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Boles v. Berryhill

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

February 28, 2018

JEFFREY CHARLES BOLES, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          The Honorable Waverly D. Crenshaw, Jr., Chief United States District Judge.

          REPORT AND RECOMMENDATION

          JOE B. BROWN UNITED STATES MAGISTRATE JUDGE.

         Pending before the court is Plaintiff's motion for judgment on the administrative record (Docket Entry No. 17), 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. 11), [1] 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.

         I. PROCEDURAL HISTORY

         Plaintiff, Jeffrey Charles Boles, filed an application for Disability Insurance Benefits (“DIB”) under Title II and an application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act on October 5, 2009, alleging disability onset as of December 31, 2005, due to hepatitis C, left knee problems, foot problems, bad back, obesity, right arm problems, liver problems, and a broken pelvis. (Tr. 13, 56-59, 164). Plaintiff's claims were denied at the initial level on April 9, 2010, and on reconsideration on July 28, 2010. (Tr. 13, 63, 71, 75). Plaintiff subsequently requested de novo review of his case by an administrative law judge (“ALJ”). (Tr. 13, 77). The ALJ heard the case on May 31, 2011, when Plaintiff appeared with counsel and gave testimony. (Tr. 13, 27-51). Testimony was also received by a vocational expert. (Tr. 51-55). At the conclusion of the hearing, the matter was taken under advisement until July 13, 2011, when the ALJ issued a written decision finding Plaintiff not disabled. (Tr. 10, 13-22). On June 14, 2012, 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. Plaintiff timely appealed to the United States District Court for the Middle District of Tennessee, which on July 22, 2015 remanded the action under sentence four of 42 U.S.C. § 405(g) for further consideration of Plaintiff's obesity and the medical opinion of treating physician Dr. Michael Cox. (Tr. 701-709).

         On September 30, 2015, the Appeals Council directed that Plaintiff's subsequently filed applications for DIB and SSI on October 23, 2013 be rendered duplicate and ordered that these claims be consolidated with the remanded action and that a new decision be issued on all of the claims consistent with the District Court's Order. (Tr. 729-731). On September 21, 2016, a different ALJ conducted a video hearing, where Plaintiff, with counsel, and his mother, Martha Boles, appeared and gave testimony. (Tr. 666-693). Testimony was also received by a vocational expert. (Tr. 693-699). At the conclusion of the hearing, the matter was taken under advisement until November 21, 2016, when the ALJ issued a written decision finding Plaintiff not disabled. (Tr. 605-631). That decision contains the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2012.
2. The claimant has not engaged insubstantial gainful activity since December 31, 2005, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: morbid obesity, depressive disorder, hepatitis C, partial amputation of right little finger, history of fractured pelvis, spine disorder, right knee disorder, right arm/elbow disorder, lower extremity edema, hypertension, and generalized anxiety disorder (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The claimant can lift and carry, push and pull 10 pounds occasionally and 10 pounds frequently. With normal breaks in an eight-hour day, he can sit for six hours, and stand and/or walk for two hours. The claimant requires a cane to ambulate. The claimant can frequently reach, push, and pull bilaterally; can occasionally operate foot controls; can never climb ladders or scaffolds; can never kneel or crawl; can occasionally climb stairs and ramps; can occasionally crouch; can frequently balance and stoop; should never be around unprotected heights; and can tolerate frequent exposure to moving mechanical parts and operating a motor vehicle. The claimant can understand, remember and perform, simple and one-to-three step detailed tasks; can concentrate and persist for at least two hours at a time on these tasks, but not on higher level tasks; can acceptably relate to co-workers and supervisors on a frequent basis, and with the public on an occasional basis; and can adapt to occasional changes in routine.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on June 30, 1970 and was 35 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
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, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 31, 2005, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
12. I have essentially complied with the order of the District Court, summarized above, and set out in its entirety at Exhibit 6A.

(Tr. 610, 611, 613, 629, 630, 631).

         Plaintiff did not file written exceptions to the ALJ's decision dated November 21, 2016, and the Appeals Council did not assume jurisdiction. Thus, the ALJ's November 21, 2016 decision stands as the final decision of the Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. REVIEW OF THE RECORD

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

Medical records indicate a history of back problems. On January 25, 2014, a CT of the cervical spine showed diffuse spondylosis in an otherwise negative exam. On October 23, 2015, an MRI of the lumbar spine revealed low-grade spondylosis at the L1-2 level with mild disc degeneration and anterior marginal spurring. At this level, there is a minimal posterior annular bulge, but no canal stenosis of foraminal narrowing. There was no focal disc protrusion, significant canal stenosis, or foraminal narrowing. In August 2016, an examination revealed a decreased range of motion of the hips; inability to walk on his toes; difficulty walking on his heels, inability to squat and rise back up; and inability to bend over and touch toes (Exhibits 22F, 27F, 32F, and 33F).
Medical records indicate a history of hypertension. Examinations have revealed non-pitting lower extremity edema. Treating physicians have prescribed appropriate medications. In September 2014, the claimant was admitted for hypertension and chest pain. A chest x-ray was normal. An EKG had some flipped T waves. A thallium stress test was negative for ischemia. Chemistries were normal. CBC was unremarkable, and troponins were negative x3. Cardiologist Dr. Mike Lenhart noted that his chest pain was noncardiac. In July 2016, an ECG was normal (Exhibits 5F, 14F, 15F, 20F, 21F, 22F, 24F, 25F, 29F, and 32F).
Medical records also indicate a history of joint problems, including the right arm/elbow, right knee, remote fractured pelvis, and remote amputation of the distal phalanx of the right 5th finger. He has undergone cortisone injections in the right elbow and right knee. His treating physician offered an arthrocentesis on his right leg, but the claimant refused (Exhibits 1F and 2F).
Medical records also indicate a history of hepatitis C and elevated LFTs; however, the claimant has not received any treatment or required any hospitalization for this impairment (Exhibits 5F, 20F, 21F, 24F, and 29F).
The claimant was consultatively examined on January 27, 2010 by Dr. Donita Keown. The examination revealed a height of 5'9" and weight estimated between 350 and 400 pounds. He had a blood pressure reading of 170/98. He had a partial amputation of #5 right hand at PIP. He ambulated with and without the piece of wood, which had been fashioned into a cane and showed no difficulty getting up from a chair. Dr. Keown opined lifting up to 100 pounds occasionally and 50 pounds frequently; carrying up to 50 pounds occasionally and 20 pounds frequently; standing for one hour continuously for a total of seven hours in an eight-hour workday; walking for 45 minutes continuously for a total of six hours in an eight-hour workday; sitting for two hours continuously for a total of eight hours in an eight-hour workday; occasional climbing of stairs and ramps; occasional climbing of ladders, ropes, or scaffolds; occasional kneeling, crouching, and crawling; and frequent stooping (Exhibit 6F).
The claimant wa1s also consultatively examined on April 9, 2016 by Dr. William Robinson, II. Dr. Robinson indicated that the claimant first has hepatitis C with a normal abdominal exam and few symptoms other than nausea. He has right knee problems, where he has some chronic findings with some crepitance. He has problems with his left foot with some swelling here in the ankle but no heat or inflammation. He has chronic back pain with a history of back pain since 2010 for which he is taking medication on a regular basis. His exam shows some restrictions of lumbar and cervical ranges of motion but a negative straight leg raising and normal reflexes and sensation. He has right arm problems. By this, likely, he is meaning problem with his right arm where he has a scar and he has had surgery but has good ranges of motion, good strength, and good fine motor control. This scar is due to an old injury and surgery some years ago but relatively few chronic problems from it. He has liver problems related to hepatitis C as above. He has a history of broken pelvis, perhaps making his backache somewhat worse. Restrictions due to obesity, back pain, right knee and left ankle pain. Dr. Robinson essentially opined lift and carry 21 to 50 pounds occasionally and 11 to 20 pounds frequently; can sit for eight hours, stand for seven hours, and walk for six hours; bilaterally can frequently reach, push, and pull; can occasionally use operation of foot controls; can never climb ladders or scaffolds; can never kneel or crawl; can occasionally climb stairs and ramps; can occasionally crouch; can frequently balance and stoop; should never be around unprotected heights; and can tolerate frequent exposure to moving mechanical parts and operating a motor vehicle (Exhibit 28F).
Medical records also indicate that the claimant is obese. He has had a weight around 368 pounds, height of 5'9", and a body mass index (“BMI”) of 54.3 (Exhibit 32F). On January 6, 2016, however, Dr. Cox wrote a letter, stating that the claimant's medical problems included heart disease, essential hypertension and lower back pain. He did not list obesity as a medical problem at this time (Exhibit 30F/36). Later, on April 9, 2016, when the claimant was examined by Dr. Robinson II, the claimant's weight had decreased to 268 pounds (Exhibit 28F/3). 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 mental impairments, besides substance abuse treatment, the claimant did not start treatment with appropriate medications, therapy, and case management services until 2011. Treating practitioners have diagnosed major depressive disorder, single episode, severe without psychotic features; generalized anxiety disorder; alcohol dependence in remission; and opioid dependence in remission. They have also indicated global assessment of functioning scores of 45 to 50, indicating serious symptoms (Exhibits 15F, 16F, 23F, 25F, 26F, 29F, 31F, and 32F).
On June 14, 2010, a consultative exam was performed . . . by examiner Mark Loftis, MSPE, which indicated the claimant's gait and posture as normal, and his fine and gross motor skills within the normal range. Mr. Loftis noted his thought content and processes were logical and coherent, he could spell “world” backwards and did serial threes backwards four times. He is not currently under any psychiatric care or taking any medication for depression or anxiety. Mr. Boles reported feeling-partly depressed-and he prefers to be at home. The assessment indicated the claimant has completed four alcohol and drug treatment programs in the past, and is currently being treated for narcotic addition, which he reports in remission since 2006. Mr. Loftis opined mild limitations in understanding and remembering, with simple repetitive tasks not likely impaired; mild limitations in concentration, persistence and ability to maintain a competitive pace; moderate limitations in social interactions; and moderate limitations in ability to adapt to changes in most work situations (Exhibit 9F).

(Tr. 615-617).

         III. CONCLUSIONS OF LAW

         A. Standard of Review

         Review of the Commissioner's disability decision is narrowly limited to determining whether the decision is supported by substantial evidence and whether the Commissioner applied the right legal standards in reaching the decision. Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014) (citing Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)). “Substantial evidence requires ‘more than a mere scintilla' but less than a preponderance; substantial evidence is such ‘relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). In determining whether substantial evidence supports the Commissioner's findings, a court must examine the record as a whole, “tak[ing] into account whatever in the record fairly detracts from its weight.” Brooks v. Comm'r of Soc. Sec., 531 F. App'x 636, 641 (6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). A reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions of credibility. See Garner, 745 F.2d at 387 (citing Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Commissioner's decision must be affirmed if it is supported by substantial evidence, “‘even if there is substantial evidence in the record that would have supported an opposite conclusion.'” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). “This is so because there is a ‘zone of choice' within which the Commissioner can act, without the fear of court interference.” Buxton, 246 F.3d at 773 (citations omitted); Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012) (“As long as the ALJ cited substantial, legitimate evidence to support his factual conclusions, we are not to second-guess: ‘If the ALJ's decision is supported by substantial evidence, then reversal would not be warranted even if substantial evidence would support the opposite conclusion.'”) (citation omitted). However, where an ALJ fails to follow agency rules and regulations, the decision lacks the support of substantial evidence, “even where the conclusion of the ALJ may be justified based upon the record.” Miller, 811 F.3d at 833 (citation and internal quotation marks omitted).

         B. Administrative Proceedings

         The claimant has the ultimate burden of establishing his entitlement to benefits by proving his or her “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)(A); Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (“[T]he claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work.”). The claimant's “physical or mental impairment” must “result[] from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory ...


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