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Kilgore v. Berryhill

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

May 17, 2017

REGINA KILGORE
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security

          MEMORANDUM AND ORDER

          Clifton L. Corker United States Magistrate Judge.

         This matter is before the United States Magistrate Judge, with the consent of the parties and an order of reference pursuant to 28 U.S.C. § 636 for final disposition. Plaintiff's application for Disability Insurance Benefits under the Social Security Act was administratively denied following a hearing before an Administrative Law Judge [“ALJ”]. The plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 15], and the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 17].

         I. Standard of Review

         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 (6th Cir. 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).

         II. Sequential Evaluation Process

         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).

         III. Plaintiff's Vocational Characteristics

         The Vocational Expert [“VE”] who testified at plaintiff's administrative hearing defined plaintiff's past relevant work as she performed it as an “Account Executive.” Although the Dictionary of Occupational Titles [“DOT”] states that job, 164.167-010, as sedentary, the VE stated that plaintiff performed it at a light level of exertion [Tr. 77]. That job required no skills transferable to other work. She had a high school education, and was an “individual closely approaching advanced age” on her alleged disability onset date of October 22, 2013 and at the time the ALJ rendered his hearing decision on June 2, 2015. The ALJ found that the plaintiff could perform her past relevant work at Step 4 of the sequential evaluation process. Even if the process had gone to Step 5, and if she had been capable of the full range of light work, Rule 202.14 of the Medical-Vocational Guidelines, 20 CFR Part 404, Subpart P, Appendix 2 [the “Grid”] would have directed a finding that she was not disabled. However, four months after the ALJ's hearing decision the plaintiff reached the age of 55 and became a person of “advanced age.” At that point, with the same vocational characteristics, she would be disabled under Grid Rule 202.06.

         IV. Evidence in the Record

         Plaintiff's medical history is detailed in her brief as follows:

The Plaintiff has suffered from back pain for a number of years. She has been cared for this back pain by Holston Medical Group, and as early as January 2008, it was noted that she was suffering from severe low back pain which was made worse with driving (TR 808). At that time, it was opined by Dr. Andrew P. Brockmyre that the Plaintiff could not sit for more than 30 minutes or stand continuously for more than 30 minutes, must limit her driving, and limit her working hours away from home to less than 25 hours per week (TR 809-810). In February 2008, it was noted that she was doing ok during the day with the TENS unit (TR 802). In April 2008, it was noted that she still had pain in her right groin worse with prolonged sitting and also pain in her left hip which was worse if sitting for more than just a few minutes (TR 789).
The Plaintiff was referred to Highlands Neurosurgery and on August 13, 2008, they diagnosed lumbar pain, right lower extremity discomfort with recent EMG studies showing a chronic 81 radiculopathy, degenerative changes of the lumbar spine seen on an MRI study from February 2007 with a paracentral and left L4-L5 disc protrusion and annular tear at the L5-S1 region, and anxiety, GERO, and tobacco abuse (TR 769). The Plaintiff underwent an MRI (TR 767-768) and Dr. J. Travis Burt reported that the MRI revealed disc extrusions and disc protrusions of the L4-L5 and L5-S1 that resulted in some impression upon the exiting LS and 81 nerve roots (TR 765). The Plaintiff underwent a right L4-L5 and L5-S1 laminectomy diskectomy on September 15, 2008 and on October 24, 2008, Dr. Burt noted that there was an improvement in her right lower extremity radicular discomfort but she still had lumbar pain consistent with her surgery (TR 753). On December 12, 2008, Dr. Burt noted that the Plaintiff was status post right L4-5, L5-S1 laminectomy and ...

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