United States District Court, W.D. Tennessee, Western Division
ORDER REMANDING CASE PURSUANT TO 42 U.S.C. §
PHAM, UNITED STATES MAGISTRATE JUDGE.
the court is plaintiff Evelyn Card's appeal from a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application for
supplemental security income under Title XVI of the Social
Security Act (“Act”), 42 U.S.C. §§ 1381
et seq. The parties have consented to the
jurisdiction of the United States magistrate judge pursuant
to 28 U.S.C. § 636(c). (ECF No. 10.) For the following
reasons, the Commissioner's decision is reversed and the
action is remanded pursuant to sentence four of 42 U.S.C.
FINDINGS OF FACT
initially applied for supplemental security income on
November 27, 2012. (R. 161-66.) Card's application was
denied both at the initial stage and upon reconsideration.
(R. 112-15, 124-25.) Card appealed, and an Administrative Law
Judge (“ALJ”) subsequently held an administrative
hearing. (R. 36-55.) The ALJ found that Card had the
following severe impairments: migraine headaches, obesity,
asthma, affective mood disorder, and anxiety disorder. (R.
22.) However, the ALJ found that Card did not have an
impairment or combination of impairments listed in or
medically equal to one of the listed impairments contained
within 20 C.F.R. part 404, subpart P, appendix 1. (R. 24.)
The ALJ determined that Card retained the residual functional
to lift and/or carry twenty pounds occasionally, ten pounds
frequently and to stand, walk and/or sit six hours in an
eight-hour workday, not requiring concentrated exposure to
pulmonary irritants and temperature extremes. From a mental
standpoint, she could understand and remember simple and
low-level tasks with customary breaks. She could interact
appropriately with supervisors and coworkers and interact
infrequently with the general public. Finally, she could
adapt to infrequent changes in a routine setting.
26.) Specifically regarding Card's non-exertional
limitations, the ALJ failed to “find any impairment of
such severity as would preclude the claimant from performing
a wide range of unskilled and low-level detailed light work
activity on a sustained basis.” (R. 27.) To support
this conclusion, the ALJ relied primarily upon Card's
testimony regarding her wide range of daily activities, which
he asserted suggested that her non-exertional limitations
would not “significantly restrict” her range of
available work. For example, the ALJ noted that:
She reported that she washes dishes twice a day, cleans the
kitchen and bathroom once a week and does laundry weekly. She
cooks “a lot.” She drives her mother to doctor
appointments and runs errands. She does the grocery shopping
once a week and takes care of her own finances, and the
finances of her mother. She is the caregiver for her mother,
and she stated that the biggest reason she could not work was
because she was taking care of her mother.
27.) The ALJ noted that caregiving requires a degree of
lifting, carrying, standing, walking, pushing, pulling,
bending, twisting, reaching, and handling. (Id.)
Furthermore, caregivers are required to make decisions, get
along with others, and follow simple instructions.
(Id.) The ALJ also considered a consultative
psychological evaluation conducted by R. Scott Beebe, Ph. D.,
in 2013. Dr. Beebe noted that Card had mild to moderate
limitations in her ability to understand, remember, maintain
concentration, persistence, and pace, mild limitations in her
ability to maintain social interaction, and moderate
limitations in adaptability skills. (R. 24.) Dr. Beebe also
noted that Card's below-average ability might interfere
with her ability to hold a non-physical office/desk job.
(Id.) The ALJ found that given her limitations Card
was unable to perform any past relevant work as a
transporter/automobile rental clerk. (R. 28.)
Five, the ALJ found that, considering Card's age,
education, work experience, and residual functional capacity,
jobs exist in significant numbers in the national economy
that she could perform. (R. 29.) Significantly, the ALJ
determined that “the additional limitations have little
or no effect on the occupational base of unskilled light
work, ” and thus relied primarily upon the
Medical-Vocational Guidelines in reaching his determination.
(Id.) The ALJ further noted that several jobs were
within Card's capacity, including housekeeper, mail
clerk, and production assembly. (Id.) As part of
this determination, it appears that the ALJ relied upon the
Social Security Administration (“SSA”) Digital
Library's “Occubrowse” database.
(Id.) The ALJ thus determined that Card was not
disabled. (Id.) On March 22, 2016, the SSA's
Appeal's Council denied Card's request for review.
(R. 1.) Therefore, the ALJ's decision became the final
decision of the Commissioner. (Id.)
filed the instant action on April 21, 2016. (ECF No. 1.) Card
argues that she has non-exertional impairments that
significantly limit her ability to perform the full range of
light work and that the ALJ's reliance on the
Medical-Vocational Guidelines was therefore inappropriate.
Card further asserts that the ALJ's use of the “SSA
Digital Library” cannot cure the failure to obtain
Vocational Expert (“VE”) testimony because the
SSA Digital Library information was never added to the
administrative record and Card was not given a chance to
respond to it, as required. (Id. at 2.) Thus, Card
requests that this court remand the case for further findings
at Step Five. (Id.)
CONCLUSIONS OF LAW
Standard of Review
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 he or she 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.;
Winn v. Comm'r of Soc. Sec., 615 F. App'x
315, 320 (6th Cir. 2015); 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)).
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) (citing Bass v.
McMahon,499 F.3d 506, 509 (6th Cir. 2007)). Rather, the
Commissioner, not the court, is charged with the duty to
weigh the evidence, to make credibility ...