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Turner v. Saul

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

July 9, 2019

WILLIAM J. TURNER, JR., Plaintiff,
ANDREW M. SAUL, COMMISSIONER OF SOCIAL Security Administration, Defendant.




         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. 17. Plaintiff has filed an accompanying Memorandum of Law. Docket No. 17-1. Defendant has filed a Response, arguing that the decision of the Commissioner was supported by substantial evidence and should be affirmed. Docket No. 18.

         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 July 9, 2014, [1]alleging that he had been disabled since February 12, 2012, due to “Double Lung Transplant, ” “Multiple Level Back Injury, ” “Osteoporosis, ” “Chronic Digestive Disorder, ” “Adult Attention Deficit Disorder, ” “Depression, ” “Post Traumatic Stress Disorder, ” “Chronic Kidney Stones, ” and “High Blood Pressure.” See, e.g., Docket No. 15, Attachment (“TR”), pp. 242-243, 414. Plaintiff's application was denied both initially (TR 115) and upon reconsideration (TR 139). Plaintiff subsequently requested (TR 151-52) and received (TR 66-96) a hearing. Plaintiff's initial hearing was conducted on January 13, 2017, by Administrative Law Judge (“ALJ”) Shannon H. Heath. TR 66-96. At the request of Plaintiff (TR 20), a supplemental hearing was conducted on August 15, 2017. TR 50-65. Plaintiff and vocational expert (“VE”), Charles Wheeler, appeared and testified at both hearings. Id. at 50; 66.

         On February 6, 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 17-35. Specifically, the ALJ made the following findings of fact:

1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2017.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of February 12, 2013 through his date last insured of December 31, 2017 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the lumbar spine; history of lung transplant; depressive disorder; attention deficit hyperactivity disorder and post-traumatic stress disorder (20 CFR 404.1520)(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant retains the capacity to lift up to ten pounds occasionally and five pounds frequently. He is able to stand and walk up to two hours total in an eight-hour workday. He can sit up to six hours total in an eight-hour workday. He must never climb ladders, ropes or scaffolds. He can frequently balance but occasionally climb ramps, stairs, stoop, kneel[, ] crouch and crawl. He must avoid concentrated exposure to pulmonary irritants. He can understand, remember and carry out simple and low-level detailed tasks. He can maintain concentration, persistence and pace with normal breaks spread throughout the workday. He is able to interact appropriately with supervisors and coworkers. He can interact with the public occasionally. He is able to adapt to occasional changes in the workplace.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on December 15, 1968 and was 49 years old, which is defined as a younger individual age 18-44, on the date last insured (20 CFR 404.1563).
8. The claimant has a two-year college 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 the 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. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from February 12, 2013, the alleged onset date, through December 31, 2017, the date last insured (20 CFR 404.1520(g)).

TR 23-34.

         On April 2, 2018, Plaintiff timely filed a request for review of the hearing decision. TR 241. On July 18, 2018, the Appeals Council issued a letter declining to review the case (TR 1-3), 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.[2] 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 erred by: (1) improperly weighing the medical and opinion evidence; (2) improperly determining the severity of Plaintiff's conditions; (3) failing to consider “the synergistic impact of all these disorders working in concert against [Plaintiff] to prevent him from sustaining employment”; (4) finding “that [Plaintiff] had no severe impairments that had lasted for more than twelve months nor any that were expected to last longer than twelve months”; and (5) concluding that Plaintiff did not meet listing 12.04. Docket No. 17-1, pp. 4-16. 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 the Medical and Opinion Evidence Regarding Plaintiff's Physical and Mental Limitations and the ALJ's Resultant Physical and Mental RFC Determination

         Plaintiff first argues that the ALJ “erred by not giving sufficient weight to some medical evidence while over emphasizing the importance of other evidence, ” and, “by failing to adequately explain why some evidence was considered probative of the issues while other evidence was discounted.” Docket No. 17-1, p. 7. Plaintiff further asserts as error the ALJ's assigning of “greater weight to state agency consultative exams than of [Plaintiff's] own treating physicians.” Id. As support for his claim that the ALJ erred in weighing the medical evidence, Plaintiff cites: “MARKED restrictions . . . due to attention deficit disorder” (Id. at 7-8, citing TR 1779); Plaintiff's unemployment (Id. at 8); a suicide attempt and psychiatric unit visits (Id., citing TR 900); GAF scores (Id., citing TR 108); “hypersensitive[ity] to germs and his paranoia about getting sick (Id., citing TR 903); and Dr. Ward's treatment notes (Id. at 10, citing TR 1451-1461). In relation to the assignment of error claiming the ALJ's failure in according more weight to State agency consultants than to Plaintiff's treating physician, Plaintiff cites as support that: “Dr. Langworthy's answers are based on the medical opinions [Plaintiff] has and continues to treat” (Id. at 9); “[b]oth [Drs. Gilmore and Thomason] are State agency consultants and saw [Plaintiff] one time” (Id.); “Ms. Starr treated [Plaintiff] for a period of ten years” with facts supporting her medical opinion (Id. at 11, citing TR 890-911; 900); and “[t]he ALJ's rejection of Dr. Germek's report.” (Id. at 12, citing TR 1124).

         Defendant responds that the ALJ “properly reviewed the record as a whole to find that Plaintiff could perform a restricted range of low-detailed, sedentary work in significant numbers in the national economy and was not disabled.” Docket No. 18, p. 6. Additionally, Defendant contends that the ALJ properly considered the medical opinions of record (Id. at 8, citing TR 22-24) and properly resolved the conflicts among the opinions (Id. at 9, citing TR 27-29). As support, Defendant recounts the ALJ's findings that: Dr. Workman was a one-time consultative examiner whose opinion was entitled to little weight because it was inconsistent with the record. Id., citing TR 28); Drs. Gilman's and Thomason's opinions were due greater weight because they were consistent with the record (Id. at 9-10); Dr. Langworthy's opinion was inconsistent with the record (Id. at 10); and Dr. Germek's opinion was based on a one-time consultative evaluation, was inconsistent with the record, and was not expressed in functional terms (Id. at 11, citing TR 31). Defendant further argues that the ALJ accorded proper weight to Dr. Kupstas' opinion and Dr. Elliot's evaluation (Id. at 12); “properly considered Ms. Starr's August 2014 letter stating that Plaintiff had difficulty focusing to run his business” (Id. at 13, citing TR 906); properly determined that Ms. Starr was not an acceptable medical source (Id., citing TR 29-30); and appropriately noted that Ms. Starr did not provide a specific opinion on Plaintiff's functional limitations (Id. at 14).

         With regard to the evaluation of medical evidence, the Code of Federal Regulations states:

Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source's opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the opinion. . . .
(3) Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion . . . .
(4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.
. . .

20 CFR § 416.927(c) (emphasis added). See also 20 CFR § 404.1527(c).

         The ALJ must articulate the reasons underlying her decision to give a medical opinion a specific amount of weight.[3] See, e.g., 20 CFR § 404.1527(d); Allen v. Comm'r of Soc. Sec., 561 F.3d 646 (6th Cir. 2009); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The reasons must be supported by the evidence and must be sufficiently specific so as to make clear to any subsequent reviewers the weight the ALJ gave to the treating source medical opinion and the reasons for that weight. SSR 96-2p.

         The Sixth Circuit has held that, “[p]rovided that they are based on sufficient medical data, the medical opinions and diagnoses of treating physicians are generally accorded substantial deference, and if the opinions are uncontradicted, complete deference.” Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 240 (6th Cir. 2002), quoting Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). If the ALJ rejects the opinion of a treating source, however, she is required to articulate some basis for rejecting the opinion. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987). The Code of Federal Regulations defines a “treating source” as:

[Y]our own physician, psychologist, or other acceptable medical source who provides you or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you.

20 CFR § 404.1502.

         As an initial matter, with regard to the evidence before the ALJ upon which she based her decision, the ALJ noted:

Attorney Forest Jackson appeared at the January 13, 2017 disability hearing for Attorney John Heard, the claimant's primary representative of record. Mr. Jackson did not have all the necessary records at the time of the hearing. The claimant's attorneys were given several extensions of time to properly develop the file as the record remained in POST hearing status until April 24, 2017. See Exhibits ...

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