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Jones v. Berryhill

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

March 27, 2018

TOMMY EARL JONES, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          The Honorable William C. Campbell, Jr., Judge

          REPORT AND RECOMMENDATION

          TERENCE P. KEMP, UNITED STATES MAGISTRATE JUDGE.

         This is 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.

         I. Background

         This is 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.

         Plaintiff 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.

         In the 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.

         Plaintiff, 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.

         II. The Medical Records

         The Court's prior decision described the medical records in this fashion:

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 symptoms.

Jones v. Colvin, 2014 WL 3783930, at *3-4 (M.D. Tenn. July 31, 2014).

         On 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).

         III. The ...


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