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Gursky v. Colvin

United States District Court, W.D. Tennessee, Western Division

December 19, 2017

MARY GURSKY, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REMANDING CASE PURSUANT TO 42 U.S.C. § 405(G)

          TU M. PHAM UNITED STATES MAGISTRATE JUDGE.

         Before the court is plaintiff Mary Gursky's appeal from a final decision of the Commissioner of Social Security[1](“Commissioner”) denying her application for disability insurance benefits under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401 et seq. On October 25, 2016, the parties consented to the jurisdiction of the United States magistrate judge pursuant to 28 U.S.C. § 636(c). (ECF No. 10.) For the reasons set forth below, the decision of the Commissioner is reversed and the action is remanded pursuant to sentence four of 42 U.S.C. § 405(g).

         I. PROCEDURAL HISTORY

         On March 7, 2013, Gursky applied for disability benefits under Title II of the Act. (R. at 193.) Gursky alleged disability beginning on March 31, 2006, due to rheumatoid arthritis, fibromyalgia, depression and pain. (R. at 193, 206.) Gursky's last date insured was December 31, 2013. (R. at 23, 220.) The Social Security Administration (“SSA”) denied Gursky's application initially and upon reconsideration. (R. at 113, 118.) At Gursky's request, a hearing was held before an Administrative Law Judge (“ALJ”) on April 27, 2015. (R. at 38, 122.) On August 13, 2015, the ALJ issued a decision denying Gursky's request for benefits after finding that Gursky was not under a disability because she retained the residual functional capacity (“RFC”) to perform jobs that exist in significant numbers in the national economy. (R. at 25-31.) On June 21, 2016, the SSA's Appeals Council denied Gursky's request for review. (R. at 1.) Therefore, the ALJ's decision became the final decision for the Commissioner. (Id.) Subsequently, on August 11, 2016, Gursky filed the instant action. (ECF No. 1.) Gursky argues that (1) the court should remand the case so that the ALJ may review new evidence, (2) the ALJ improperly weighed the opinions of Gursky's treating physician and therapists, and (3) the record lacks substantial evidence to support the ALJ's finding that Gursky's testimony was not entirely credible. (ECF No. 12 at 12 to 20.)

         II. CONCLUSIONS OF LAW

         A. Standard of Review

         Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision made by the Commissioner after a hearing to which she or he was a party. “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the Commissioner's decision is limited to whether there is substantial evidence to support the decision and whether the Commissioner used the proper legal criteria in making the decision. Id.; Burton v. Comm'r of Soc. Sec., No. 16-4190, 2017 WL 2781570, at *2 (6th Cir. June 27, 2017); Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial evidence is more than a scintilla of evidence but less than a preponderance, and is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

         In determining whether substantial evidence exists, the reviewing court must examine the evidence in the record as a whole and “must ‘take into account whatever in the record fairly detracts from its weight.'” Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). If substantial evidence is found to support the Commissioner's decision, however, the court must affirm that decision and “may not even inquire whether the record could support a decision the other way.” Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v. Sec'y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir. 1989)). Similarly, the court may “not try the case de novo, resolve conflicts in the evidence or decide questions of credibility.” Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). The Commissioner, not the court, is charged with the duty to weigh the evidence and to resolve material conflicts in the testimony. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990); Prater v. Comm'r of Soc. Sec., No. 114CV01221STATMP, 2017 WL 2929479, at *1 (W.D. Tenn. July 10, 2017).

         B. The Five-Step Analysis

         The Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1). Additionally, section 423(d)(2) of the Act states that:

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

         Under the Act, the claimant bears the ultimate burden of establishing an entitlement to benefits. Oliver v. Comm'r of Soc. Sec., 415 F. App'x 681, 682 (6th Cir. 2011). The initial burden is on the claimants to prove they have a disability as defined by the Act. Siebert v. Comm'r of Soc. Sec., 105 F. App'x 744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d at 529); see also Born v. Sec'y of Health & Human Servs., 923 F.2d 1168, 1173 (6th Cir. 1990). If the claimant is able to do so, the burden then shifts to the Commissioner to demonstrate the existence of available employment compatible with the claimant's disability and background. Born, 923 F.2d at 1173; see also Griffith v. Comm'r of Soc. Sec., 582 F. App'x 555, 559 (6th Cir. 2014).

         Entitlement to social security benefits is determined by a five-step sequential analysis set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520. First, the claimant must not be engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(b). Second, a finding must be made that the claimant suffers from a severe impairment. 20 C.F.R. § 404.1520(a)(4)(ii). In the third step, the ALJ determines whether the impairment meets or equals the severity criteria set forth in the Listing of Impairments contained in the Social Security Regulations. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. If the impairment satisfies the criteria for a listed impairment, the claimant is considered to be disabled. On the other hand, if the claimant's impairment does not meet or equal a listed impairment, the ALJ must undertake the fourth step in the analysis and determine whether the claimant has the RFC to return to any past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(e). If the ALJ determines that the claimant can return to past relevant work, then a finding of not disabled must be entered. Id. But if the ALJ finds the claimant unable to perform past relevant work, then at the fifth step the ALJ must determine whether the claimant can perform other work existing in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g). Further review is not necessary if it is determined that an individual is not disabled at any point in this sequential analysis. 20 C.F.R. § 404.1520(a)(4).

         C. Whether to Remand for Review Based on New Evidence

         Gursky requests that the court remand her case so the ALJ may consider the additional evidence of a new medical assessment from Gursky's treating source, Dr. Judith Lee-Sigler.[2] (ECF No. 12 at 14 to 16.) Prior to her hearing, Gursky had provided the ALJ with an incomplete medical assessment form by Dr. Lee-Sigler. (R. at 788-92.) On October 27, 2015, after the ALJ's decision, Dr. Lee-Sigler gave Gursky a complete medical assessment form in which she had checked boxes to indicate that Gursky suffers from severe physical and mental limitations. (ECF No. 12-1.)

         Courts may remand a case to an ALJ for review of additional evidence “only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .” 42 U.S.C. § 405(g). As the language of the statute indicates, this places the burden of production upon the claimant. See Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 839 (6th Cir. 2016) (citing 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001)).

         Regarding the first requirement, in order to be new, the evidence must not have existed or been “available to the claimant at the time of the administrative proceeding.” Deloge v. Comm'r of Soc. Sec. Admin., 540 Fed.Appx. 517, 519 (6th Cir. 2013) (citing Foster, 279 F.3d at 357). The new medical assessment was not available to the ALJ at the time of the disability determination. However, the “insurmountable hurdle” for Gursky is that this medical assessment was available before June 21, 2016, which is when the SSA Appeal's Counsel denied Gursky's request for review. Lee v. Comm'r of Soc. Sec., 529 Fed.Appx. 706, 717 (6th Cir. 2013) (refusing to remand a Social Security Appeal to the ALJ for review of evidence that the claimant had possessed during the SSA appellate review but had not submitted to the Appeal's Counsel). But see Templeton v. Comm'r of Soc. Sec., 215 Fed.Appx. 458, 463-64 (6th Cir. 2007) (noting that “[e]vidence is ‘new' only if it was not in existence or was not available prior to the ALJ's decision”). The medical assessment was available to Gursky during the course of her administrative proceeding; ergo, it is not new evidence.

         As for the second requirement, “evidence is ‘material' only if there is ‘a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence.'” Deloge, 540 F. App'x at 519 (alteration in original) (quoting Sizemore v. Sec'y of Health & Human Servs.,865 F.2d 709, 711 (6th Cir. 1988)). This evidence is not material because it is not connected to the relevant time period - March 31, 2006, Gursky's disability onset date, to December 31, 2013, the last date Gursky was insured. See McCraney v. Comm'r of Soc. Sec., 68 Fed.Appx. 570, 572 (6th Cir. 2003) (noting that “the district court properly found that the proposed evidence was not material because it involves mental ...


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