United States District Court, M.D. Tennessee, Nashville Division
Honorable William C. Campbell, Jr., Judge
REPORT AND RECOMMENDATION
TERENCE P. KEMP, UNITED STATES MAGISTRATE JUDGE.
an action instituted under the provisions of 42 U.S.C.
§§ 405(g) and 1383 to review a final decision of
the Commissioner of Social Security denying Plaintiff's
application for supplemental security income. Plaintiff filed
a motion for judgment on the administrative record on June 5,
2017 (Doc. 23) and the Commissioner responded on July 5, 2017
(Doc. 24). For the following reasons, it will be recommended
that Plaintiff's motion be DENIED and
that this action be DISMISSED.
not the first time that a decision on Plaintiff's
application (which was filed with the Commissioner on
September 4, 2008) is before this Court. Plaintiff appealed a
prior unfavorable decision and, in Jones v. Colvin,
2014 WL 3783930 (M.D. Tenn. July 31, 2014), the Court held
that the Commissioner was entitled to conclude that Plaintiff
did not suffer from Crohn's disease and that the
Commissioner properly rejected Plaintiff's subjective
complaints of debilitating pain. The Commissioner had
concluded that Plaintiff suffered from one severe impairment,
duodenintis, but that it did not preclude him from engaging
in substantial gainful activity.
appealed this Court's decision to the United States Court
of Appeals for the Sixth Circuit. On appeal, Plaintiff argued
that his impairments were not properly considered under the
applicable section of the Listing of Impairments, 20 C.F.R.
Part 404, Subpart P, Appendix 1, Listing 5.06. Agreeing, in a
decision filed on June 10, 2015 (Case No. 14-6066), the Court
of Appeals reversed and remanded, concluding that the
Administrative Law Judge erred by considering Plaintiff's
abdominal impairment under two other sections of the Listing,
6.00 and 8.00, which deal, respectively, with genitourninary
impairments and skin disorders. Noting that Plaintiff's
history “showed that he suffered from some of the
symptoms and effects that are required to meet Listing 5.06,
” the Court of Appeals held that the ALJ's error
was not harmless, and it “remand[ed] the case to the
ALJ for reconsideration of the evidence relating to the issue
of whether [Plaintiff] meets the criteria” for that
Listing. See Doc. 15-2 (Transcript of Administrative
Proceedings) at 532.
ALJ's decision after remand (Tr. 374-82), the ALJ
acknowledged that the case was remanded “for the
Commissioner to (sic) whether claimant's impairment met
the Listing.” (Tr. 374). However, the ALJ proceeded,
first, to redetermine the issue of whether Plaintiff suffered
from a severe impairment at all, noting that because the
prior ALJ's decision had been vacated by an order from
the Appeals Council, he was not bound by the prior severity
determination. (Tr. 375). The ALJ reviewed the evidence,
which was much the same evidence considered by the prior ALJ
- the most significant exception being a review of the
medical file by a medical consultant, Dr. Patel - and found
that Plaintiff did not have a severe impairment of any kind.
In deference to the Court of Appeals' decision, however,
the ALJ also analyzed Plaintiff's abdominal impairment
under Listing 5.06 and concluded that it did not satisfy the
criteria set forth in that Listing.
proceeding pro se, raises the following issues in
his motion for judgment. First, he asserts that the ALJ was
in “constructive contempt” of the Court of
Appeals by not following its order of remand. He also
contends that the ALJ erred by finding that he could perform
medium, light, and sedentary work notwithstanding his
gastrointestinal disorders, that the ALJ erred by finding
that Plaintiff did not suffer from Crohn's disease, and
that the Social Security Administration erred by not issuing
a subpoena for Plaintiff's prison medical file or records
from a separate lawsuit in which he apparently alleges Eighth
Amendment violations on the part of prison officials.
The Medical Records
Court's prior decision described the medical records in
Plaintiff's medical records show that he was treated for
abdominal pain and weight loss at CMC on February 13, 17, 23,
and April 6, 2009. (Tr. 320-36.) On February 13, 2009, Dr.
Babu Rao performed an esophagogastroduodenoscopy and a biopsy
to evaluate Plaintiff's abdominal pain and ordered a
colonoscopy because Plaintiff's prior medical findings
suggested Plaintiff had Crohn's disease of the small
bowel. (Tr. 331.) In a pathology report from CMC dated
February 16, 2009, Dr. Dan E. Connor analyzed the samples
taken from the February 13 biopsy and diagnosed Plaintiff
with “[b]enign gastric antral mucosa with focal mild
active gastritis.” (Tr. 332.) On February 17, 2009, Dr.
Rao performed a colonoscopy and a biopsy and reported that he
suspected Plaintiff had Crohn's disease. (Tr. 327.) In a
pathology report dated February18, 2009, Dr. Erickson
analyzed the samples taken from the February 17 biopsy and
diagnosed Plaintiff with “[u]lceration with active
inflammatory exudate” which was “consistent with,
but not specifically suggestive of, involvement by
Crohn's disease.” (Tr. 328.).
Subsequently, Dr. Montesi performed a small bowel series exam
on February 23, 2009, for which his report noted Plaintiff
was “[n]ewly diagnosed [with] Crohn's
disease.” (Tr. 325.) However, Dr. Montesi listed the
abnormalities found during the exam as “consistent
with, ” but not dispositive of, Crohn's disease.
(Id.) On April 6, 2009, Plaintiff presented to the
emergency room at CMC with abdominal pain. (Tr. 320.) Dr.
Terry Wayne Cain wrote “[s]ignificant for
Crohn's” under past medical history, but after
examining Plaintiff in the emergency room and finding no
notable abnormalities in his blood work, Dr. Cain determined
that Plaintiff did not meet the criteria for admission and
reported that his final impression of Plaintiff's
condition was simply “[a]bdominal pain.” (Tr.
320-21.) A review of the medical records provided by CMC
demonstrates that Crohn's disease was only one
possibility among a number of alternative diagnoses
considered by treating physicians evaluating Plaintiff's
Jones v. Colvin, 2014 WL 3783930, at *3-4 (M.D.
Tenn. July 31, 2014).
remand, the ALJ submitted these records to Dr. Minesh Patel,
a medical expert. Dr. Patel answered a number of
interrogatories, stating, significantly, that the evidence
was sufficient to permit him to form an opinion about the
severity of Plaintiff's impairments, that the only
impairment from which Plaintiff suffered was mild chronic
duodenitis, that the impairment neither met nor equaled the
requirements of Listings 5.00, 5.06, 6.00, or 8.00, and that
Plaintiff did not have any limitations in physical activity
or exertion. (Tr. 762-64).