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Burrage v. Saul

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

August 12, 2019

WESLEY LOREN BURRAGE, Plaintiff,
v.
ANDREW M. SAUL, [1] Commissioner of Social Security, Defendant.

          Waverly D. Crenshaw, Jr. Chief Judge

          REPORT AND RECOMMENDATION

          ALISTAIR E. NEWBERN UNITED STATES MAGISTRATE JUDGE

         To: The Honorable Waverly D. Crenshaw, Jr., Chief District Judge

         This case was referred to the Magistrate Judge to dispose or recommend disposition of pretrial motions under 28 U.S.C. § 636(b)(1). (Doc. No. 4.) Now pending in this Social Security appeal is Plaintiff Wesley Loren Burrage's motion for judgment on the administrative record. (Doc. No. 13.) The Commissioner of Social Security has responded in opposition (Doc. No. 19), and Burrage has filed a reply (Doc. No. 20). Having considered those filings and the administrative record (Doc. No. 11), and for the reasons given below, the Magistrate Judge will recommend that Burrage's motion be granted in part, that the decision of the administrative law judge be reversed, and that the case be remanded for further administrative proceedings consistent with this Court's order.

         I. Introduction

         Burrage filed his first application for supplemental security income (SSI) under Title XVI of the Social Security Act on August 20, 2007, alleging that he was disabled as of that date. (Tr. 150.) After Burrage's application was denied initially and upon reconsideration, he requested a hearing before an administrative law judge (ALJ), which was held by video on November 5, 2009. (Id.) In a January 28, 2010 opinion, the ALJ found that, although Burrage suffered from degenerative disc disease and attention deficit hyperactivity disorder (ADHD), he could, with certain limitations, complete the full range of unskilled light work defined by 20 C.F.R. § 416.967(b) and therefore was not disabled. (Tr. 150-56.)

         The Appeals Council granted Burrage's request for review and concluded that, among other things, the ALJ had erred by failing to consider a November 1, 2009 opinion of Burrage's treating physician, Dr. Jack Rhody, and had not adequately explained why Burrage's complaints regarding his pain and impairments were not credible. (Tr. 164-65, 577-80.) The Appeals Council remanded the case to the ALJ, who, after conducting another hearing, found Burrage disabled and entitled to SSI on September 6, 2012. (Tr. 173-78.) In finding Burrage disabled, the ALJ concluded that he suffered from chronic obstructive pulmonary disorder, osteoarthritis, pain disorder, and mood disorder and that Burrage was limited to performing sedentary work with restrictions on his ability to lift, stand, and sit. (Tr. 175.)

         At some point in December 2013, Burrage was incarcerated and his benefits were terminated. (Tr. 68.) Burrage filed a second application for SSI on April 30, 2015, after his release, and again alleged that his disability began on August 20, 2007. (Id.) Burrage's application was denied initially and upon reconsideration, and Burrage requested a hearing before an ALJ. (Tr. 179, 196.) At the July 26, 2017 hearing, Burrage's counsel sought to introduce Dr. Rhody's assessment of Burrage's ability to do work-related activities, which Dr. Rhody had completed the day before the hearing. The ALJ stated that he would consider whether to admit the assessment, reminding counsel of the general rule that evidence must be submitted at least five days before a hearing. (Tr. 91-93.)

         In a January 17, 2018 opinion, the ALJ found that Burrage was not disabled. (Tr. 80.) The ALJ declined to consider Dr. Rhody's July 25, 2017 assessment, stating that counsel had not adequately explained her failure to obtain it at least five days before the hearing. (Tr. 69, 108-13.) The ALJ also concluded that he was not bound by the September 6, 2012 decision granting Burrage benefits because more recent evidence indicated that Burrage's condition had improved. (Tr. 75.) The ALJ made the following enumerated findings:

1. The claimant has not engaged in substantial gainful activity since April 30, 2015, the application date. (20 CFR 416.971 et seq.).
. . .
2. Since April 30, 2015, the claimant's “severe” impairments have been a discogenic back disorder status post surgery and a generalized anxiety disorder (20 CFR 416.920(c)).
. . .
3. Since April 30, 2015, the claimant has not had an impairment or combination of impairments that has met or medically equaled 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. Since April 30, 2015, the claimant has had the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except for performing simple, routine tasks.
. . .
5. The claimant has no past relevant work (20 CFR 416.965).
6. As he was born August 23, 1972, the claimant was 42 years old, which is defined as a younger individual not younger than eighteen or older than forty-nine, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education with the ability to communicate in English (20 CFR 416.964).
. . .
8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).
9. Considering his age, education, work experience, and residual functional capacity since April 30, 2015, jobs that the claimant has been able to perform have existed in significant numbers in the national economy (20 CFR 416.969 and 416.969(a)).
. . .
10. The claimant has not been under a disability, as defined in the Social Security Act, since April 30, 2015, the date the application was filed (20 CFR 416.920(g)).

(Tr. 75-80.)

         The Appeals Council denied Burrage's request for review on July 17, 2018, which rendered the ALJ's January 17, 2018 decision final. (Tr. 1.) Burrage timely filed this civil action on September 7, 2018, seeking judgment on the administrative record. (Doc. Nos. 1, 13.) Burrage argues that (1) this case should be remanded to the ALJ under sentence six of 42 U.S.C. § 405(g)

         for consideration of new evidence; (2) the ALJ failed to give proper res judicata effect to the 2012 decision awarding Burrage SSI; (3) the ALJ failed to properly analyze Burrage's symptoms, including his allegations of pain; and (4) the ALJ should have adopted Dr. Rhody's 2009 and 2012 opinions in determining Burrage's residual functional capacity. (Doc. Nos. 13-1, 20.)

         II. Review of the Record

         The parties and the ALJ have thoroughly summarized and discussed the medical and testimonial evidence of the administrative record. Accordingly, the record will only be discussed to the extent necessary to address the parties' arguments in the analysis that follows.

         III. Legal Standard

         A. Judicial Review of Social Security Appeals

          The Social Security Act governs judicial review of final decisions of the Commissioner of Social Security regarding an individual's entitlement to SSI. 42 U.S.C. § 405(g); see also Id. § 1383(c)(3) (stating that the Commissioner's post-hearing final decision with respect to SSI is “subject to judicial review as provided in section 405(g) of this title”). Under sentence six of § 405(g), the Court can remand a case to the Commissioner for “additional evidence” to be introduced, “but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding[.]” 42 U.S.C. § 405(g). The Act also authorizes the Court to review “any final decision of the Commissioner . . . made after a hearing” and “enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing [that decision], with or without remanding the cause for a rehearing.” Id. The Court reviews such a decision to determine whether it is supported by substantial evidence. Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 833 (6th Cir. 2016). “Substantial evidence is less than a preponderance but more than a scintilla; it refers to relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014). When substantial evidence supports the ALJ's decision, that decision must stand even if the record could also support a contrary conclusion. See Hernandez v. Comm'r of Soc. Sec., 644 Fed.Appx. 468, 473 (6th Cir. 2016) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). This Court may not “try the case de novo, resolve conflicts in evidence, or decide questions of credibility.” Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). However, the substantial evidence standard does not condone “a selective reading of the record” and instead requires the ALJ to have considered evidence that “‘fairly detracts'” from her decision. Brooks v. Comm'r of Soc. Sec., 531 Fed.Appx. 636, 641 (6th Cir. 2013) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)).

         The Court also reviews the ALJ's decision for procedural fairness. Miller, 811 F.3d at 833. “The Social Security Administration has established rules for how an ALJ must evaluate a disability claim and has made promises to disability applicants as to how their claims and medical evidence will be reviewed.” Gentry, 741 F.3d at 723. Failure to follow agency rules and regulations therefore “‘denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record.'” Id. (quoting Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)). “The failure to comply with the agency's rules warrants a remand unless it is harmless error.” Id. at 723 (citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 545-46 (6th Cir. 2004)).

         B. Administrative Evaluation of Disability Claims

         Burrage is entitlement to SSI if he can show that he has a “disability” as defined by the relevant law. 42 U.S.C. § 1382c(a)(3)(B); 20 C.F.R. §§ 416.905(a), 416.920(a)(1), (2). In the SSI context, “disability” means an “inability to do 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.” 20 C.F.R. § 416.905(a). An application for SSI “is effective for the month in which an individual is under a disability, but in no case earlier than the month in which the application is filed.” Bogle v. Sullivan, 998 F.2d 342, 346 n.2 (6th Cir. 1993). Thus, “[t]he proper inquiry ...


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