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Boles v. Berryhill

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

July 21, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          The Honorable Aleta A. Trauger, United States District Judge



         Plaintiff brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the Social Security Commissioner's denial of her applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act (“Act”). For the following reasons, the Magistrate Judge RECOMMENDS that Plaintiff's Motion for Summary Judgment (Doc. 7) be DENIED and the Commissioner's decision be AFFIRMED.


         This is Plaintiff's second application for disability insurance benefits and supplemental security income. She filed her previous application on June 9, 2009. (AR, p. 296).[1] After an administrative hearing (Id. at 265-290), her application was denied on February 8, 2011. (Id. at 293-308). Her most recent application (Id. at 480-489) was denied initially and on reconsideration (Id. at 309-310, 375-376). Administrative hearings were convened on October 29, 2014 (Id. at 231-264) and April 29, 2015 (Id. at 208-230). The presiding administrative law judge (“ALJ”) issued an unfavorable decision on June 16, 2015. (Id. at 184-207). The Appeals Council declined to review the ALJ's decision. (Id. at 1-7).[2] Plaintiff appealed the Commissioner's decision to this Court. (Doc. 1). The matter was referred to the Magistrate Judge. (Doc. 9). Presently pending is Plaintiff's fully briefed Motion for Summary Judgment (Docs. 7, 7-1, 8).


         The parties and the ALJ thoroughly summarized the medical and testimonial evidence of record. To the extent specific portions of the record are relevant, they are discussed in the analysis of the claims of error below. Upon review of the record and two administrative hearings, the ALJ made the following findings of fact and conclusions of law. Plaintiff was insured under the Act through June 30, 2013. (AR, p. 190). She had not engaged in substantial gainful activity since February 9, 2011. (Id.) She suffered from several severe impairments, but she did not have an impairment or combination of impairments that satisfied the criteria for a listed impairment. (Id.). Plaintiff's residual functional capacity (“RFC”) permitted her:

to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that she would be precluded from climbing ladders, ropes, or scaffolds; she could no more than occasionally bend, stoop, bend from the waist to the floor, crouch, crawl, kneel, or climb stairs or ramps; she would be precluded from no more than frequent gross and fine manipulation; she could not work around hazards such as dangerous or moving machinery or unprotected heights; she would be able to carry out simple instructions; she would be limited to no more than occasional changes in the workplace; she would be limited to occasional interaction with the public, coworkers, and supervisors; she would require the use of a cane for ambulation; and she could not operate motor vehicles.

(Id. at 191) (emphasis omitted). The ALJ additionally found Plaintiff could not perform any past relevant work, but she could perform other work in the national economy given her age, education, work experience, and RFC. (Id. at 200). Finally, the ALJ concluded Plaintiff was not disabled for purposes of the Act from February 9, 2011, to the date of the decision. (Id. at 201).


         A. Standard of Review

         This Court's review of the Commissioner's final disability decision is limited to determining whether the decision is supported by substantial evidence and whether the decision was made using the correct legal standards. Miller, 811 F.3d at 833 (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)). “Substantial evidence is less than a preponderance but more than a scintilla; it refers to relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014) (citing Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)). Though the ALJ's decision may otherwise be supported by the record, failure to follow the agency's rules and regulations may show a lack of substantial evidence. Id. (quoting Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)).

         B. Administrative Proceedings

         The regulations implementing the Act set forth a five-step test for determining whether a claimant is disabled:

(1) the claimant is not disabled if she is engaged in substantial gainful activity;
(2) the claimant is not disabled if she does not have a severe medically determinable impairment that meets duration requirements;
(3) the claimant is presumed disabled if she suffers from a listed impairment, or its equivalent, for the proper duration;
(4) the claimant is not disabled if based on her RFC she can perform past relevant work; and
(5) the claimant is not disabled if she can perform other work based on her RFC, age, education, and work experience.

20 C.F.R. §§ 404.1520(a)(1), (4), 416.920(a)(1), (4). The burden of proof rests on the claimant for the first four steps, and the burden shifts to the Commissioner at step five. Johnson v. Comm'r of Soc. Sec., 652 F.3d 646, 651 (6th Cir. 2011) (citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)).


         Plaintiff submits five claims of error: (1) the ALJ should have concluded Plaintiff satisfied the listings at step three of the evaluation; (2) the ALJ gave too much weight to a non-examining state examiner's opinion; (3) the ALJ should have assigned a more-restrictive RFC to Plaintiff; (4) the ALJ should have adopted vocational expert testimony concerning a more-limited RFC than selected by the ALJ; and (5) the ALJ erred by finding Plaintiff less than credible. (Doc. 7-1, pp. 3, 13-24).

         V. ANALYSIS

         A. Application of the Listings

         Plaintiff first argues she is entitled to disability benefits under listings 1.02, 1.04, and 12.06. (Id. at 13-16). Specifically, she contends the ALJ should have given controlling weight to opinion evidence submitted by her treating physician, Dr. Harold Lowe, in which he found she satisfied these listings (AR, pp. 1124-1125, 1128). (Doc. 7-1, pp. 13-16).

         At the third step of the disability evaluation process, the ALJ considers the medical severity of the claimant's impairments. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The claimant is “disabled” for purposes of the Act if her impairments meet or medically equal an impairment listed in Appendix 1 to the regulations. Id. The claimant bears the burden of establishing the elements of the listing are satisfied. Foster, 279 F.3d at 354.

         Opinion evidence submitted by a treating physician should be given controlling weight if the opinion “is well-supported by medically acceptable clinical and laboratory diagnostic techniques[3] and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Even if a treating provider's opinion is not entitled to controlling weight, the ALJ should nevertheless give the opinion the weight it deserves taking the following factors into consideration: the length of the treatment relationship and frequency of examination, the nature and extent of the treatment relationship, whether the opinion is supported by medical evidence, whether the opinion is consistent with the record as a whole, the source's specialization, and any other relevant factors. Id. §§ 404.1527(c), 416.927(c). Ultimately, the ALJ must provide “good reasons” for the weight selected, and these reasons need to be supported by the evidence in the record. Id. §§ 404.1527(c)(2), 416.927(c)(2); SSR 96-2p, 1996 WL 374188, at *5 (S.S.A. July 2, 1996).

         1. Listings 1.02 (Major Dysfunction of a Joint) and 1.04 ...

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