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Card v. Colvin

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

March 20, 2018

EVELYN CARD, et al., Plaintiff,



         Before the court is plaintiff Evelyn Card's appeal from a final decision of the Commissioner of Social Security[1] (“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. § 405(g).


         Card 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 capacity

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.

         (R. 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.

         (R. 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.)

         At Step 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.)

         Card 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.)


         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 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)).

         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) (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 ...

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