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Jones v. Social Security Administration

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

June 6, 2019


          Crenshaw, 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 on the Administrative Record. Docket No. 13. Plaintiff has filed an accompanying Memorandum. Docket No.13-1 . Defendant has filed a Response, arguing that the decision of the Commissioner was supported by substantial evidence and should be affirmed. Docket No. 14. Plaintiff has filed a Reply. Docket No. 15.

         For the reasons stated below, the undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED.


         Plaintiff filed his application for Disability Insurance Benefits (“DIB”) on June 29, 2017 alleging that he had been disabled since May 1, 2015, due to disc “herniation” L5-S1-S2, chronic and severe “hypothyroiditis, ” left and right hip injuries, “radiculopathy, ” right and left lower extremities, chronic left and right ankle lateral ligament sprains, left and right elbow strain, cervical strain C4 -6 disc “herniation, ” post traumatic stress disorder, major depressive disorder, and arthritis. See, e.g., Docket No. 11, Attachment (“TR”), pp. 258-59, 274. Plaintiff's application was denied both initially (TR 172) and upon reconsideration (TR 187). Plaintiff subsequently requested (TR 198-199) and received (TR 104-158) a hearing. Plaintiff's hearing was conducted on March 29, 2018 by Administrative Law Judge (“ALJ”) Michelle Thompson. TR 104. Plaintiff and vocational expert (“VE”), Rebecca Hill, appeared and testified. Id. Vanessa Jones, Plaintiff's wife, also testified as a witness. Id.

         On April 18, 2018, 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 87-99. Specifically, the ALJ made the following findings of fact:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2021.
2. The claimant has not engaged in substantial gainful activity since May 1, 2017, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: cervical and lumbar degenerative disc disease; hypothyroidism; degenerative joint disease of the left hand; and posttraumatic stress disorder (PTSD) (20 CFR 404.1520(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), 404.1425 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) that is limited to lifting ten pounds, occasionally up to twenty pounds; sitting for a total of six hours in an eight-hour workday; standing and/or walking for a total of six hours in an eight hour workday; frequent use of his non-dominant left arm and hand for pushing and pulling and for fine and gross manipulation; understanding, performing, and maintaining concentration, persistence, and pace for simple instructions and tasks; occasionally interacting with coworkers and supervisors but not working with the general public; working around moderate noise only; and adapting to infrequent changes in the workplace.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on August 29, 1977, and was 39 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferrable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from May 1, 2017, through the date of this decision (20 CFR 404.1520 (g)).

TR 89-99.

         On June 15, 2018, Plaintiff timely filed a request for review of the hearing decision. TR 252. On August 3, 2018, the Appeals Council issued a letter declining to review the case (TR 1-5), 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.


         The parties and the ALJ have 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.


         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.[1] 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: (1) did not properly evaluate the opinion of Dr. Herr, Plaintiff's treating psychologist; (2) substituted her own medical opinion for that of Dr. Herr; and (3) improperly relied on the testimony of the VE when making her determination at step five of the sequential evaluation process because the ALJ's hypothetical questions to the VE did not accurately portray Plaintiff's mental impairments. Docket No. 13-1. 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. Weight Accorded to Opinion of Plaintiff's Treating Physician

         Plaintiff maintains that the ALJ improperly disregarded the opinion of his treating psychologist, Douglas R. Herr, Psy.D. Docket No. 13-1. Specifically, Plaintiff argues that the ALJ should have given great weight to Dr. Herr's opinion because he is a specialist, his opinion is consistent with other evidence in the record, and as Plaintiff's treating psychologist, he has treated Plaintiff “long enough and frequently enough” to form a well-considered opinion. Id. Plaintiff further maintains that the ALJ's rationale for discounting Dr. Herr's opinion, namely, that it was “largely based on reports from the claimant and his wife, and no supporting treatment records were provided” (TR 90) is erroneous because “psychological examination and treatment by its very nature involves the solicitation of and reliance upon the symptom report of a patient and available witnesses, ” because Dr. Herr's opinion was based in part on his observations during sessions, and because “the ALJ made no attempt to obtain treatment records from Dr. Herr nor even gave any indication prior to her decision that such records were needed, and Tennessee law expressly provides that a treatment provider may give a summary of treatment rather than the treatment records themselves, see TCA §63-2-101.” Id. at 15, 17.

         Plaintiff additionally argues that Dr. Herr's opinion is consistent with Plaintiff's earning records and with VA records, and notes that there are no psychological treatment records to speak of between when Plaintiff left the military on May 1, 2017 and when he began seeing Dr. Herr, to which Dr. Herr's opinion could be in conflict. Id. at 15-17. Plaintiff argues that the ALJ's contention that Dr. Herr's opinion is inconsistent with the VA psychological treatment records “is inexplicable, especially given the worsening of [Plaintiff's] PTSD and the fact that Dr. Herr is the only medical source who even saw [Plaintiff] ¶ 2018.” Id. at 17.

         Finally, Plaintiff argues that the “unremarkable cognition score” referenced by the ALJ is inapposite to a determination regarding the severity of Plaintiff's PTSD because it is an 11-question test that screens for gross cognitive impairment only and Dr. Herr opined that Plaintiff's “cognition is likely grossly intact.” Id. at 18. Thus, Plaintiff argues that his “unremarkable cognition score” establishes only that he is not suffering from dementia, but has “little to nothing” to do with the nature and severity of his PTSD. Id.

         Defendant responds that the ALJ properly considered the report from Dr. Herr and found it unpersuasive because it was “not consistent” with the record, and notes that the ALJ “cited substantial evidence to support this finding.” Docket No. 14. Defendant argues that the cases cited by the Plaintiff are based on application of the old regulation, CFR § 404.1527 and are “inapplicable to a case decided under the new regulations.” Id. Defendant asserts that the ALJ summarized and considered Dr. Herr's opinion but found that it was inconsistent with, inter alia, Plaintiff's earnings and largely unremarkable treatment record, the fact that Plaintiff had worked for 11 years after the traumatic events he described and his largely unremarkable interim records, the fact that Dr. Herr had only been treating Plaintiff only since the month prior to his rendered opinion, and there were no supporting treatment records from Dr. Herr to accompany his opinion. Id. at 5. Defendant argues therefore that the ALJ fulfilled her duty under the new regulations applicable to this claim. Id. at 4-8, referencing 20 CFR §§ 404.1520c, 416.920c.

         Defendant additionally responds that the ALJ is specifically permitted to consider the lack of treatment records or other support in the record, and that, with regard to the VA disability findings themselves, under the new regulations, the SSA will not analyze another agency's decision as that agency reaches its decision using its own rules, but the SSA will consider the decision's supporting evidence. Id. at 9, referencing 82 Fed. Reg. 5844, 5848-49, 20 CFR ยงยง 404.1504, 416.904, 404.1520c, 416.920c. Defendant argues that the ALJ properly considered the lack of treatment records and support in the record, and ...

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