United States District Court, E.D. Tennessee, Knoxville
JUDY M. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
C. Poplin United States Magistrate Judge.
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
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.].
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
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.
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)).
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).
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).
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 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].
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.
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].
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]. ...