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Jones v. Colvin

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

May 10, 2018

LISA JONES o/b/o C.C.J., a minor, Plaintiff,


          TU M. PHAM, United States Magistrate Judge

         Before the court is plaintiff Lisa Jones's appeal from a final decision of the Commissioner of Social Security[1] (“Commissioner”) denying her application on behalf of C.C.J., a minor, for supplemental security income under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401 et seq. (ECF No. 1.) The parties have consented to the jurisdiction of the United States magistrate judge pursuant to 28 U.S.C. § 636(c). (ECF No. 12.) For the reasons set forth below, the decision of the Commissioner is affirmed.


         On September 16, 2009, Jones applied for supplemental security income on C.C.J.'s behalf under Title XVI of the Act. (R. 89.) The application alleged disability beginning on March 20, 2009, due to attention deficit hyperactivity disorder, dyslexia, mood disorder, headaches, dizzy spells, depression, hip pain, stomach issues, and bad balance. (R. 288.) The Social Security Administration (“SSA”) denied the application initially and upon reconsideration. (R. 89.) At Jones's request, a hearing was held before an Administrative Law Judge (“ALJ”) on December 6, 2011. (Id.) On February 2, 2012, the ALJ issued a decision denying Jones's request for benefits after finding that C.C.J. did not have an impairment or combination of impairments that would constitute a disability under the Act. (R. 89-106.) At Jones's request, the SSA's Appeals Council agreed review the ALJ's decision. (R. 114.) On July 1, 2013, the Appeals Council vacated and remanded the ALJ's decision. (R. 113.) In its order, the Appeals Council stated that Jones submitted additional evidence relevant to the issues and period considered by the ALJ which suggested that she may have greater functional limitations than found in the ALJ's decision, specifically noting a February 21, 2012 assessment from C.C.J.'s treating physician, Derek Michael Kelly, M.D. (R. 114.) Upon remand, the Appeals Council specifically instructed the ALJ to (1) obtain additional evidence concerning C.C.J.'s impairments in order to complete the administrative record in accordance with the regulatory standards regarding consultative examination and existing medical evidence; and (2) obtain evidence from a medical expert to clarify whether the claimant's impairment meets or equals the severity of an impairment listed in Appendix 1, Subpart P, Regulations No. 4 (20 CFR 416.927(f) and SSR 96-6p. (R. 114-115.)

         The ALJ held a second hearing on January 28, 2014. (R. 12.) Prior to the hearing, the ALJ scheduled C.C.J. for an orthopedic consultative examination with hip radiographs, with Disability Determination Services on October 16, 2016, at Jackson Clinic North. (Id.) Based on her counsel's advice and assertion that Dr. Kelly could furnish the requisite information, C.C.J. did not attend the scheduled consultative examination. (Id.) On July 9, 2014, the ALJ issued a decision denying Jones's request for benefits. (Id.) The ALJ first determined that Jones had not established good cause for failing to attend the scheduled consultative examination. (R. 12-13.) The ALJ continued to make alternative findings on the merits, and determined that C.C.J. had the following severe impairments: slipped capital femoral epiphysis (“SCFE”), voiding disorder, tethered spinal cord, headaches, gastrointestinal disorders, specific learning disability (reading), articulation disorder, and affective mood disorder. (R. 16.) However, the ALJ again determined that C.C.J. did not have an impairment or combination of impairments that would constitute a disability under the Act. (R. 13-34.) In making this finding, the ALJ considered C.C.J.'s history of bilateral SCFE and hip impairments, but noted that she demonstrated a full range of motion in her hips in August 2009, July 2011, and August 2011, and her gait was within normal limits in August 2009 and August 2010. (R. 20-21.) The ALJ further noted that Jonathan G. Schoenecker, M.D., Ph.D., evaluated C.C.J. in March 2012 and performed revision surgery in the form of a right osteotomy and open fixation of SCFE on July 3, 2012. (R. 21.) The ALJ specifically noted Dr. Kelly's August 2012 statement that C.C.J. was “doing great, ” and his characterization of C.C.J.'s hip as benign following his review of the radiographs. (R. 21.) Dr. Kelly also discharged C.C.J. from orthopedic care because she was “doing quite well” in January 2013. (R. 21.) The ALJ pointed out that Jones testified that she stopped taking C.C.J. to Dr. Kelly every month because he had nothing further to offer. (R. 21.) In July 2013, C.C.J. reported pain and popping in her hips, but Dr. Kelly noted she had been able to exercise and lose weight; his examination again revealed a good range of motion. In January 2014 Dr. Kelly characterized her hip pain as “fairly well controlled.” (R. 22.) The ALJ further considered Dr. Kelly's opinions at two of these assessments; on February 24, 2012, he found marked limitations in her ability to move about and manipulate objects and to care for herself; and on January 13, 2014, he found a marked limitation in her ability to move about and manipulate objects, but no more than moderate limitations in the remaining domains. (R. 25.) The ALJ also specifically examined the six functional equivalence domains. (R. 26-34.) The ALJ accepted Dr. Kelly's determination that C.C.J. exhibited a marked limitation in moving about and manipulating objects. (R. 31.) However, the ALJ noted the record's indication that C.C.J. had improved in this regard, including Dr. Kelly's assessment that she had a “really good gait” and her range of motion was “as good as it has ever been” in January 2013. (R. 31.) The ALJ also noted that C.C.J. walked into the hearing room without an assistive device. (Id.) On November 25, 2015, the Appeals Council denied Jones's request for review of the ALJ's second decision. (R. 1.) Therefore, that decision became the final decision of the Commissioner. (Id.)

         On January 12, 2016, Jones filed the instant action. (ECF No. 1.) Jones argues that the ALJ erred by: (1) concluding that C.C.J.'s hip disorder did not meet the criteria of Childhood Disability Listing 101.13; (2) failing to obtain an updated medical opinion regarding medical and/or functional equivalency impairments which contemplated all of Jones's combined impairments; (3) failing to properly evaluate and accord weight to the opinions of Dr. Kelly; and (4) improperly characterizing Jones's decision to not attend the scheduled consultative examination as without “good cause.” (ECF No. 13.)


         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 Fed.Appx. 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 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 determinations, and to resolve material conflicts in the testimony. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990); Kiner v. Colvin, No. 12-2254-JDT, 2015 WL 1295675, at *1 (W.D. Tenn. Mar. 23, 2015).

         B. The Three-Step Analysis

         Section 1382c(a)(3)(C)(i) of the Act states that:

An individual under the age of 18 shall be considered disabled for the purposes of this title if that individual has a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . .

Under the Act, the claimant bears the ultimate burden of establishing an entitlement to benefits. 42 U.S.C. § 423(d)(5)(a); Lowery v. Comm'r, Soc. Sec. ...

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