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Blythe v. Berryhill

United States District Court, W.D. Tennessee, Western Division

September 10, 2019

NANCY A. BERRYHILL, Acting COMMISSIONER OF Social Security, Defendant.



         Before the court is plaintiff Christy M. Blythe's appeal from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-434; 1381-1385. The parties have consented to the jurisdiction of the United States magistrate judge under 28 U.S.C. § 636(c). For the reasons below, the decision is affirmed.


         On July 28, 2014 and July 30, 2014, Blythe applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Act. (R. 366; 368.) Blythe alleged disability beginning on December 7, 2011, due to lower back disorder, bipolar disorder, and depression. (R. 366; 368; 402.) Blythe's application was denied initially and upon reconsideration by the Social Security Administration (“SSA”). (R. 243; 244; 280; 281.) At Blythe's request, a hearing was held before an Administrative Law Judge (“ALJ”) on November 21, 2016. (R. 142.) After considering the record and the testimony given at the hearing, the ALJ used the five-step analysis to conclude that Blythe was not disabled from December 7, 2011 through the date of his decision. (R. 96.) At the first step, the ALJ found that Blythe had not “engaged in substantial gainful activity since December 7, 2011, the alleged onset date.” (R. 98.) At the second step, the ALJ concluded that Blythe suffers from the following severe impairments: obesity, back disorder, and bipolar disorder.[1] (R. 98-104.) At the third step, the ALJ concluded that Blythe's impairments do not meet or medically equal, either alone or in the aggregate, one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 99.) Accordingly, the ALJ had to then determine whether Blythe retained the residual function capacity (“RFC”) to perform past relevant work or could adjust to other work. The ALJ found that:

[Blythe] has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b). Claimant can occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl. Claimant can tolerate up to occasional exposure to vibration, and claimant should avoid all hazards. Claimant can understand, remember, and carryout simple instructions; use judgment; relate with supervisors, coworkers, and the public; and deal with workplace changes.[2]

(R. 100.) The ALJ specifically found that Blythe was able to “lift 20 pounds occasionally, which is consistent with light work.” (R. 100). The ALJ then found at step four that Blythe was unable to perform any of her past relevant work. (R. 24-25.) However, at step five the ALJ found that considering Blythe's age, education, work experience, and RFC, there are jobs that exist in significant No. in the national economy that Blythe can perform. (R. 25.) Accordingly, on February 13, 2017, the ALJ issued a decision denying Blythe's request for benefits after finding that Blythe was not under a disability because she retained the RFC to adjust to work that exists in significant No. in the national economy. (R. 96-107.) On December 14, 2017, the SSA's Appeals Council denied Blythe's request for review. (R. 1.) The ALJ's decision then became the final decision of the Commissioner. (R. 1.)

         On February 8, 2018, Blythe filed the instant action. Blythe argues that: (1) new material evidence related to Blythe's mental condition justifies remand to the Commissioner; (2) the ALJ erred in weighing the medical opinions in the record; (3) the ALJ erred in not discussing treatment records from one of Blythe's therapists; (4) the ALJ committed legal error by failing to adequately develop the record when he declined to ask a vocational expert certain hypothetical questions; and (5) the ALJ's decision on RFC is not supported by substantial evidence. (ECF No. 11; ECF No. 14.)


         A. Standard of Review

         Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision made by the Commissioner after a hearing to which he or she was a party. “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). Judicial review of the Commissioner's decision is limited to whether there is substantial evidence to support the decision and whether the Commissioner used the proper legal criteria in making the decision. Id.; Cardew v. Comm'r of Soc. Sec., 896 F.3d 742, 745 (6th Cir. 2018); Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial evidence is more than a scintilla of evidence but less than a preponderance, and is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

         In determining whether substantial evidence exists, the reviewing court must examine the evidence in the record as a whole and “must ‘take into account whatever in the record fairly detracts from its weight.'” Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). If substantial evidence is found to support the Commissioner's decision, however, the court must affirm that decision and “may not even inquire whether the record could support a decision the other way.” Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v. Sec'y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir. 1989)). Similarly, the court may not try the case de novo, resolve conflicts in the evidence, or decide questions of credibility. Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (citing Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Rather, the Commissioner, not the court, is charged with the duty to weigh the evidence, to make credibility determinations, and to resolve material conflicts in the testimony. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990).

         B. The Five-Step Analysis

         The Act defines disability as 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 12 months.” 42 U.S.C. § 423(d)(1). Additionally, section 423(d)(2) of the Act states that:

An individual shall be determined to be under a disability only 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. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant No. either in the region where such individual lives or in several regions of the country.

         Under the Act, the claimant bears the ultimate burden of establishing an entitlement to benefits. Oliver v. Comm'r of Soc. Sec., 415 Fed.Appx. 681, 682 (6th Cir. 2011). The initial burden is on the claimant to prove she has a disability as defined by the Act. Siebert v. Comm'r of Soc. Sec., 105 Fed.Appx. 744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d at 529); see also Born v. Sec'y of Health & Human Servs., 923 F.2d 1168, 1173 (6th Cir. 1990). If the claimant is able to do so, the burden then shifts to the Commissioner to demonstrate the existence of available employment compatible with the claimant's disability and background. Born, 923 F.2d at 1173; see also Griffith v. Comm'r of Soc. Sec., 582 Fed.Appx. 555, 559 (6th Cir. 2014).

         Entitlement to social security benefits is determined by a five-step sequential analysis set forth in the Social Security Regulations. See 20 C.F.R. §§ 404.1520 & 416.920. First, the claimant must not be engaged in substantial gainful activity. See 20 C.F.R. §§ 404.1520(b) & 416.920(b). Second, a finding must be made that the claimant suffers from a severe impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii) & 416.920(a)(5)(ii). In the third step, the ALJ determines whether the impairment meets or equals the severity criteria set forth in the Listing of Impairments contained in the Social Security Regulations. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. If the impairment satisfies the criteria for a listed impairment, the claimant is considered to be disabled. On the other hand, if the claimant's impairment does not meet or equal a listed impairment, the ALJ must undertake the fourth step in the analysis and determine whether the claimant has the RFC to return to any past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv) & 404.1520(e). If the ALJ determines that the claimant can return to past relevant work, then a finding of not disabled must be entered. Id. But if the ALJ finds the claimant unable to perform past relevant work, then at the fifth step the ALJ must determine whether the claimant can perform other work existing in significant No. in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g)(1), 416.960(c)(1)-(2). Further review is not necessary if it is determined that an individual is not disabled at any point in this sequential analysis. 20 C.F.R. § 404.1520(a)(4).

         C. Whether New Material Evidence Related to Blythe's Mental Condition Justifies Remand to the Commissioner

         Blythe's first argument is that new material evidence related to Blythe's mental condition justifies remand to the Commissioner. Blythe has obtained an evaluation of the effect of her mental limitations on her ability to do work-related activities from her current treating therapist, Russell Andrew Goad. (ECF No. 14.) In the portion of his evaluation that is inconsistent with the ALJ's RFC finding, Goad determined that Blythe has marked limitations in her ability to respond appropriately to unusual work situations and changes in a routine work setting. (Id. at 15.) Goad also found that Blythe's limitations in this regard dated back to July 8, 2016, before the date of the ALJ's decision. (Id.)

         Courts may remand a case to an ALJ for review of additional evidence “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). As the language of the statute indicates, this places the burden of production upon the claimant. See Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 839 (6th Cir. 2016) (citing 42 U.S.C. § 405(g); Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001)).

         “[E]vidence is ‘material' only if there is ‘a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence.'” Deloge v. Comm'r of Soc. Sec. Admin., 540 Fed.Appx. 517, 519 (6th Cir. 2013) (quoting Sizemore v. Sec'y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988)). A conclusory opinion about work-related limitations not backed up by specific clinical findings is not material evidence, even if it comes from a treating source. See Hammond v. Apfel, 211 F.3d 1269 (6th Cir. 2000); Strong v. Soc. Sec. Admin., 88 Fed.Appx. 841, 845-46 (6th Cir. 2004) (“Although [the medical source] opined long after the relevant period that Claimant had been disabled during the relevant period, such a retrospective and conclusory opinion is not entitled to significant weight because it is not supported by relevant and objective evidence.” (citing Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 287 (6th Cir. 1994); 20 C.F.R. § 404.1527(d)(2)-(3))).

         The materiality standard is not met here. First, Goad's opinion does not demonstrate Blythe's severe impairments were the cause of her work-related limitations. The ALJ found that the record suggested that Blythe's reported mental symptoms in 2016 were more likely to be a product of situational stressors than a product of her bipolar disorder based on Blythe's treatment notes. (R. 103). The Act defines disability as being the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . .” 42 U.S.C. § 423(d)(1) (emphasis added). This means that a claimant's inability to engage in substantial gainful activity must be caused by their impairment. Goad's opinion only goes to the extent of Blythe's limitations, not to their cause. Given that the ALJ had found Blythe's symptoms were not caused by her impairment, Goad's opinion would not have a reasonable probability of altering the ALJ's decision.

         Second, Goad's opinion is conclusory and not supported by specific clinical findings. Even treating source physician opinions, which ALJs are ordinarily bound to defer to, are not material new evidence if they are conclusory or without specific clinical findings. Hammond, 211 F.3d at 1269. Here, Goad only gives his opinion as to Blythe's impairments and identifies the general nature ...

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