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Dishmon v. Social Security Administration

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

October 31, 2017

RANDY MICHAEL DISHMON, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, Defendant.

          The Honorable Waverly D. Crenshaw, Jr., Chief Judge

          REPORT AND RECOMMENDATION

          NORAH MCCANN KING, UNITED STATES MAGISTRATE JUDGE.

         This is an action instituted under the provisions of 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security denying Plaintiff's application for a period of disability and disability insurance benefits. This matter is before the Court on Plaintiff's Motion for Judgment on the Administrative Record (Doc. No. 12)(“Motion for Judgment”) and Brief in Support of Motion for Judgment on the Administrative Record (Doc. 13)(“Brief in Support”), Defendant's Response to Plaintiff's Motion for Judgment on the Administrative Record (Doc. No. 14)(“Response”), and the administrative record (Doc. No. 10).[1] For the following reasons, the undersigned RECOMMENDS that the Motion for Judgment (Doc. 12) be GRANTED, and that the matter be REMANDED to the Commissioner, pursuant to Sentence 6 of 42 U.S.C. § 405(g), for consideration of new and material evidence.

         Introduction

         Plaintiff filed his application for benefits on May 11, 2013, alleging that he has been disabled since December 14, 2012. Tr. 190. The application was denied initially and on reconsideration and Plaintiff requested a de novo hearing before an administrative law judge (“ALJ”). On May 18, 2015, Plaintiff, represented by counsel, appeared and testified at that hearing, as did Edward M. Smith, who testified as a vocational expert. Tr. 85-114. In a decision dated July 1, 2015, the ALJ held that Plaintiff was not disabled within the meaning of the Social Security Act at any time from his alleged date of onset of disability to the date of the administrative decision. Tr. 67-79. That decision became the final decision of the Commissioner of Social Security when the Appeals Council declined review on June 17, 2016. Tr.1-4. In declining review, the Appeals Council noted the submission of additional medical evidence that was generated after the date of the ALJ's decision. However, the Appeals Council concluded that the new evidence “does not affect the decision about whether you were disabled beginning on or before” the date of the ALJ's decision. Tr. 2.

         The Findings and Conclusions of the ALJ

         In his decision, the ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2017.
2. The claimant has not engaged in substantial gainful activity since December 14, 2012, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease; arthropathies; bilateral carpal tunnel syndrome; and obesity (20 CFR 404.1520(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 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a). The claimant can lift and carry, push and pull 10 pounds occasionally and less than 10 pounds frequently, with frequent upper extremity pushing and pulling. With normal breaks in an eight-hour day, he can sit for six hours and stand and/or walk for a total of four hours; can never crouch or crawl; can occasionally balance, kneel and stoop; can frequently climb ramps, stairs, ladders, ropes and scaffolds; and with his bilateral upper extremities, he can frequently reach overhead, handle and finger.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on January 9, 1970 and was 42 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date. The claimant subsequently changed age category to a younger individual age 45-49 (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering 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 (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 14, 2012, through the date of this decision (20 CFR 404.1520(g)).

Tr. 69-70, 77-79.

         Plaintiff's ...


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