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Jordon v. Berryhill

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

November 30, 2017

BETTY SUSAN JORDON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          CLIFTON L. CORKER, UNITED STATES MAGISTRATE JUDGE.

         This matter is before the United States Magistrate Judge under the standing orders of the Court and 28 U.S.C. § 636 for a report and recommendation. Plaintiff's Disability Insurance Benefits application under the Social Security Act, Title II (the “Act”) was denied after a hearing before an Administrative Law Judge (“ALJ”). This action is for judicial review of the Commissioner's final decision per 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. APPLICABLE LAW - STANDARD OF REVIEW

         A 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 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. LeMaster v. Sec'y of Health & Humans Servs., 802 F.2d 839, 841 (6th Cir. 1986). A Court may not try the case de novo, resolve conflicts in the evidence, or decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the Court were to resolve factual issues differently, the Commissioner's decision must stand if substantial evidence supports it. Listenbee v. Sec'y of Health & Human Services, 846 F.2d 345, 349 (6th Cir. 1988). But, 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). The Court may consider any evidence in the record regardless of whether it has been cited by the ALJ. Heston v. Comm'r of Soc. Sec., 245 F.3d. 528, 535 (6th Cir. 2001).

         A claimant must be under a “disability” as defined by the Act to be eligible for benefits. “Disability” includes physical and mental impairments that are “medically determinable” and so severe as to prevent the claimant from (1) performing her past job and (2) engaging in “substantial gainful activity” that is available in the regional or national economies. 42 U.S.C. § 423(a).

         A five-step sequential evaluation applies in disability determinations. 20 C.F.R. § 404.1520. Review ends with a dispositive finding at any step. 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).

         A claimant has the burden to establish an entitlement to benefits by proving the existence of a disability under 42 U.S.C. §§ 423(d)(1)(A). See Boyes v. Sec'y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994). The Commissioner has the burden to establish the claimant's ability to work at step five. Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

         II. RELEVANT FACTS AND PROCEDURAL OVERVIEW

         A. Procedural History

         Betty Susan Jordon (“Jordon”) was a person of advanced age at the time of her application for Disability Insurance Benefits. 20 C.F.R. § 404.1563. She alleged an onset date of June 15, 2013, but has an active insured status through December 2018. (Doc. 7, Transcript p. 11, 13) (reference to “Tr” and the page denote the administrative record). She alleged several impairments she believes to be disabling.

         Jordon's claims were initially denied in January 2014 and upon reconsideration in May 2014. (Tr. 11). An ALJ conducted a hearing on August 3, 2015. Jordon and a vocational expert testified. (Tr. 27-45). The ALJ followed the five-step analysis in evaluating the claims and found several of Jordon's alleged impairments to be medically determinable. These conditions included degenerative disc disease, arthralgias, diabetes, hypertension, anxiety and depression. (Tr. 13). Jordon also alleged she suffered from fibromyalgia, but the ALJ did not find this to be a medically determinable impairment. (Tr. 13).

         Ultimately, the ALJ made the dispositive finding that Jordon's impairments, or a combination thereof, were not severe under step two of the analysis. This decision concluded the process and resulted in a determination Jordon was not disabled. The findings were as follows:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018;
2. The claimant has not engaged in substantial gainful activity since June 15, 2013, the alleged onset date (20 CFR 404.1571 et seq.);
3. The claimant has the following medically determinable impairments: degenerative disc disease, arthralgias, diabetes, hypertension, anxiety and depression. (20 CFR 404.1521 et seq.);
4. The claimant does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments (20 CFR 404.1521 et seq.);
5. The claimant has not been under a disability, as defined in the Social Security Act, from June 15, 2013, through the date of this decision (20 CFR 404.1520(c)).

(Tr. 40-51).[1] The Appeals Council denied Plaintiff's review request. (Tr. 1).

         B. Evidence in the Record

         The ALJ summarized the evidence. (Tr. 13-19). Jordon's brief reviews the record evidence [Doc. 14, pp. 3-11] and the Commissioner's brief does likewise [Doc. 16, pp. 3-11]. The transcript contains reports from one treating provider regarding her mental conditions (Tr. 374-75, 421-22, 499-503). State agency reviewers also reviewed and opined about Jordon's physical and mental conditions. (Tr. 46-56, 60-72). Reference to the evidence is only set forth as necessary.

         III. ANALYSIS

         Jordon asserts two errors. First, she urges the finding that she does not have a severe mental impairment is not supported by substantial evidence. Next, she claims the ALJ failed to properly evaluate and address evidence demonstrating that fibromyalgia is a medically determinable impairment from which she suffers under Social Security Ruling (“SSR”) 12-2p. The Commissioner ...


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