial evidence to support the decision
and whether the Commissioner used the proper legal criteria
to make the decision. Id.; Winn v. Comm'r of
Soc. Sec., 615 F.App'x 315, 320 (6th Cir. 2015);
Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713
(6th Cir. 2012). “‘Substantial evidence is more
than a scintilla of evidence but less than a preponderance
and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
Bowman v. Comm'r of Soc. Sec., Case No. 16-6298,
2017 WL 1065553, at *3 (6th Cir. Mar. 21, 2017) (quoting
McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830,
833 (6th Cir. 2006)).
determining whether substantial evidence exists, the
reviewing court must examine the evidence in the record as a
whole and must “‘take into account whatever in
the record fairly detracts from its weight.'”
Conner v. Comm'r of Soc. Sec., 658 F.App'x
248, 253 (6th Cir. 2016) (quoting Abbott v.
Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)). If
substantial evidence supports the Commissioner's
decision, the court must affirm that decision and “may
not ‘even inquire whether the record could support a
decision the other way.'” Staymate v.
Comm'r of Soc. Sec., No. 16-3896, 2017 WL 902136, at
*3 (6th Cir. Mar. 7, 2017) (quoting Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994)).
court may not try the case de novo or resolve
conflicts in the evidence. Ulman, 693 F.3d at 713
(quoting Bass v. McMah-on, 499 F.3d 506, 509 (6th
Cir. 2007)). The Commissioner, not the court, is charged with
the duty to weigh the evidence and to resolve material
conflicts in the testimony. Vance v. Comm'r of Soc.
Sec., 260 F.App'x 801, 807, 808 (6th Cir. 2008)
(citing Bass, 499 F.3d at 509).
The Five-Step Analysis
defines “disability” as the “inability to
engage in any substantial gainful activity by reason of any
medically de-terminable 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.” 42 U.S.C. § 423(d)(1). Section
An individual shall be determined to be under a disability
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 . . . .
the Act, the claimant bears the ultimate burden of
establishing an entitlement to benefits. Oliver v.
Comm'r of Soc. Sec., 415 F.App'x 681, 682 (6th
Cir. 2011) (citing 42 U.S.C. § 423(a); Wyatt v.
Sec'y of Health & Human Servs., 974 F.2d 683
(6th Cir. 1992)). The claimant has the initial burden to
prove she has a disability as defined by the Act. Siebert
v. Comm'r of Soc. Sec., 105 F.App'x 744, 746
(6th Cir. 2004) (citing Walters v. Comm'r of Soc.
Sec., 127 F.3d 525, 529 (6th Cir. 1997)). If she does
so, the burden shifts to the Commissioner to show that
available employment exists that is compatible with the
claimant's disability and background. Nejat v.
Comm'r of Soc. Sec., 359 F.App'x 574, 576 (6th
Cir. 2009) (quoting Jones v. Comm'r of Soc.
Sec., 336 F.3d 469, 474 (6th Cir. 2003)).
Social Security Regulations (the “Regulations”)
provide a five-step “sequential analysis”
governing entitlement to disability-insurance benefits. 20
C.F.R. § 404.1520(a)(4). First, the claimant must not be
engaged in substantial gainful activi- ty. Id.
§ 404.1520(b). Second, a finding must be made that the
claimant suffers from a severe impairment. Id.
§ 404.1520(c). Third, the ALJ must determine whether the
impairment meets or equals the severity criteria set forth in
the Regulations' Listing of Impairments. Id.
§ 404.1520(d). If the impairment satisfies the criteria
for a listed impairment, the claimant is deemed disabled.
Fourth, if the claimant's impairment does not meet or
equal a listed impairment, the ALJ must determine whether the
claimant has the RFC to return to any past relevant work.
Id. § 404.1520(f). If the claimant can return
to past relevant work, the claimant is deemed not disabled.
Id. Fifth, if the claimant is unable to perform past
relevant work, the ALJ must determine whether the claimant
can perform other work existing in significant numbers in the
national economy. Id. § 404.1520(g). If at any
point in the sequential analysis it is determined that an
individual is not disabled, further review is unnecessary.
Id. § 404.1520(a)(4).
Memorandum, Burnette presents the following issues: (1)
“[w]hether the defendant's [ALJ] had a legitimate
basis upon which to deny disability benefits or whether the
[ALJ] was merely arbitrary and capricious and therefore
abused his discretion”; (2) “[w]hether the
defendant erred by the denial of disability benefits to
[Burnette] because of an error of law”; and (3)
“[w]hether the defendant erred by the denial of
disability benefits to [Burnette] because the decision is not
supported by substantial evidence.” (Mem. 2.)
issue statements are vague. It is Burnette's
responsibility to point to the specific legal or factual
errors in the ALJ's decision for the Court to
review. The Memorandum conflates distinct issues,
making it difficult to understand Burnette's arguments.
Based on its review of the Memorandum, the Court understands
Burnette to present the following issues for review:
• Claim of Error 1: As a threshold matter, the ALJ
“erred when it was found that [Burnette] would not be
under a disability for twelve months or more and that there
is not substantial evidence to support that position.”
• Claim of Error 2: At step three of the sequential
analysis, the ALJ erred by determining that Burnette's
impairments did not meet one or more of the impairments in
the Listing of Impairments. (Id. at 7.)
• Claim of Error 3: At step three of the sequential
analysis, the ALJ failed to consider Burnette's
impairments in combination. (Id. at 3, 6-7.)
• Claim of Error 4: At step four of the sequential
analysis, the ALJ relied on evidence that was “not
competent” -- specifically, expert-witness testimony
from a “non examining physician.” (Id.
• Claim of Error 5: At step four of the sequential
analysis, the ALJ inappropriately failed to give controlling
weight to the opinions of Burnette's treating physicians.
(Id. at 3-5, 7.)
• Claim of Error 6: At step four of the sequential
analysis, the ALJ failed to consider Burnette's testimony
about disabling pain appropriately. (Id. at 5-7.)
Claim of Error 1
states that the ALJ “erred when it was found that
[Burnette] would not be under a disability for twelve months
or more and that there is not substantial evidence to support
that position.” (Id. at 6.) The relevant
definition of “disability” is at 42 U.S.C. §
423(d)(1)(A). Disability means “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.” Burnette's argument appears to be that,
because the ALJ did not address Burnette's level of
impairment 12 months in- to the future, the ALJ could not
conclude that Burnette did not suffer from a §
423(d)(1)(A) disability. The Government does not address this
argument. (See generally Resp.)
extent Burnette makes a continuous-period argument, that
argument fails. The ALJ concluded that Burnette was not
disabled “from February 18, 2011, through the date of
[the ALJ's] decision” (October 23, 2012). (R. at
¶ 99.) That conclusion did not depend on §
423(d)(1)(A)'s continuous-period requirement. It depended
on the ALJ's determination that, throughout the stated
period, Burnette had been able to engage in substantial
gainful activity notwithstanding her impairments. As