United States District Court, M.D. Tennessee, Nashville Division
A. WISEMAN, JR. U.S. District Judge
before the court is the Plaintiffs Motion For Judgment On The
Administrative Record (Docket No. 11). The Defendant has
filed a Response (Docket No. 12) to the Motion, and the
Plaintiff has filed a Reply (Docket No. 14). For the reasons
set forth herein, the Plaintiffs Motion is DENIED, and the
decision of the Social Security Administration is AFFIRMED.
August 2010, the Plaintiff filed an application for
supplemental security income, disability insurance benefits,
and disabled widow's benefits under the Social Security
Act. (Administrative Record ("AR"), at 11, 131-134
(Docket No. 9)). The Plaintiffs application alleged
disability beginning on October 15, 2009.
(Id.) After receiving initial denials of the
application, the Plaintiff requested a hearing before an
administrative law judge ("ALJ"). (Id.)
The ALJ held a hearing on November 28, 2012 at which the
Plaintiff appeared with a non-attorney representative and
testified in support of her claim. (Id., at 11,
26-59). A friend of the Plaintiff, as well as a vocational
expert, also testified at the hearing. (Id.)
issued a written decision on January 11, 2013, concluding
that the Plaintiff was not disabled during the relevant time
period. (Id., at 8-25). In reaching her decision,
the ALJ found as follows:
1. The claimant meets the insured status requirements of the
Social Security Act through September 30, 2005.
2. It was previously found that the claimant is the unmarried
widow of the deceased insured worker and has attained the age
of 50. The claimant met the non-disability requirements for
disabled widow's benefits set forth in section 202(e) of
the Social Security Act.
3. The prescribed period ended on July 31, 2012.
4. The claimant has not engaged in substantial gainful
activity since October 15, 2009, the alleged onset date (20
CFR 404.1571 etseq., and 416.971 et seq.).
5. The claimant has the following severe impairments: bulging
discs/low back syndrome, degenerative disc disease of the
cervical spine, hepatitis C, chronic obstructive pulmonary
disease, and seizure disorder (20 CFR 404.1520(c) and
6. 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).
7. After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform less than the full range of
light work as defined in 20 CFR 404.1567(b) and 416.967(b).
Specifically, she has the capacity to lift 15 to 20 pounds
occasionally. For any given eight-hour workday, she can stand
and walk for four hours. She has no sitting restrictions. She
can perform push/pull actions only occasionally and must
avoid concentrated exposure to airborne contaminants. The
claimant can perform frequent postural activities except that
she would be precluded from climbing ladders, ropes, or
scaffolding, and permitted to balance only occasionally. The
claimant must avoid unprotected heights and moving machinery
because of additional limitations imposed by her epilepsy.
She would be able to carry out at least simple directions,
maintain concentration and persistence sufficient to perform
routine and/or repetitive one through two-step tasks.
Production pace work and assembly line work would be
precluded. She would be unable to interact with the public on
a regular basis, but can interact with co-workers and
supervisors. She can adapt to gradual and infrequent changes.
8. The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).
9. The claimant was born on June 8, 1960 and was 49 years
old, which is defined as a younger individual age 18-49, on
the alleged disability onset date (20 CFR 404.1563 and
10. The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
11. 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 82-41 and
20 CFR Part 404, Subpart P, Appendix 2).
12. 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 404.1569, 404.1569(a),
416.969, and 416.969(a)).
13. The claimant has not been under a disability, as defined
in the Social Security Act, from October 15, 2009, through
the date of this decision (20 CFR 404.1520(g) and
(AR, at 13-21).
Appeals Council denied the Plaintiffs request for review of
the ALJ decision (AR, at 1-5), which became the final
decision of the Social Security Administration
("SSA"). Sims v. Apfel, 530 U.S. 103, 107,
120 S.Ct. 2080, 2083, 147 L.Ed.2d 80 (2000). This action,
seeking review of that decision, has been timely filed, and
the Court has jurisdiction under 42 U.S.C. § 405(g) to
Review of the Record
hearing before the ALJ, the Plaintiff testified that she was
53 years old and had a ninth-grade education. (AR, at 30).
According to the Plaintiff, she is unable to work because she
cannot breathe, has a hard time doing anything socially, and
is tired all the time. (Id., at 30-31). The
Plaintiff further testified that due to hip pain, she is
unable to stand and/or walk for over 40 minutes, or to sit
for over 45 minutes, in an eight-hour period. (Id.,
at 31-32, 34). The Plaintiff estimated her pain level to be
an eight on a scale of one to ten, with ten as the most
severe. (Id., at 33). The Plaintiff testified that
she takes one to two naps per day that last an average of one
Plaintiff indicated that she had been diagnosed with COPD
[chronic obstructive pulmonary disease] and has been
prescribed two types of inhalers to treat the condition.
(Id., at 34-35). According to the Plaintiff, she has
reduced her smoking habit to a quarter of a pack of
cigarettes per day. (Id.). The Plaintiff testified
that her breathing issues limit her to 15 minutes of standing
at a time. (Id., at 35-36). The Plaintiff estimated
that the maximum weight she could carry or lift would be 15
pounds. (Id., at 37). When asked how her condition
had changed since her previous hearing in 2009, the Plaintiff
said that everything had gotten a lot worse, including her
breathing, eyesight, and hip. (Id., at 41-42). She
also indicated that she now has constant headaches because of
her neck. (Id.)
Hobdy testified that the Plaintiff is his fiance and that
they had been seeing each other for four and one-half years.
(Id., at 43). Recording to Mr. Hobdy, he sees the
Plaintiff every day. (Id., at 44). Mr. Hobdy
testified that the Plaintiff drove them to the hearing
because he does not have a driver's license.
(Id.) Mr. Hobdy explained that he is transported by
either the Plaintiff or his mother to visit the Plaintiff
every day. (Id.) Mr. Hobdy testified that the
Plaintiffs hip pain and shortness of breath keep her from
being able to work. (Id.) He explained that the
Plaintiff does household chores, but it takes her a long time
because she has to take intervals of rest. (Id., at
45). Mr. Hobdy further testified that the Plaintiff takes
Dilantin for seizures but he has not witnessed her have a
seizure. (Id.) According to Mr. Hobdy, the Plaintiff
has had episodes in which she says she feels a seizure coming
on, but after applying ice and a cloth to her face, she says
she feels better. (Id., at 45-46). Since her
previous hearing, Mr. Hobdy said, the Plaintiffs hip and lung
issues have gotten worse. (Id., at 46). Mr. Hobdy
testified that the Plaintiff had reduced her smoking habit to
three-quarters of a pack to one pack of cigarettes per day.
Mr. Hobdy testified, the ALJ asked the Plaintiff to retake
the witness stand, and asked her if the medical records were
correct that she told her doctor she had two seizures in
February of 2012. (Id., at 47-48). The Plaintiff
said she did and that Mr. Hobdy was not at her house when the
seizures occurred. (Id., at 48-49).
vocational expert, Pedro Roman, testified that the Plaintiff
had worked as a cashier in the past, which is considered
light work with a Specific Vocational Preparation rating of
3. (Id., at 50). The ALJ asked Mr. Roman various
hypothetical questions. (Id., at 50-55). In response
to a hypothetical that assumed the Plaintiffs age, education,
work experience, and residual functional capacity as set
forth above, Mr. Roman testified that the individual in the
hypothetical would be able to perform light occupations with
a sit/stand option, and with a 30% reduction in the number of
occupations in the economy. (Id.) Specifically, Mr.
Roman testified, the individual would be able to work as a
companion, file clerk, inspector and hand packager, and mail
subsequent written opinion, the ALJ reviewed the medical
evidence as follows:
On June 9, 2009, the claimant presented to the health
department with complaints of seizure disorder. (Exhibit 4F).
The claimant reported weekly episodes of loss of
consciousness and shortness of breath. Treatment records note
that the claimant denied having epilepsy, but rather
experienced 'seizures' since 1998. (Exhibit 4F, p.
8). The nurse's diagnosis of the claimant was seizure,
hepatitis C, chronic obstructive pulmonary disease, and
The claimant presented to Roy Johnson, M.D. for a
consultative examination on December 27, 2010. (Exhibit 2F).
The claimant reported a history of chronic obstructive
pulmonary disease and seizure disorder. Dr. Johnson diagnosed
the claimant with cervical spine syndrome, low back syndrome
with radiculopathy, seizure disorder, hepatitis C infection,
and chronic obstructive pulmonary disease. (Id., at
3). X-rays of the claimant's lumbar spine were normal.
(Exhibits IF, p. 2 and 2F, p. 1). X-rays of the
claimant's cervical spine revealed degenerative disc
disease at ¶ 5-C6 through C6-C7. (Exhibits IF, p. 1 and
2F, p. 1). On physical examination, the claimant had full
range of motion of the shoulders, elbows, and wrists
bilaterally. The claimant demonstrated full range of ...