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Burnette v. Colvin

United States District Court, W.D. Tennessee, Western Division

March 28, 2017

LAUREL DIANNE BURNETTE, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE.

         Before 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.

         I. BACKGROUND

         On May 11, 2011, Burnette applied for disability-insurance benefits under Title II of the Act. (R. at ¶ 212.[1]) 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 ¶ 144 (reconsideration).)

         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.)

         Burnette 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.)

         II. STANDARDS

         A. Standard of Review

         Under 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)).

         In 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)).

         The 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).

         B. The Five-Step Analysis

         The Act 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 423(d)(2)(A) states:

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 . . . .

         Under 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)).

         The 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).

         III. ANALYSIS

         In her 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.)

         These 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.[2] 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.” (Mem. 6.)
• 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. at 2.)
• 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.)

         A. Claim of Error 1

         Burnette 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.)

         To the 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 ...


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