Hunley v. Social Security Administration, Commissioner of

Filing 14

MEMORANDUM AND OPINION as set forth in following order.Signed by District Judge R Leon Jordan on 8/15/11. (ABF)

IN THE UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION

CYNTHIA K. HUNLEY,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

No. 3:10-CV-400

MEMORANDUM OPINION

This is an action for judicial review, pursuant to 42 U.S.C. § 405(g), of
defendant Commissioner’s final decision denying plaintiff’s claim for disability insurance
benefits. For the reasons provided herein, defendant’s motion for summary judgment [doc.
11] will be denied, and plaintiff’s motion for summary judgment [doc. 7] will be granted to
the extent it seeks remand under sentence four of § 405(g).1
I.
Procedural History
Plaintiff was born in 1968 and applied for benefits in May 2008. She claims
to be disabled by degenerative disc disease. [Tr. 136]. Plaintiff alleges a disability onset date

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“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).

of January 1, 2007.
reconsideration.

[Tr. 106, 120].

Her applications were denied initially and on

Plaintiff then requested a hearing, which took place before an

Administrative Law Judge (“ALJ”) on February 23, 2010.
In April 2010, the ALJ issued a decision denying benefits. She concluded that
plaintiff suffers from the severe impairments of chronic back pain and depression, but that
these conditions did not meet or equal any impairment listed by the Commissioner. [Tr. 2526]. The ALJ ruled that plaintiff retains the residual functional capacity (“RFC”) to perform
a range of light work. [Tr. 27]. Relying on vocational expert testimony, the ALJ determined
that plaintiff remains able to perform her past relevant work as a hair stylist. [Tr. 30].
Plaintiff was accordingly deemed ineligible for benefits.
Plaintiff then sought, and was denied, review by the Commissioner’s Appeals
Council. [Tr. 1]. The ALJ’s ruling therefore became the Commissioner’s final decision.
See 20 C.F.R. § 404.981. Through her timely complaint, plaintiff has properly brought her
case before this court for review. See 42 U.S.C. § 405(g).
II.
Medical Record
Nonexamining state agency physicians Marvin Cohn and Anita Johnson
completed Physical RFC Assessment forms in August 2008 and December 2008,
respectively. Citing objective evidence of back problems while also noting concerns with
plaintiff’s credibility, each source opined that plaintiff remains able to work but that she

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would be limited to a range of light exertion. [Tr. 339-46, 358-66].
The administrative record indicates a treating relationship with Dr. Mohammad
Bhidya from July 2008 through early 2010. In February and December 2009, Dr. Bhidya
completed Attending Physician’s Statements that plaintiff is “totally disabled” and unable
to do any full-time work. [Tr. 371, 387]. Dr. Bhidya recited several symptoms, objective
findings, and diagnoses in support. [Tr. 371, 387]. On February 2, 2010, Dr. Bhidya wrote
“to whom it may concern” that plaintiff “is not able to lift over 7 lbs.” [Tr. 406].
III.
Analysis
This court’s review is confined to whether the ALJ applied the correct legal
standards and whether his factual findings were supported by substantial evidence. 42 U.S.C.
§ 405(g); Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “Substantial
evidence” is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The “substantiality of evidence must take
into account whatever in the record fairly detracts from its weight.” Beavers v. Sec’y of
Health, Educ. & Welfare, 577 F.2d 383, 387 (6th Cir. 1978) (quoting Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951)). In reviewing administrative decisions, the court
must take care not to “abdicate [its] conventional judicial function,” despite the narrow scope
of review. Universal Camera, 340 U.S. at 490.

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A claimant is entitled to disability insurance payments if he (1) is insured for
disability insurance benefits, (2) has not attained retirement age, (3) has filed an application
for disability insurance benefits, and (4) is under a disability. 42 U.S.C. § 423(a)(1).
“Disability” is 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)(A).
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.
42 U.S.C. § 423 (d)(2)(A).

Disability is evaluated pursuant to a five-step analysis

summarized as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his impairment must be
severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period
of at least twelve months, and his impairment meets or equals a listed
impairment, claimant is presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his past relevant
work, he is not disabled.

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5. Even if claimant’s impairment does prevent him from doing his past
relevant work, if other work exists in the national economy that accommodates
his residual functional capacity and vocational factors (age, education, skills,
etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. §
404.1520). Plaintiffs bear the burden of proof at the first four steps. Walters, 127 F.3d at
529. The burden shifts to the Commissioner at step five. See id.
A. Remand
A medical source statement that a claimant is simply “disabled” or “unable to
work” is not entitled to controlling weight because the ultimate issue of disability is reserved
to the Commissioner. See 20 C.F.R. § 404.1527(e)(1). Nonetheless, the Commissioner’s
Social Security Ruling 96-5p clarifies in material part that
our rules provide that [ALJs] must always carefully consider medical source
opinions about any issue, including opinions about issues that are reserved to
the Commissioner. . . .
...
. . . [O]pinions from any medical source on issues reserved to the
Commissioner must never be ignored. The [ALJ] is required to evaluate all
evidence in the case record that may have a bearing on the determination or
decision of disability, including opinions from medical sources about issues
reserved to the Commissioner. If the case record contains an opinion from a
medical source on an issue reserved to the Commissioner, the adjudicator must
evaluate all the evidence in the case record to determine the extent to which
the opinion is supported by the record.
SSR 96-5p, 1996 WL 374183, at *2-3 (July 2, 1996).

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As noted above, treating physician Bhidya has written that plaintiff is “totally
disabled” and unable to lift more than seven pounds. The ALJ’s written decision makes no
mention whatsoever of Dr. Bhidya’s opinions, either in a factual recitation or in an analytical
explanation of the rejection of those opinions. Irrespective of whether Dr. Bhidya’s views
(in whole or in part) may not be entitled to controlling weight because they involve an issue
reserved to the Commissioner, the ALJ was required under SSR 96-5p to evaluate the
evidence rather than ignoring it. Therefore, on the facts of the present case, the ALJ’s breach
of her duty under SSR 96-5p leaves her decision unsupported by substantial evidence.
Further, two observations by the ALJ cause concern. In her ruling, the ALJ
wrote,
[T]here are few objective findings in the record to substantiate the claimant’s
alleged level of pain. She has received pain management therapy for years;
however, she has not been hospitalized nor had surgical intervention at any
point for her back problems. While she alleges degenerative disc disease,
there are no magnetic resonance imagings (MRIs), x-rays, or other tests which
substantially verify either the diagnosis or the severity of her problem.
[Tr. 29] (emphasis added).
In March 2004, orthopaedist Bruce Fry interpreted a CT scan as showing
“[l]umbar degenerative disc disease with annular tear at L3-4.” [Tr. 226]. In 2006, Dr.
Dennis Harris of the Advanced Spine and Rehab Center observed that 2006 discography was
“positive for tears at L3-4, L4-5, and L5/S1.” [Tr. 249]. Dr. Harris went on to opine that
plaintiff “is not a good candidate for surgical options” since there are spinal problems at
three different levels. [Tr. 249] (emphasis added). The ALJ’s comments regarding surgery
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and lack of supporting objective evidence do not take into account, or explain the dismissal
of, the files of Drs. Fry and Harris.2
“[T]here is a requirement to consider all relevant evidence in an individual’s case
record . . . .” SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006). “[T]he ultimate
responsibility for ensuring that every claimant receives a full and fair hearing lies with the
administrative law judge.” Lashley v. Sec’y of Health & Human Servs., 708 F.2d 1048, 1051
(6th Cir. 1983). Social Security claimants are entitled to “a careful evaluation of the medical
findings . . . and an informed judgment . . ..” See SSR 96-3p, 1996 WL 374181, at *2 (July
2, 1996).
The decision below does not reflect the necessary “careful evaluation.”
Instead, it completely ignores a treating source opinion and other probative evidence, thereby
depriving the instant plaintiff (and this reviewing court) of the necessary “informed
judgment” through which the denial of benefits could be comprehended. This matter will
therefore be reversed and remanded for further evaluation consistent with the ALJ’s statutory
and regulatory duties.
B. Benefits
To the extent that plaintiff asks this court to award benefits rather than
remanding her case, that request will be denied. A reviewing court can reverse and

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The court additionally notes that the ALJ did not explain her rejection of the 2008 opinion
of examining consultant Dr. Jeffrey Summers, who opined that plaintiff would have difficulty
“sitting, standing, or walking for . . . more than six hours total in a single workday.” [Tr. 368].
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immediately award benefits “only if all essential factual issues have been resolved and the
record adequately establishes a plaintiff's entitlement to benefits.” Faucher v. Sec’y of
Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). “A judicial award of benefits is
proper only where the proof of disability is overwhelming or where the proof of disability
is strong and evidence to the contrary is lacking.” Id.
Under Faucher, benefits cannot be awarded at this time. As noted above, Drs.
Cohn and Johnson feel that plaintiff can still work. Similarly, nonexamining source Karen
Lawrence, Ph.D.’s Mental RFC Assessment does not evidence any obviously disabling
psychological limitation. [Tr. 347-49].
There may also be credibility issues. For example, it is concerning that at an
August 1, 2008 physical examination, plaintiff was described as “very tanned,” “well
manicured,” and exhibiting exaggerated pain behavior. [Tr. 319]. It is also bothersome to
the court that at a psychological evaluation four days later, plaintiff claimed to not know what
month it was while at the same time admittedly being able to drive, work part-time, raise a
child, and attend to her own finances. [Tr. 315-17].
The court is therefore not satisfied that “all essential factual issues have been
resolved [or that] the record adequately establishes [] plaintiff's entitlement to benefits.”
Faucher, 17 F.3d at 176. Accordingly, benefits cannot be awarded by this reviewing court
at this time. See id.

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IV.
Conclusion
The final decision of the Commissioner will be reversed and remanded. The
court has considered plaintiff’s argument that her case should be reheard by a different ALJ
due to bias. Having reviewed the administrative record, the court does not see evidence of
bias. Shortcomings in the evaluation of a claim do not in and of themselves equal bias, nor
does an ALJ’s expression of doubts regarding a claimant’s credibility based on the objective
administrative record. Plaintiff’s request for a new ALJ will therefore be denied.
An order consistent with this opinion will be entered.

ENTER:

s/ Leon Jordan
United States District Judge

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