United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE
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
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
September 24, 2013, Plaintiff protectively filed for
Disability Insurance Benefits (“DIB”) and
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 [Tr. 226-34, 251]. 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).
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].
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.
considering the entire record, the ALJ made the following
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.
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)).
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).
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.
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)).
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].
Disability Due to Impairments
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.