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McLean v. Berryhill

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

June 21, 2017

PATRICIA JO MCLEAN
v.
NANCY BERRYHILL,[1] acting Commissioner of the Social Security Administration

          MEMORANDUM

          THOMAS A. WISEMAN, JR. U.S. District Judge

         I. Introduction

         Pending 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.

         II. Procedural Background

         In 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.)[2] 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.)

         The ALJ 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 416.920(c)).
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 416.963).
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 416.920(g)). '

(AR, at 13-21).

         The 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 adjudicate it.

         III. Review of the Record

         At the 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 hour. (Id.)

         The 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.)

         Jackie 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. (Id.)

         After 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).

         The 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 clerk. (Id.)

         In her 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 tobacco abuse.
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 ΒΆ 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 ...

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