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Johnson v. Berryhill

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

June 25, 2019

JUDY M. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Debra C. Poplin United States Magistrate Judge.

         This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal Rules of Civil Procedure, and the consent of the parties [Doc. 16]. Now before the Court are Plaintiff's Motion for Summary Judgment and Memorandum in Support [Docs. 19 & 19-1] and Defendant's Motion for Summary Judgment and Memorandum in Support [Docs. 20 & 21]. Judy M. Johnson (“Plaintiff”) seeks judicial review of the decision of the Administrative Law Judge (“the ALJ”), the final decision of Defendant Nancy A. Berryhill (“the Commissioner”). For the reasons that follow, the Court will DENY Plaintiff's motion and GRANT the Commissioner's motion.


         On October 26, 2011, Plaintiff filed an application for disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., as well as supplemental social security income pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. [Tr. 10]. After both applications were denied at the initial level of the agency's review, Plaintiff did not appeal the decision. [Id.].

         Then, on January 24, 2013, Plaintiff filed an application for supplemental security income benefits pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., claiming a period of disability that began on January 1, 2007. [Id.]; see [Tr. 86]. The ALJ declined to reopen either of the 2011 applications. [Tr. 10]. After her application was denied initially and upon reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 122]. A hearing was held on July 21, 2015. [Tr. 30-64]. On April 15, 2016, the ALJ found that Plaintiff was not disabled. [Tr. 10-22]. The Appeals Council denied Plaintiff's request for review on June 20, 2017 [Tr. 1-6], making the ALJ's decision the final decision of the Commissioner.

         Having exhausted her administrative remedies, Plaintiff filed a Complaint with this Court on August 23, 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.


         The ALJ made the following findings:

1. The claimant has not engaged in substantial gainful activity since January 24, 2013, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: spine disorder with grade I spondylolisthesis at ¶ 5/S1, osteoarthritis and bursitis in the left knee, asthma, affective disorder and anxiety disorder (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. 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 416.967(b) except she can lift and carry ten pounds frequently and 20 pounds occasionally. In an eight-hour workday, the claimant can sit for eight hours, stand for four hours and walk for four hours. The claimant is able to understand, remember and carry out simple and detailed instructions. She can maintain concentration and persistence for the above tasks. The claimant is able to adapt to gradual and infrequent changes in the work setting. She is limited to work that requires only frequent interactions with the public, co-workers and supervisors.
5. The claimant is capable of performing past relevant work as a Companion. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 416.965).
6. The claimant has not been under a disability, as defined in the Social Security Act, since January 24, 2013, the date the application was filed (20 CFR 416.920(f)).

[Tr. 12-22].


         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).


         “Disability” is 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 twelve months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). A claimant 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 in several regards. First, Plaintiff asserts that the ALJ failed to properly weigh the medical opinions in her RFC determination, claiming “in general, ” that that the ALJ's weight determinations are “confusing, scattered, and somewhat arbitrary.” [Doc. 19-1 at 16]. Moreover, Plaintiff claims that the ALJ failed to properly review the medical opinions in the record, including the opinion of her treating physician, John Gernert, M.D., consultative examiner Jeffrey Summers, M.D., consultative examiner Eva Misra, M.D., and consultative examiner Ellen Denny, Ph.D. [Id. at 17-20]. Further, Plaintiff claims that although the ALJ afforded great weight to the opinions of the nonexamining state agency consultants, James Millis, M.D. and Carol Lemeh, M.D., the ALJ failed to include the environmental limitations assessed in their opinions. [Id. at 21].

         Next, Plaintiff challenges the ALJ's finding that her COPD was not a severe impairment, as well as the ALJ's subsequent failure to include any limitations that accounted for Plaintiff's respiratory issues. [Id. at 21-24]. Plaintiff also alleges that the ALJ improperly concluded that she has past relevant work, and that the ALJ's Step Five determination is not supported by substantial evidence. [Id. at 24-26]. Lastly, Plaintiff claims that the ALJ improperly failed to apply the “advanced age” category. [Id. at 26]. The Court will address Plaintiff's specific allegations of error in turn.

         A. Medical Opinions

         1. Dr. Gernert

         Plaintiff challenges the ALJ's assignment of little weight to a portion of Dr. Gernert's opinion, as well as the subsequent exclusion from the RFC determination of the sitting limitations assessed in this portion of the opinion. [Doc. 19-1 at 17-18]. However, the Commissioner asserts that the ALJ properly only afforded great weight to the portions of Dr. Gernert's opinion which were supported by the record. [Doc. 21 at 9].

         Plaintiff began treatment with Dr. Gernert on June 5, 2013 to address bilateral foot pain due to her gout. [Tr. 387]. Plaintiff continued to see Dr. Gernert on June 19, 2013 [Tr. 386], and on July 22, 2013 [Tr. 385]. Then, on October 8, 2013, Dr. Gernert completed a Medical Source Statement of Plaintiff's ability to perform work-related activities. [Tr. 378-83]. Dr. Gernert opined that Plaintiff could sit, stand, and walk for four hours at one time without interruption and for four hours total in an eight-hour workday. [Tr. 379]. Additionally, Dr. Gernert found that Plaintiff did not require the use of a cane to ambulate [Id.], and that she could frequently operate foot controls with both feet [Tr. 380]. ...

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