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Jagdeo v. Berryhill

United States District Court, E.D. Tennessee, Knoxville

February 19, 2019

RUSSELL R. JAGDEO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          DEBRA C. POPLIN, UNITED STATES MAGISTRATE JUDGE

         This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the Federal Rules of Civil Procedure, and the Rules of this Court for a report and recommendation regarding disposition by the District Court of Plaintiff's Motion for Judgment on the Pleadings and Memorandum in Support [Docs. 17 & 18] and Defendant's Motion for Summary Judgment and Memorandum in Support [Docs. 22 & 23]. Russell Ramchand Jagdeo (“Plaintiff”) seeks judicial review of the decision of the Administrative Law Judge (“the ALJ”), the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“the Commissioner”). For the reasons that follow, the Court will RECOMMEND that Plaintiff's motion be GRANTED IN PART, and the Commissioner's motion be DENIED.

         I. PROCEDURAL HISTORY

         On March 11, 2014, Plaintiff protectively filed an application for disability insurance benefits and supplemental security income benefits pursuant to Title II and XVI of the Social Security Act, 42 U.S.C. §§ 401-03, 1381-85, claiming a period of disability that began on December 23, 2012. [Tr. 10, 102-03]. After his application was denied initially and upon reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 118-19]. A hearing was held on March 22, 2016. [Tr. 27-53]. On July 22, 2016, the ALJ found that Plaintiff was not disabled. [Tr. 10-19]. The Appeals Council denied Plaintiff's request for review on September 5, 2017 [Tr. 1-6], making the ALJ's decision the final decision of the Commissioner.

         Having exhausted his administrative remedies, Plaintiff filed a Complaint with this Court on October 31, 2017, seeking judicial review of the Commissioner's final decision under Section 405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive motions, and this matter is now ripe for adjudication.

         II. ALJ FINDINGS

         The ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through March 31, 2018.
2. The claimant has not engaged in substantial gainful activity since December 23, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease status post discectomy, laminectomy, and lumbar fusion; and degenerative joint disease in the shoulder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a less than full range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). The claimant can lift 10 pounds occasionally and less than 10 pounds frequently. The claimant can occasionally perform postural activities but never climb ladders, ropes, or scaffolds; and can occasionally bend or twist.
6. The claimant is unable to perform any past relevant work. (20 CFR 404.1565 and 416.965).
7. The claimant was born on June 16, 1966 and was 46 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. The claimant has acquired transferrable work skills from past relevant work that would allow him to work at occupations within his residual functional capacity (20 CFR 404.1568 and 416.968).
10. Considering the claimant's age, education, work experience, and residual functional capacity, the claimant has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy (20 CFR 404.1569, 404.1569(a), 404.1568(d), 416.969, 416.969(a), and 416.968(d)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from December 23, 2012, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

[Tr. 12-18].

         III. STANDARD OF REVIEW

         When reviewing the Commissioner's determination of whether an individual is disabled pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ's decision was reached through application of the correct legal standards and in accordance with the procedure mandated by the regulations and rulings promulgated by the Commissioner, and whether the ALJ's findings are supported by substantial evidence. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

         Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It is immaterial whether the record may also possess substantial evidence to support a different conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the case differently. Crisp v. Sec'y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986). The substantial evidence standard is intended to create a “‘zone of choice' within which the Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).

         On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v. Sec'y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).

         IV. DISABILITY ELIGIBILITY

         “Disability” means an individual cannot “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)(A) and 1382c(a)(3)(A). An individual will only be considered disabled:

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.

§§ 423(d)(2)(A) and 1382c(a)(3)(B).

         Disability is evaluated pursuant to a five-step analysis summarized as follows:

1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is suffering from a severe impairment that has lasted or is expected to last for a continuous period of at least twelve months, and his impairment meets or equals a listed impairment, claimant is presumed disabled without further inquiry.
4. If claimant's impairment does not prevent him from doing his past relevant work, he is not disabled.
5. Even if claimant's impairment does prevent him from doing his past relevant work, if other work exists in the national economy that accommodates his residual functional capacity (“RFC”) and vocational factors (age, education, skills, etc.), he is not disabled.

Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520). A claimant's residual functional capacity (“RFC”) is assessed between steps three and four and is “based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §§ 404.1520(a)(4), -(e) and 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his limitations. §§ 404.1545(a)(1) and 416.945(a)(1).

         The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must prove that there is work available in the national economy that the claimant could perform. Her v. Comm'r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).

         V. ANALYSIS

         Plaintiff contends that the ALJ's RFC determination is not supported by substantial evidence on several regards. First, Plaintiff challenges the ALJ's treatment of the medical opinions of record. [Doc. 18 at 12-17]. Next, Plaintiff asserts that the ALJ improperly failed to account for his use of a walker in the RFC determination. [Id. at 18-20]. Lastly, Plaintiff submits that the ALJ's rejection of Plaintiff's subjective allegations is not supported by substantial evidence. [Id. at 21-25]. The Court will address each allegation of error in turn.

         A. Medical Opinions

         1. Dr. Grewal

         First, Plaintiff maintains that the ALJ failed to properly evaluate and weigh the opinion of his orthopedic surgeon, Kanwarpaul Grewal, D.O. [Doc. 18 at 12-14]. The Court will first review the relevant medical evidence, and then address Plaintiff's arguments.

         Plaintiff was referred to Dr. Grewal by his treating physician, Dr. Silverman, for a surgical consultation on February 5, 2015. [Tr. 499-500]. Dr. Grewal noted that Plaintiff's “symptoms started after a physical assault by his manager/supervisor [in 2012], ” and that “Plaintiff has been markedly disabled since this injury” with “severe back pain, bilateral leg pain, ” as well as pain in the back and front of the legs, and spasms, numbness, and tingling in the legs. [Tr. 499]. Upon examination, Dr. Grewal noted that Plaintiff exhibited “[m]ultilevel” degenerative disc disease “in lumbar spine with mild lateral recess stenosis or foraminal stenosis at other levels, ” and an x-ray of Plaintiff's lumbar spine found L4-5 spondylolisthesis and multilevel spondylosis. [Id.]. Dr. Grewal also reviewed a new MRI of Plaintiff's lumbar spine from February 4, 2015, and noted “stenosis from L3-L5 (moderate-severe), ” and lumbar spondylolisthesis, L4-L5 grade 1 on MRI. [Id.]. Accordingly, Dr. Grewal stated that Plaintiff had failed non-operative treatment options and would benefit from lumbar ...


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