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Netherton v. Berryhill

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

March 27, 2018

NANCY A. BERRYHILL, Deputy Commissioner of Operations of the Social Security Administration, [1] Defendant.



         Plaintiff Michael Netherton brings this action under 42 U.S.C. § 405(g), seeking judicial review of the Social Security Commissioner's denial of his application for disability insurance benefits under Title II of the Social Security Act.

         On February 20, 2018, the magistrate judge issued a Report and Recommendation (“R&R”) (Doc. No. 34), recommending that the decision of the Social Security Administration (“SSA”) be affirmed. The plaintiff has filed timely Objections (Doc. No. 35), to which the SSA has responded (Doc. No. 36). For the reasons discussed herein, the court will overrule the Objections, accept the R&R, and dismiss this action.


         When a magistrate judge issues a report and recommendation regarding a dispositive pretrial matter, the district court must review de novo any portion of the report and recommendation to which a proper objection is made. Fed.R.Civ.P. 72(b)(1)(C); 28 U.S.C. § 636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). Objections must be specific; a general objection to the R&R is not sufficient and may result in waiver of further review. Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). In conducting its review of the objections, the district court “may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         In Social Security cases under Title II or Title XIV, the Commissioner determines whether a claimant is disabled within the meaning of the Social Security Act and, as such, entitled to benefits. 42 U.S.C. §§ 1383(c), 405(h). The court's review of the decision of an administrative law judge (“ALJ”) is limited to a determination of whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence. Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016) (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see 42 U.S.C. § 405 (g) (2012) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.”). The substantial evidence standard is met if a “reasonable mind might accept the relevant evidence as adequate to support a conclusion.” Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (internal citations omitted). “The substantial evidence standard . . . presupposes that there is a zone of choice within which the decision makers can go either way, without interference by the courts.” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). “Therefore, if substantial evidence supports an ALJ's decision, the court defers to that finding, ‘even if there is substantial evidence in the record that would have supported an opposite conclusion.'” Id. (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).

         II. OBJECTION

         The plaintiff posits only one objection: that the magistrate judge erred in finding that substantial evidence supported assigning little weight to consulting physician Dr. Bruce Davis's opinion. The objection is based on the following arguments: (1) the ALJ failed to recognize that Dr. Davis specifically provided explanations for some of the limitations he ascribed to the plaintiff, as the plaintiff explained in his Memorandum (Doc. No. 28, at 15); (2) it was inconsistent for the ALJ to discount Dr. Davis's opinion on the basis that it was that of a consultative examiner who did not have a treatment relationship with the plaintiff and then, “in the next paragraph, [to give] significant weight to the opinions of doctors who have never seen Plaintiff” (Doc. No. 35, at 2 (citing Doc. No. 28, at 14)); (3) the ALJ's “one-time observation of Plaintiff sitting” is not sufficient to permit the ALJ to discredit the opinion of an examining physician and constituted an inappropriate application of the “sit and squirm test” (Doc. No. 35, at 2 (citing Weaver v. Sec'y of Health & Human Servs., 722 F.2d 310, 312 (6th Cir. 1983); Sorrell v. Comm'r of Soc. Sec., 656 F. App'x 162, 171 (6th Cir. 2016))); (4) the magistrate judge's reliance on and application of Moon v. Sullivan, 923 F.2d 1175 (6th Cir. 1990), was incorrect; (5) the ALJ incorrectly observed that Dr. Davis “appears not [to] have reviewed any of claimant's treatment records” (Doc. No. 35, at 3), and, moreover, Dr. Davis's findings were consistent with his own examination; (6) the ALJ did not point to any medical evidence in the record that conflicted or was inconsistent with Dr. Davis's findings; and (7) the ALJ did not adequately explain his reasons for rejecting Dr. Davis's limitations, particularly in light of his failure to point to evidence in the record that refuted those limitations and since Dr. Davis “did explicitly state what findings he based . . . those limitations on” (id. at 4). The plaintiff concludes: “Given that the VE testified that a limitation to occasional use of just the right hand would [preclude] performance of past relevant work, this lack of reasoning for reject[ing] the manipulative limitations i[s] harmful.” (Id.)

         III. ANALYSIS

         Dr. Bruce Davis's report, Exhibit 5F in the Administrative Record (“AR”), which is dated April 21, 2011, notes, under the heading of “Health History, ” that the “source” for the claimant's health history is “patient - poor historian” and “limited medical reports.” (AR 241.) The plaintiff reported his primary health problems to include elevated blood pressure, [2] neck and back pain, and hepatitis C. The only notable abnormalities observed in the course of Dr. Davis's physical examination included “upper tenderness without mass” in the abdomen due to hepatitis C (AR 242), and

Posterior neck pain (no tenderness, spasm) with slow neck flexion 45°, extension 45°, lateral flexion 45°, rotation 50° and slow bilateral shoulder abduction & forward raising 120°; normal elbow, wrist, finger motions with reduced grip - 3-4/5 without atrophy, swelling; low back pain, tenderness with slow position changes, thoracolumbar flexion 50°/extension - 20°/lateral motion - 20°, hip flexion -90°/abduction 30°, straight leg raising - 50° supine/70° seated; normal knee flexion - 130° extension -0°, incomplete squatting; . . . slow (pain, unsteady) gait and gait maneuvers (heel, toe, & tandem) across exam room without assistance.


         Based on this assessment and the reported history of back and neck pain, Dr. Davis diagnosed the plaintiff as having “degenerative cervical & lumbar disc disease.” (AR 243.) He then assessed the plaintiff as being able to lift up to 10 pounds frequently, up to 20 pounds occasionally, and never over 20 pounds; to occasionally carry up to 20 pounds but never more than that; to sit for 1 hour at a time and a total of 6 hours in an 8-hour work day, and to stand or walk for 30 minutes at a time and up to 4 hours each in an 8-hour workday; to occasionally reach, handle, finger, feel, push, and pull, with each hand; to occasionally operate foot controls with both feet; to never climb stairs, ramps, ladders or scaffolds, never balance, stoop, kneel, crouch or crawl; to shop, travel without a companion, ambulate without crutches, walker or wheelchair, use public transportation, climb a few steps at a reasonable pace with the use of a single hand rail, prepare a simple meal and feed himself, care for personal hygiene, and sort, handle and use paper files. He assessed the plaintiff as unable to tolerate exposure to unprotected heights and able only occasionally to operate a moving vehicle and tolerate exposure to moving mechanical parts, humidity and wetness. He opined that the plaintiff could not walk a block at a reasonable pace on rough or uneven surfaces. Dr. Davis referenced generally the plaintiff's hepatitis C infection with weakness and fatigue, hypertension, and pain and reduced motions due to degenerative cervical and lumbar disc disease and bilateral weak grip as the medical or clinical findings that supported these limitations. (AR 244-48.)

         At the hearing before the ALJ, a Vocational Expert testified that an individual who could perform light work except that he could not climb, balance, stoop, kneel, crouch or crawl more than occasionally, needed to avoid concentrated exposure to extreme cold and to hazardous work environments, and could not have more than frequent interaction with others could perform the plaintiff's past relevant work. (AR 44.) This hypothetical matched the functional abilities and limitations the ALJ ascribed to the plaintiff in his written opinion. ...

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