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Gustus v. Berryhill

United States District Court, E.D. Tennessee

July 25, 2017

ANGELA GUSTUS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          THOMAS A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE

         This action was instituted pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of the Commissioner's final decision denying Angel Gustus's (“Plaintiff”) claim for Supplemental Security Income (“SSI”), as provided by the Social Security Act. The matter is currently before the Court on Plaintiff's Motion for Judgment on the Pleadings [Doc. 12] and the Commissioner's Motion for Summary Judgment [Doc. 14].

         The Commissioner determined that Plaintiff is not disabled under the Act. Finding that such determination is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g), for the reasons that follow, the Court will deny Plaintiff's motion [Doc. 12], grant the Commissioner's motion [Doc. 14], and affirm the Commissioner's decision.

         I. Background

         On September 24, 2013, Plaintiff protectively filed for Disability Insurance Benefits (“DIB”) and SSI[1] under Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. § 401 et seq. and 42 U.S.C. § 1381 et seq., based on chronic depression, neck problems, back spasms, asthma, bronchitis, and hypertension[2] [Tr. 226-34, 251].[3] Plaintiff's claim was denied both initially and on reconsideration [Id. at 123-24, 154-61, 164-69]. On November 12, 2015, Plaintiff appeared and testified at a hearing before Administrative Law Judge (“ALJ”) Wesley Kliner [Id. at 22-76]. On January 11, 2016, the ALJ issued a decision, finding that Plaintiff was “not disabled, ” as defined in the applicable sections of the Act [Id. at 80-88]. On August 15, 2016, the Appeals Council denied Plaintiff's request for review [Id. at 1-3]. Thus, Plaintiff has exhausted her administrative remedies, and the ALJ's decision stands as the Commissioner's final decision subject to judicial review. See 42 U.S.C. § 405(g).

         Plaintiff is currently a forty-eight-year-old individual who performed past relevant work as a bottling packer, fast food cook, fast food cashier, and de-boner and washer in a chicken evisceration plant [Tr. 38, 40, 43, 68-69, 258]. At the time of her amended alleged onset date of September 24, 2013, Plaintiff was forty-four years old [Id. at 230].

         The parties and the ALJ have thoroughly summarized and discussed the medical and testimonial evidence of the administrative record. Accordingly, the Court will discuss those matters as relevant to the analysis of the parties' arguments.

         After considering the entire record, the ALJ made the following findings:

1. The claimant met the insured status requirements of the Social Security Act through September 30, 2008.
2. The claimant has not engaged in substantial gainful activity since September 24, 2013, the amended alleged onset date (20 C.F.R. 416.971, et seq.).
3. The claimant has the following severe impairments: degenerative disc disease, affective disorder, anxiety disorder, conduct disorder, personality disorder, and substance abuse disorder (20 C.F.R. 416.920(c)).
4. 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 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d), 416.925, and 416.926).
5. The claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b), except that she is to avoid more than frequent balancing, kneeling, crouching, or crawling; she is to avoid more than occasional stooping or climbing of stairs, ramps, ladders, or scaffolds; she is to avoid all exposure to dust, odors, fumes, or other pulmonary irritants; she is restricted to simple, routine tasks, making simple work-related decisions, with no more than occasional interaction with coworkers or supervisors and no interaction with the general public; there are to be few changes in the work setting and they must be well-planned and gradually implemented over an extended period of time, with extra supervision; she is expected to be off-task less than 5% of the workday, in addition to normal breaks.
6. The claimant is capable of performing her past relevant work as a packer or chicken de-boner. These jobs did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. 416.965).
7. The claimant has not been under a disability, as defined in the Social Security Act, from September 24, 2013, the amended alleged onset date, through the date of this decision (20 C.F.R. 404.1520(f) and 416.920(f)).

[Tr. 82-88].

         II. Analysis

         The determination of disability under the Act is an administrative decision. To establish disability under the Social Security Act, a claimant must establish that she is unable to engage in any substantial gainful activity due to the existence of a medically determinable physical or mental impairment that can be expected to result in death or that has lasted, or can be expected to last, for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). The Commissioner employs a five-step sequential evaluation to determine whether an adult claimant is disabled. 20 C.F.R. § 416.920. The following five issues are addressed in order: (1) if the claimant is engaging in substantial gainful activity, she is not disabled; (2) if the claimant does not have a severe impairment, she is not disabled; (3) if the claimant's impairment meets or equals a listed impairment, she is disabled; (4) if the claimant is capable of returning to work she has done in the past, she is not disabled; (5) if the claimant can do other work that exists in significant numbers in the regional or the national economy, she is not disabled. Id. If the ALJ makes a dispositive finding at any step, the inquiry ends without proceeding to the next step. 20 C.F.R. § 416.920; Skinner v. Sec'y Health & Human Servs., 902 F.2d 447, 449-50 (6th Cir. 1990). Once, however, the claimant makes a prima facie case that she cannot return to her former occupation, the burden shifts to the Commissioner to show that there is work in the national economy that she can perform, considering her age, education, and work experience. Richardson v. Sec'y Health and Human Servs., 735 F.2d 962, 964 (6th Cir. 1984); Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).

         The standard of judicial review by this Court is whether the findings of the Commissioner are supported by substantial evidence and whether the Commissioner made any legal errors in the process of reaching the decision. See Richardson v. Perales, 402 U.S. 389, 401 (1971) (adopting and defining substantial evidence standard in the context of Social Security cases); Landsaw v. Sec'y Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Even if there is evidence on the other side, if there is evidence to support the Commissioner's findings, they must be affirmed. Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The Court may not reweigh the evidence and substitute its own judgment for that of the Commissioner merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard allows considerable latitude to administrative decision makers. It presupposes there is a zone of choice within which the decision makers can go either way, without interference by the courts. Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Sec'y Health & Human Servs., 790 F.2d 450 n.4 (6th Cir. 1986).

         The Court may consider any evidence in the record, regardless of whether the ALJ cited it. See Heston v. Comm'r Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). For purposes of substantial evidence review, however, the Court may not consider any evidence that was not before the ALJ. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the Court is not obligated to scour the record for errors not identified by the claimant. See Howington v. Astrue, No. 2:08-cv-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that assignments of error not made by claimant were waived). Moreover, “issues which are ‘adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.'” Kennedy v. Comm'r Soc. Sec., 87 F. App'x 464, 466 (6th Cir. 2003) (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).

         Plaintiff presents three issues for review: (1) whether “Plaintiff is disabled because she is unable to do any work on a regular, sustained basis due to her physical and mental impairments”; (2) whether “the ALJ improperly impugned Plaintiff's credibility and used this as the primary if not exclusive reason for finding [Plaintiff] not disabled”; and (3) whether “the ALJ improperly played doctor and substituted his hunch or intuition for the diagnosis of . . . examining medical professionals” [Doc. 13 pp. 7-8].

         A. Disability Due to Impairments

         Plaintiff's first stated issue is whether she “is disabled because she is unable to do any work on a regular, sustained basis due to her physical and mental impairments” [Id. at 8-10]. Having reviewed Plaintiff's argument on this issue, the Court finds that it begs the ultimate question and is essentially duplicative of Plaintiff's other arguments. Plaintiff posits that she is disabled because she is unable to work. Whether Plaintiff is disabled was the ultimate question before the ALJ. In raising this issue, however, Plaintiff does not identify any specific error in the ALJ's decision. Plaintiff only argues that two treating physicians (Dr. Karen Moyer and Dr. Stephen Spalding) and two consultative examiners (Dr. Raymond Azbell and Dr. Dee Langford, Ed.D.) opined that she “has restrictions and limitations which would preclude all competitive employment from both a mental and physical standpoint” [Id. at 9]. This is also the substance of Plaintiff's third issue, and the Court will address the weight that the ALJ gave to each of the medical opinions in detail below. The Court concludes, however, that Plaintiff has not raised an independent basis for remand with her first issue.

         B. ...


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