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Jaari v. Saul

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

September 12, 2019

ANDREW SAUL, Commissioner of Social Security, Defendant.



         Plaintiff Abe Hameed Jaari filed this action under 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of the Social Security Administration (SSA) denying his application for disability insurance benefits (DIB) and supplemental security income (SSI) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. (ECF No. 1.) Now before the court is Jaari's Motion for Judgment on the Administrative Record (ECF No. 17), to which the Commissioner has responded in opposition (ECF No. 19). At issue is whether the finding of the administrative law judge (ALJ) that Jaari was not entitled to DIB or SSI is supported by substantial evidence.[1] (ECF No. 13 at Tr. 16-40.)

         Upon consideration of the parties' briefs, the transcript of the administrative record, and for the reasons offered below, Jaari's motion for judgment on the administrative record will be denied and the decision of the SSA will be affirmed.

         I. Introduction

         Jaari filed his DIB and SSI applications on August 4, 2014, alleging disability onset as of May 24, 2013, which was one day after the ALJ's decision denying other earlier DIB and SSI applications Jaari had filed. Jaari claimed disability based on “mental, back, neck, knees, arms, diabetes, high blood pressure, and hernia.” (Tr. 96-97.) The disability onset date was later amended to July 31, 2014. (Tr. 16, 22, 48.) Jaari's claim to benefits was denied at the initial and reconsideration stages of state agency review. (Id.). Jaari requested de novo review by an ALJ. (Id.) The ALJ heard the case on October 25, 2016, when Jaari appeared with counsel and gave testimony. (Tr. 16, 50-68, 70-72, 75.) Testimony was also received from Charles E. Wheeler, a vocational expert (VE). (Tr. 16, 68-70, 72-74, 75-76.) At the conclusion of the hearing, the matter was taken under advisement until May 11, 2017, when the ALJ issued a written decision finding that Jaari was not disabled. (Tr. 16-40.)

         That decision contains the following enumerated findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2014.
2. The claimant has not engaged in substantial gainful activity since July 31, 2014, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease, osteoarthritis, diabetes mellitus, diffuse hepatic steatosis, and carpal tunnel syndrome (20 CFR 404.1520(c) and 416.920(c)).
4. 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 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that he can occasionally lift and carry up to 20 pounds and frequently lift and carry no more than up to 10 pounds; stand and/or walk for a total of about four hours in an eight-hour workday; sit for about a total of four hours in an eight-hour workday; would need to alternate between sitting, standing and walking about every 30 minutes; can occasionally stoop and crouch; can frequently balance; can frequently climb stairs and ladders; can frequently kneel and crawl; can push and pull no more than occasionally with the bilateral upper extremities with the same weight limits given for lifting and carrying; can frequently engage in reaching in all directions including overhead; otherwise has no manipulative limitations except that he can no more than frequently perform bilateral handling and feeling; has no environmental limitations and no mental functional limitations.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on June 30, 1965 and was 49 years old at the amended alleged disability onset date, which is defined as a younger individual age 18-49. The claimant became 50 years old on June 30, 2015, which is defined as closely approaching advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has a high school education with one year of college and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568 and 416.968).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 31, 2014, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. 19-21, 33-35.)

         On February 1, 2018, the Appeals Council denied Jaari's request for review of the ALJ's decision (Tr. 1-5), thereby rendering that decision the final decision of the SSA. This civil action was timely filed, and the court has jurisdiction. 42 U.S.C. § 405(g).

         II. Prior Claim and Finding

         Before filing the applications that are the subject of the instant litigation, Jaari filed applications for DIB and SSI on August 19, 2010. In both previous applications, Jaari alleged a disability onset date of June 1, 2008. Both applications were denied at the initial and reconsideration stages of state agency review. An ALJ heard the case on April 5, 2013. Jaari appeared and testified at the hearing, as did John W. McKinney III, a vocational expert. At the conclusion of the hearing, the matter was taken under advisement until May 23, 2013, when the prior ALJ issued a written decision finding Jaari not disabled. (Tr. 83-95.)

         In his written decision, the prior ALJ stated:

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 404.1567(b) with occasional lifting/carrying of up to 20 pounds and frequent lifting/carrying of up to 10 pounds, occasional postural activities, standing a total of 4 hours during an 8- hour workday for 1 hour at a time, walking a total of 4 hours during an 8-hour workday for 30 minutes at a time, sitting for 6 hours during an 8hour workday for 1 hour at a time, operate foot controls and reach overhead frequently, frequently reach, handle, and finger objects, no working at unprotected heights or in extreme temperatures, occasional exposure to moving parts and vehicles, and no walking on uneven surfaces.

(Tr. 86.)

         III. Review of the Record

          Before reviewing Jaari's medical records, the ALJ briefly set forth the limits of his review, as follows:

“Absent evidence of an improvement in the claimant's condition, a subsequent Administrative Law Judge is bound by the findings of a previous Administrative Law Judge.” Drummond v. Commissioner, 126 F.3d 837, 842 (6th Cir. 1997); see also Social Security Acquiescence Ruling 98-4(6) Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990), which imposes similar requirements. Having reviewed the evidence in this claim, I conclude that new and material evidence is not present to suggest any significant change has occurred in the claimant's overall condition. That stated, I do find that the actual residual functional capacity findings for light work require some change. Important to note, the claimant testified that he remembers his prior hearing and stated that nothing has changed since then, but the medications have changed.

(Tr. 16-17.)

         The ALJ summarized Jaari's medical records as follows:

Review of the evidence established that the prior Administrative Law Judge found degenerative disc disease, osteoarthritis, diabetes mellitus, steatohepatitis, post-hernia repair to be severe impairments; and depression to be non-severe. Regarding diagnostic testing, lumbar x-rays showed only “mild” early spondylitic change with no nerve root compression. Electromyogram (EMG) study showed cervical radiculopathy. Regarding hernias, he did require repair of recurrent umbilical and ventral hernias. However, his physician simply indicated that claimant could avoid heavy lifting. Regarding mental problems, he had reportedly experienced depression, saw ghosts and heard voices. He also testified that he could speak English well and could read and write English some. However, he also traveled back and forth to the Middle East repeatedly. For example, he traveled to the Middle East in 2008 and had hernia surgery there. In September 2010, he reported he was going to Saudi Arabia and went abroad for three months, returning in February 2011. In September 2011, he said he would be traveling outside the United States in two weeks and would be away for one to three months. In February 2012, he indicated that he was going to Iraq. In March 2013, he indicated that he had been overseas for a while and had not taken his medication for two months. Nevertheless, his treating physician, Dr. Attoussi made conclusory statements in February 2011 and August 2012, stating claimant would be unable to work for the following six months due to his health conditions. By reference, Ex. B1A.
Review of evidence during the applicable timeframe revealed that little had changed in the claimant's overall medical condition.
The claimant continued to receive primary care from Said Attoussi, M.D. He also returned for refills of medication on January 17, 2014, stating that he also needed a new glucometer, “reports left other one overseas.” Ex. B3F, p. 87. Further, as discussed below, he again traveled to Iraq and spent approximately five months there in 2015.
It should be noted that throughout treatment with Dr. Attoussi, impression typically included uncontrolled diabetes. However, no actual blood glucose levels could be found in Dr. Attoussi's these [sic] records. Additionally, the claimant continued [to] deny endocrine symptoms as discussed below.
On March 22, 2014, he returned for refills of medications and had complaints of fatigue, which had been ongoing for three months. However, review of systems was only positive for chronic low back pain. He actually denied fatigue, joint pain/swelling/stiffness, leg cramps and sciatica. His surgical history included hernia repair in 2008 and 2010. He was also described as pleasant and well-nourished. His blood pressure was 133/76. Examination revealed clear lungs and normal upper extremity joints. Regarding the lower extremity joints, notes simply stated chronic back pain. Primary impression was diabetes mellitus, type II and back pain. Treatment included Omeprazole, Lantus solution and Lortab. Ex. B3F, pp. 93-94.
On April 9, 2014, nerve conduction studies were performed for claimant's complaints of ongoing back and neck pain, associated with radiation into the bilateral upper extremities and index and middle fingers, which had reportedly been present for many years. There was electrodiagnostic evidence of bilateral carpal [tunnel] syndrome, at least moderate in intensity and slightly worse in appearance on the left. However, there was no evidence of any other focal neuropathy, plexopathy or active cervical radiculitis from C5-Tl. Ex. B6F, pp. 1 and 3.
Regarding chronic low back pain, the claimant denied the following on April 22, 2014: fall, direct trauma, radiation of pain, tingling, numbness, even prior imaging (despite lumbar x-rays discussed above), fatigue, polydipsia, heat/cold intolerance and sleep disturbance. Examination was essentially normal. Neurologically, sensory was “normal;” motor strength was “normal” bilaterally; coordination was “normal.” Reflexes were two-plus. Babinski was negative. Gait was “normal.” There was also no clubbing, cyanosis or edema of the extremities. Regarding the abdomen, there was no palpable mass, no hernia, no tenderness and no guarding. Impression included non-insulin diabetes mellitus, uncontrolled and back pain. Ex. B3F, pp. 96-97.
On June 7, 2014, the claimant reported that he had fallen at home and hurt his back. Interestingly, he denied cervical/neck pain and even carpal tunnel syndrome upon review. His blood pressure was 135/76. Examination was unchanged from that described in April 2014. Ex. B3F, pp. 102-103.
Regardless, Dr. Attou[s]si provided a July 16, 2014 letter stating claimant was unable to work for the next six months due to his health conditions (Ex. B1F, p. 1). This was essentially an exact duplicate of the ...

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