Lamb v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 3/30/16: IT IS HEREBY ORDERED that judgment is granted for the Commissioner.IT IS FURTHER ORDERED that Plaintiff's motion for a prejudgment remand undersentence six of 42 U.S.C. § 405(g) is DENIED. cc: Counsel, Plaintiff(pro se) (DJT)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:15-CV-00083-HBB

TONY MARTIN LAMB

PLAINTIFF

VS.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint of Tony Martin Lamb (APlaintiff@) who is proceeding pro
se (DN 1). Plaintiff is seeking judicial review of the final decision of the Commissioner pursuant
to 42 U.S.C. ' 405(g). Both the Plaintiff (DN 15) and Defendant (DN 20) 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 13). By Order entered
September 25, 2015 (DN 14), 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.

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FINDINGS OF FACT
Plaintiff filed an application for Disability Insurance Benefits on June 5, 2012 (Tr. 11,
110). Plaintiff alleged that he became disabled on January 1, 2007 as a result of hypertension,
type two diabetes, anxiety, pain in the neck/back, and arthritis in the knees (Tr. 11, 110, 133).
Administrative Law Judge Mary Lassy (AALJ@) conducted a video hearing on November 21, 2013,
from Paducah, Kentucky (Tr. 28, 30).

Plaintiff participated in the video hearing from

Madisonville, Kentucky, and was represented by William Bates, a non-attorney representative.
Also present and testifying was James Adams, M.A., an impartial vocational expert.
In a decision dated January 24, 2014, the ALJ observed that Plaintiff’s insured status
expired on March 31, 2011 (Tr. 13). The ALJ evaluated Plaintiff’s adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 11-23). At
the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since January
1, 2007, the alleged onset date (Tr. 13). At the second step, the ALJ determined that prior to
March 31, 2011, Plaintiff=s osteoarthritis of the left knee was a Asevere@ impairment within the
meaning of the regulations (Tr. 13). Notably, at the second step, the ALJ also determined that
prior to March 31, 2011, Plaintiff=s hypertension, peripheral neuropathy, a disc protrusion at L4-5,
anxiety, and arthritis in both hands were Anon-severe@ impairments within the meaning of the
regulations (Tr. 13-15). At the third step, the ALJ concluded through the date last insured, March
31, 2011, Plaintiff did not have an impairment or combination of impairments that met or
medically equaled one of the listed impairments in Appendix 1 (Tr. 15).
At the fourth step, the ALJ found through the date last insured, March 31, 2011, Plaintiff
had the residual functional capacity to perform little work except he was unable to climb ladders,
ropes, or scaffolds; he was able to climb ramps and stairs occasionally, and he was precluded from
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concentrated exposure to hazards such as machinery and heights (Tr. 15). Relying on testimony
from the vocational expert, the ALJ found through the date last insured Plaintiff was unable to
perform any of his past relevant work (Tr. 21).
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. 22-23). The ALJ found that Plaintiff is capable of performing a significant number of jobs
that exist in the national economy (Tr. 22-23). Therefore, the ALJ concluded that Plaintiff has not
been under a Adisability,@ as defined in the Social Security Act, from the alleged onset date,
January 1, 2007, through the date last insured, March 31, 2011 (Tr. 23).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr. 7).
The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 2-4).

CONCLUSIONS OF LAW
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Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial 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). ASubstantial 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 Amay not try the case de novo, nor resolve conflicts in
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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. 2-4). 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). Therefore, the Court’s review will be limited to determining
whether the findings that Plaintiff is challenging in the ALJ’s decision are supported by substantial
evidence, and whether the correct legal standards were applied.
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The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with a disability. 42 U.S.C. '' 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ 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). When a claimant files an application for Disability Insurance Benefits after his
insured status expired, the claimant must establish that he became Adisabled@ prior to the date last
insured. 42 U.S.C. ' 423(a) and (c); Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990);
Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (per curiam).

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Here, Plaintiff filed an application for Disability Insurance Benefits on June 5, 2012. His
insured status expired on March 31, 2011.

Thus, Plaintiff must establish that he became

“disabled” on or before March 31, 2011, to be entitled to Disability Insurance Benefits.
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The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See AEvaluation 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?

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.
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Plaintiff disagrees with Finding No. 3 because he believes the ALJ should have also found
his anxiety was a “severe” impairment prior to March 31, 2011. Defendant contends the ALJ’s
finding is supported by substantial evidence in the record.

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Finding No. 3 addresses the second step in the sequential evaluation process. At the
second step a claimant must demonstrate he has a Asevere@ impairment.

20 C.F.R. §

404.1520(a)(4)(ii); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (per curiam). To satisfy
this burden, the claimant must show he suffers from a Amedically determinable@ physical or mental
condition that satisfies the duration requirement (20 C.F.R. § 404.1509) and Asignificantly limits@
his ability to do one or more basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii) and (c); Social
Security Ruling 96-3p; Social Security Ruling 96-4p; Higgs, 880 F.2d at 863. Alternatively, the
claimant must show he suffers from a combination of impairments that is severe and meets the
duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii) and (c).
To satisfy the Amedically determinable@ requirement the claimant must present objective
medical evidence (i.e., signs, symptoms, and laboratory findings) that demonstrates the existence
of a physical or mental impairment. 20 C.F.R. § 404.1508; Social Security Ruling 96-4p; Social
Security Ruling 96-3p. Thus, symptoms and subjective complaints alone are not sufficient to
establish the existence of a Amedically determinable@ physical or mental impairment. Social
Security Ruling 96-4p.
The determination whether a mental condition Asignificantly limits@ a claimant=s ability to
do one or more basic work activities is based upon the degree of functional limitation in four
broad functional areas. 20 C.F.R. § 404.1520a(c)(3). The four broad functional areas are as
follows:
1.

Activities of daily living;

2.

Social functioning;

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3.

Concentration, persistence, or pace; and

4.

Episodes of decompensation.

20 C.F.R. § 404.1520a(c)(3).
The degree of limitation in the first three functional areas is rated according to the
following five point scale: none, mild, moderate, marked, and extreme.
404.1520a(c)(4).

20 C.F.R. §

The degree of limitation in the fourth functional area is rated according to the

following four point scale: none, one or two, three, four or more. 20 C.F.R. § 404.1520a(c)(4).
If the degree of limitation in the first three functional areas is found to be Anone@ or Amild@ and
the degree of limitation in the fourth area is found to be Anone,@ the mental impairment is
considered non-severe, unless the evidence otherwise indicates there is more than a minimal
limitation in the claimant=s ability to do basic work activities. 20 C.F.R. § 404.1520a(d).
With regard to Plaintiff’s anxiety, the ALJ’s decision reads as follows:
Evidence shows the claimant was prescribed Klonopin for
symptoms of anxiety prior to March 31, 2011. Evidence also
shows a positive response to medication with no need for formal
mental health intervention. He continues to take Klonopin
indicating that he does get good results with the medication or
changes would be made. His primary care physician’s assessment
of social anxiety in December 2013 is found partially credible, but
not for the period prior to March 31, 2011. State agency program
psychologists determined initially and upon reconsideration that the
claimant had a medically determinable anxiety disorder. While the
form completed by the psychologists indicates the anxiety disorder
was severe, the narrative summary states there was insufficient
evidence on which to base an assessment of the claimant’s capacity
to perform basic work activities through March 31, 2011. The
undersigned finds that the totality of evidence prior to March 31,
2011, shows a medically determinable anxiety disorder, but anxiety
was well controlled with medication and therefore a non-severe
impairment. Therefore, prior to March 31, 2011, the claimant had
no more than mild limitations in activities of daily living, social
functioning, and concentration, persistence, and pace, with no
episodes of decompensation. The undersigned finds the reference
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to a “severe” anxiety-related disorder by the State agency
psychologists to be in error when considering other evidence.
(Exhibit 1A and 4A)
(Tr. 14).
Substantial evidence in the record supports the ALJ’s finding that prior to March 31, 2011,
Plaintiff’s anxiety was a medically determinable but non-severe impairment (Tr. 14). Notably, in
making this finding, the ALJ discounted the medical opinions of Plaintiff’s primary care
physician, Dr. Tackett, and the non-examining State agency program psychologists, Judith
LaMarche, Ph.D., and Janet Telford, Ph.D. (Tr. 14-21). After a thorough review of the record, the
undersigned concludes that substantial evidence in the record supports the ALJ’s findings
regarding the weight accorded to the opinions of Drs. Tackett, LaMarche, and Telford.
Additionally, Plaintiff asserts that the adjudicator at the initial and reconsideration levels
determined that he had a severe impairment but failed to “follow the sequential evaluation process
until a determination of disability can be reached” as required by Social Security Ruling 96-3p
(DN 15). The undersigned notes that judicial review of cases arising under the Social Security
Act is governed by 42 U.S.C. '405(g)1 and 20 C.F.R. '422.210.

Three conditions must be

satisfied to obtain judicial review under 42 U.S.C. '405(g): (1) a final decision of the
Commissioner after a hearing; (2) commencement of a civil action within sixty days after the
mailing of notice of such decision, or within such additional time as the Commissioner may

1

In pertinent part 42 U.S.C. '405(g) provides:
Any individual, after any final decision of the Commissioner made
after a hearing to which he was a party, irrespective of the amount
in controversy, may obtain a review of said decision by a civil
action commenced within sixty days after the mailing to him of
notice of such decision...
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permit; and (3) filing of the action in the appropriate federal district court.
''422.210(a), (b), (c);

20 C.F.R.

Willis v. Sullivan, 931 F.2d 390, 396 (6th Cir. 1991); Ahghazali v.

Secretary of Health and Human Serv=s., 867 F.2d 921, 924-926 (6th Cir. 1989). The State
agency determinations at the initial and reconsideration levels do not constitute a final decision of
the Commissioner after a hearing. Therefore, the Court lacks jurisdiction to address Plaintiff’s
claim that the State agency adjudicator failed to comply with Social Security Ruling 96-3p at the
initial and reconsideration levels.
In pertinent part, Social Security Ruling 96-3p reads as follows:
If the adjudicator finds that such symptoms cause a limitation or
restriction having more than a minimal effect on an individual's
ability to do basic work activities, the adjudicator must find that the
impairment(s) is severe and proceed to the next step in the process
even if the objective medical evidence would not in itself establish
that the impairment(s) is severe. In addition, if, after completing
development and considering all of the evidence, the adjudicator is
unable to determine clearly the effect of an impairment(s) on the
individual's ability to do basic work activities, the adjudicator must
continue to follow the sequential evaluation process until a
determination or decision about disability can be reached.
Social Security Ruling 96-3p, 1996 WL 374181, at *2 (July 2, 1996). The undersigned has
reviewed the final decision of the Commissioner and concludes that the ALJ fully complied with
Social Security Ruling 96-3p (Tr. 13-23).
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Next, Plaintiff disagrees with Finding No. 4 which sets forth the ALJ’s residual functional
capacity determination. Plaintiff points out “Dr. Tackett states in the medical statement, Exhibit
No. 14F page 308, that all of the limitations were present as of March 31, 2011” (DN 15 at 3).
Defendant argues “[t]he ALJ considered Dr. Tackett’s opinion that Plaintiff was disabled
prior to his March 2011 DLI, and reasonably determined that it was entitled to little or no weight
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for the period when Plaintiff had insured status” (DN 20 at 7). Defendant points out that the ALJ
found Dr. Tackett’s treatment notes through March 31, 2011, and even as late as April 2013, were
inconsistent with his opinion of disability (DN 20 at 7).
In order to establish entitlement to Social Security Disability Insurance Benefits a
claimant must establish that he became Adisabled@ prior to the expiration of his insured status.
42 U.S.C. § 423(a) and (c); Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990); Higgs v.
Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (per curiam). Because a claimant must establish
disability prior to the expiration of his or her insured status, post-expiration evidence must relate
to the claimant=s condition prior to the expiration of the date last insured.

Parsons v. Heckler,

739 F.2d 1334, 1340 (8th Cir. 1984); see also King v. Sec’y of Health & Human Serv=s., 896
F.2d 204, 205-206 (6th Cir. 1990) (per curiam) (court found that claimant was not diagnosed as
suffering from degenerative disc disease until six months after date last insured); Siterlet v. Sec’y
of Health & Human Serv=s., 823 F.2d 918, 920 (6th Cir. 1987) (per curiam) (court found
evidence Aminimally probative@ where doctor saw a claimant eight months after the expiration of
his insured status).
Here, Dr. Tackett filled out a medical statement regarding Plaintiff’s physical limitations
on December 27, 2013 (Tr. 308). On the form, Dr. Tackett indicated Plaintiff could not work;
could stand for 15 minutes at one time; sit for 60 minutes at one time; lift 10 pounds on an
occasional basis; lift 3 pounds on a frequent basis; occasionally bend; occasionally perform
manipulations with the right hand; frequently perform manipulations with the left hand; and would
need to frequently elevate his legs during an 8-hour workday (Tr. 308). Dr. Tackett also

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commented that in his medical opinion, based upon by his experience treating Plaintiff and a
review of other earlier medical records, the above limitations were present at least as of March 31,
2011 (Tr. 308).
The ALJ conducted a thorough review of the medical and nonmedical evidence in the
record (Tr. 13-21). In pertinent part, the ALJ’s decision reads as follows:
The undersigned carefully considered the opinion of Dr. Tacket, the
claimant’s treating physician, dated December 27, 2013, including
his opinion that the assessed limitations were present at least as of
March 31, 2011. However, Dr. Tackett’s treating notes through
August 2010, showed normal gait, no skeletal deformity, normal
range of motion, and no joint swelling, and reflected no complaints
of severe and uncontrolled pain. However, in February 2011, after
being discharged from Dr. Naimoli due to inappropriate drug
screening, he had lumbar paraspinal muscle tenderness and arthritic
changes in both knees, which were also present in June and October
2011 per treating notes. Dr. Naimoli’s treating notes through
November 2010 indicated tenderness to palpation and positive
straight leg raise, but strength was 5/5 in all extremities with no
atrophy, intact sensation, normal reflexes, normal gait, and negative
Romberg. Overall, the treating notes of Dr. Tackett and Dr.
Naimoli do not support the opinion of Dr. Tackett. Therefore, Dr.
Tackett’s opinion is given little to no weight for the period prior to
March 31, 2011.
(Tr. 21). The above analysis does not comport with applicable law because the ALJ failed to
explain why Dr. Tackett’s opinion was not entitled to controlling weight (Tr. 14, 21). 20 C.F.R. §
404.1527(c)(2); Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). However,
the ALJ’s decision does implicitly provide sufficient reasons for rejecting the treating source’s
opinion. See Hall v. Comm’r of Soc. Sec., 148 F. App’x 456, 464 (6th Cir. 2005). Therefore, the
ALJ’s violation of the procedural requirements pertaining to the controlling weight test should be
deemed harmless error. The ALJ’s explanation why Dr. Tackett’s opinion received little weight
comports with applicable law because the ALJ considered the factors identified in 20 C.F.R. §

11

404.1527(c)(2)-(6), and she set forth good reasons for the weight given to the treating physician.
Gayheart, 710 F.3d at 376. Additionally, the ALJ’s findings regarding the weight accorded to the
December 27, 2013 opinion of Dr. Tackett are supported by substantial evidence in the record.
6
Next, Plaintiff has submitted medical records from an orthopedic surgeon, Frederick G.
Robbe, MD, that address treatment he received in March and April of 2015 (DN 15 at 3). Plaintiff
is asking the Court to review this medical evidence regarding his knees because he “feels” it shows
his disabilities were apparent at least as of March 31, 2011 (DN 15 at 3).
Defendant argues the Court can only consider this new evidence for the limited purpose of
determining whether Plaintiff is entitled to a sentence six remand (DN 20 at 8-9). Defendant
asserts that a sentence six remand is not appropriate because the evidence is not material as it
addresses Plaintiff’s condition four years after expiration of his insured status (DN 20 at 8-9).
The medical records prepared by Dr. Robbe and Kenneth Parker, P.A., are not part of the
administrative record that the ALJ considered when she issued her decision. Apparently, this is
the first time that Plaintiff submitted this evidence in connection with his claim for Disability
Insurance Benefits. The law in the Sixth Circuit is well settled: a district court cannot consider
new evidence in deciding whether to uphold, modify, or reverse the final decision of the
Commissioner. See 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). However, if a plaintiff demonstrates the new
evidence is material and that there is good cause for failing to present it to the Administrative Law
Judge, then sentence six of 42 U.S.C. § 405(g) authorizes a district court to order a prejudgment

12

remand of the case to the Commissioner with instructions to consider the new evidence in
connection with the plaintiff’s application for benefits. Cline, 96 F.3d at 148; Faucher v. Sec’y of
Health & Human Servs., 17 F.3d 171, 174-175 (6th Cir. 1994).
The undersigned will construe the submission of the new medical evidence as a motion for
a prejudgment remand, under sentence six, because Plaintiff is proceeding pro se.
Unquestionably, the medical evidence from Dr. Robbe is new.

However, evidence is not

considered material if it merely depicts an aggravation or deterioration in an existing condition.
Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 712 (6th Cir. 1988) (per curiam).
The medical evidence from Dr. Robbe indicates on April 14, 2015, Plaintiff underwent a left total
knee arthroplasty to address severe end-stage osteoarthritis with severe varus deformity and varus
thrust (DN 15-1 at 5).

Clearly, this new medical evidence depicts a deterioration of the

osteoarthritis in Plaintiff’s left knee which the ALJ concluded was a severe impairment through
the date last insured, March 31, 2011 (Tr. 13). Since Plaintiff cannot demonstrate the new
evidence is material, he is not entitled to a prejudgment remand under sentence six.

ORDER
IT IS HEREBY ORDERED that judgment is granted for the Commissioner.
IT IS FURTHER ORDERED that Plaintiff’s motion for a prejudgment remand under
sentence six of 42 U.S.C. § 405(g) is DENIED.

Copies:

March 30, 2016

Tony Martin Lamb, pro se
Counsel
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