United States District Court, E.D. Tennessee, Knoxville
RUSSELL R. JAGDEO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
C. POPLIN, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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
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
STANDARD OF REVIEW
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).
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).
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).
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).
is evaluated pursuant to a five-step analysis summarized as
1. If claimant is doing substantial gainful activity, he is
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be
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
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).
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)).
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.
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
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