United States District Court, W.D. Tennessee, Western Division
PAMELA L. DAVIS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER AFFIRMING THE COMMISSIONER'S
PHAM United States Magistrate Judge
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
FINDINGS OF FACT
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
CONCLUSIONS OF LAW
Standard of Review
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)).
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).
The Five-Step Analysis
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.
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).
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. §§
Additional Evidence Before the Appeals Council
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.
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.
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).
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.
The ALJ's Analysis of ...