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Ashmore v. Berryhill

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

June 12, 2018

KEVIN ASHMORE, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Crenshaw, Judge

          REPORT AND RECOMMENDATION

          JEFFREY S. FRENSLEY UNITED STATES MAGISTRATE JUDGE

         This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security denying Plaintiff Disability Insurance Benefits (“DIB”), as provided under Title II of the Social Security Act (“the Act”). The case is currently pending on Plaintiff's “Motion for Judgment Based On The Administrative Record.” Docket No. 20. Plaintiff has incorporated his accompanying Memorandum of Law into his Motion. Id. Defendant has filed a Response, arguing that the decision of the Commissioner was supported by substantial evidence and should be affirmed. Docket No. 21. Plaintiff has filed a Reply. Docket No. 22.

         For the reasons stated below, the undersigned recommends that Plaintiff's “Motion for Judgment Based On The Administrative Record” be GRANTED, and that the decision of the Commissioner be REMANDED.

         I. INTRODUCTION

         Plaintiff protectively filed his application for Disability Insurance Benefits (“DIB”) on June 6, 2014, [1] alleging that he had been disabled since January 15, 2010, due to cerebral palsy and a congenital heart defect. See, e.g., Docket No. 18, Attachment (“TR”), pp. 56, 162. Plaintiff's application was denied both initially (TR 81-83) and upon reconsideration (TR 85-86). Plaintiff subsequently requested (TR 87-88) and received (TR 27-55) a hearing. Plaintiff's hearing was conducted on July 12, 2016, by Administrative Law Judge (“ALJ”) John Daughtry. TR 27. Plaintiff and vocational expert (“VE”), Dr. Stephen Bernard Schnacke, appeared and testified. TR 30-54.

         On September 9, 2016, the ALJ issued a decision unfavorable to Plaintiff, finding that Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR 10-26. Specifically, the ALJ made the following findings of fact:

1. The claimant last met the insured status requirements of the Social Security Act on September 30, 2014.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of January 15, 2010 through his date last insured of September 30, 2014 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: mild cerebral palsy with right sided spasticity and history of interstitial lung disease (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that through the date last insured, the claimant had the residual functional capacity to perform a range of light work as defined in 20 CFR 404.1567(b) that was limited to: lifting and carrying up to twenty pounds occasionally and ten pounds frequently primarily using the left upper extremity to lift and carry and the right upper extremity to assist and balance objects; sitting, standing and walking up to six hours each in eight-hour workdays with normal breaks; frequent pushing and pulling with the right upper and lower extremities; occasional kneeling and crouching; occasional overhead reaching with the right upper extremity; occasional exposure to extremely cold temperatures and pulmonary irritants such as dust, fumes, odors gases and poor ventilation.
6. Through the date last insured, the claimant was capable of performing past relevant work as construction runner/deliverer, [DOT# 230.663-010], (light/unskilled/SVP 2). This work did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
7. The claimant was not under a disability, as defined in the Social Security Act, at any time from January 15, 2010, the alleged onset date, through September 30, 2014, the date last insured (20 CFR 404.1520(f)).

TR 15-22.

         On November 7, 2016, Plaintiff timely filed a request for review of the hearing decision. TR 144. On September 18, 2017, the Appeals Council issued a letter declining to review the case (TR 1-4), thereby rendering the decision of the ALJ the final decision of the Commissioner.

         This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g).

         If the Commissioner's findings are supported by substantial evidence, based upon the record as a whole, then these findings are conclusive. Id.

         II. REVIEW OF THE RECORD

         The parties and the ALJ have thoroughly summarized and discussed the medical and testimonial evidence of record. Accordingly, the Court will discuss those matters only to the extent necessary to analyze the parties' arguments.

         III. CONCLUSIONS OF LAW

         A. Standard of Review

         This Court's review of the Commissioner's decision is limited to the record made in the administrative hearing process. Jones v. Sec'y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). The purpose of this review is to determine: (1) whether substantial evidence exists in the record to support the Commissioner's decision, and (2) whether any legal errors were committed in the process of reaching that decision. Landsaw v. Sec'y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).

         “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.” Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389 (6th Cir. 1999), citing Richardson v. Perales, 402 U.S. 389, 401 (1971). “Substantial evidence” has been further quantified as “more than a mere scintilla of evidence, but less than a preponderance.” Bell v. Comm'r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996), citing Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938).

         The reviewing court does not substitute its findings of fact for those of the Commissioner if substantial evidence supports the Commissioner's findings and inferences. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different conclusion, the decision of the ALJ must stand if substantial evidence supports the conclusion reached. Her, 203 F.3d at 389, citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). If the Commissioner did not consider the record as a whole, however, the Commissioner's conclusion is undermined. Hurst v. Sec'y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985), citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).

         In reviewing the decisions of the Commissioner, courts look to four types of evidence: (1) objective medical findings regarding Plaintiff's condition; (2) diagnoses and opinions of medical experts; (3) subjective evidence of Plaintiff's condition; and (4) Plaintiff's age, education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).

         B. Proceedings At The Administrative Level

         The claimant carries the ultimate burden to establish an entitlement to benefits by proving his or her “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful activity” not only includes previous work performed by Plaintiff, but also, considering Plaintiff's age, education, and work experience, any other relevant work that exists in the national economy in significant numbers regardless of whether such work exists in the immediate area in which Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he or she applied. 42 U.S.C. § 423(d)(2)(A).

         At the administrative level of review, the claimant's case is considered under a five-step sequential evaluation process summarized as follows:

(1) If the claimant is working and the work constitutes substantial gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which significantly limits his or her ability to work (a “severe” impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it must be determined whether he or she suffers from one of the “listed” impairments or its equivalent.[2] If a listing is met or equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level impairments, it must be determined whether the claimant can return to the job he or she previously held in light of his or her residual functional capacity (e.g., what the claimant can still do despite his or her limitations). By showing a medical condition that prevents him or her from returning to such past relevant work, the claimant establishes a prima facie case of disability.
(5) The burden then shifts to the Commissioner to establish the claimant's ability to work by proving the existence of a significant number of jobs in the national economy which the claimant could perform, given his or her age, experience, education, and residual functional capacity.

See, e.g., 20 CFR §§ 404.1520, 416.920. See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

         The Commissioner's burden at the fifth step of the evaluation process can be satisfied by relying on the medical-vocational guidelines, otherwise known as “the grid, ” but only if the claimant is not significantly limited by a nonexertional impairment, and then only when the claimant's characteristics identically match the characteristics of the applicable grid rule. Moon, 923 F.2d at 1181; 20 CFR § 404, Subpt. P, App. 2, Rule 200.00(e)(1), (2). See also Damron v. Sec'y of Health & Human Servs., 778 F.2d 279, 281-82 (6th Cir. 1985). Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability determination. Id. In such cases where the grid does not direct a conclusion as to the claimant's disability, the Commissioner must rebut the claimant's prima facie case by coming forward with particularized proof of the claimant's individual vocational qualifications to perform specific jobs, which is typically obtained through vocational expert testimony. See Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).

         In determining residual functional capacity for purposes of the analysis required at stages four and five above, the Commissioner is required to consider the combined effect of all the claimant's impairments: mental and physical, exertional and nonexertional, severe and nonsevere. See 42 U.S.C. § 423(d)(2)(B).

         C. Plaintiff's Statement Of Errors

         Plaintiff contends that the ALJ improperly considered the evidence, failed to fully and fairly develop the record, and issued a decision that does not allow for meaningful review because the ALJ: (1) failed to accord proper weight to the opinion of Plaintiff's treating physician; (2) improperly discredited Plaintiff's subjective complaints; (3) erroneously gave limited weight to the letter provided by Plaintiff's father; (4) failed to consider that the treatment options for cerebral palsy are limited; and (5) determined a residual functional capacity that is not supported by the medical evidence. Docket No. 20. Accordingly, Plaintiff maintains that, pursuant to 42 U.S.C. § 405(g), the Commissioner's decision should be reversed, or in the alternative, remanded. Id.

         Sentence four of § 405(g) states as follows:

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), 1383(c)(3).

         “In cases where there is an adequate record, the Secretary's decision denying benefits can be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and immediately award benefits if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits. Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994).

         1. ALJ's ...


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