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Witte v. Berryhill

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

July 6, 2017

JAMES DOUGLAS WITTE, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant

          Chief Judge, Crenshaw

          REPORT AND RECOMMENDATION TO THE HONORABLE WAVERLY D. CRENSHAW, JR., CHIEF JUDGE

          LANNY KING, MAGISTRATE JUDGE UNITED STATES DISTRICT COURT

         Plaintiff filed a complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability benefits. Docket 1. The Commissioner filed an electronic copy of the administrative record. Docket 10. Plaintiff filed his First Motion for Judgment on the Record, along with a supporting memorandum of law. Dockets 14 and 15. The Commissioner responded in opposition to Plaintiff's motion. Docket 16. The matter is ripe for determination.

         On June 19, 2017, the Court referred the matter to the undersigned Magistrate Judge pursuant to 28 U.S.C. §§ 631 and 636 and Administrative Order No. 24. Section 631 authorizes designation of magistrate judges to serve in districts adjoining the district for which they were appointed. Administrative Order No. 24 was entered on June 12, 2017, and signed by the Chief Judges for the Middle District of Tennessee and the Western District of Kentucky. Section 636 authorizes magistrate judges to submit reports and recommendations to district judges on any case-dispositive matter.

         As discussed below, the administrative law judge's (ALJs) decision gave little weight to the treating physician's medical opinion and great weight to the opinion of the non-examining state-agency physician. The treating physician's opinion was based on the findings of a lumbar MRI, which neither the ALJs decision nor the non-examining physician mentioned.

         Because the ALJs weighing of the medical opinions was not supported by substantial evidence and was not in accord with applicable legal standards, the RECOMMENDATION will be to GRANT Plaintiff's First Motion for Judgment on the Record (Docket 14) and REMAND this matter to the Commissioner for a new decision identifying good reasons for the weight given to the treating physician's opinion.

         The ALJs decision in light of the sequential evaluation process

         In June 2011, Plaintiff filed applications for Social Security disability benefits pursuant to Title II of the Social Security Act (disability insurance benefits) and Title XVI (supplemental security income benefits). Plaintiff initially alleged that he became disabled on January 1, 2007; however, he amended his alleged onset date at the administrative hearing to August 10, 2009. Administrative Record (AR), Docket 10, p. 36.

         Plaintiff's claims were denied by the state agency initially and upon reconsideration.

         Plaintiff requested an ALJ hearing, which was held in May 2013. The transcript of the hearing is at AR, pp. 33-58.

         In August 2013, ALJ Renee S. Andrews-Turner issued a written decision denying Plaintiff's claims. AR, pp. 15-27.

         In April 2015, the ALJs decision became the Commissioner's final decision, which is the subject of the present judicial review, when the Appeals Council declined to disturb the ALJs decision. AR, pp. 1-3.

         The ALJ found that Plaintiff is not disabled through the date of decision because, although he can no longer perform his past relevant work, he retains the ability to perform other jobs, which exist in significant numbers in the national economy. ALJs decision, AR, pp. 19 and 25.

         The ALJs decision was pursuant to the 5-step sequential evaluation process utilized by the Commissioner in evaluating all Social Security disability claims.

         At Step 1 of the evaluation process, a claimant is not disabled if he engages in substantial gainful activity. The ALJ found that Plaintiff "has not engaged in substantial gainful activity since January 1, 2007, the alleged onset date." ALJs decision, AR, p. 17.

         At Step 2, a claimant must have a severe impairment (i.e., one having a vocationally-significant impact on ability to engage in basic work activities) in order to be disabled. The ALJ found that Plaintiff "has the following severe impairments: degenerative disc disease of the lumbar spine, residuals of the left ankle fracture, depressive disorder and borderline intellectual functioning." AR, p. 17.

         At Step 3, a claimant is entitled to a conclusive presumption of disability if he suffers from an impairment satisfying the medical criteria of an impairment listed in Appendix 1 of the regulations. The ALJ found that Plaintiff "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments." AR, p. 18.

         At Step 4, a claimant is not disabled if he can perform his past relevant work. The ALJ found that Plaintiff "is unable to perform any past relevant work." AR, p. 25.

         At Step 5, the Commissioner must (as a threshold matter) determine the claimant's residual functional capacity (RFC). The ALJ found that Plaintiff "has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) in that he can lift and/or carry 20 pounds occasionally and ten pounds frequently; stand and/or walk for six hour in an eight-hour workday; sit for six hours in an eight-hour workday; frequently balance, stoop, kneel, crouch, crawl, and climb stairs and ramps; never climb ladders, ropes, and scaffolds; frequently push and pull with the left lower extremity and can have occasional exposure to wetness. He should avoid all exposure to hazards. He can understand and remember simple instructions; maintain concentration for at least two hours at a time during an eight-hour workday; occasionally interact with the general public, coworkers and supervisors; and can adapt to infrequent change in the workplace." AR, p. 19.

         Additionally, the Commissioner must determine the claimant's age and education. The ALJ found that Plaintiff "was born on October 14, 1964 and was 42 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date" and that he "has a limited education and is able to communicate in English." AR, pp. 25-26.

         Step 5 requires the Commissioner to determine, in light of the claimant's RFC, age, education, and prior work experience, whether he retains the ability to perform other (than past relevant work) jobs, which exist in significant numbers in the national economy. The ALJ found that "[c]onsidering 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." AR, p. 26. The determination was based on hypothetical questions presented to a vocational expert at the administrative hearing. The vocational testimony is at AR, pp. 51-58.

         Plaintiff's arguments in light of the standards governing judicial review

         Plaintiff presents four arguments upon judicial review in his memorandum in support of First Motion for Judgment on the Record. Docket 15, p. 1. The arguments are:

1. The ALJ erred by failing to properly consider and weigh the opinion from the treating physician, Winston Griner, M.D.
2. The ALJ erred by failing to properly incorporate the opinion from the one-time joint consultative examination of psychologists Marie LaVasque, M.S. / M.A., and Susan Vaught, Ph.D.
3. The ALJ erred by failing to perform a proper credibility analysis.
4. The ALJ erred by failing to properly consider all severe impairments. Claims 1, 2, and 3 concern the ALJs fifth-step determination of Plaintiff's RFC.

         Claims 1 and 2 are premised on the ALJs application of the rules for weighing medical opinions at 20 C.F.R. §§ 404.1527(c) and 416.927(c). The rules generally require that, in determining a claimant's RFC, more weight be assigned to the opinion of a treating source than an examining source ...


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