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Davis v. Commissioner of Social Security

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

May 14, 2018

PAMELA L. DAVIS, Plaintiff,


          TU M. PHAM United States Magistrate Judge

         Before the court is plaintiff Pamela L. Davis's appeal from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401 et seq. The parties have consented to the jurisdiction of the United States magistrate judge pursuant to 28 U.S.C. § 636(c). (ECF No. 10.) For the reasons set forth below, the decision of the Commissioner is affirmed


         On October 11, 2012, Davis applied for disability insurance benefits and supplemental security income under Title II and Title XVI of the Act. (R. at 229-38.) In both applications, Davis alleged disability beginning on February 21, 2010, due to a learning disability. (R. at 229, 233, 253.) Davis's applications were denied initially and upon reconsideration by the Social Security Administration (“SSA”). (R. at 148-49, 180-81.) At Davis's request, a hearing was held before an Administrative Law Judge (“ALJ”) on May 22, 2014. (R. at 105-25.) On October 14, 2014, the ALJ issued a decision denying Davis's request for benefits after finding that Davis was not under a disability because she retained the residual functional capacity (“RFC”) to perform past relevant work or, alternatively, because she retained the RFC to perform work existing in significant No. in the national economy. (R. at 89-99.) On March 21, 2016, the SSA's Appeals Council denied Davis's request for review. (R. at 1.) Therefore, the ALJ's decision became the final decision of the Commissioner. (Id.) Subsequently, on April 25, 2016, Davis filed the instant action. (ECF No. 1.) Davis asks this court to consider new evidence that she claims the Appeals Council should have considered. (ECF No. 12-1.) Davis also argues that the ALJ erred by (1) improperly evaluating Davis's mental impairments, (2) incorrectly determining that Davis's back condition was not severe, (3) improperly evaluating Davis's obesity, (4) incorrectly weighing Davis's credibility, (5) incorrectly weighing the medical source opinions in Davis's records, (6) improperly assessing Davis's RFC, (7) incorrectly concluding that Davis could perform her past work as a packer, and (8) incorrectly concluding that Davis could perform work existing in significant No. in the national economy. (Id.)


         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 she or he 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.; Burton v. Comm'r of Soc. Sec., No. 16-4190, 2017 WL 2781570, at *2 (6th Cir. June 27, 2017); 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) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). The Commissioner, not the court, is charged with the duty to weigh the evidence 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); Prater v. Comm'r of Soc. Sec., No. 114CV01221STATMP, 2017 WL 2929479, at *1 (W.D. Tenn. July 10, 2017).

         B. The Five-Step Analysis

         The Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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.” 42 U.S.C. § 423(d)(1). Additionally, section 423(d)(2) of the Act states,

An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant No. either in the region where such individual lives or in several regions of the country.

         Under the Act, the claimant bears the ultimate burden of establishing an entitlement to benefits. Oliver v. Comm'r of Soc. Sec., 415 Fed.Appx. 681, 682 (6th Cir. 2011). The initial burden is on the claimants to prove they have a disability as defined by the Act. Siebert v. Comm'r of Soc. Sec., 105 Fed.Appx. 744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d at 529); see also Born v. Sec'y of Health & Human Servs., 923 F.2d 1168, 1173 (6th Cir.1990). If the claimant is able to do so, the burden then shifts to the Commissioner to demonstrate the existence of available employment compatible with the claimant's disability and background. Born, 923 F.2d at 1173; see also Griffith v. Comm'r of Soc. Sec., 582 Fed.Appx. 555, 559 (6th Cir. 2014).

         Entitlement to social security benefits is determined by a five-step sequential analysis set forth in the Social Security Regulations. See 20 C.F.R. §§ 404.1520, 416.920. First, the claimant must not be engaged in substantial gainful activity. See 20 C.F.R. §§ 404.1520(b), 416.920(b). Second, a finding must be made that the claimant suffers from a severe impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(5)(ii). In the third step, the ALJ determines whether the impairment meets or equals the severity criteria set forth in the Listing of Impairments contained in the Social Security Regulations. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d). If the impairment satisfies the criteria for a listed impairment, the claimant is considered to be disabled. On the other hand, if the claimant's impairment does not meet or equal a listed impairment, the ALJ must undertake the fourth step in the analysis and determine whether the claimant has the RFC to return to any past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (e), 416.920(a)(4)(iv). If the ALJ determines that the claimant can return to past relevant work, then a finding of not disabled must be entered. Id. But if the ALJ finds the claimant unable to perform past relevant work, then at the fifth step the ALJ must determine whether the claimant can perform other work existing in significant No. in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v), (g), 416.960(c)(1)-(2). Further review is not necessary if it is determined that an individual is not disabled at any point in this sequential analysis. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

         C. Additional Evidence Before the Appeals Council

         Davis argues that the Appeals Council should have considered a medical source opinion from Paul E. Scates, M.D., that Davis submitted after the ALJ determined that she was not disabled. Dr. Scates's opinion is dated October 6, 2015, and states that Davis suffers from disk narrowing, radicular pain, and bilateral carpal tunnel syndrome. (R. at 566-68.) In this opinion, Dr. Scates checked a No. of boxes to indicate that these conditions cause Davis a variety of exertional and manipulative limitations. There is no information in either this opinion or the medical records that indicates the extent of Dr. Scates's relationship with Davis.

         The Sixth Circuit has held that “evidence submitted to the Appeals Council after the ALJ's decision cannot be considered part of the record for purposes of substantial evidence review.” Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 838 (6th Cir. 2016) (quoting Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001)). Because Dr. Scates's opinion is additional evidence that Davis submitted to the Appeals Council after the ALJ's decision, the court will not consider it as part of the record.

         Nonetheless, courts may remand a case to an ALJ for review of additional evidence “upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . . .” 42 U.S.C. § 405(g). As the language of the statute indicates, this places the burden upon the claimant to make this showing. See Miller, 811 F.3d at 839 (citing 42 U.S.C. § 405(g); Foster, 279 F.3d at 357).

         Regarding the first requirement, in order to be new, the evidence must not have existed or been “available to the claimant at the time of the administrative proceeding.” Deloge v. Comm'r of Soc. Sec. Admin., 540 Fed.Appx. 517, 519 (6th Cir. 2013) (quoting Foster, 279 F.3d at 357). The evidence meets the first requirement since Dr. Scates's opinion was not available to the ALJ at the time of the disability determination. However, the evidence does not meet the second requirement. “[E]vidence is ‘material' only if there is ‘a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence.'” Deloge, 540 Fed.Appx. at 519 (alteration in original) (quoting Foster, 279 F.3d at 357). Dr. Scates's opinion is not material because Davis has not shown that Dr. Scates based the opinion upon Davis's condition during the relevant time period - before October 24, 2014, the date of the ALJ's decision. See Saulter v. Soc. Sec. Admin., No. 16-6476, 2017 WL 4857561, at *1 (6th Cir. Aug. 30, 2017) (finding that evidence relating to the claimant's physical condition after the ALJ's decision was not material to a claimant's applications under Title II and XVI); Brooks v. Sullivan, 941 F.2d 1209, 1991 WL 158744, at *2 (6th Cir. 1991) (“To establish medical eligibility for SSI, [the claimant] must show either that he was disabled when he applied for benefits . . . or that he became disabled prior to the [ALJ's] issuing of the final decision.”); 20 C.F.R. § 416.330 (“If you file an application for SSI benefits before the first month you meet all the other requirements for eligibility, the application will remain in effect from the date it is filed until . . . the hearing decision is issued.”); 20 C.F.R. § 404.620. By failing to demonstrate that the evidence is material, Davis has not carried the burden of proof prescribed by 42 U.S.C. § 405(g). Thus, the court will not remand this case for an ALJ to review Dr. Scates's opinion.

         D. The ALJ's Analysis of ...

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