United States District Court, M.D. Tennessee, Northeastern Division
Waverly D. Crenshaw, Jr. Chief Judge
REPORT AND RECOMMENDATION
ALISTAIR E. NEWBERN UNITED STATES MAGISTRATE JUDGE
Honorable Waverly D. Crenshaw, Jr., Chief District Judge
case was referred to the Magistrate Judge to dispose or
recommend disposition of pretrial motions under 28 U.S.C. Â§
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
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.
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.)
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.)
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
. . .
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
. . .
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)).
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)
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.)
Review of the Record
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.
Judicial Review of Social Security Appeals
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)).
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)).
Administrative Evaluation of Disability Claims
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 ...