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Shipley v. Berryhill

United States District Court, E.D. Tennessee, Greeneville Division

August 25, 2017

BILLY K SHIPLEY, Plaintiff,
v.
NANCY BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant

          MEMORANDUM OPINION AND ORDER

          CLIFTON L. CORKER, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the United States Magistrate Judge with consent of the parties and by order of reference [Doc. 12] for disposition and entry of a final judgment. Plaintiff's application for Disability Insurance Benefits under the Social Security Act was administratively denied following a hearing before an Administrative Law Judge (“ALJ”). This is an action for judicial review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). Plaintiff filed a Motion for Judgment on the Pleadings [Doc. 13] and Defendant filed a Motion for Summary Judgment [Doc. 15].

         I. STANDARD OF REVIEW

         The scope of review of the Commissioner's findings is narrow. The Court is confined to determining (1) whether substantial evidence supported the factual findings of the ALJ and (2) whether the Commissioner conformed with the relevant legal standards. 42 U.S.C. § 405(g); see Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). “Substantial evidence” is defined as evidence that is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact for the jury. Lemaster v. Sec'y of Health & Humans Servs., 802 F.2d 839, 841 (6th Cir. 1986). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Listenbee v. Sec'y of Health & Human Services, 846 F.2d 345, 349 (6th Cir. 1988). However, a decision supported by substantial evidence “will not be upheld where the [Social Security Administration] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.” Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).

         A claimant must be under a “disability” as defined by the Social Security Act to be eligible for benefits. Within the statutory meaning, a “disability” includes physical and/or mental impairments that are both “medically determinable” and severe enough to prevent the claimant from (1) performing his past job and (2) engaging in “substantial gainful activity” that is available in the regional or national economies. 42 U.S.C. § 423(a)(1)(E).

         The regulations require a five-step sequential evaluation process for disability determinations. 20 C.F.R. §§ 404.1520(a)(4). A dispositive finding at any step ends an ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The complete review poses five questions:

1. Has the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant's severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner's Listing of Impairments (the “Listings”), 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant's [Residual Functional Capacity], can he or she perform his or her past relevant work?
5. Assuming the claimant can no longer perform his or her past relevant work -- and also considering the claimant's age, education, past work experience, and RFC -- do significant numbers of other jobs exist in the national economy which the claimant can perform?

20 C.F.R. § 404.1520(a)(4); 416.920(a)(4). “The claimant has the ultimate burden to establish an entitlement to benefits by proving the existence of a disability as defined in 42 U.S.C. § 423(d), ” while the Commissioner has the burden to establish the claimant's ability to work under step five. Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

         II. RELEVANT FACTS AND PROCEDURAL OVERVIEW

         A. Procedural History

         This is Plainitff's Billy Shipley's (“Shipley's”) third attempt at obtaining benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq.[1] In this application, Shipley asserts he is disabled due to degenerative disc disease, diabetes mellitus, diabetic neuropathy, obesity, major depressive disorder, and generalized anxiety disorder (Doc. 8, Tr. 11) (reference to “Tr” and the page denote the administrative record). He was a person closely approaching advanced age under the regulations at the time of his March 2013 application, 20 C.F.R. § 404.1563, in which he alleged a disability onset date of August 24, 2011 (Tr. 27, 187). The onset date was amended to a later date, August 1, 2013, at the hearing in January 2015. (Tr. 35). Shipley's insured status expired on December 31, 2013. (Tr. 11). He must establish disability on or before that date to be entitled to benefits. 20 C.F.R. § 404.130.

         Shipley's claims were initially denied on August 9, 2013, and again upon reconsideration on November 19, 2014. (Tr. 110, 114). An ALJ conducted a hearing on January 7, 2015 during which Plaintiff and a Vocational Expert (“VE”) testified. (Tr. 34-60).

         The ALJ conducted the five-step analysis in evaluating Shipley's claims. The ALJ's January 15, 2015, decision found Shipley had the severe impairments of degenerative disc disease, diabetes mellitus, diabetic neuropathy, obesity, major depressive disorder and generalized anxiety disorder. (Tr. 11). He also found Shipley had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)[2] with certain limitations. Those limitations were that Shipley could perform and maintain concentration for simple, routine, repetitive tasks for two hour segments and has an ability to adapt to infrequent changes in a work setting, and that involve no public interaction and only occasional interaction with co-workers and supervisors. (Tr. 13). He found Shipley could not return to his past work and that transferability of job skills was not material under the Medical-Vocational Rules. (Tr. 18). He asked the vocational expert a hypothetical based on someone with Shipley's RFC whether there were jobs in the national economy. (Tr. 36-39). The VE identified a number of different jobs available in the national and regional economies. Accordingly, the ALJ found Shipley not disabled at any time from August 1, 2013, the alleged onset date, through December 31, 2013, the date last insured (20 CFR 404.1520(g)). The Appeals Council denied Plaintiff's review request, and Plaintiff appealed to this Court.

         B. Evidence in the Record

         The ALJ decision includes a review of the underlying medical evidence. (Tr. 12-17). Shipley's motion summarizes the record evidence [Doc. 14, pp. 2-8] and the Commissioner's motion does likewise [Doc. 16, pp. 3-13]. The transcript contains records from three treating providers. Reference to the evidence herein, both medical and otherwise, is only set forth as necessary.

         III. ANALYSIS

         On appeal, the primary issue for review is whether the Commissioner's decision is supported by substantial evidence. In that regard, Shipley argues that the ALJ failed to properly weigh the medical opinions of the treating sources, Ronald S. Smith, M.D., and Thomas J. Burns, Ph.D. He also argues that the ALJ erred in the weight it gave the State agency non-examining medical consultant as required by SSR 96-6p. Next, he argues the ALJ failed to properly weigh the subjective allegations and his credibility and that substantial evidence did not support the ALJ's credibility determination. Finally, he claims the ALJ erred in his reliance upon the VE's testimony because the hypothetical question posed to the VE did not include all of Shipley's limitations.

         A. The ALJ's analysis of the medical evidence

         Shipley saw Ronald Smith, M.D. beginning in April 2011 (Tr. 360-417). He saw Thomas J. Burns from July 2011 through June 2013 (Tr. 284, 286-301). There is no dispute that both Drs. Smith and Burns are Shipley's treating physicians. Shipley claims that the ALJ improperly evaluated both of their opinions in finding him not disabled. He claims that the ALJ did not follow the treating physician rule, the Commissioner's own regulations regarding the weight to give the opinion of a treating physician and failed to give good reasons for the weight he did ascribe to their opinions.

         An ALJ must adhere to certain standards in assessing medical evidence supporting a claim for disability benefits. The “treating physician rule” requires the ALJ to give controlling weight to the opinions of treating physicians because:

[T]hese sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.

Wilson v. Comm'r of Soc. Sec., 378 F.3d, 541, 544 (quoting 20 C.F.R. § 404.1527(d)(2)[3]). The ALJ “must” give a treating source opinion controlling weight if the treating source opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques” and is “not inconsistent with the other substantial evidence in [the] case record.” Id. (quoting 20 C.F.R. § 404.1527(d)(2)[4]). However, “[i]t is an error to give an opinion controlling weight simply because it is the opinion of a treating source if it is not well-supported by medically acceptable clinical and laboratory ...


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