McCollum, Jr. v. Social Security Administration, Commissioner of (TV3)
Filing
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MEMORANDUM OPINION. Plaintiff's Motion for Judgment on the Pleadings [Doc. 15] will be GRANTED, the Commissioner's Motion for Summary Judgment [Doc. 18] will be DENIED, and the decision of the Commissioner is REVERSED a nd REMANDED under sentence four of 42 U.S.C. § 405(g). The Commissioner is DIRECTED to reconsider Plaintiff's application in a manner consistent with this opinion. Signed by Magistrate Judge Christopher H Steger on 3/28/2019. (AML, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
JEFFREY DAVID McCOLLUM, JR.,
Plaintiff,
v.
NANCY A. BERRYHILL
Acting Commissioner of Social Security,
Defendant.
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Case No: 1:17-cv-292
Judge Christopher H. Steger
MEMORANDUM OPINION
I.
Introduction
Before the Court is Plaintiff's Motion for Judgment on the Pleadings [Doc. 15] and
Defendant's Motion for Summary Judgment [Doc. 19]. Jeffrey David McCollum, Jr. ("Plaintiff")
seeks judicial review of the decision of the Administrative Law Judge ("ALJ"), which constitutes
the final decision of the Commissioner of Social Security ("Commissioner"). For the reasons that
follow, the decision of the Commissioner will be REVERSED and REMANDED under sentence
four of 42 U.S.C. § 405(g) for further administrative proceedings.
II.
Procedural History
In January 2014, Plaintiff applied for disability insurance benefits and supplemental
security income under Title II of the Act, 42 U.S.C. §§ 401-434, alleging disability as of August
15, 2014 (Tr. 18). Plaintiff's claims were denied initially as well as on reconsideration [Id.]. As a
result, Plaintiff requested a hearing before an administrative law judge [Id.]. That hearing took
place in February 2016 before ALJ Kristie Luffman-Minor. At the hearing, the ALJ heard
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testimony from Plaintiff and a Vocational Expert, as well as argument from Plaintiff's attorney [Id.
at 18-29]. The ALJ then rendered her decision, finding that Plaintiff was not under a "disability"
as defined in the Act [Id. at 29].
Following the ALJ's decision, Plaintiff requested that the Appeals Council review the
denial of benefits; however, his request for review was denied [Id. at 1]. After exhausting his
administrative remedies, Plaintiff filed his Complaint on October 18, 2017, seeking judicial review
of the Commissioner's final decision under § 405(g) [Doc. 1]. The parties filed competing
dispositive motions, and this matter is now ripe for adjudication.
III.
Findings by the ALJ
The ALJ made the following findings with respect to Plaintiff's claim for disability
benefits:
1.
Plaintiff meets the insured status requirements of the Social Security Act through
December 31, 2016.
2.
Plaintiff had not engaged in substantial gainful activity since August 12, 2013, the
alleged onset date (20 C.F.R. 404.1571 et seq., and 416.971 et. seq.).
3.
Plaintiff has the following severe impairments: degenerative-disc disease;
degenerative changes in the bilateral hips; morbid obesity; seizure disorder;
bipolar disorder not otherwise specified; sleep-terror disorder; major depressive
disorder and generalized anxiety disorder (20 C.F.R. 404.1520(c) and
416.920(c)).
4.
Plaintiff does not have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925, and 416.926).
5.
Absent certain limitations, Plaintiff retained the residual functional capacity to
perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a).
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6.
Plaintiff is unable to perform any past relevant work (20 C.F.R. 404.1565 and
416.965).
7.
Plaintiff was born on January 13, 1983, and was 30 years old, which is defined as
a younger individual (age 18-49) on the alleged disability onset date (20 C.F.R.
404.1563 and 416.963).
8.
Plaintiff has a limited education and can communicate in English (20 C.F.R.
404.1564 and 416.964).
9.
Transferability of job skills is not an issue because Plaintiff's past relevant work
is unskilled (20 C.F.R. 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 Plaintiff can perform (20 C.F.R. 404.1569, 404.1569(a),
416.969, and 416.969(a)).
11.
The Plaintiff has not been under a disability, as defined in the Social Security Act,
from August 12, 2013, through the date of the ALJ's decision (20 C.F.R.
404.1520(g) and 416.920(g)).
(Tr. at 18-29).
IV.
Standard of Review
In this case, Plaintiff makes an application for disability insurance benefits ("DIB"). An
individual qualifies for DIB if he: (1) is insured for DIB; (2) has not reached the age of retirement;
(3) has filed an application for DIB; and (4) is disabled. 42 U.S.C. § 423(a)(1).The determination
of disability under the Act is an administrative decision. To establish disability under the Social
Security Act, a claimant must establish that he is unable to engage in any substantial gainful
activity due to the existence of a medically determinable physical or mental impairment that can
be expected to result in death or that has lasted or can be expected to last for a continuous period
of not less than twelve months. 42 U.S.C. § 423(d)(1)(A); Abbot v. Sullivan, 905 F.2d 918, 923
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(6th Cir. 1990). The Commissioner employs a five-step sequential evaluation to determine
whether an adult claimant is disabled. 20 C.F.R. §§ 404.1520; 416.920. The following five issues
are addressed in order: (1) if the claimant is engaging in substantial gainful activity he is not
disabled; (2) if the claimant does not have a severe impairment he is not disabled; (3) if the
claimant's impairment meets or equals a listed impairment he is disabled; (4) if the claimant is
capable of returning to work he has done in the past he is not disabled; (5) if the claimant can do
other work that exists in significant numbers in the regional or the national economy he is not
disabled. Id. If the ALJ makes a dispositive finding at any step, the inquiry ends without
proceeding to the next step. 20 C.F.R. §§ 404.1520; 416.920; Skinner v. Sec'y of Health & Human
Servs., 902 F.2d 447, 449-50 (6th Cir. 1990). Once, however, the claimant makes a prima facie
case that he cannot return to his former occupation, the burden shifts to the Commissioner to
show that there is work in the national economy which he can perform considering his age,
education and work experience. Richardson v. Sec'y of Health and Human Servs., 735 F.2d 962,
964 (6th Cir. 1984); Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).
The standard of judicial review by this Court is whether the findings of the Commissioner
are supported by substantial evidence and whether the Commissioner made any legal errors in
the process of reaching the decision. See Richardson v. Perales, 402 U.S. 389, 401 (1971)
(adopting and defining substantial evidence standard in the context of Social Security cases);
Landsaw v. Sec'y of Health and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Even if there
is evidence on the other side, if there is evidence to support the Commissioner's findings they
must be affirmed. Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The Court may not
reweigh the evidence and substitute its own judgment for that of the Commissioner merely
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because substantial evidence exists in the record to support a different conclusion. The substantial
evidence standard allows considerable latitude to administrative decision-makers. It presupposes
there is a zone of choice within which the decision-makers can go either way, without interference
by the courts. Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d
535, 548 (6th Cir. 1986)); Crisp v. Sec'y, Health and Human Servs., 790 F.2d 450 n.4 (6th Cir.
1986).
The court may consider any evidence in the record, regardless of whether the ALJ cited it.
See Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). However, for purposes of
substantial evidence review, the court may not consider any evidence that was not before the ALJ.
Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the Court is not obligated to
scour the record for errors not identified by the claimant, Howington v. Astrue, No. 2:08-cv-189,
2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that assignments of error not made
by claimant were waived), and "issues which are ‘adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived,'" Kennedy v.
Comm'r of Soc. Sec., 87 F. App'x 464, 466 (6th Cir. 2003) (quoting United States v. Elder, 90 F.3d
1110, 1118 (6th Cir. 1996)).
V.
Analysis
Applying the standard of review set forth above, the ALJ found that Plaintiff was not
disabled, and that Plaintiff had the residual-functional capacity to perform sedentary work with the
following limitations:
Lift up to 20 lbs. frequently and 10lbs. occasionally; sit 6-8 hours: stand/walk 2 out
of 8; would need a sit stand option sitting for 2 hours than sanding and stretching;
could occasionally climb ramps, stairs, balance, stoop, kneel, crouch, crawl but
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could never climb ladders, ropes and scaffolds, work at unprotected heights or with
dangerous machinery; could understand, remember, and carry out simple, routine
instructions; could make work-related judgments typically required for unskilled
work; could respond appropriately to supervision, coworkers, and work situation;
could have contact with the general public on a rare one-on-one basis and with
supervisors and coworkers on an occasional basis; could deal with changes in a
routine work setting on an infrequent basis; and would work better with things
rather than people.
(Tr. 22).
Plaintiff asserts that, when the ALJ applied the five-step sequential evaluation, the ALJ
committed reversible error [See Doc. 16]. Principally, Plaintiff contends that substantial evidence
does not support the ALJ's determination that Plaintiff is not disabled.
A.
Did the ALJ err by failing to explain why she rejected portions of Dr.
Langford's opinion?
Plaintiff saw Dr. Dee Langford, EdD, for a psychological evaluation in March 2014 (Tr.
489). McCollum was referred to Dr. Langford by “the Tennessee Disability Determination
Services, to provide more information related to [ ] [his] level of psychological functioning and to
determine the impact of any possible psychiatric diagnosis on his mental state.” (Tr. at 489). In her
medical-source opinion from that evaluation, Dr. Langford noted that Plaintiff:
may have difficulty with concentration and persistence. . . . He appears able to make
simple work-related decisions and carry out instructions. He will likely be unable
to maintain a schedule and attendance and sustain concentration for an extended
period. He seems unable to persist during a workday without interruption from
psychological symptoms. . . . This individual may not be able to adapt to changes
and requirements. . . .
(Tr. 492). Dr. Langford also found that Plaintiff's "psychiatric state was anxious and irritable. He
shows evidence of a moderate impairment in his social relating. He appears to be moderately
impaired in his ability to adapt to change. He appears to follow instructions, both written and
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spoken. He appears to have had a fragmented work history. He appears able to handle finances."
(Id. at 493).
Plaintiff contends that the ALJ rejected portions of Dr. Langford's opinion without
explaining why she did so. The Code of Federal Regulations provides the following guidance with
respect to the evaluation of medical evidence:
Regardless of its source, we will evaluate every medical opinion we receive. Unless
we give a treating source's opinion controlling weight under paragraph (d)(2) of
this section, we consider all of the following factors in deciding the weight we give
to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the opinion of
a source who has examined you than to the opinion of a source who has
not examined you.
(2) Treatment relationship. Generally, we give more weight to opinions from
your treating sources, since these sources are likely to be the medical
professionals most able to provide a detailed, longitudinal picture of your
medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating source's
opinion on the issue(s) of the nature and severity of your impairment(s) is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in
your case record, we will give it controlling weight. When we do not give
the treating source's opinion controlling weight, we apply the factors listed
in paragraphs (d)(2)(i) and (d)(2)(h) of this section, as well as the factors
in paragraphs (d)(3) through (d)(6) of this section in determining the
weight to give the opinion . . . .
(3) Supportability. The more a medical source presents relevant evidence to
support an opinion, particularly medical signs and laboratory findings, the
more weight we will give that opinion. The better an explanation a source
provides for an opinion, the more weight we will give that opinion . . . .
(4) Consistency. Generally, the more consistent an opinion is with the record
as a whole, the more weight we will give to that opinion.
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(5) Specialization. We generally give more weight to the opinion of a
specialist about medical issues related to his or her area of specialty than
to the opinion of a source who is not a specialist.
20 C.F.R. § 416.927(d). See 20 C.F.R. § 404.1527(d).
In considering medical opinions, an ALJ must articulate the reason underlying her decision
to assign a specific amount of weight or credibility to each such opinion. 1 See 20 CFR §
404.1527(d); Allen v. Comm'r. of Soc. Sec., 561 F.3d 646 (6th Cir. 2009). The reasons must be
supported by the evidence and must be sufficiently specific to make clear to any subsequent
reviewers the weight that an ALJ gave to the medical opinion and the reasons for that weight. SSR
96–2p.
The Regulations mandate that the ALJ is to evaluate every medical opinion in the record,
and, unless giving a treating physician's opinion controlling weight, must consider all of the listed
factors when deciding the weight to accord medical opinions. 20 C.F.R. § 416.927(d); 20 CFR §
404.1527(d).
In assessing Dr. Langford's medical opinion concerning Plaintiff, the ALJ "afforded some
weight to the extent consistent with the residual functioning capacity assessment." (Tr. 27). The
ALJ did not specify what portions of Dr. Langford's opinion she was adopting or what parts she
was rejecting (See id.). However, the ALJ went on to say:
It is significant to note that Dr. Langford indicated that the claimant would likely
be unable to maintain a schedule and attendance. He seemed unable to persist,
during a workday, without interruption from psychological symptoms. The
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There are circumstances when an ALJ's failure to articulate good reasons for the weight accorded to medical
opinions may constitute harmless error: (1) if a treating source opinion is so patently deficient that the ALJ could not
possibly credit it; (2) if the ALJ adopts the opinion or makes findings consistent with the opinion; and/or (3) if the
ALJ has complied with the goal of 20 C.F.R. § 1527(d), by analyzing the physician's contradictory opinions or by
analyzing other opinions of record. See, e.g., Friend, 375 Fed. Appx. at 551; Nelson v. Comm'r. of Soc. Sec., 195
Fed. Appx. 462, 470–72 (6th Cir. 2006); Hall v. Comm'r. of Soc. Sec., 148 Fed. Appx. 456, 464 (6th Cir. 2006).
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claimant may not be able to adapt to changes and requirements. His evaluation
demeanor was one of anxiety and irritability. The claimant seemed moderately
impaired with his ability to adapt to change. However, he seemed able to follow
instructions, both written and spoken. Therefore, Dr. Langford diagnosed the
claimant with major depressive disorder, moderate and generalized anxiety
disorder. His general mental health records show that the claimant complained of
suicidal and homicidal ideations, sleep terrors and depression.
(Id.). The ALJ then concluded that "[t]hese mental deficits are likely to result in the limitations
indicated by Dr. Langford's psychological examination findings. Accordingly, Dr. Langford's
findings are afforded significant weight." (Id.).
Despite giving Dr. Langford's overall assessment significant weight, the ALJ failed to
explain why she rejected parts of Dr. Langford's opinion and only accepted parts "to the extent
consistent with the residual functioning capacity assessment." (Id.). Without such explanation, the
Court does not have a basis to determine the ALJ's rationale for accepting in part and rejecting in
part Dr. Langford's medical opinion. See SSR 96–2p. Failure to determine the degree of deference
owed to a non-controlling treating-source opinion, "denotes a lack of substantial evidence, even
where the conclusion of the ALJ may be justified based upon the record." Friend v. Comm'r of
Soc. Sec., 375 Fed. App'x. 543, 551 (6th Cir. 2010) (per curiam) (quoting Rogers v. Comm'r of
Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007)). Because the ALJ failed to explain why she accepted
some parts of Dr. Langford's opinion while rejecting others, the Court finds that the ALJ's decision
is not supported by substantial evidence.
B.
In the hypothetical posed to the Vocational Expert, the ALJ failed to include
the limitations articulated by Dr. Langford.
The ALJ gave significant weight to Dr. Langford's opinion; however, in the hypothetical
she posed to the Vocational Expert, the ALJ failed to include Dr. Langford's stated limitations for
Plaintiff. (Tr. at 65-66). To establish that Plaintiff can perform work that is available in the national
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economy, the ALJ must make a finding "supported by substantial evidence that [P]laintiff has the
vocational qualifications to perform specific jobs." Varley v. Sec'y of Health & Human Servs., 820
F.2d 777, 779 (6th Cir. 1987). This kind of "[s]ubstantial evidence may be produced through
reliance on the testimony of a Vocational Expert in response to a 'hypothetical' question, but only
'if the question accurately portrays [P]laintiff's individual physical and mental impairments.'" Id.
(citations omitted).
Dr. Langford expressed the opinion that Plaintiff would have some limitations on his ability
to work consistently for an extended period of time. More specifically, she opined, "[H]e will
likely be unable to maintain a schedule and attendance and sustain concentration for an extended
period. He seems unable to persist during a workday without interruption from psychological
symptoms. . . ." Based on Dr. Langford's opinion that Plaintiff could not "sustain concentration
for an extended period" and would be "unable to persist during a workday without interruption,"
Plaintiff's attorney posed a hypothetical to the Vocational Expert asking whether an "individual
that has difficulty with concentration and persistence . . . . [could] be able to perform any of [ ]
[Plaintiff's] past relevant work or any other work[,]" with at least 20% off-task in the workday.
The Vocational Expert replied that Plaintiff could not perform such work with that degree of
limitation (Id. at 65). The Vocational Expert stated that "[n]o one could on th[at] basis because
there is a fairly consistent requirement for production rate pace, an ongoing quota getting some
type of work product out, and a 20% time off-task is inconsistent with meeting [ ] production
norms . . . ." (Id.). Plaintiff's attorney then asked the Vocational Expert to provide an opinion as to
the maximum off-task time—as a percentage of the work period—that would be allowed in an
unskilled work setting. The Vocational Expert responded that "about 5% of the time scattered
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throughout the work shift is about the upper end of tolerance . . . ." (Id.). Or, in other words, if an
unskilled worker is off-task more than 5% of the time during a work period, he or she would be
terminated.
Based on Dr. Langford's opinion that Plaintiff would "likely be unable to maintain a
schedule and attendance," Plaintiff's attorney posed a question to the Vocational Expert as to
whether Plaintiff could perform any job if he had to miss "at least three unapproved absences of
work each month." (Id. at 66). Again, the Vocational Expert responded in the negative, stating that
"all of the entry level jobs have very strict attendance requirements, and if absenteeism occurs
more than one day a month for more than eight times in a year, that's when it can result in
termination from the job." (Id.).
Finally, relying upon Dr. Langford's opinion that Plaintiff "may not be able to adapt to
changes and requirements," Plaintiff's attorney posed a question to the Vocational Expert asking
whether Plaintiff could perform any job if he was not adaptable to changes in the workplace setting
(Id.). The Vocational Expert responded that Plaintiff could not perform any such jobs "because
while there may not be changes in the work process with entry level jobs[,] you're always going to
be having new people coming in and other people going out." (Id.).
Based on the hypothetical questions posed by Plaintiff's counsel, a fair summary of the
Vocational Expert's testimony is that, based upon at least one interpretation of Dr. Langford's
stated limitations, Plaintiff could not perform any jobs. Despite giving Dr. Langford's opinion
"significant weight," the ALJ failed to include Dr. Langford's limitations in the questions that she
posed to the Vocational Expert. Beyond that, she did not expressly account for those limitations in
her decision.
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The hypothetical questioning relied upon by the ALJ does not paint a full and accurate
picture of Plaintiff's impairments. And, the medical evidence set forth in Dr. Langford's opinion
reflects that Plaintiff's abilities may be more limited than the restrictions attributed to Plaintiff by
the ALJ in her assessment of residual-functional capacity. See Howard v. Comm'r of Soc. Sec., 276
F.3d 235, 241 (6th Cir. 2002) (remanding a case because "the hypothetical question does not paint
an accurate picture of [plaintiff]'s impairments and the testimony of the VE in reliance upon the
hypothetical question is not substantial evidence for the ALJ's conclusion . . . ."). For these reasons,
the Court finds that substantial evidence does not support the ALJ's decision, and this case will be
remanded to consider Plaintiff's limitations in light of Dr. Langford's opinion.
VI.
Conclusion
Substantial evidence does not support the ALJ's determination that Plaintiff could
perform sedentary work with certain limitations (See Tr. 18-29). Having reviewed the
administrative record and the parties' briefs, Plaintiff's Motion for Judgment on the Pleadings
[Doc. 15] will be GRANTED, the Commissioner's Motion for Summary Judgment [Doc. 18]
will be DENIED, and the decision of the Commissioner is REVERSED and REMANDED
under sentence four of 42 U.S.C. § 405(g). The Commissioner is DIRECTED to reconsider
Plaintiff's application in a manner consistent with this opinion.
ENTER.
/s/ Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE
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