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Tallent v. Berryhill

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

December 6, 2017

NANCY BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          Hon. Waverly D. Crenshaw, Jr., Chief United States District Judge


          JOE B. BROWN, United States Magistrate Judge

         Pending before the court is Plaintiff's motion for judgment on the administrative record (Docket Entry No. 16), to which Defendant Commissioner of Social Security (“Commissioner”) filed a response (Docket Entry No. 19). Upon consideration of the parties' filings and the transcript of the administrative record (Docket Entry No. 10), [2] and for the reasons given herein, the Magistrate Judge RECOMMENDS that Plaintiff's motion for judgment be DENIED and that the decision of the Commissioner be AFFIRMED.


         Plaintiff, Ronald David Tallent, filed an application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act on June 27, 2013, alleging disability onset as of March 30, 2013, due to essential tremors, fibromyalgia, arthritis, depression and anxiety. (Tr. 52, 103, 116).

         Plaintiff's claim was denied at the initial level on October 4, 2013, and on reconsideration on January 3, 2014. (Tr. 52, 114-16, 130-35, 139-41). Plaintiff subsequently requested de novo review of his case by an administrative law judge (“ALJ”). (Tr. 142). The ALJ heard the case on June 6, 2015, when Plaintiff appeared with counsel and gave testimony. (Tr. 68-95, 97-98). Testimony was also received by a vocational expert. (Tr. 95-101). At the conclusion of the hearing, the matter was taken under advisement until August 19, 2015, when the ALJ issued a written decision finding Plaintiff not disabled. (Tr. 49-62). That decision contains the following enumerated findings:

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 March 30, 2013, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease, osteoarthritis, fibromyalgia, obesity, and depressive disorder (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, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except frequent climbing ramps and stairs; occasional climbing ladders, ropes, and scaffolds; frequent balancing, stooping, kneeling, crouching, and crawling; ability to do one, two, and three step instructions; and changes introduced gradually and infrequently.
6. The claimant is capable of performing past relevant work as a delivery driver. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant has not been under a disability, as defined in the Social Security Act, from March 30, 2013, through the date of this decision (20 CFR 404.1520(f)).

(Tr. 54, 55, 57, 60, 62).

         On August 24, 2016, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-5), thereby rendering that decision the final decision of the Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).


         The following summary of the medical record is taken from the ALJ's decision:

In terms of the claimant's alleged back problems, in December 2011, x-rays of the lumbar spine revealed mild degenerative disc disease (Exhibit 6F). In 2014, a magnetic resonance image (“MRI”) of the cervical spine revealed a posterior central right disc protrusion, and a MRI of the lumbar spine only revealed degenerative disc changes at T-11-T 12 and degenerative disc and facet changes at ¶ 4-5 without evidence of a herniated disc. Although a musculoskeletal examination in 2015, revealed a decreased range of motion . . . in extension, flexion, and lateral rotation of the cervical spine, tenderness in the paralumbar and lumbar spine, a right positive straight leg raise, and restricted range of motion of the knees, it also revealed normal muscle strength in upper and lower extremities; and treating physicians have only recommended conservative treatments, and no surgeries have been recommended nor mobility assistive devices prescribed (Exhibits 11F, 13F, 16F).
Medical records also indicate a history of joint problems and fibromyalgia. In 2008, however, an evaluation indicated no significant abnormalities on exam or clear-cut history to suggest obvious pathology for pain in his extremities and balance difficulties, and an EMG/NCS revealed normal results with no evidence of myopathy or neuropathy. The claimant has had joint pain, but his treating physicians have only prescribed conservative treatments of pain medications and steroid injections. In 2015, the claimant reported that he felt better when he took Prednisone, and an examination revealed normal muscle sensation and normal strength in the upper and lower extremities. Despite the claimant's joint pain, rheumatologist Dr. Sivalingam Kanagasegar indicated no diffuse soft tissue tender points for fibromyalgia noted. Furthermore, no treating physician has prescribed any mobility assistive devices or recommended surgery (Exhibits 1F, 8F, 12F, 16F, ).
Furthermore, an examination in 2015, in conjunction with Dr. Clayton's medical source statement, and in relation to his alleged impairments, only revealed tenderness of the left knee, left hip, right shoulder, and neck region upon range of motion; low back pain to deep palpation with diminished range of motion. Otherwise, the physical examination was pleasant, and the claimant was in no distress (Exhibit 17F).
Medical records, however, do indicate that the claimant is obese with weight around 257 pounds, height of 5'8", and body mass index (“BMI”) of 39.07 (Exhibit 6F). A BMI of 30 or above is considered obese. Therefore, in accordance with SSR 02-lp, the undersigned has considered the impact of obesity on function, including the claimant's ability to perform routine movement and necessary physical activity within a work environment. The undersigned finds that the claimant's obesity, combined with his severe impairments, does limit his exertional and nonexertional activities such that the claimant is limited to the residual functional capacity stated above.
As for the claimant's alleged mental impairment, the claimant has only received appropriate medications from his primary care physician. He has not received any formal mental health treatment (Exhibits 8F and 10F).
During a psychological consultative examination on September 16, 2013, B. Kathryn Galbraith, Ph.D. indicated at least an average range of intellectual functioning. He had a depressed mood and affect mood congruent. The claimant reported that he is able to prepare simple meals, wash dishes, vacuum, sweep, and do laundry. He has a driver's license and drives regularly. He also, however, stated that he does not manage his own medications or manage his own finances. He showed evidence of moderate impairment in short-term memory, but no evidence of impairment in his ability to sustain concentration and in his long-term memory and remote memory functioning. He showed evidence of a moderate impairment in social relating and in his ability to adapt to change. He appeared able to follow instructions, both ...

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