United States District Court, M.D. Tennessee, Nashville Division
A. Trauger District Judge
REPORT AND RECOMMENDATION TO GRANT PLAINTIFF'S
MOTION FOR JUDGMENT ON THE ADMINISTRATIVE RECORD (DE 12) AND
REMAND TO THE COMMISSIONER
ANTHONY P. PATTI, UNITED STATES MAGISTRATE JUDGE.
reasons that follow, it is RECOMMENDED that
the Court GRANT Plaintiff's motion for
judgment on the administrative record (DE 12),
REVERSE the Commissioner's decision, and
REMAND this case to the Commissioner and the
ALJ under Sentence Four of § 405(g) for further
consideration consistent with the report below.
Kiana Lagayle Smith, brings this action under 42 U.S.C.
§ 405(g) for review of a final decision of the
Commissioner of Social Security (“Commissioner”)
denying her applications for social security disability
insurance (DI) benefits and supplemental security income
(SSI) benefits. This matter is before the United States
Magistrate Judge for a Report and Recommendation on
Plaintiff's motion for judgment on the administrative
record and brief in support (DEs 12, 13), the
Commissioner's response to Plaintiff's motion (DE
14), Plaintiff's reply brief (DE 15), and the
administrative record (DE 10).
filed her applications for DI and SSI benefits on January 4,
2013, alleging that she has been disabled since September 10,
2011. (R. at 236-46.) She subsequently amended her alleged
onset date to February 6, 2012. (R. at 41.) Plaintiff's
application was initially denied on May 17, 2013, and upon
reconsideration on July 9, 2013, and she sought a de
novo hearing before an Administrative Law Judge
(“ALJ”). (R. at 9-11, 133-34, 177-78, 182-85,
191-94.) ALJ Elizabeth P. Neuhoff held a hearing on November
8, 2014, at which Plaintiff was represented by counsel. (R.
at 35-72.) The ALJ considered all of the evidence and, on
February 5, 2015, determined that Plaintiff was not disabled
within the meaning of the Social Security Act. (R. at 12-29.)
On April 27, 2016, the Appeals Council denied Plaintiff's
request for review. (R. at 1-6.) Thus, ALJ Neuhoff's
decision became the Commissioner's final decision.
then timely commenced the instant action on June 30, 2016.
Plaintiff's Medical History
administrative record contains approximately 635 pages of
medical records spanning the period from March 11, 2010
through September 19, 2014, including: (1) a February 8, 2013
Medical Source Statement by physician's assistant Kelly
Smart; (2) an April 27, 2013 opinion by consulting examiner,
Dr. Mark S. Josovitz; and (3) a July 14, 2014 opinion by
Plaintiff's treating rheumatologist, Dr. Mohammad F. Ali.
(R. at 41, 350-985.) The administrative record also contains
State agency medical consultants' assessments (physical
and mental) dated May 15, 2013 and July 8, 2013. (R. at
97-132, 135-76.) These records will be discussed in detail,
as necessary, below.
testified at the November 18, 2014 hearing before ALJ
Neuhoff. (R. at 42-62, 60-70.) Vocational expert Dana M.
Stoller also provided testimony. (R. at 62-68.) The hearing
testimony will be cited as necessary below.
The Administrative Decision
February 5, 2015, ALJ Neuhoff issued an
“unfavorable” decision. At Step
1 of the sequential evaluation process,
ALJ found that Plaintiff has not engaged in substantial
gainful activity since February 6, 2012, the amended alleged
onset date. (R. at 18.) At Step 2, the ALJ
found that Plaintiff has the following severe impairments:
chronic degenerative changes in the left knee; degenerative
changes in the left hip; rheumatoid arthritis; bipolar
disorder; and depression. (R. at 18.) At Step
3, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments. (R. at 19-21.) Prior to Step 4
of the sequential process, the ALJ determined that Plaintiff
has the residual functional capacity
perform sedentary work … that is limited to lifting or
carrying twenty pounds occasionally and ten pounds
frequently; standing or walking one-and-a-half hours total in
an eight-hour workday; sitting for more than six hours total
in an eight-hour workday; occasionally reaching with the
right upper extremity; occasionally pushing and pulling with
the left upper extremity; occasionally climbing ramps and
stairs but never climbing ladders or scaffolds; never
crouching, crawling or kneeling; occasionally balancing and
stooping; frequently handling with the bilateral upper
extremities; and avoiding temperature extremes and hazards
such as unprotected heights or moving machinery. Mentally,
the claimant is able to understand, remember, and perform
simple tasks only and she is able to maintain attention and
concentration adequately for those tasks. She can interact
appropriately with coworkers, supervisors, and the general
public but contact with the general public should be
occasional only. She is able to adapt to infrequent and
gradual changes within the workplace.
(R. at 21-27.) At Step 4, the ALJ found that
Plaintiff had no past relevant work. (R. at 27.) At
Step 5, considering Plaintiff's age,
education, work experience, and RFC, the ALJ determined that
there were jobs that existed in significant numbers in the
national economy that Plaintiff could perform. (R. at 28.)
The ALJ therefore concluded that Plaintiff had not been under
a disability, as defined in the Social Security Act, since
February 6, 2012, the amended alleged onset date, through the
date of the decision. (R. at 29.)
Standard of Review
District Court has jurisdiction to review the
Commissioner's final administrative decision pursuant to
42 U.S.C. § 405(g). When reviewing a case under the
Social Security Act, the Court “must affirm the
Commissioner's decision if it ‘is supported by
substantial evidence and was made pursuant to proper legal
standards.'” Rabbers v. Comm'r of Soc.
Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. at 2007)); see also 42 U.S.C. §
405(g) (“[t]he findings of the Commissioner of Social
Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”). Under this
standard, “substantial evidence is defined as
‘more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.'” Rogers, 486 F.3d at 241
(quoting Cutlip v. Sec'y of Health & Human
Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
“Substantial evidence supports a decision if
‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion' backs it
up.” Biestek v. Comm'r of Soc. Sec., 880
F.3d 778, 783 (6th Cir. 2017) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). In deciding whether
substantial evidence supports the ALJ's decision, the
court does “not try the case de novo, resolve
conflicts in evidence or decide questions of
credibility.” Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007); Rogers, 486 F.3d at 247
(“It is of course for the ALJ, and not the reviewing
court, to evaluate the credibility of witnesses, including
that of the claimant.”); Richardson, 402 U.S.
at 399 (“We therefore are presented with the not
uncommon situation of conflicting medical evidence. The trier
of fact has the duty to resolve that conflict.”).
Furthermore, the claimant “has the ultimate burden to
establish an entitlement to benefits by proving the existence
of a disability.” Moon v. Sullivan, 923 F.2d
1175, 1181 (6th Cir. 1990).
the substantial evidence standard is deferential, it is not
trivial. The Court must “‘take into account
whatever in the record fairly detracts from [the]
weight'” of the Commissioner's decision.
TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002)
(quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ's decision, this Court defers
to that finding ‘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)); see
also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive . . . .”);
see also Biestek, 880 F.3d at 783 (“[A]
decision supported by substantial evidence must stand, even
if we might decide the question differently based on the same
evidence.”) (citing Wright-Hines v. Comm'r of
Soc. Sec., 597 F.3d 392, 395 (6th Cir. 2010)). Finally,
even if the ALJ's decision meets the substantial evidence
standard, “‘a decision of the Commissioner will
not be upheld where the SSA fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial
right.'” Rabbers, 582 F.3d at 651 (quoting
Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
motion for judgment on the administrative record, Plaintiff
asserts three statements of error. First, she contends that
the ALJ failed to properly consider and weigh the opinion
evidence from her treating rheumatologist, Dr. Mohammad F.
Ali. Second, she argues that the ALJ failed to consider and
weigh the opinion of the consulting examining physician, Dr.
Mark Josovitz. And third, she asserts that the ALJ failed to
provide limitations regarding concentration, persistence and
pace in the RFC to account for Plaintiff's
“moderate” limitations in this area. (DE 13.) The
Commissioner opposes Plaintiff's motion, asserting that
substantial evidence supports the Commissioner's
decision. (DE 14.) Because I find that the ALJ ...