Isaacs v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 3/27/2017; The undersigned concludes that the Commissioner's findings are not supported by substantial evidence, and judgment is granted for the Plaintiff. The case is remanded for further proceedings pursuant to sentence four of 42 U.S.C. 405(g). cc: Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16-CV-00095-HBB
JOHN MICHAEL ISAACS

PLAINTIFF

VS.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM, OPINION,
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Plaintiff John Michael Isaacs seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
Plaintiff (DN 13) and Defendant (DN 16) have filed a Fact and Law Summary.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 11). By Order entered
September 23, 2016 (DN 12), the parties were notified that oral arguments would not be held
unless a written request therefor was filed and granted. No such request was filed.

FINDINGS OF FACT
Plaintiff filed an application for Disability Insurance and Supplemental Security Income
benefits on October 9, 2013 (Tr. 198-211). Plaintiff alleged that he became disabled on June 15,
2013 as a result of:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.

Back and neck problems
Asthma
Back and neck disorders, Status post cervical surgery
Emphysema
Sleep apnea
Right hip pain, difficulty ambulating
Poor memory, concentration, focus; confusion
Depression, anxiety
Heart murmur
Acid reflux

(Tr. 247). Administrative Law Judge David S. Pang conducted a video hearing on March 19,
2015 from Baltimore, Maryland.

Plaintiff was present in Bowling Green, Kentucky and

represented by Charles Burchett. Also present and testifying was Alissa Smith, vocational
expert. Present but not testifying was Debra Card, hearing monitor.
In a decision dated April 16, 2015, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 99-117).
At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since June
15, 2013, the alleged onset date (Tr. 104).

At the second step, the ALJ determined that

Plaintiff’s spine disorder is a “severe” impairment within the meaning of the regulations (Tr.
104). Also at the second step, the ALJ determined that Plaintiff’s organic mental disorder is a
“non-severe” impairment within the meaning of the regulations (Tr. 105). At the third step, the

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ALJ concluded that Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in Appendix 1 (Tr. 106).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform
a restricted range of light work (Tr. 106). More specifically, the ALJ found Plaintiff
[W]ould be able to stand and walk for 4 hours in an 8-hour
workday and sit upright for 4 hours in an 8-hour workday. Thus,
essentially making this a sit/stand option. However, the sit/stand
option could be performed at the workstation. He would not be off
task when leaving the workstation or changing positions. He
would only occasionally be able to operate foot controls with the
right lower extremity. He would occasionally be able to tolerate
vibration and only occasionally be able to move the neck to the
left.
(Tr. 106). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is
unable to perform any of his past relevant work as an over the road truck driver (Tr. 110).
The ALJ proceeded to the fifth step where he considered Plaintiff’s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational
expert (Tr. 110-12). The ALJ found that Plaintiff is capable of performing a significant number
of jobs that exist in the national economy (Tr. 112). Therefore, the ALJ concluded that Plaintiff
has not been under a “disability,” as defined in the Social Security Act, from June 15, 2013,
through the date of the decision (Tr. 112).
Plaintiff timely filed a request for the Appeals Council to review the ALJ’s decision (Tr.
14-15). The Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (Tr. 16).

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CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by “substantial evidence,” 42 U.S.C. § 405(g);
Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs.,
974 F.2d 680, 683 (6th Cir. 1992), and whether the correct legal standards were applied.
Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). “Substantial
evidence exists when a reasonable mind could accept the evidence as adequate to support the
challenged conclusion, even if that evidence could support a decision the other way.” Cotton, 2
F.3d at 695 (quoting Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir.
1993)). In reviewing a case for substantial evidence, the Court “may not try the case de novo,
nor resolve conflicts in evidence, nor decide questions of credibility.” Cohen v. Sec’y of Health
& Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision (Tr. 1-6). At that point, the ALJ’s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality
of the Commissioner's decision). Thus, the Court will be reviewing the decision of the ALJ, not
the Appeals Council, and the evidence that was in the administrative record when the ALJ
rendered the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec.,
96 F.3d 146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).

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The Commissioner’s Sequential Evaluation Process
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The
term “disability” is defined as an
[I]nability 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 twelve (12)
months.
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See “Evaluation of disability in general,” 20
C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
1)

Is the claimant engaged in substantial gainful activity?

2)

Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?

3)

Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1?

4)

Does the claimant have the residual functional capacity to
return to his or her past relevant work?

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5)

Does the claimant's residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
economy?

Here, the ALJ denied Plaintiff’s claim at the fifth step. For the reasons set forth below, the ALJ
failed to support his ruling with substantial evidence, and this case is remanded to the ALJ for
further consideration.
ANALYSIS
A. STEP THREE
Plaintiff primarily challenges the ALJ's findings at the third step, where the ALJ must
determine whether the claimant's impairment or a combination of impairments meets or
medically equals one of the listed impairments in Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). Plaintiff takes issue with the ALJ's conclusion that no medical opinion in the
record supports a finding that Plaintiff met a listing (DN 13 at pp. 2-5). Additionally, Plaintiff
claims that the ALJ offered only a perfunctory analysis of whether Plaintiff met or medically
equaled a listing, and as such, his ruling does not permit meaningful review of the decision (Id. at
p. 5). The Commissioner disagrees, arguing that substantial evidence in the record supports the
ALJ's conclusion that the Plaintiff does not meet or medically equal a listed impairment (DN 16
at pp. 4-6). The Defendant contends Plaintiff has failed to demonstrate functional loss, as
required by 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B1a (DN 16 at p. 4).
1. LOSS OF FUNCTION
As an initial matter, the Commissioner's fact and law summary argues that, in addition to
the express requirements of listing 1.04A, a claimant must also demonstrate loss of function as
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defined in § 1.00B (DN 16 p. 5). This is an incorrect reading of the regulations. When
interpreting statutory language, the starting point is the statute itself. See United States v.
Boucha, 236 F.3d 768, 774 (6th Cir. 2001). Moreover, where language is present in one section
of an act but absent from another, it is generally presumed that the drafters acted "intentionally
and purposely in the disparate inclusion or exclusion." Rusello v. United States, 464 U.S. 16, 23
(1983).
Here, none of the introductory material in § 1.00 indicates that the terms listed and
defined there operate as conditions precedent for satisfying the subsequent listings. Instead, they
are simply a convenient reference point, since those terms are used repeatedly in the sections that
follow. Indeed, the drafters of the regulations went on to use those defined terms as criteria for
some listings but not for others. For example, § 1.00B2b1 defines "the inability to ambulate
effectively." Subsequently, several listings list the inability to ambulate effectively as a criteria
necessary to qualify under that individual listing. See e.g. §§ 1.02A; 1.03, 1.04C; 1.05B; 1.05C;
1.06B. In contrast, Plaintiff claims that he meets or medically equals the criteria of § 1.04A,
which does not contain a requirement that the claimant demonstrate loss of function. The
undersigned presumes this omission is intentional and therefore concludes that the
Commissioner's argument is without merit.
2. GOOD REASONS
The listed impairments located in Appendix 1 represent those conditions that the
Commissioner believes are "severe enough to prevent an individual from doing any gainful
activity, regardless of his or her age, education, or work experience." Reynolds v. Comm'r of
Soc. Sec, 424 Fed. App'x 411, 414 (6th Cir. Apr. 1, 2011) (quoting 20 C.F.R. §§ 404.1525(a),
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416.925(a)). Each listing specifies certain objective requirements a claimant must demonstrate,
and a claimant must satisfy all of the criteria to meet the listing. Id. (quoting 20 C.F.R. §§
404.1525(c)(3), 416.925(c)(3)). At the third step of the sequential evaluation process, an ALJ
must analyze the claimant's impairments, compare them with the relevant listed impairments,
and offer a reasoned explanation for his conclusions as to whether the claimant meets the listing.
Id. at 416. "An ALJ must include 'findings and conclusions, and the reasons or basis therefor, on
all the material issues of fact, law, or discretion presented on the record.'" Id. at 414 (quoting 5
U.S.C. § 557(c)(3)(A). The purpose of this requirement is necessary to facilitate meaningful
judicial review. Id. An ALJ's discussion should make clear to a claimant the reasons for which
the Commissioner is denying his or her claim for benefits. See Wilson v. Comm'r of Soc. Sec.,
378 F.3d 541, 544 (6th Cir. 2004). Indeed, when a claimant's physician has deemed him
disabled, the claimant may well be understandably bewildered if an administrative bureaucracy
subsequently tells him, without good reasons, that he is not. Rabbers v. Comm'r of Soc. Sec.,
582 F.3d 647, 661 (6th Cir. 2009) (Holschuh, J., concurring in part and dissenting in part).
In his analysis of whether the Plaintiff in this case met or medically equaled one of the
listings in Appendix 1, the ALJ offered the following:
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).
The record fails to establish that the claimant's impairments meet
or equal the criteria of any listed physical or mental impairment.
There is not an indication that a treating, examining, or nonexamining medical source has mentioned findings or rendered an
opinion that the claimant's impairments singly or in combination,
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medically meet or equal the criteria of any listed impairments. In
rendering this decision, I considered all the listed impairments and
gave specific consideration to section 1.00 et seq., Musculoskeletal
System.
(Tr. 106).
To begin, it is useful to outline what a claimant must demonstrate in order to satisfy the
criteria for the specific listed impairment. Here, Plaintiff contends he is disabled under Listing
1.04A, addressing disorders of the spine. To meet this listing, Plaintiff must demonstrate:
[H]erniated nucleus pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the
cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,
motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is
involvement of the lower back, positive straight-leg raising test
(sitting and supine)[.]
20 C.F.R. Pt. 404 Subpt. P § 1.04A.
In his brief, Plaintiff offers a number of examples of medical evidence supporting a
determination that he meets the listed criteria.

For instance, Plaintiff was diagnosed with

cervical radiculopathy on several occasions (DN 13 at p. 3 (citing Tr. 468, 472, 500, 520, 530).
Additionally, in January, 2014, the range of motion in Plaintiff's neck was found to be fifty
percent decreased (Tr. 408, 417). Plaintiff claims that medical records support a finding of
motor loss (DN 13 p. 3 (citing Tr. 542, 339, 408, 444, 441).
The Commissioner has failed to address this evidence, let alone to offer contrary
evidence, instead focusing attention on the loss of function argument discussed above. The ALJ
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relied on existing medical opinions to conclude that the Plaintiff had not met or medically
equaled a listing (Tr. 26). But, as the ALJ pointed out, no medical opinion discussed this
particular listing (Tr. 26). Thus the undersigned cannot say with any confidence that any of the
examining or treating physicians even specifically considered the listing at issue. The ALJ is not
in a position to "play doctor" by analyzing raw medical data to determine whether the Plaintiff
has met or medically equaled a listing. Simpson v. Comm'r of Soc. Sec., 344 Fed. App'x 181,
194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996). In order to
avoid this potential scenario on remand, the undersigned suggests the ALJ seek an additional
expert opinion to interpret the evidence cited by Plaintiff that he contends supports a finding that
he has met or medically equaled the requirements under § 1.04A.
B. PLAINTIFF'S REMAINING ARGUMENTS
Because the undersigned has remanded this case for the reasons stated above, there is no
need to analyze Plaintiff's remaining arguments.
C. SENTENCE FOUR REMAND
Sentence four of 42 U.S.C. § 405(g) authorizes a post judgment remand. Under sentence
four, the court makes a final judgment (e.g., affirming, reversing, or modifying the final decision
of the Commissioner) and remands the case to the Commissioner with instructions to consider
additional evidence and/or conduct additional proceedings to remedy a defect in the original
proceedings. Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 175 (6th Cir. 1994).
Here, for the reasons expressed above, such remand is appropriate.

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ORDER
For the foregoing reasons, the undersigned concludes that the Commissioner’s findings
are not supported by substantial evidence, and judgment is granted for the Plaintiff. The case is
remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

March 27, 2017

Copies:

Counsel

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